AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 20, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TOMMY HILFIGER CORPORATION TOMMY HILFIGER U.S.A., INC.
(Exact name of Registrant (Exact name of Registrant
as specified in its charter) as specified in its charter)
BRITISH VIRGIN ISLANDS DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
NOT APPLICABLE 22-2960611
(I.R.S. Employer (I.R.S. Employer
Identification Number) Identification Number)
6/F PRECIOUS INDUSTRIAL CENTRE, 25 WEST 39TH STREET
18 CHEUNG YUE STREET, NEW YORK, NEW YORK 10018
CHEUNG SHA WAN, KOWLOON, HONG KONG (212) 840-8888
852-2745-7798
(Address, including zip code, and (Address, including zip code, and
telephone number, including area telephone number, including area
code, of Registrant's principal code, of Registrant's principal
executive offices) executive offices)
MR. JOEL J. HOROWITZ
CHIEF EXECUTIVE OFFICER
TOMMY HILFIGER U.S.A., INC.
25 WEST 39TH STREET
NEW YORK, NEW YORK 10018
(212) 840-8888
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
ERIC S. ROBINSON, ESQ. GARY I. HOROWITZ, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ RISE B. NORMAN, ESQ.
51 WEST 52ND STREET SIMPSON THACHER & BARTLETT
NEW YORK, NEW YORK 10019 425 LEXINGTON AVENUE
(212) 403-1000 NEW YORK, NEW YORK 10017
(212) 455-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the Effective Date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES AMOUNT TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Debt Securities and Guarantees
of Debt Securities(2).. $700,000,000 100% $700,000,000 $206,500
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</TABLE>
(footnotes on next page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
(footnotes from previous page)
(1)Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended (the "Securities
Act").
(2)If any Debt Securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall result in
an aggregate initial offering price not to exceed $700,000,000 less the
dollar amount of any securities previously issued hereunder.
<PAGE>
Subject to Completion, Dated March 20, 1998
PROSPECTUS
[LOGO]
TOMMY HILFIGER U.S.A., INC.
DEBT SECURITIES
TOMMY HILFIGER CORPORATION
GUARANTEES
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Tommy Hilfiger U.S.A., Inc. (the "Company") may offer from time to time, in
one or more series, unsecured notes, debentures or other debt securities (the
"Debt Securities"), in amounts, at prices and on terms to be determined by
market conditions at the time of offering, having an aggregate initial offering
price of up to U.S. $700,000,000 or its equivalent in any other currency or
composite currency. The Debt Securities, when issued, will constitute unsecured
obligations of the Company and will rank on a parity with all the unsecured and
unsubordinated indebtedness of the Company. All Debt Securities will be
unconditionally guaranteed as to payment of principal, premium, if any, and
interest by Tommy Hilfiger Corporation, the parent corporation of the Company
(the "Guarantor," and collectively with the Company and its other subsidiaries,
"Tommy Hilfiger"). The guarantees of the Debt Securities (the "Guarantees"),
when issued, will constitute unsecured obligations of the Guarantor and will
rank on a parity with all other unsecured indebtedness of the Guarantor.
The specific terms of the Debt Securities and the Guarantees with respect to
which this Prospectus is being delivered will be set forth in a supplement to
this Prospectus (a "Prospectus Supplement"), together with the terms of the
offering and sale of the Debt Securities and the Guarantees, the initial
offering price and the net proceeds to the Company from the sale thereof. The
Prospectus Supplement will include, with regard to the particular Debt
Securities, the following information: the specific designation, aggregate
principal amount, authorized denominations (which may be in U.S. dollars, or any
other currency or composite currency), maturity, rate or method of calculation
of interest and dates for payment thereof, any terms for optional or mandatory
redemption or payment of additional amounts or any sinking fund provisions, any
index or formula for determining the amount of any principal, premium, or
interest, whether the securities are issuable in certificated form or in the
form of global securities and any provisions for the conversion or exchange of
such Debt Securities. The Prospectus Supplement also will contain information,
where applicable, about material United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Debt Securities
and the Guarantees covered by such Prospectus Supplement.
The Debt Securities may be sold directly by the Company through agents
designated from time to time or to or through underwriters or dealers. See "Plan
of Distribution." If any agents of the Company, underwriters or dealers are
involved in the sale of any Debt Securities in respect of which this Prospectus
is being delivered, the names of such agents, underwriters or dealers and any
applicable commissions or discounts and the net proceeds to the Company will be
set forth in a Prospectus Supplement.
The sale of Debt Securities under the Registration Statement of which this
Prospectus forms a part or under a Registration Statement to which this
Prospectus relates will reduce the amount of Debt Securities which may be sold
hereunder.
This Prospectus may not be used to consummate sales of Debt Securities unless
accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1998.
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE GUARANTOR OR ANY UNDERWRITER, AGENT OR DEALER. NEITHER THIS PROSPECTUS
NOR ANY PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER IN SUCH JURISDICTION.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR THE
GUARANTOR SINCE THE DATE HEREUNDER OR THEREOF.
AVAILABLE INFORMATION
The Guarantor is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information concerning the Guarantor may be inspected and copies may be obtained
(at prescribed rates) at the Commission's Public Reference Section, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, at the web site
(http://www.sec.gov) maintained by the Commission and at the Commission's
Regional Offices located at Seven World Trade Center, 13th Floor, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. The Ordinary Shares of the Guarantor are listed on the New York
Stock Exchange, where reports, proxy statements and other information concerning
the Guarantor can also be inspected. The offices of the New York Stock Exchange
are located at 20 Broad Street, New York, New York 10005.
The Company plans to request that the Commission grant to the Company an
order exempting it from the reporting obligations of Sections 13 and 15(d) of
the Exchange Act. If such order or other relief is granted, the Company will not
file reports under the Exchange Act.
The Guarantor and the Company have filed a combined registration statement
on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with the Commission with respect to the Debt
Securities and the Guarantees offered hereby. As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement. For further information with respect to
the Guarantor, the Company, the Debt Securities and the Guarantees, reference is
hereby made to such Registration Statement, including the exhibits filed as a
part thereof. Statements contained in this Prospectus concerning the provisions
of certain documents filed with, or incorporated by reference in, the
Registration Statement are not necessarily complete, each such statement being
qualified in all respects by such reference. Copies of all or any part of the
Registration Statement, including the documents incorporated by reference
therein or exhibits thereto, may be obtained upon payment of the prescribed
rates at the offices of the Commission set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Guarantor
pursuant to the Exchange Act are incorporated herein by reference:
(a) the Guarantor's Annual Report on Form 10-K for the fiscal year ended
March 31, 1997, filed with the Commission on June 27, 1997;
(b) the Guarantor's Proxy Statement for the October 27, 1997 Annual
Meeting of Shareholders of the Guarantor, filed with the Commission on
September 19, 1997;
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(c) the Guarantor's Quarterly Reports on Form 10-Q for the fiscal quarters
ended June 30, 1997, September 30, 1997 and December 31, 1997, filed with the
Commission on August 5, 1997, November 5, 1997 and February 9, 1998,
respectively; and
(d) the Guarantor's Current Report on Form 8-K dated January 31, 1998,
filed with the Commission on February 5, 1998.
All documents filed by the Guarantor or the Company pursuant to section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Debt Securities
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing such documents. Any statement contained
herein or in a document, all or a portion of which is incorporated or deemed to
be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document or portion thereof
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Guarantor and the Company will provide without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered, on written or
oral request of such person, a copy of any or all of the documents incorporated
by reference herein (other than exhibits to such documents unless such exhibits
are incorporated by reference into such documents). Such written requests should
be addressed to the Investor Relations Department, Tommy Hilfiger U.S.A., Inc.,
25 West 39th Street, New York, New York 10018. Telephone requests may be
directed to the Investor Relations Department at (212) 840-8888.
ENFORCEABILITY OF CIVIL LIABILITIES
AND RELATED MATTERS
The Guarantor is organized under the laws of the British Virgin Islands.
Certain of its directors and officers are residents of non-United States
jurisdictions and certain of the assets of the Guarantor, and all or a
substantial portion of the assets of such other persons, are located in
non-United States jurisdictions. As a result, it may be difficult for investors
to effect service within the United States upon such persons or to enforce
against them in the United States, such judgments of courts of the United States
predicated upon civil liabilities under the United States federal securities
laws. Additionally, there is doubt as to the enforceability in the British
Virgin Islands, in original actions or in actions for enforcement of judgments
of United States courts, of liabilities predicated upon the United States
federal securities laws.
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TOMMY HILFIGER
Tommy Hilfiger, through its subsidiaries, designs, sources and markets
men's sportswear and childrenswear under the TOMMY HILFIGER [Registered]
trademark. Through a range of strategic licensing agreements, Tommy Hilfiger has
expanded its product lines to offer a broader array of apparel, accessories,
footwear and fragrance for men, women and children, as well as a home
furnishings collection. Tommy Hilfiger's products can be found in leading
department and specialty stores throughout the United States, Canada, Europe,
Mexico, Japan, Hong Kong, Central and South America and, commencing Spring 1998,
other Far East locations. The Company and its subsidiaries carry out all of
Tommy Hilfiger's operations in the United States. Following the Acquisition
described below, the Company and its subsidiaries will also carry out all of
Tommy Hilfiger's operations in Canada.
The Guarantor is organized under the laws of the British Virgin Islands.
The principal executive offices of the Guarantor are located at 6/F, Precious
Industrial Centre, 18 Cheung Yue Street, Cheung Sha Wan, Kowloon, Hong Kong.
The Guarantor's telephone number is 852-2745-7798.
The Company is a direct, wholly owned subsidiary of the Guarantor and is
organized under the laws of the State of Delaware. The principal executive
offices of the Company are located at 25 West 39th Street, New York, New York
10018. The Company's telephone number is (212) 840-8888.
THE PROPOSED ACQUISITION
GENERAL
On January 31, 1998, the Guarantor, the Company and Tommy Hilfiger
(Eastern Hemisphere) Limited, a wholly owned subsidiary of the Guarantor
("THEH"), entered into a Stock Purchase Agreement (the "Stock Purchase
Agreement") with Pepe Jeans London Corporation ("PJLC"). The Stock Purchase
Agreement provides for the Company to purchase from PJLC all of the outstanding
capital stock (the "Pepe USA Shares") of Tommy Hilfiger's U.S. womenswear and
jeanswear licensee, Pepe Jeans USA, Inc. ("Pepe USA"), and for THEH to purchase
from PJLC all of the outstanding capital stock (the "Pepe Far East Shares") of
Pepe USA's buying agency affiliate, TJ Far East Limited ("Pepe Far East" and
together with its subsidiaries and Pepe USA, "Pepe Jeans") (such stock
purchases, the "Acquisition"). Under the Stock Purchase Agreement, the total
purchase price for the Pepe USA Shares is $730,760,000 in cash plus 9,045,930
ordinary shares, par value $.01 per share, of the Guarantor, and the total
purchase price for the Pepe Far East Shares is $25,000,000 in cash. The Stock
Purchase Agreement contemplates that, immediately following the Acquisition,
Pepe USA will purchase from Lawvest Holdings Inc. ("Lawvest") all of the
outstanding shares of Tomcan Investments, Inc. ("Tomcan"), the parent
corporation of Tommy Hilfiger Canada Inc., Tommy Hilfiger's Canadian licensee
(together with Tomcan, "Tommy Canada," and, collectively with Pepe Jeans, the
"Acquired Companies"), with funds provided by PJLC (the "Canada Purchase"),
pursuant to a Share Purchase Agreement entered into between Pepe USA and Lawvest
on January 26, 1998.
The Acquisition is subject to, among other things, approval by the
Guarantor's shareholders and specified contractual consents, receipt by the
Guarantor and/or its subsidiaries of financing for the Acquisition on reasonably
satisfactory terms and satisfaction of all conditions to consummation of the
Canada Purchase by Pepe USA, other than payment for and delivery of the Tomcan
shares.
DESCRIPTION OF THE ACQUIRED COMPANIES
PEPE JEANS. Pepe USA was organized in 1984 to design, source and sell
PEPE [Registered] jeanswear throughout the United States. Pursuant to a license
agreement between Tommy Hilfiger and Pepe
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Jeans, Pepe USA acquired exclusive United States rights to develop, source and
market women's and girls' casualwear bearing the TOMMY HILFIGER [Registered]
trademark ("Tommy Womenswear"), men's jeanswear and jeans-related apparel
bearing the TOMMY JEANS [Registered] trademark ("Tommy Men's Jeanswear") and the
TOMMY JEANS [Registered] women's line, which will initially include jeanswear
and jeans-related apparel for young women ("Tommy Women's Jeanswear"). In
December 1997, Pepe USA discontinued marketing its PEPE [Registered] jeanswear
in order to focus its full attention and resources on Tommy Womenswear, Tommy
Men's Jeanswear and Tommy Women's Jeanswear. Pepe USA currently markets Tommy
Womenswear and Tommy Men's Jeanswear throughout the United States principally
through in-store shops and fixtured areas in leading department stores and
through leading specialty stores. Its department store customers include major
United States retailers such as Dillard Department Stores, Federated Department
Stores (including Macy's, Bloomingdale's and Burdines), The May Department
Stores Company (including Lord & Taylor and Foley's), Belk Stores and Dayton
Hudson.
Pepe Far East operates a buying office based in Hong Kong which performs
product development, sourcing, production scheduling and quality control
services. In addition, Pepe Far East contracts with various buying subagents.
Pepe Far East and its subsidiaries perform buying agency services with respect
to Tommy Womenswear, Tommy Men's Jeanswear and Tommy Women's Jeanswear for both
Pepe USA and Tommy Hilfiger's third party distributors outside the United
States.
TOMMY CANADA. Pursuant to a license agreement between Tommy Hilfiger and
Tommy Canada, since 1990 Tommy Canada has had exclusive Canadian rights to
source, manufacture and distribute apparel bearing the TOMMY HILFIGER
[Registered] trademark (and since 1995 the TOMMY JEANS [Registered] trademark),
including men's sportswear and athleticwear, boys' sportswear, Tommy Womenswear
and Tommy Men's and Women's Jeanswear. Tommy Canada markets TOMMY HILFIGER
[Registered] and TOMMY JEANS [Registered] products principally through leading
specialty and department stores in Canada. Approximately 55% of Tommy Canada's
sales are made through specialty stores, with the remainder made through
department stores. Tommy Canada's major department store customers are the Eaton
and The Bay chains.
USE OF PROCEEDS
Unless otherwise provided in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used by the Company to
finance the Acquisition and for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES OF THE GUARANTOR
The following table sets forth the Guarantor's consolidated ratios of
earnings to fixed charges for the nine month period ended December 31, 1997, and
for each of the fiscal years ended March 31, 1997, 1996, 1995, 1994 and 1993:
<TABLE>
<CAPTION>
NINE MONTH PERIOD
ENDED DECEMBER 31, 1997 FISCAL YEAR ENDED MARCH 31,
------------------------------- ------------------------------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
26.6 36.2 35.5 66.6 65.7 14.4
</TABLE>
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For purposes of calculating the ratio of earnings to fixed charges,
earnings are the sum of net income, provision for income taxes and fixed charges
(less capitalized interest). Fixed charges are the sum of interest expense, the
estimated interest portion of rental charges and capitalized interest.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The Debt Securities are to be issued under an Indenture (the "Indenture"),
among the Company, the Guarantor and The Chase Manhattan Bank, as trustee (the
"Trustee"), a copy of which is filed as an Exhibit to the Registration Statement
of which this Prospectus is a part. The following summary of certain provisions
of the Debt Securities, the Guarantees and the Indenture does not purport to be
complete and is subject to and is qualified in its entirety by reference to all
the provisions of the Indenture, including the definitions therein of certain
terms. Wherever particular Sections, Articles or defined terms of the Indenture
are referred to, it is intended that such Sections, Articles or defined terms
shall be incorporated herein by reference. Capitalized terms not otherwise
defined herein shall have the meaning given in the Indenture.
The following sets forth certain general terms and provisions of the Debt
Securities and Guarantees. The specific terms of the Debt Securities and
Guarantees offered by any Prospectus Supplement (the "Offered Debt Securities")
will be described in the Prospectus Supplement relating to such Offered Debt
Securities (the "Applicable Prospectus Supplement").
GENERAL
All Debt Securities will be unsecured obligations of the Company, will
rank on a parity with all other unsecured and unsubordinated indebtedness of the
Company and will have the benefit of the Guarantees described below.
The Indenture does not limit the aggregate principal amount of the Debt
Securities or of any particular series of Offered Debt Securities and provides
that Debt Securities may be issued thereunder from time to time in one or more
series. All Debt Securities of any series need not be issued at the same time or
bear interest at the same rate or mature on the same date.
Reference is made to the Applicable Prospectus Supplement relating to the
Offered Debt Securities for the following terms thereof: (1) the title of the
Offered Debt Securities; (2) any limit on the aggregate principal amount of the
Offered Debt Securities; (3) the date or dates on which the Offered Debt
Securities will mature; (4) the rate or rates per annum (or the method of
calculating such rates) at which the Offered Debt Securities will bear interest,
if any, and the date from which such interest, if any, will accrue; (5) the
Interest Payment Dates on which any such interest on the Offered Debt Securities
will be payable and the Regular Record Date for any interest payable on any
Offered Debt Securities on any Interest Payment Date and the extent to which, or
the manner in which, any interest payable on a global Debt Security (a "Global
Note") on an Interest Payment Date will be paid if other than in the manner
described under "Global Notes" below; (6) the dates, if any, on which and the
price or prices at which the Offered Debt Securities may, pursuant to any
mandatory or optional sinking fund provisions, be redeemed by the Company and
other detailed terms and provisions of any such sinking funds; (7) the date, if
any, after which and the price or prices at which the Offered Debt Securities
may, pursuant to any optional redemption provisions (other than as set forth
under "Optional Tax Redemption"), be redeemed at the option of the Company or of
the holder thereof and other detailed terms and provisions of any such optional
redemption; (8) the denominations (if other than U.S. $1,000 and integral
multiples thereof) in which the Offered Debt Securities are issuable; (9) the
currency or currencies, which may be a composite currency such as the European
Currency Unit, of payment of principal of and premium, if any, and interest of
the Offered Debt Securities, if other than U.S. dollars; (10) whether the
Offered Debt Securities are to be issued with original issue discount
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within the meaning of Section 1273(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations thereunder; (11) whether the Offered
Debt Securities are to be issued in whole or in part in the form of one or more
Global Notes and, if so, the identity of the depositary, if any, for such Global
Note or Notes; (12) any addition to, or modification or deletion of, any Events
of Default or covenants provided for with respect to the Offered Debt
Securities; (13) any index used to determine the amount of payments of principal
of and premium, if any, and interest on the Offered Debt Securities; and (14)
any other terms of the Offered Debt Securities not inconsistent with the terms
of the Indenture.
Unless otherwise indicated in the Applicable Prospectus Supplement
relating thereto, principal of and any premium and interest on the Offered Debt
Securities will be payable, and the Offered Debt Securities will be exchangeable
and transfers thereof will be registrable, at the corporate trust office of the
Trustee in New York, New York, provided that, at the option of the Company,
payment of any interest may be made by check mailed to the address of the person
entitled thereto as it appears in the Security Register. Unless otherwise
indicated in the Applicable Prospectus Supplement, payment of any interest due
on any Offered Debt Security will be made to the person in whose name such
Offered Debt Security is registered at the close of business on the Regular
Record Date for such interest. (Sections 301, 305, 307 and 1002)
Unless otherwise indicated in the Applicable Prospectus Supplement, the
Offered Debt Securities will be issued only in fully registered form without
coupons in denominations of $1,000 or any integral multiple thereof, and no
service charge will be made for any transfer or exchange of such Offered Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. (Sections 302
and 305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof. Special federal income tax, accounting and other
considerations applicable thereto will be described in the Applicable Prospectus
Supplement relating to any such Original Issue Discount Securities.
GUARANTEES
The Guarantor will unconditionally guarantee the due and punctual payment
of the principal, premium, if any, and interest (including additional amounts,
if any) on the Debt Securities when and as the same shall become due and
payable, whether at maturity, upon redemption, or otherwise. (Section 1301) The
Guarantees will rank equally with all other unsecured and unsubordinated
indebtedness of the Guarantor.
GLOBAL NOTES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with or on behalf of a
depositary located in the United States (the "Depositary") identified in the
Applicable Prospectus Supplement relating to such series, which unless otherwise
specified therein will be The Depository Trust Company, New York, New York.
The Depositary has advised the Company that the Depositary is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code and a "clearing agency" registered pursuant
to the provisions of Section 17A of the Exchange Act. The Depositary was created
to hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants through electronic
book-entry changes in accounts of the participants, thereby eliminating
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the need for physical movement of securities certificates. The Depositary's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations, some of whom (and/or
their representatives) own the Depositary. Access to the Depositary's book-entry
system is also available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
Unless otherwise specified in the Applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Note to be deposited with or
on behalf of a Depositary will be represented by a Global Note registered in the
name of such Depositary or its nominee. Upon the issuance of a Global Note in
registered form, the Depositary for such Global Note will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Note to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Notes will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial interests by
participants in such Global Notes will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Note. Ownership of beneficial
interests in Global Notes by persons that hold through participants will be
effected only through records maintained by such participants. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the
registered owner of such Global Note, such depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Note for all purposes under the Indenture. Except as
set forth below, owners of beneficial interests in such Global Note will not be
entitled to have Debt Securities of the series represented by such Global Note
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in such Global Security must rely on the
procedures of the Depositary and, if such person is not a participant, on the
procedures of the participant through which such person owns its interest, to
exercise any rights of a holder under the Indenture. The Company understands
that under existing practice, in the event that the Company requests the holders
to take, or a beneficial owner desires to take, any action, the Depositary would
act upon the instructions of, or authorize, the participant to take such action.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or the holder of the Global Note representing such Debt Securities. None
of the Company, the Trustee, any Paying Agent or the Security Registrar for such
Debt Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Note for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for Debt Securities of a series,
upon receipt of any payment of principal, premium, or interest in respect of a
permanent Global Note, will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Note as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interest in such Global Note held through such participants will be
governed by standing instructions and
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customary practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Note may not be transferred except as a whole by the Depositary
for such Global Note to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such depositary or by such
depositary or any such nominee to a successor of such depositary or a nominee of
such successor. (Section 304(b)) If a Depositary for Debt Securities of a series
is at any time unwilling or unable to continue as Depositary and a successor
depositary is not appointed by the Company within ninety days, the Company will
issue Debt Securities in definitive registered form in exchange for the Global
Note or Notes representing such Debt Securities. In addition, the Company may at
any time and in its sole discretion determine not to have any Debt Securities
represented by one or more Global Notes and, in such event, will issue Debt
Securities in definitive registered form in exchange for all the Global Notes
representing such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Note will be entitled to physical delivery in
definitive form of Debt Securities of the series represented by such Global Note
equal in principal amount to such beneficial interest and to have such Debt
Securities registered in its name.
CERTAIN COVENANTS OF THE COMPANY AND THE GUARANTOR
Restrictions on Liens. The Company and the Guarantor will not, and will
not permit any Restricted Subsidiary to, create or suffer to exist any mortgage,
lien, pledge, charge, security interest or encumbrance (a "Lien" or "Liens") to
secure any Indebtedness of the Company, the Guarantor or any Restricted
Subsidiary on any property of or any shares of equity interests or evidences of
Indebtedness issued by the Company, the Guarantor or any Restricted Subsidiary
and owned by the Company, the Guarantor or any Restricted Subsidiary, without
making, or causing such Restricted Subsidiary to make, effective provision to
secure all of the Debt Securities offered hereunder and then outstanding by such
Lien, equally and ratably with any and all other such Indebtedness thereby
secured, so long as such other Indebtedness is so secured, except that the
foregoing restrictions shall not apply (subject in certain instances to certain
qualifications) to: (a) Liens on property of a corporation existing at the time
such corporation is merged into or consolidated with the Company, the Guarantor
or a Restricted Subsidiary or at the time of sale, lease or other disposition of
the properties of such corporation (or a division thereof) as an entity or
substantially as an entity to the Company, the Guarantor or a Restricted
Subsidiary; (b) Liens on property or shares of equity interests or evidences of
indebtedness of a corporation existing at the time such corporation becomes a
Restricted Subsidiary; (c) Liens securing Indebtedness between a Restricted
Subsidiary and the Company or the Guarantor or between Restricted Subsidiaries
or between the Guarantor and the Company; (d) Liens on any property created,
assumed or otherwise brought into existence in contemplation of the sale or
other disposition of the underlying property, whether directly or indirectly, by
way of share disposition or otherwise, provided that the Company, the Guarantor
or the Restricted Subsidiary, as applicable, must have disposed of such property
within 180 days after the creation of such Liens and that any Indebtedness
secured by such Liens shall be without recourse to the Company, the Guarantor or
any Restricted Subsidiary; (e) Liens in favor of the United States of America or
any State thereof, or any department, agency or instrumentality or political
subdivision thereof, to secure partial, progress, advance or other payments; (f)
Liens for taxes, fees, assessments or other governmental charges that are not
delinquent or remain payable without penalty; (g) carriers', warehousemen's,
mechanics', landlords', materialmen's, repairmen's or other similar Liens
arising in the ordinary course of business that are not delinquent or remain
payable without penalty; (h) Liens (other than any Lien imposed by the Employee
Retirement Income Security Act of 1974, as amended) consisting of pledges or
deposits required in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation; (i)
Liens consisting of judgment or judicial attachment liens, provided that the
enforcement of such Liens is effectively stayed; (j) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, are not
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substantial in amount, and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the businesses of the Company, the Guarantor and the Restricted
Subsidiaries; (k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar rights and
remedies, in each case as to deposit accounts or other funds maintained with a
creditor depository institution, provided that (1) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company, the Guarantor or applicable Restricted Subsidiary in
excess of those set forth by regulations promulgated by the Federal Reserve
Board, and (2) such deposit account is not intended by the Company or any
Restricted Subsidiary to provide collateral to the depository institution; (l)
Liens arising from Uniform Commercial Code financing statements regarding
leases; (m) a Lien on the Company's office facility located at 25 West 39th
Street, New York, New York; (n) the giving, simultaneously with or within 180
days after the latest of the date of the Indenture, or the acquisition or
construction of such property, of a purchase money Lien on property acquired or
constructed after the date of the Indenture, or the acquisition after the date
of the Indenture, of property subject to any Lien which is limited to such
property and which secures Indebtedness not in excess of the lesser of the cost
or fair market value of such property; (o) the giving of a Lien on real property
which is the sole security for Indebtedness incurred within two years after the
latest of the date of the Indenture, the acquisition of the property or
completion of the first substantial improvements thereon, provided that the
Indebtedness does not exceed the lesser of the cost of the property and
improvements or their fair market value and the holder of such Indebtedness is
entitled to enforce its payment only by resorting to such security; (p) Liens
arising under Tommy Hilfiger Canada Inc.'s existing loan agreement securing
Indebtedness not to exceed Can.$25,000,000; (q) Liens arising by the terms of
letters of credit entered into in the ordinary course of business to secure
reimbursement obligations thereunder; (r) Liens existing on the date of the
Indenture; and (s) extension, renewal, replacement or refunding of any Lien
existing on the date hereof or referred to in clauses (a) to (d) and (n) to (p),
provided that the principal amount of Indebtedness secured thereby and not
otherwise authorized by clauses (a) to (d) and (n) to (p) shall not exceed the
principal amount of Indebtedness, plus any premium or fee payable in connection
with any such extension, renewal, replacement or refunding, so secured at the
time of such extension, renewal, replacement or refunding. (Section 1007)
Restrictions on Sale and Leaseback Transactions. The Company and the
Guarantor will not, nor will they permit any Restricted Subsidiary to, enter
into any arrangements with any person providing for the leasing by the Company,
the Guarantor or any Restricted Subsidiary of any property or asset now owned or
hereafter acquired which has been or is to be sold or transferred by the
Company, the Guarantor or such Restricted Subsidiary to such person with the
intention of taking back a lease of such property (a "Sale and Leaseback
Transaction"), unless the net proceeds of such sale or transfer have been
determined by the Board of Directors of the Company or the Guarantor (as
applicable) to be at least equal to the fair value of such property or asset at
the time of such sale and transfer and either (i) the Company, the Guarantor or
a Restricted Subsidiary applies or causes to be applied an amount equal to the
net proceeds of such sale or transfer, within 180 days of receipt thereof, to
the retirement or prepayment (other than any mandatory retirement or prepayment)
of Senior Funded Debt of the Company, the Guarantor or any Restricted Subsidiary
or to the purchase of property or assets to be used in the ordinary course of
business, or (ii) the Company, the Guarantor or such Restricted Subsidiary
would, on the effective date of such sale or transfer, be entitled, pursuant to
the Indenture, to issue, assume or guarantee Indebtedness secured by a Lien upon
such property or asset at least equal in amount to the Attributable Debt in
respect of such Sale and Leaseback Transaction without equally and ratably
securing the Debt Securities having the benefit of the "Restrictions on Liens."
The foregoing restriction will not apply to any Sale and Leaseback Transaction
(i) between the Company and the Guarantor, the Company or the Guarantor and any
Restricted Subsidiary or between Restricted Subsidiaries provided that the
lessor shall be the Company, the Guarantor or a Wholly-owned Restricted
Subsidiary, or (ii) which has a lease of less than three years in length.
(Section 1008)
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Exempted Debt. Notwithstanding the restrictions in the Indenture on (i)
Liens and (ii) Sale and Leaseback Transactions, the Company, the Guarantor or
the Restricted Subsidiaries may, in addition to amounts permitted under such
restrictions, create Indebtedness secured by Liens, or enter into Sale and
Leaseback Transactions, provided that, at the time of such transaction and after
giving effect thereto, the aggregate outstanding amount of all such Indebtedness
secured by Liens plus Attributable Debt resulting from such Sale and Leaseback
Transactions does not exceed 10% of Consolidated Stockholders Equity. (Sections
1007(b) and 1008(b))
Restrictions on Subsidiary Indebtedness. The Company and the Guarantor
will not permit any Restricted Subsidiary to create, incur, issue, assume or
guarantee any Funded Debt, except: (i) Funded Debt outstanding on the date of
the Indenture; (ii) Funded Debt issued to and held by the Company, the Guarantor
or a Wholly-owned Restricted Subsidiary; (iii) Funded Debt created, incurred,
issued, assumed or guaranteed by a person prior to the time (A) such person
became a Restricted Subsidiary; (B) such person merges into or consolidates with
a Restricted Subsidiary (which Funded Debt was not incurred in anticipation of
such transaction and was outstanding prior to such transaction or (C) a
Restricted Subsidiary merges into or consolidates with such person (in a
transaction in which such person becomes a Restricted Subsidiary); (iv) Funded
Debt incurred to provide funds for all or part of the cost of acquisition,
construction, development or improvement of property, provided that the
commitment of the creditor to extend the credit evidenced by such Funded Debt
shall have been obtained not later than 180 days after the later of (a) the
completion of the acquisition, construction, development or improvement of such
property or (b) the placing in operation of such property; (v) Funded Debt under
Tommy Hilfiger Canada Inc.'s existing loan agreement in a principal amount not
to exceed Can.$25,000,000; (vi) Funded Debt which is exchanged for, or the
proceeds of which are used to replace or refund, any Funded Debt permitted to be
outstanding pursuant to clauses (i) through (v) above (or any extension or
renewal thereof), in an aggregate principal amount not to exceed the principal
amount of the Indebtedness so exchanged, replaced or refunded; (vii) Funded Debt
not otherwise permitted pursuant to clauses (i) through (vi) above that,
together with any other outstanding Funded Debt created, incurred, issued,
assumed or guaranteed pursuant to this clause (vii), has an aggregate principal
amount at any time outstanding that does not exceed 10% of Consolidated
Stockholders Equity; and (viii) Funded Debt which would be permitted to be
incurred under the "Restrictions on Liens."
No Special Protection in the Event of a Highly Leveraged Transaction.
Unless otherwise indicated in the Applicable Prospectus Supplement, the terms of
the Offered Debt Securities will not afford the holders special protection in
the event of a highly leveraged transaction.
Certain Definitions. Set forth below are certain significant terms which
are defined in Section 101 of the Indenture:
"Attributable Debt" in respect of a Sale and Leaseback Transaction means,
at the time of determination, the present value (discounted at the actual rate
of interest of such transaction) of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net rental
payments" under any lease for any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges.
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"Capitalized Lease Obligations" means obligations created pursuant to
leases which are required to be shown on the liability side of the balance sheet
in accordance with generally accepted accounting principles.
"Consolidated Stockholders Equity" means consolidated stockholders equity
of the Guarantor and its Subsidiaries as determined in accordance with generally
accepted accounting principles.
"Funded Debt" means Indebtedness, whether incurred, assumed or guaranteed,
maturing by its terms more than one year from the date of creation thereof or
which is extendable or renewable at the sole option of the obligor in such
manner that it may become payable more than one year from the date of creation
thereof; provided, however, that Funded Debt shall not include obligations
created pursuant to leases, or any Indebtedness or portion thereof maturing by
its terms within one year from the time of any computation of the amount of
outstanding Funded Debt unless such Indebtedness shall be extendable or
renewable at the sole option of the obligor in such manner that it may become
payable more than one year from such time, or any Indebtedness for the payment
or redemption of which money in the necessary amount shall have been deposited
in trust either at or before the maturity or redemption date thereof.
"Indebtedness" of a person means indebtedness for borrowed money and all
indebtedness under purchase money mortgages or other purchase money liens or
conditional sales or similar title retention agreements in each case where such
indebtedness has been created, incurred, assumed or guaranteed by such person or
where such person is otherwise liable therefor and indebtedness for borrowed
money secured by any mortgage, pledge or other lien or encumbrance upon property
owned by such person even though such person has not assumed or become liable
for the payment of such indebtedness.
"Restricted Subsidiaries" means, at any time, any Subsidiary, other than
the Company, which would be a "Significant Subsidiary" at such time, as such
term is defined in Regulation S-X promulgated by the Commission, as in effect on
the date of the Indenture.
"Senior Funded Debt" means all Funded Debt of the Company or any other
person (except Funded Debt the payment of which is subordinated to the payment
of the Debt Securities).
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or the Guarantor
or by one or more other Subsidiaries, or by the Company or the Guarantor and one
or more other Subsidiaries. For the purposes of this definition "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency. With respect to both the Company and the
Guarantor, Pepe USA and Tomcan, and with respect to the Guarantor only, Pepe Far
East, shall be deemed to be included in this definition of "Subsidiary" until
such time as the Company or the Guarantor (or one of their Subsidiaries) shall
have disposed of equity securities of such entities such that they would not be
"Subsidiaries" within the meaning of the first sentence of this paragraph.
MERGER AND CONSOLIDATION
The Indenture provides that the Company may not consolidate with or merge
into any other corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any person, and the Company may not
permit any person to consolidate with or merge into the Company or convey,
transfer or lease its properties and assets substantially as an entirety to the
Company, unless: (i) in case the Company consolidates with or merges into
another corporation or conveys, transfers or
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leases its properties and assets substantially as an entirety to any person, the
corporation formed by such consolidation or into which the Company is merged or
the person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Debt Securities and
the performance of every covenant of the Indenture on the part of the Company to
be performed or observed; (ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and (iii) if, as a
result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Company or such successor corporation or
person, as the case may be, shall take such steps as shall be necessary
effectively to secure the Debt Securities equally and ratably with (or prior to)
all indebtedness secured thereby. (Section 801)
The Indenture provides that the Guarantor may not consolidate with or
merge into any other corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any person, and the Guarantor may not
permit any person to consolidate with or merge into the Guarantor or convey,
transfer or lease its properties and assets substantially as an entirety to the
Guarantor, unless: (i) in case the Guarantor shall consolidate with or merge
into another corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any person, the corporation formed by such
consolidation or into which the Guarantor is merged or the person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Guarantor substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof or
the District of Columbia or the British Virgin Islands and shall expressly
assume, by a supplemental indenture, the Guarantees and the performance of every
covenant of this Indenture on the part of the Guarantor to be performed or
observed; (ii) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Guarantor as a result of
such transaction as having been incurred by the Guarantor at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and (iii) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Guarantor would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Guarantor or
such successor corporation or person, as the case may be, shall take such steps
as shall be necessary effectively to secure the Debt Securities equally and
ratably with (or prior to) all indebtedness secured thereby. (Section 1303)
PAYMENT OF ADDITIONAL AMOUNTS
If any deduction or withholding for any present or future taxes,
assessments or other governmental charges of any jurisdiction (or any political
subdivision or taxing authority thereof or therein) in which the Guarantor is
resident for tax purposes shall at any time be required by such jurisdiction in
respect of any amounts to be paid by the Guarantor under the Guarantee of Debt
Securities of such series, the Guarantor will pay as additional interest such
additional amounts as may be necessary in order that the net amounts paid to the
holder of any such Debt Security pursuant to the terms of such Debt Security,
after such deduction or withholding, will be not less than the amounts specified
in such Debt Security to be then due and payable; provided, however, that the
Guarantor shall not be required to make any payment of additional amounts for or
on account of:
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(a) any tax, assessment or other governmental charge which would not have
been imposed but for (i) the existence of any present or former connection
between such holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of such holder, if such holder is an estate, trust, partnership,
limited liability company or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area subject to
its jurisdiction, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary, member or shareholder) being or having been
a citizen or resident or treated as a resident thereof or being or having
been present or engaged in trade or business therein or having had a
permanent establishment therein or (ii) the presentation of such Debt
Security (where presentation is required) for payment on a date more than 30
days after the date on which such payment became due and payable or the date
on which payment thereof was duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments of (or in respect of) principal
of, premium, if any, or interest on such Debt Security;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure to comply by the holder or the beneficial
owner of a Debt Security with a request of the Guarantor addressed to the
holder (i) to provide information concerning the nationality, residence or
identity of the holder or beneficial owner of such Debt Security, or (ii) to
make such declaration or other similar claim or reporting requirement, which
is required by a statute, treaty, regulation or administrative practice of
the taxing jurisdiction as a precondition to exemption from all or part of
such tax, assessment or other governmental charge; provided that, in the case
of (i), the holder is legally entitled to deliver such declaration or similar
claim; or
(e) any combination of items (a), (b), (c) and (d) above;
nor will additional amounts be paid with respect to any payment of the principal
of or interest on any such Debt Security to any such holder who is a fiduciary
or partnership or limited liability company or other than the sole beneficial
owner of such payment to the extent such payment would be required by the laws
of any jurisdiction in which the Guarantor is resident for tax purposes (or any
political subdivision or taxing authority thereof or therein) to be included in
the income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership, limited liability company, or a
beneficial owner who would not have been entitled to such additional amounts had
it been the holder of such Debt Security. (Section 1306)
The Guarantees include the Guarantor's unconditional guarantee of the
due and punctual payment of any additional amounts described herein. (Section
1306)
Under the laws of the British Virgin Islands, where the Guarantor is
incorporated, and Barbados, where the Guarantor is resident for tax
purposes, as applied and interpreted on the date of this Prospectus, no taxes,
levies, imposts or charges of the British Virgin Islands, Barbados or any
political subdivision or taxing authority thereof or therein would be required
to be deducted or withheld from any payment by the Guarantor under the
Guarantees of the Debt Securities.
OPTIONAL TAX REDEMPTION
Debt Securities of any series may be redeemed at the option of the
Guarantor, in whole but not in part, upon not less than 30 nor more than 60
days' notice given as provided in the Indenture, at a
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redemption price equal to the principal amount thereof (except for Debt
Securities issued at a price representing a discount from the principal amount
payable at maturity which may be redeemed at the redemption price set forth in
such Debt Securities) plus accrued interest to the date fixed for redemption if,
as a result of any change in or amendment to the laws or any regulations or
ruling promulgated thereunder of any jurisdiction (or of any political
subdivision or taxing authority thereof or therein) in which the Guarantor is
incorporated or resident for tax purposes, or any change in the official
application or interpretation of such laws, regulations or rulings, or any
change in the official application or interpretation of, or any execution of or
amendment to, any treaty or treaties affecting taxation to which such
jurisdiction (or such political subdivision or taxing authority) is a party,
which becomes effective on or after the original issue date of such Debt
Securities, the Guarantor is or would be required on the next succeeding
interest payment date to pay additional amounts with respect to the Debt
Securities (as described under "Payment of Additional Amounts" above), and the
payment of such additional amounts cannot be avoided by the use of any
reasonable measures available to the Guarantor.
The Debt Securities of any series may also be redeemed at the option of
the Guarantor, in whole but not in part, upon not less than 30 days' nor more
than 60 days' notice at a redemption price equal to the principal amount thereof
(except for Debt Securities issued at a price representing a discount from the
principal amount payable at maturity which may be redeemed at the redemption
price set forth in such Debt Securities) plus accrued interest to the date fixed
for redemption if the person formed by a consolidation or amalgamation of the
Guarantor or into which the Guarantor is merged or to which the Guarantor
conveys, transfers or leases its properties and assets substantially as an
entirety is required, as a consequence of such consolidation, amalgamation,
merger, conveyance, transfer or lease and as a consequence of a change in tax
law occurring after the date of such consolidation, amalgamation, merger,
conveyance, transfer or lease, to pay additional amounts in respect of any tax,
assessment or governmental charge imposed on any holder.
The Guarantor will also pay, or make available for payment, to holders on
the redemption date any additional amounts (as described under "Payment of
Additional Amounts" above) resulting from the payment of such redemption price.
(Section 1305)
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with respect
to Debt Securities of any series: (a) default in the payment of any interest
upon any Debt Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; (b) default in the payment
of the principal of (or premium, if any, on) any Debt Security of that series at
its maturity; (c) default in the deposit of any sinking fund payment, when and
as due by the terms of a Debt Security of that series; (d) default in the
performance, or breach, of any covenant or warranty of the Company or the
Guarantor (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in the Indenture specifically dealt with or which has
expressly been included in the Indenture solely for the benefit of series of
Debt Securities other than that series), and continuance of such default or
breach for a period of 60 days after written notice as provided in the
Indenture; (e) acceleration of indebtedness of the Company, the Guarantor or any
Subsidiary for borrowed money in an outstanding principal amount in excess of
$25 million (including a default with respect to Securities of any series other
than that series) whether such indebtedness now exists or shall hereafter be
created, without such being cured within a period of 10 days after written
notice as provided in the Indenture; (f) certain events occurring under
bankruptcy, insolvency, reorganization or other similar laws; (g) the Guarantee
with respect to that series shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect; or (h) any other event of default provided with respect to Debt
Securities of that series. No Event of Default with respect to a particular
series of Debt Securities issued under the Indenture (except as to such events
in
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bankruptcy, insolvency or reorganization) necessarily constitutes an Event of
Default with respect to any other series of Debt Securities issued thereunder.
(Section 501)
If an Event of Default with respect to Debt Securities of any series at
the time outstanding occurs and is continuing, then in every such case the
Trustee or the holders of not less than 25% in principal amount of the
outstanding Debt Securities of that series may declare the principal amount (or,
if any of the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Debt Securities as may
be specified in the terms thereof) of all of the Debt Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. However,
at any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made, the Holders of a majority in principal
amount of outstanding Debt Securities of that series may, subject to certain
conditions, rescind and annul such acceleration if all Events of Default, other
than the non-payment of accelerated principal, with respect to Debt Securities
of that series have been cured or waived as provided in the Indenture. (Section
502) For information as to waiver of defaults, see "Modification and Waiver"
herein.
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of a portion of the principal
amount of such Original Issue Discount Securities upon the occurrence of an
Event of Default and the continuation thereof.
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Indenture
provides that the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security and indemnity. (Sections 601 and 603) Subject to such provisions for
security and indemnification of the Trustee and certain other rights of the
Trustee, the Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceedings for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of that series. (Section 512)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt Securities
of that series and unless also the Holders of at least 25% in principal amount
of the Outstanding Debt Securities of that series shall have made written
request, and offered reasonable security and indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. (Section 507)
Notwithstanding the foregoing, the Holder of any Debt Security will have an
absolute and unconditional right to receive payment of the principal of (and
premium, if any) and any interest on such Debt Security on or after the due
dates expressed in such Debt Security and to institute suit for the enforcement
of any such payment. (Section 508)
The Indenture requires the Company and the Guarantor to furnish to the
Trustee annually statements as to compliance with the Indenture. (Section 1011)
The Indenture provides that the Trustee may withhold notice to the Holders of
Debt Securities of any series of any default (except in payment of principal,
any premium, interest or any sinking fund payments) with respect to Debt
Securities of such series if it considers it in the interest of the Holders of
Debt Securities of such series to do so. (Section 602)
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MODIFICATION AND WAIVER
With the consent of the holders of a majority of the outstanding Debt
Securities of each series affected, the Company, the Guarantor and the Trustee
may enter into an indenture or indentures supplemental to the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of modifying in any manner the rights of
the holders of Debt Securities of such series under the Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each outstanding Debt Security affected thereby: (a) change the stated
maturity date of the principal of, or any installment of principal of or
interest on, any Debt Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the maturity
thereof or change any place of payment where, or the coin or currency in which,
any Debt Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the stated maturity thereof (or, in the case of redemption, on or after the
redemption date); (b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose holders is required
for any such supplemental indenture, or the consent of whose holders is required
for any waiver (of compliance with certain provisions of the Indenture or
certain defaults under the Indenture and their consequences) provided for in the
Indenture; (c) subject to certain exceptions, modify certain specified
provisions of the Indenture relating to modification and waiver, except to
increase any percentage required to approve a modification or waiver or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each outstanding Security affected
thereby; or (d) modify any of the substantive provisions of the Guarantees or
release or discharge the Guarantor thereunder. (Section 902)
The Company and the Guarantor may omit in any particular instance to
comply with certain specified covenants in the Indenture with respect to the
Debt Securities of any series if before the time for such compliance the holders
of at least a majority in principal amount of the outstanding Debt Securities of
such series shall either waive such compliance in such instance or generally
waive compliance with such covenant but no such waiver shall extend to or affect
such covenant except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the Guarantor and the
duties of the Trustee in respect of any such covenant shall remain in full force
and effect. (Section 1012)
The holders of not less than a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the holders of all
the Debt Securities of such series waive any past default with respect to such
series and its consequences, except a default: (a) in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such
series, or (b) in respect of a covenant or provision of the Indenture which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debt Security of such series affected. Upon any such
waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of the
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon. (Section 513)
DEFEASANCE OF OFFERED DEBT SECURITIES OR CERTAIN COVENANTS IN CERTAIN
CIRCUMSTANCES
Defeasance and Discharge. The provisions of the Indenture, as it relates
to outstanding Debt Securities of a series, shall no longer be in effect on the
91st day after the date the Company deposits or causes to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of making
the following payments: (i) in the case of Debt Securities of such series
denominated in U.S. dollars, cash in U.S. dollars (or such other money or
currencies as shall then be legal tender in the United
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States) and/or U.S. government obligations, or (ii) in the case of Debt
Securities of such series denominated in a foreign currency (other than a basket
currency), money and/or foreign government securities in the same foreign
currency, which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient to pay and discharge each installment of principal (and premium, if
any) (including mandatory sinking fund or analogous payments) of and any
interest on all the Debt Securities of such series on the dates such
installments of interest or principal are due. It is a condition of such
defeasance that (a) such deposit will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound; (b) cause any
outstanding Debt Securities of such series then listed on the New York Stock
Exchange or other securities exchange to be de-listed as a result thereof; (c)
no Event of Default or event which with notice or lapse of time would become an
Event of Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date; and (d) the Company has delivered to the
Trustee an opinion of counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling to
the effect that, and based thereon, such opinion shall confirm that holders of
the Debt Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposits, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred and (ii) upon the 91st day
after the date of such deposit, the trust funds would not be subject to being
characterized as a preference for Bankruptcy Law purposes. (Section 403)
Defeasance of Certain Covenants. The Company and the Guarantor may omit to
comply with certain specified covenants in the Indenture with respect to the
Debt Securities of a series, if the Company deposits or causes to be irrevocably
deposited with the Trustee as trust funds in trust specifically pledged as
security for, and dedicated solely to, the benefit of the holders of such Debt
Securities (i) in the case of Debt Securities of such series denominated in U.S.
dollars, cash in U.S. dollars (or such other money or currencies as shall then
be legal tender in the United States) and/or U.S. government obligations, or
(ii) in the case of Debt Securities of such series denominated in a foreign
currency (other than a basket currency), money and/or foreign government
securities in the same foreign currency, which through the payment of interest
and principal in respect thereof, in accordance with their terms, will provide
(and without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of money, an
amount in cash, sufficient to pay and discharge each installment of principal
(and premium, if any) (including mandatory sinking fund or analogous payments)
of and any interest on all the Debt Securities of such series on the dates such
installments of interest or principal are due. It is a condition of such
defeasance that (a) such deposit shall not, in the opinion of counsel, cause the
Trustee with respect to the Debt Securities of such series to have a conflicting
interest with respect to the Debt Securities of such series; (b) such deposit
will not result in a breach or violation of, or constitute a default under, the
Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound; (c) no Event of Default or event which with notice or
lapse of time would become an Event of Default with respect to the Debt
Securities of such series shall have occurred and be continuing on the date of
such deposit; and (d) the Company has delivered to the Trustee an opinion of
counsel to the effect that (i) holders of the Debt Securities of such series
will not recognize income gain or loss for Federal income tax purposes as a
result of such deposit and defeasance of certain obligations and will be subject
to Federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred and (ii) upon the 91st day after the date of such deposit, the trust
funds would not be subject to being characterized as a preference for bankruptcy
law purposes. (Section 1010)
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Defeasance and Events of Default. In the event the Company exercises its
option to omit compliance with certain covenants of the Indenture with respect
to any series of Debt Securities and the Debt Securities of such series are
declared due and payable because of the occurrence of any Event of Default, the
amount of money and U.S. government obligations on deposit with the Trustee will
be sufficient to pay amounts due on the Debt Securities of such series at the
time of their stated maturity but may not be sufficient to pay amounts due on
the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company shall remain liable for such
payments.
The Prospectus Supplement will state if any defeasance provision will
apply to the Offered Debt Securities.
CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the Trustee under the Indenture. The Trustee
performs services for the Company and the Guarantor in the ordinary course of
business and is the administrative agent under a Credit Agreement under which
the Company is a borrower.
GOVERNING LAW
The Indenture, the Debt Securities and the Guarantees are governed by and
construed in accordance with the laws of the State of New York. (Section 112)
Under New York law, claims for payment of principal, premium, if any, and
interest will be barred by the statute of limitations six years after such
amounts become due and payable.
PLAN OF DISTRIBUTION
The Company may sell the Offered Debt Securities in or outside the United
States through underwriters or dealers, directly to one or more purchasers, or
through agents. The Applicable Prospectus Supplement with respect to the Offered
Debt Securities will set forth the terms of the offering of the Offered Debt
Securities, including the name or names of any underwriters, dealers or agents,
the purchase price of the Offered Debt Securities and the proceeds to the
Company from such sale, any delayed delivery arrangements, any underwriting
discounts and other items constituting underwriters' compensation, the initial
public offering price, any discounts or concessions allowed or re-allowed or
paid to dealers, and any securities exchanges on which the Offered Debt
Securities may be listed.
If underwriters are used in the sale, the Offered Debt Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Debt Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of Offered Debt
Securities will be named in the Applicable Prospectus Supplement relating to
such offering, and if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover of such Prospectus
Supplement. Unless otherwise set forth in the Applicable Prospectus Supplement,
the obligations of the underwriters or agents to purchase the Offered Debt
Securities will be subject to conditions precedent, and the underwriters will be
obligated to purchase all the Offered Debt Securities if any are purchased. The
initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
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If dealers are used in the sale of Offered Debt Securities with respect to
which this Prospectus is delivered, the Company will sell such Offered Debt
Securities to the dealers as principals. The dealers may then resell such
Offered Debt Securities to the public at varying prices to be determined by such
dealers at the time of resale. The names of the dealers and the terms of the
transaction will be set forth in the Prospectus Supplement relating thereto.
Offered Debt Securities may be sold directly by the Company or through
agents designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any agent involved
in the offer or sale of the Offered Debt Securities with respect to which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Applicable Prospectus
Supplement. Unless otherwise indicated in the Applicable Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment.
Offered Debt Securities may be sold directly by the Company to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof. The terms
of any such sales will be described in the Applicable Prospectus Supplement.
In connection with the sale of the Offered Debt Securities, underwriters
or agents may receive compensation from the Company or from purchasers of
Offered Debt Securities for whom they may act as agents in the form of
discounts, concessions or commissions. Underwriters, agents and dealers
participating in the distribution of the Offered Debt Securities may be deemed
to be underwriters, and any discounts or commissions received by them from the
Company and any profit on the resale of the Offered Debt Securities by them may
be deemed to be underwriting discounts or commissions under the Securities Act.
If so indicated in the Applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase Offered Debt Securities from the Company at the
public offering price set forth in the Applicable Prospectus Supplement pursuant
to delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions set
forth in the Applicable Prospectus Supplement, and the Applicable Prospectus
Supplement will set forth the commission payable for solicitation of such
contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments that such agents, dealers, or underwriters may be
required to make with respect thereto.
Some or all of the Offered Debt Securities may be new issues of securities
with no established trading market. Any underwriters to whom Offered Debt
Securities are sold by the Company for public offering and sale may make a
market in such Offered Debt Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or the trading markets
for any Offered Debt Securities.
Certain of the underwriters, dealers or agents and their affiliates may be
customers of, engage in transactions with, and perform services for, the
Guarantor or the Company in the ordinary course of business.
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VALIDITY OF OFFERED DEBT SECURITIES
The validity of the Offered Debt Securities will be passed upon for the
Company by Wachtell, Lipton, Rosen & Katz, New York, New York, and for any
underwriters by Simpson Thacher & Bartlett (a partnership which includes
professional corporations), New York, New York. The validity of the Guarantees
will be passed upon for the Guarantor by Harney, Westwood & Riegels, the British
Virgin Islands.
EXPERTS
The financial statements incorporated in this Registration Statement on
Form S-3 by reference to the Annual Report on Form 10-K of Tommy Hilfiger
Corporation for the fiscal year ended March 31, 1997, have been so incorporated
in reliance on the report of Price Waterhouse LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
S.E.C. Registration Fee........................ $ 206,500
Legal Fees and Expenses...................... *
Accounting Fees and Expenses................. *
Trustee's Fees and Expenses.................. 15,000
Rating Agency Fees........................... *
Blue Sky Fees and Expenses................... *
Printing and Engraving Fees.................. *
Miscellaneous.................................. *
========
$ *
* To be filed by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
TOMMY HILFIGER CORPORATION
The Memorandum and Articles of Association of the Guarantor include
provisions for the protection of directors and officers. Paragraphs 110-115 of
the Articles of Association state:
110. Subject to the limitations hereinafter provided the Guarantor
may indemnify against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred in
connection with legal, administrative or investigative proceedings any
person who
(a) is or was a party or is threatened to be made a party to
any threatened, pending or completed proceedings whether civil,
criminal, administrative or investigative, by reason of the fact
that the person is or was a director, an officer or a liquidator of
the Guarantor; or
(b) is or was, at the request of the Guarantor serving as a
director, officer or liquidator of, or in any other capacity is or
was acting for, another company or a partnership, joint venture,
trust or other enterprise.
111. The Guarantor may only indemnify a person if the person acted
honestly and in good faith with a view to the best interests of the
Guarantor and, in the case of criminal proceedings, the person had no
reasonable cause to believe that his conduct was unlawful.
112. The decision of the directors as to whether the person acted
honestly and in good faith and with a view to the best interests of the
Guarantor and as to whether the person had no reasonable cause to believe
that his conduct was unlawful is, in the absence of fraud, sufficient for
the purposes of these Articles, unless a question of law is involved.
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113. The Termination of any proceedings by any judgment, order,
settlement, conviction or the entering of a nolle prosequi does not, by
itself, create a presumption that the person did not act honestly and in
good faith and with a view to the best interests of the Guarantor or that
the person had reasonable cause to believe that his conduct was unlawful.
114. If a person to be indemnified has been successful in defense of
any proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the person
in connection with the proceedings.
115. The Guarantor may purchase and maintain insurance in relation
to any person who is or was a director, an officer or a liquidator of the
Guarantor or who at the request of the Guarantor is or was serving as a
director, an officer or a liquidator of, or in any other capacity is or
was acting for, another company or a partnership, joint venture, trust or
other enterprise, against any liability asserted against the person and
incurred by the person in that capacity, whether or not the Guarantor has
or would have had the power to indemnify the person against the liability
as provided in these Articles.
Section 57 of the British Virgin Islands International Business Companies
Ordinance provides as follows:
(1) Subject to subsection (2) and any limitations in its Memorandum
or Articles, a company incorporated under this Ordinance may indemnify
against all expenses, including legal fees, and against all judgments,
fines, and amounts paid in settlement and reasonably incurred in
connection with legal, administrative or investigative proceeding and
person who
(a) is or was a party or is threatened to be made party to any
threatened, pending or completed proceedings, whether civil,
criminal, administrative or investigative, by reason of the fact
that the person is or was a director, an officer or a liquidator of
the company; or
(b) is or was, at the request of the company, serving as a
director, officer or liquidator of, or in any other capacity is or
was acting for, another company or a partnership joint venture,
trust or other enterprise.
(2) Subsection (1) only applies to a person referred to in that
subsection if the person acted honestly and is good faith with a view to
the best interests of the company and, in the case of criminal
proceedings, the person had no reasonable cause to believe that his
conduct was unlawful.
(3) The decision of the directors as to whether the person acted
honestly and in good faith and with a view to the best interests of the
company and as to whether the person had no reasonable cause to believe
that his conduct was unlawful is in the absence of fraud, sufficient for
the purposes of this section, unless a question of law is involved.
(4) The termination of any proceedings by any judgment, order,
settlement, conviction or the entering of a nolle prosequi does not, by
itself, create a presumption that the person did not act honestly and in
good faith and with a view to the best interests of the company or that
the person had reasonable cause to believe that his conduct was unlawful.
(5) If a person referred to in subsection (1) has been successful in
defense of any proceedings referred to in subsection (1), the person is
entitled to be indemnified against all
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expenses, including legal fees, and against all judgements, fines and
amounts paid in settlement and reasonably incurred by the person in
connection with the proceedings.
In addition, Section 58 of the British Virgin Islands International
Business Companies Ordinance provides as follows:
A company incorporated under this Ordinance may purchase and
maintain insurance in relation to any person who is or was a director, an
officer or a liquidator of the company, or who at the request of the
company is or was serving as a director, an officer or a liquidator of, or
in any other capacity is or was acting for, another company or a
partnership, joint venture, trust or other enterprise, against any
liability asserted against the person and incurred by the person in that
capacity, whether or not the company has or would have had the power to
indemnify the person against the liability under subsection (1) of Section
57.
TOMMY HILFIGER U.S.A., INC.
The Certificate of Incorporation of the Company include provisions for the
indemnification of directors and officers. Article SIXTH, Section 4 of the
Certificate of Incorporation reads as follows:
(4) No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived
an improper personal benefit. Any repeal or modification of this Article
SIXTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior
to such repeal or modification.
The By-laws of the Company include provisions for the indemnification of
directors and officers. Article VIII of the By-laws reads as follows:
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or In the Right of the Corporation. Subject to Section 3 of this
Article VIII, The Corporation shall indemnify any person who was or is a
party or is threatened to be a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
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Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer of the Corporation,
or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall
be made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe this conduct
was unlawful, if his action is based on the records or books of account of
the Corporation or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care
by the Corporation or another enterprise. The term "another enterprise" as
used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a director or
officer, employee or agent. The provisions of this Section 4 shall not be
deemed to be exclusive or to limit in any the circumstances in which a person
may be deemed to have met the applicable standard of conduct set forth in
Sections 1 or 2 of this Article VIII, as the case say be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such
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<PAGE>
court that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standards
of conduct set forth in Sections 1 or 2 of this Article VIII, as
the case may be. Neither a contrary determination in the specific
case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met
any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in
part, the director or officer seeking indemnification shall also be entitled
to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not
specified in Sections 1 or 2 of this Article VIII but whom the Corporation
has the power or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power or
the obligation to indemnify him against such liability under the provisions
of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of
this Article VIII with respect to the resulting or surviving corporation as
he would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VIII, references to
"fines" shall include any excise taxes assessed on a person with respect to
an employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director or officer of the
Corporation which imposes duties on, or involves services by, such director
or officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of
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<PAGE>
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
In addition, Section 145 of the General Corporation Law of the State of
Delaware reads as follows:
(a) A corporation shall have the power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such
action, suit or proceeding if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best interest
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that the person's
conduct was unlawful.
(b) A corporation should have the power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication or liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
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<PAGE>
indemnification of the present or former director, officer, employee or
agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made, with respect to
a person who is a director or officer at the time of such determination,
(1) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or
(2) by a committee of such directors designated by a majority vote
of such directors, even though less than a quorum, or (3) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or
other employees and agents may be so paid upon such terms and conditions, if
any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability under
this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to any employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to
in this section.
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<PAGE>
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligations to advance expenses
(including attorneys' fees).
Paragraph 7(b) of the Underwriting Agreement (filed as Exhibit 1.1 hereto)
provides that the Underwriters will indemnify and hold harmless the Guarantor
and the Company and each director, officer or controlling person of the
Guarantor and the Company from and against any liability caused by any statement
or omission in the Registration Statement or Prospectus based upon certain
information furnished in writing to the Guarantor and the Company by the
Underwriters for use in preparation thereof.
ITEM 16. EXHIBITS.
1.1 Form of Underwriting Agreement Standard Provisions
2.1 Stock Purchase Agreement dated as of January 31, 1998 between
Tommy Hilfiger Corporation, Tommy Hilfiger U.S.A., Inc., Tommy
Hilfiger (Eastern Hemisphere) Limited and Pepe Jeans London
Corporation
4.1 Form of Indenture among Tommy Hilfiger Corporation, Tommy
Hilfiger U.S.A., Inc. and The Chase Manhattan Bank, Trustee
4.2 Form of Debt Securities (included in Exhibit 4.1)
5.1 Opinion of Wachtell, Lipton, Rosen & Katz relating to the
validity of the Debt Securities
5.2 Opinion of Harney, Westwood & Riegels, relating to the validity
of the Guarantees
12.1 Statements re computation of ratios
23.1 Consent of Wachtell, Lipton, Rosen & Katz (to be included in
Exhibit 5.1)
23.2 Consent of Harney, Westwood & Riegels (included in Exhibit 5.2)
23.3 Consent of Price Waterhouse LLP, relating to the audited
financial statements of Tommy Hilfiger Corporation
*24.1 Power of Attorney (filed herewith - see signature pages)
*25.1 Form T-1 Statement of Eligibility of the Trustee
- ----------------
* Filed herewith
ITEM 17. UNDERTAKINGS.
(A) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represents a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in the volume of
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<PAGE>
securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(B) The undersigned registrants hereby undertake that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act that is incorporated
by reference in the registration statement) shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specially incorporated by reference in the
prospectus to provide such interim financial information.
(D) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
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<PAGE>
whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Tommy Hilfiger
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 20th day of
March, 1998.
TOMMY HILFIGER CORPORATION
By /s/ Benjamin M.T. Ng
Name: Benjamin M.T. Ng
Title: EVP - Corporate Finance
We, the undersigned officers and directors of Tommy Hilfiger Corporation,
hereby severally constitute and appoint Joel J. Horowitz and Benjamin M.T. Ng
and each of them singly, our true and lawful attorneys with full power to them,
and each of them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-3 filed
herewith and any and all pre-effective and post-effective amendments to said
Registration Statement and any registration statement related to the offering
contemplated by this registration statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact, and
each of them, and each of them singly, full power and authority to do and
perform each and every act and thing requisite and necessary to be done as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming our signature as then may be signed by our said attorneys or any
of them, to said Registration Statement and any and all amendments thereto and
any related registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on March 20, 1998 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
/s/ Silas K. F. Chou Chairman of the Board of Directors
(Silas K. F. Chou) and Director
/s/ Thomas J. Hilfiger Honorary Chairman of the Board of
(Thomas J. Hilfiger) Directors and Director
/s/ Joel J. Horowitz Chief Executive Officer and President
(Joel J. Horowitz) (principal executive officer) and
Director
/s/ Benjamin M. T. Ng Executive Vice President -- Corporate
(Benjamin M. T. Ng) Finance (principal financial officer),
Assistant Secretary and Director
/s/ Lawrence S. Stroll Director
(Lawrence S. Stroll)
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<PAGE>
/s/ Ronald K. Y. Chao Director
(Ronald K. Y. Chao)
/s/ Lester M.Y. Ma Director
(Lester M.Y. Ma)
Director
(Joseph M. Adamko)
/s/ Clinton V. Silver Director
(Clinton V. Silver)
/s/ Simon Murray Director
(Simon Murray)
/s/ Joseph Scirocco Senior Vice President and Treasurer
(Joseph Scirocco) (principal accounting officer)
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Tommy Hilfiger
U.S.A., Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 20th day of
March, 1998.
TOMMY HILFIGER U.S.A., INC.
By /s/ Benjamin M.T. Ng
Name: Benjamin M.T. Ng
Title: EVP
We, the undersigned officers and directors of Tommy Hilfiger U.S.A., Inc.,
hereby severally constitute and appoint Joel J. Horowitz and Benjamin M.T. Ng
and each of them singly, our true and lawful attorneys with full power to them,
and each of them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-3 filed
herewith and any and all pre-effective and post-effective amendments to said
Registration Statement and any registration statement related to the offering
contemplated by this registration statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact, and
each of them, and each of them singly, full power and authority to do and
perform each and every act and thing requisite and necessary to be done as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming our signature as then may be signed by our said attorneys or any
of them, to said Registration Statement and any and all amendments thereto and
any related registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on March 20, 1998 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
/s/ Silas K. F. Chou Chairman of the Board of Directors
(Silas K. F. Chou) and Director
/s/ Joel J. Horowitz Chief Executive Officer (principal
(Joel J. Horowitz) executive officer) and Director
/s/ Thomas J. Hilfiger Honorary Chairman of the Board and
(Thomas J. Hilfiger) Director
/s/ Lawrence S. Stroll Director
(Lawrence S. Stroll)
/s/ Joseph Scirocco Senior Vice President and Chief
(Joseph Scirocco) Financial Officer (principal financial
and accounting officer)
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<PAGE>
EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-3
EXHIBIT NO. EXHIBIT
1.1 Form of Underwriting Agreement Standard Provisions
2.1 Stock Purchase Agreement dated as of January 31, 1998 between
Tommy Hilfiger Corporation, Tommy Hilfiger U.S.A., Inc., Tommy
Hilfiger (Eastern Hemisphere) Limited and Pepe Jeans London
Corporation
4.1 Form of Indenture among Tommy Hilfiger Corporation, Tommy
Hilfiger U.S.A., Inc. and The Chase Manhattan Bank, Trustee
4.2 Form of Debt Securities (included in Exhibit 4.1)
5.1 Opinion of Wachtell, Lipton, Rosen & Katz relating to the
validity of the Debt Securities
5.2 Opinion of Harney, Westwood & Riegels, relating to the validity
of the Guarantees
12.1 Statements re computation of ratios
23.1 Consent of Wachtell, Lipton, Rosen & Katz (to be included in
Exhibit 5.1)
23.2 Consent of Harney, Westwood & Riegels (included in Exhibit 5.2)
23.3 Consent of Price Waterhouse LLP, relating to the audited
financial statements of Tommy Hilfiger Corporation
*24.1 Power of Attorney (filed herewith - see signature pages)
*25.1 Form T-1 Statement of Eligibility of the Trustee
- ----------------
* Filed herewith
EXHIBIT 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
TOMMY HILFIGER U.S.A., INC.
(Exact name of obligor as specified in its charter)
DELAWARE 22-2960611
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
25 WEST 39TH STREET
NEW YORK, NEW YORK 10018
(Address of principal executive offices) (Zip Code)
<PAGE>
TOMMY HILFIGER CORPORATION
(Exact name of guarantor as specified in its charter)
BRITISH VIRGIN ISLANDS N/A
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
6/F PRECIOUS INDUSTRIAL CENTER
18 CHEUNG YUE STREET
CHEUNG SHA WAN
KOWLOON, HONG KONG N/A
(Address of principal executive offices) (Zip Code)
------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
------------------------------------------------
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<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
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<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 20th day of March, 1998.
THE CHASE MANHATTAN BANK
By /s/Robert S. Peschler, Trust Officer
Robert S. Peschler, Trust Officer
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Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1997,
in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 12,428
Interest-bearing balances .................................... 3,428
Securities:
Held to maturity securities .......................................2,561
Available for sale securities ..................................... 43,058
Federal funds sold and securities purchased under
agreements to resell ......................................... 29,633
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,260
Less: Allowance for loan and lease losses 2,783
Less: Allocated transfer risk reserve ...... 0
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Loans and leases, net of unearned income,
allowance, and reserve ....................................... 126,477
Trading Assets .................................................... 62,575
Premises and fixed assets (including capitalized
leases) ...................................................... 2,943
Other real estate owned ........................................... 295
Investments in unconsolidated subsidiaries and
associated companies ......................................... 231
Customers' liability to this bank on acceptances
outstanding .................................................. 1,698
Intangible assets ................................................. 1,466
Other assets ...................................................... 10,268
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TOTAL ASSETS ...................................................... $297,061
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LIABILITIES
Deposits
In domestic offices .......................................... $94,524
Noninterest-bearing ................................. $39,487
Interest-bearing ..................................... 55,037
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In foreign offices, Edge and Agreement,
subsidiaries and IBF's ....................................... 71,162
Noninterest-bearing ..................................$ 3,205
Interest-bearing ..................................... 67,957
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................... 43,181
Demand notes issued to the U.S. Treasury .......................... 1,000
Trading liabilities ............................................... 48,903
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ................ 3,599
With a remaining maturity of more than one year
through three years ..................................... 253
With a remaining maturity of more than three years ........... 132
Bank's liability on acceptances executed and outstanding .......... 1,698
Subordinated notes and debentures ................................. 5,715
Other liabilities ................................................. 9,896
TOTAL LIABILITIES ................................................. 280,063
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EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 0
Common stock ...................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ......... 10,291
Undivided profits and capital reserves ............................ 5,502
Net unrealized holding gains (losses)
on available-for-sale securities .................................. (22)
Cumulative foreign currency translation adjustments ............... 16
TOTAL EQUITY CAPITAL .............................................. 16,998
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TOTAL LIABILITIES AND EQUITY CAPITAL .............................. $ 297,061
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I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the
best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and belief
has been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
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