LEVI STRAUSS & CO.

EX-10.1 2 f55700exv10w1.htm EX-10.1 exv10w1
Exhibit 10.1
EXECUTION VERSION
LEVI STRAUSS & CO.
€300,000,000 7.750% Senior Notes due 2018
$525,000,000 7.625% Senior Notes due 2020
PURCHASE AGREEMENT
April 28, 2010
MERRILL LYNCH INTERNATIONAL
     as Representative of the Several Euro Notes Purchasers
c/o Banc of America Securities LLC
2 King Edward Street
London EC1A
United Kingdom
BANC OF AMERICA SECURITIES LLC
     as Representative of the Several Dollar Notes Purchasers
c/o Banc of America Securities LLC
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
     Levi Strauss & Co., a corporation organized under the laws of Delaware (the “Company”), proposes to issue and sell (i) to the several parties named in Schedule I hereto (the “Euro Notes Purchasers”), €300,000,000 principal amount of its 7.750% Senior Notes due 2018 (the “Euro Notes”) and (ii) to the several parties named in Schedule II hereto (the “Dollar Notes Purchasers” and, together with the Euro Notes Purchasers, the “Initial Purchasers”), $525,000,000 principal amount of its 7.625% Senior Notes due 2020 (the “Dollar Notes” and, together with the Euro Notes, the “Notes”). You are acting as the representative (the “Representative”) of the Dollar Notes Purchasers and/or the Euro Notes Purchasers as indicated above. Certain terms used herein are defined in Section 18 hereof.
     The Notes are to be issued under an indenture (the “Indenture”) dated as of the Closing Date (as defined in Section 3 below) between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), and will have the benefit of a registration rights agreement dated as of the Closing Date (the “Registration Rights Agreement”) between the Company and the Initial Purchasers pursuant to which the Company may be required to file with the Commission, under the circumstances set forth therein, (i) a registration statement under the Act relating to another series of debt securities of the Company with terms substantially identical to the Notes (the “Exchange Notes”) to be offered in exchange for the Notes (the “Exchange Offer”) and (ii) a shelf registration statement pursuant to Rule 415 of the Act relating to the resale by certain

 


 

holders of the Notes, and in each case, to use its best efforts to cause such registration statements to be declared effective.
     The sale of the Notes to the Initial Purchasers will be made without registration of the Notes under the Act in reliance upon exemptions from the registration requirements of the Act.
     In connection with the sale of the Notes, the Company has prepared and delivered to each Initial Purchaser copies of a preliminary offering memorandum, dated April 22, 2010 (as amended or supplemented at the Execution Time, including any information incorporated by reference therein, the “Preliminary Offering Memorandum”) and copies of a Pricing Supplement, dated April 28, 2010 (the “Pricing Supplement”), in substantially the form attached hereto as Schedule III describing the terms of the Notes, each for use by such Initial Purchasers in connection with its solicitation of offers to purchase the Notes. The Preliminary Offering Memorandum and the Pricing Supplement are herein referred to as the “Pricing Disclosure Package.” As promptly as practicable after the Execution Time, the Company will prepare and deliver to each Initial Purchaser a final offering memorandum, dated the date hereof (including any information incorporated by reference therein, the “Final Offering Memorandum”). Each of the Preliminary Offering Memorandum, the Final Offering Memorandum and the Pricing Disclosure Package sets forth certain information concerning the Company and the Notes. The Company hereby confirms that it has authorized the use of the Preliminary Offering Memorandum, the Final Offering Memorandum and the Pricing Disclosure Package, and any amendment or supplement to the Final Offering Memorandum, in connection with the offer and sale of the Notes by the Initial Purchasers.
     All references herein to the terms “Pricing Disclosure Package” and “Final Offering Memorandum” shall be deemed to mean and include all information filed under the Exchange Act prior to the Execution Time and incorporated by reference in the Pricing Disclosure Package (including the Preliminary Offering Memorandum) or the Final Offering Memorandum (as the case may be), and all references herein to the terms “amend,” “amendment” or “supplement” with respect to the Final Offering Memorandum shall be deemed to mean and include all information filed under the Exchange Act after the Execution Time and incorporated by reference in the Final Offering Memorandum.
     All references in this Agreement to financial statements and schedules and other information that are “contained,” “included,” “disclosed,” “described,” “referenced,” “set forth in” or “stated” in the Preliminary Offering Memorandum or the Final Offering Memorandum (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that are incorporated by reference in the Preliminary Offering Memorandum or the Final Offering Memorandum, as the case may be.
     1. Representations and Warranties. The Company represents and warrants to each Initial Purchaser that (references in this Section 1 to the “Offering Memorandum” are to (x) the Pricing Disclosure Package in the case of representations and warranties made as of the Execution Time and (y) the Final Offering Memorandum in the case of representations and warranties made as of the Closing Date):

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     (a) Neither the Pricing Disclosure Package, at the Execution Time, nor the Final Offering Memorandum, as of its date or (as amended or supplemented in accordance with Section 5(b), if applicable) as of the Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty as to the information contained in or omitted from the Pricing Disclosure Package or the Final Offering Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Initial Purchasers through the Representative specifically for inclusion therein.
     (b) The Company has not prepared, made, used, authorized, approved or distributed and will not prepare, make, use, authorize, approve or distribute any written communication that constitutes an offer to sell or solicitation of an offer to buy the Notes other than (i) the Pricing Disclosure Package, (ii) the Final Offering Memorandum and (iii) any electronic road show or other written communications, in each case used in accordance with Section 5(b). Each such communication by the Company or its agents and representative pursuant to clause (iii) of the preceding sentence (each, a “Company Additional Written Communication”), when taken together with the Pricing Disclosure Package, did not as of the Execution Time, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation, warranty and agreement shall not apply to statements in or omissions from each such Company Additional Written Communication made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of any Initial Purchaser through the Representative specifically for inclusion therein.
     (c) All documents filed by the Company under the Exchange Act and incorporated or deemed to be incorporated by reference into the Offering Memorandum (the “Exchange Act Documents”), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder, and, when they were so filed, did not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
     (d) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representations) has, directly or indirectly, made offers or sales of any security, or solicited offers to buy any security, under circumstances that would require the registration of the Notes under the Act.
     (e) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representations) has engaged in any form of general solicitation or general advertising

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(within the meaning of Regulation D) in connection with any offer or sale of the Notes in the United States.
     (f) The Notes satisfy the eligibility requirements of Rule 144A(d)(3) under the Act.
     (g) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representations) has engaged in any directed selling efforts with respect to the Notes, and each of them has complied with the offering restrictions requirements of Regulation S. Terms used in this paragraph have the meanings given to them by Regulation S.
     (h) The Company will use its best efforts to cause the Euro Notes (i) to be listed on the Official List of the Luxembourg Stock Exchange and (ii) to be traded on the Euro MTF Market.
     (i) The Company is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Offering Memorandum will not be, an “investment company” within the meaning of the Investment Company Act, without taking account of any exemption arising out of the number of holders of the Company’s securities.
     (j) The Company is in full compliance with the reporting requirements of Section 13 and Section 15(d) of the Exchange Act.
     (k) The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any Notes of the Company (except as contemplated by this Agreement).
     (l) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
     (m) Except as otherwise disclosed in the Offering Memorandum (exclusive of any amendment or supplement thereto), subsequent to the date of the most recent financial statements included in the Offering Memorandum (exclusive of any amendment or supplement thereto): (i) there has been no material adverse effect on, or a material adverse change in, the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole (any such effect or change is called a “Material Adverse Effect”); (ii) the Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company or other subsidiaries, any of its subsidiaries on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.

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     (n) Each of the Company and its subsidiaries has been duly incorporated or organized and is validly existing as a corporation or other valid legal entity in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate or company power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Offering Memorandum, and is duly qualified to do business as a foreign corporation or other valid legal entity and is in good standing under the laws of each jurisdiction which requires such qualification, except in jurisdictions in which the failure to be so qualified or to be in good standing has not had and would not reasonably be expected to have a Material Adverse Effect.
     (o) All the outstanding shares of capital stock of each subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Offering Memorandum and other than the Company’s subsidiary in Japan, all outstanding shares of capital stock of the subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances.
     (p) The Company’s authorized equity capitalization is as set forth in the Offering Memorandum, and the Voting Trust Agreement entered into as of April 15, 1996, among the Voting Trustees and stockholders of the Company conforms in all material respects to the description thereof contained in the Offering Memorandum.
     (q) The statements in the Offering Memorandum under the headings “Certain U.S. Federal Income Tax Considerations”, “Description of Notes”, “Exchange Offer; Registration Rights”, “Risk Factors—Risks Relating to Our Business—Our success depends on the continued protection of our trademarks and other proprietary intellectual property rights”, and in the Company’s Annual Report on Form 10-K for the fiscal year ended November 29, 2009 (the “2009 10-K”) under the headings “Business—Trademarks” and “Item 3—Legal Proceedings” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are, in all material respects, accurate and fair summaries of such legal matters, agreements, documents or proceedings.
     (r) This Agreement has been duly authorized, executed and delivered by the Company; the Indenture has been duly authorized and, assuming due authorization, execution and delivery thereof by the Trustee when executed and delivered by the Company, will constitute a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the Notes and the Exchange Notes have been duly authorized, and, when executed and authenticated in accordance with the provisions of the Indenture, and delivered to and paid for by the Initial Purchasers, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); and the Registration Rights Agreement has

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been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the other parties thereto, constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
     (s) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture or the Registration Rights Agreement, except such as will be obtained under the Act and the Trust Indenture Act in connection with the transactions contemplated by the Registration Rights Agreement and such as may be required by the Luxembourg Stock Exchange or under the blue sky or securities laws of any jurisdiction in connection with the transactions contemplated by this Agreement and the Registration Rights Agreement.
     (t) Neither the execution and delivery of the Indenture, this Agreement or the Registration Rights Agreement, the issue and sale of the Notes and the Exchange Notes and the application of the proceeds thereof as described in the Offering Memorandum, nor the consummation of any other of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which any of their respective properties is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority of the United States or any state thereof having jurisdiction over the Company, any of its subsidiaries or any of their respective properties or, to the Company’s knowledge, any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority outside of the United States having jurisdiction over the Company, any of its subsidiaries or any of their respective properties, except, with respect to (x) clause (ii) and (y) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority outside of the United States described in clause (iii) as to which the Company has no knowledge, for conflicts, violations, breaches or impositions that would not reasonably be expected to have a Material Adverse Effect.
     (u) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Offering Memorandum present fairly in all material respects the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Act and the Exchange Act and have been

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prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein); and the summary and selected financial data set forth under the caption “Summary Historical Consolidated Financial Data” in the Offering Memorandum and under the caption “Selected Financial Data” in the 2009 10-K fairly present, on the basis stated in the Offering Memorandum, the information included therein.
     (v) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement, the Indenture or the Registration Rights Agreement, or the consummation of any of the transactions contemplated hereby or thereby; or (ii) could reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto).
     (w) The Company and each of its subsidiaries own, lease or license all such properties as are necessary to the conduct of their respective operations as presently conducted.
     (x) Neither the Company nor any subsidiary is in violation or default of (i) any provision of its charter or bylaws; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, other than such violations or defaults the occurrence of which would not reasonably be expected to have a Material Adverse Effect, whether or not arising from the transactions in the ordinary course of business.
     (y) PricewaterhouseCoopers LLP, who have audited the consolidated financial statements of the Company and its consolidated subsidiaries for fiscal years 2009, 2008 and 2007 included in the Offering Memorandum, are independent registered public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.
     (z) To the Company’s knowledge, there are no material stamp or other issuance or transfer taxes or duties or other material similar fees or charges required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Notes.
     (aa) The Company has (i) filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect) and (ii) has paid all

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taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax or other assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect, in the case of either (i) or (ii) whether or not arising from transactions in the ordinary course of business and except in each case as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto).
     (bb) No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers that in any such case could have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto).
     (cc) The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are reasonable and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect, except when the failure to be in full force and effect would not have a Material Adverse Effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; except as would not have a Material Adverse Effect, there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto).
     (dd) No subsidiary of the Company is currently contractually prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated by (i) the Offering Memorandum, (ii) the Company’s Second Amended and Restated Credit Agreement dated as of October 11, 2007, among the Company, Levi Strauss Financial Center Corporation, the financial institutions listed on the signature pages thereto and Bank of America, N.A., as agent, as amended on March 12, 2010 (the “Revolving Credit Facility”), and (iii) the Company’s Term Loan Agreement dated as of March 27, 2007, among the Company, the lenders party thereto and Bank of America, N.A., as administrative agent (the “Term Loan Facility” and, together with the Revolving Credit Facility, the “Existing Bank Credit Facilities”).

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     (ee) The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, other than such licenses, certificates, permits or other authorizations, the failure of which to possess would not have a Material Adverse Effect, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto).
     (ff) The Company and each of its subsidiaries maintain a system of internal control over financial reporting sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act) that are effective to provide reasonable assurance that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the Commission, including, without limitation, controls and procedures designed to provide reasonable assurance that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate to allow timely decisions regarding required disclosure.
     (gg) In the ordinary course of its business, the Company periodically reviews the effect of applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”) on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties); on the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto).

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     (hh) Except as would not have a Material Adverse Effect, each of the Company and its subsidiaries has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published interpretations) in which employees of the Company and its subsidiaries are eligible to participate and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations; the Company and its subsidiaries have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title IV of ERISA.
     (ii) The subsidiaries listed on Annex A attached hereto are the only significant subsidiaries of the Company as defined by Rule l-02 of Regulation S-X under the Act (the “Subsidiaries”).
     (jj) The Company and its subsidiaries own, possess, license or have other rights to use, on reasonable terms, all patents, patent applications, trade and service marks (including the Levi’s®, Dockers® and Signature by Levi Strauss & Co.™ trademarks), trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Intellectual Property”) necessary for the conduct of the Company’s business as now conducted free and clear of any material security interests, claims, liens or encumbrances, except as would not have a Material Adverse Effect or as set forth in or contemplated in (i) the Offering Memorandum (exclusive of any amendment or supplement thereto) or (ii) the Existing Bank Credit Facilities, and none of the Intellectual Property, to the best knowledge of the Company, conflicts with the valid trademark, trade name, copyright, patent, patent right or intangible asset of any other Person to the extent that such conflict has or would have a Material Adverse Effect.
     (kk) None of the Company, its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such Persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its Affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
     (ll) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting

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requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
     (mm) There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
     (nn) None of the Company or any of its subsidiaries or, to the best knowledge of the Company, any director, officer, agent, employee or other person acting on behalf of any member of the Company or any of its subsidiaries has caused the Company or any of its subsidiaries to be in violation of any applicable law, directive, national statute or administrative regulation relating to money-laundering, unlawful financial activities or unlawful use or appropriation of corporate funds, including those administered by the Office of Foreign Assets Control of the U.S. Department of Treasury (“OFAC”) or equivalent European Union measure; the Company agrees that it will not directly or indirectly use the proceeds of the offering and sale of the Notes, or lend, contribute or otherwise make available such proceeds to any person or entity, or any subsidiary, joint venture partner or sub-division of such other person or entity, for the purpose of financing the activities of any person or entity with whom transactions are currently prohibited under any such U.S. sanctions administered by OFAC or any equivalent European Union measure.
     (oo) Neither the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries has distributed and, prior to the later to occur of (i) the Closing Date and (ii) the completion of the distribution of the Notes, will distribute any material referring to the offering and sale of the Notes other than the Preliminary Offering Memorandum, the Pricing Disclosure Package or the Final Offering Memorandum or other materials, if any, permitted by the Act and the Financial Services and Markets Act 2000 (the “FSMA”) (or regulations promulgated pursuant to the FSMA) or required to be distributed by the Luxembourg Stock Exchange.
     Any certificate signed by any officer of the Company and delivered to the Representative or counsel for the Initial Purchasers in connection with the offering of the Notes shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Initial Purchaser.
     2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth:

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     (a) the Company agrees to sell to each Euro Notes Purchaser, and each Euro Notes Purchaser agrees, severally and not jointly, to purchase from the Company the aggregate principal amount of Euro Notes set forth opposite such Euro Notes Purchaser’s name on Schedule I hereto, at a purchase price of 98.250% of the principal amount of the Euro Notes; and
     (b) the Company agrees to sell to each Dollar Notes Purchaser, and each Dollar Notes Purchaser agrees, severally and not jointly, to purchase from the Company the aggregate principal amount of Dollar Notes set forth opposite such Dollar Notes Purchaser’s name on Schedule II hereto, at a purchase price of 98.250% of the principal amount of the Dollar Notes.
     3. Delivery and Payment. Delivery of and payment for the Euro Notes shall be made no later than 10:00 A.M., London time, and delivery of and payment for the Dollar Notes shall be made no later than 10:00 A.M., New York City time, on May 6, 2010, or at such time on such later date (not later than three Business Days after the foregoing date) as the Representative shall designate, which date and time may be postponed by agreement between the Representative and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Notes being herein called the “Closing Date”). Delivery of the Notes shall be made to the Representative for the respective accounts of the several Initial Purchasers against payment by the several Initial Purchasers through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company. Delivery of the Dollar Notes shall be made through the facilities of The Depository Trust Company and delivery of the Euro Notes shall be made through the facilities of the Euroclear System and Clearstream, Luxembourg, unless the Representative shall otherwise instruct.
     4. Offering by Initial Purchasers. Each Initial Purchaser, severally and not jointly, represents and warrants to and agrees with the Company that:
     (a) It has not offered or sold, and will not offer or sell, any Dollar Notes or Euro Notes, as applicable, except (i) to those persons it reasonably believes to be qualified institutional buyers (as defined in Rule 144A under the Act) and that, in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of such Dollar Notes or Euro Notes, as applicable, is aware that such sale is being made in reliance on Rule 144A; or (ii) in accordance with the restrictions set forth in Annex I hereto.
     (b) Neither it nor any person acting on its behalf has made or will make offers or sales of the Dollar Notes or Euro Notes, as applicable, in the United States by means of any form of general solicitation or general advertising (within the meaning of Regulation D) in the United States.
     5. Agreements. The Company agrees with each Initial Purchaser that:
     (a) The Company will furnish to each Initial Purchaser and to counsel for the Initial Purchasers, without charge, during the period referred to in paragraph (c) below, as

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many copies of the Pricing Disclosure Package and the Final Offering Memorandum and any amendments and supplements thereto as you may reasonably request.
     (b) As promptly as practicable following the Execution Time and in any event not later than the second business day following the date hereof, the Company will prepare and deliver to the Initial Purchasers the Final Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by the information contained in the Pricing Supplement. The Company will not amend or supplement the Preliminary Offering Memorandum or the Pricing Supplement. After the Execution Time, the Company will not amend or supplement the Final Offering Memorandum without the prior written consent of Banc of America Securities LLC. Before making, preparing, using, authorizing, approving or distributing any Company Additional Written Communication, the Company will furnish to the Representative a copy of such written communication for review and will not make, prepare, use, authorize, approve or distribute any such written communication to which the Representative reasonably objects.
     (c) If at any time prior to the completion of the sale of the Notes by the Initial Purchasers (as determined by Banc of America Securities LLC), any event occurs as a result of which the Final Offering Memorandum, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, the Company promptly (i) will notify the Representative of any such event; (ii) subject to the requirements of paragraph (b) of this Section 5, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Final Offering Memorandum to the several Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as you may reasonably request; provided, however, that once so notified each Initial Purchaser agrees that it shall not distribute the Final Offering Memorandum until it has been so amended or supplemented.
     (d) The Company will arrange, if necessary, for the qualification of the Notes for sale by the Initial Purchasers under the laws of such jurisdictions in the United States and the European Union as the Representative may reasonably designate and will maintain such qualifications in effect so long as required for the sale of the Notes; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. The Company will promptly advise the Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
     (e) The Company will not, and will not permit any of its Affiliates to, resell, under circumstances that would require the registration of the Notes under the Act, any Notes that have been acquired by any of them.

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     (f) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no covenant) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Notes under the Act.
     (g) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no covenant) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Notes in the United States.
     (h) So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Act, the Company will, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Act. This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders, from time to time of such restricted securities.
     (i) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf will engage in any directed selling efforts with respect to the Notes, and each of them will comply with the offering restrictions requirements of Regulation S. Terms used in this paragraph have the meanings given to them by Regulation S.
     (j) The Company will cooperate with the Representative and use its best efforts to (i) permit the Dollar Notes to be eligible for clearance and settlement through The Depository Trust Company (“DTC”), (ii) permit the Euro Notes to be eligible for clearance and settlement through the Euroclear System and Clearstream, Luxembourg and (iii) cause the Euro Notes to be approved for listing on the Official List of the Luxembourg Stock Exchange and approved for trading on the Euro MTF Market.
     (k) The Company will not offer, sell, contract to sell, grant any other option to purchase or otherwise dispose of, directly or indirectly, or announce the offering of, or file a registration statement for, any debt securities issued or guaranteed by the Company or any of its direct or indirect subsidiaries, or enter into any agreement to do any of the foregoing (other than (i) the Notes and the New Securities (as defined in the Registration Rights Agreement), (ii) pursuant to any credit facility permitted under the Indenture and (iii) purchase money debt and any other non-capital markets debt permitted under the Indenture for a period of 60 days from the date the Notes are issued without the prior written consent of Banc of America Securities LLC.
     (l) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under

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the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
     (m) The Company will not, at any time prior to the expiration of three years after the Closing Date, be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and will not be or become a closed-end investment company required to be registered but not registered thereunder.
     (n) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation of the Indenture and the Registration Rights Agreement, the issuance of the Notes and the fees of the Trustee; (ii) the preparation, printing or reproduction of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Final Offering Memorandum and each amendment or supplement to any of them; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Final Offering Memorandum, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Notes; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Notes, including any stamp or transfer taxes in connection with the original issuance and sale of the Notes; (v) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (vi) any registration or qualification of the Notes for offer and sale under the Notes or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Initial Purchasers relating to such registration and qualification); (vii) admitting (A) the Dollar Notes for clearance and settlement through DTC and (B) the Euro Notes for listing on the Luxembourg Stock Exchange and the Euro Notes for trading on the Euro MTF Market; (viii) the transportation and other expenses (including one half of the cost of any chartered airplane used by the Company personnel) incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Notes; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that, except as provided in this Section, and Sections 7 and 8 hereof, the Initial Purchasers will pay all of their own costs and expenses, including the fees of their counsel, Cahill Gordon & Reindel llp.
     6. Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:

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     (a) The Company shall have requested and caused Orrick, Herrington & Sutcliffe LLP, counsel for the Company, to furnish to the Representative its opinion, dated the Closing Date and addressed to the Initial Purchasers, the form of which is attached as Exhibit A.
     (b) The Company shall have requested and caused Jennifer Chaloemtiarana, Chief Counsel, Corporate for the Company, to furnish to the Representative her opinion, dated the Closing Date and addressed to the Initial Purchasers, the form of which is attached as Exhibit B.
     (c) The Representative shall have received from Cahill Gordon & Reindel llp, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Initial Purchasers, with respect to the issuance and sale of the Notes, the Indenture, the Registration Rights Agreement, the Pricing Disclosure Package, the Final Offering Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
     (d) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Financial Officer and the Treasurer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Pricing Disclosure Package, the Final Offering Memorandum, any amendment or supplement to the Final Offering Memorandum and this Agreement and that:
     (i) the representations and warranties of the Company in this Agreement were true and correct as of the Execution Time and are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
     (ii) since the date of the most recent financial statements included in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
     (e) On the date hereof, the Representative shall have received from PricewaterhouseCoopers LLP, the independent registered public accounting firm for the Company, a “comfort letter” dated the date hereof addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, covering certain financial information in the Pricing Disclosure Package and other customary matters. In addition, on the Closing Date, the Representative shall have received from such accountants a

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“bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover certain financial information in the Final Offering Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 5 days prior to the Closing Date.
     (f) Subsequent to the Execution Time or, if earlier, the date of the most recent financial statements included in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to market the Notes as contemplated by the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
     (g) The Dollar Notes shall be eligible for clearance and settlement through DTC; and the Euro Notes shall be eligible for clearance and settlement through the Euroclear System and Clearstream, Luxembourg.
     (h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating (including notice of an adverse change in the outlook for such rating) or of a possible change in any such rating that does not indicate the direction of the possible change.
     (i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
     (j) As soon as practicable after the closing of the offering of the Notes, the Company shall apply the net proceeds of the sale of the Notes as described in the Pricing Disclosure Package and the Final Offering Memorandum.
     If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

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     The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Initial Purchasers, Cahill Gordon & Reindel llp, 80 Pine Street, New York, NY 10005, on the Closing Date.
     7. Reimbursement of Expenses. If the sale of the Notes provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Initial Purchasers, the Company will reimburse the Initial Purchasers severally through Banc of America Securities LLC on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Notes.
     8. Indemnification and Contribution.
          (a) The Company agrees to indemnify and hold harmless each Initial Purchaser, the directors, officers, employees and agents of each Initial Purchaser and each person who controls any Initial Purchaser within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Pricing Disclosure Package, any Company Additional Written Communication or the Final Offering Memorandum (or in any supplement or amendment thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Pricing Disclosure Package, any Company Additional Written Communication or the Final Offering Memorandum, or in any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Initial Purchasers through the Representative specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
          (b) Each Initial Purchaser severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Initial Purchaser, but only with reference to written information relating to such Initial Purchaser furnished to the Company by or on behalf of such Initial Purchaser through the Representative specifically for inclusion in the Pricing Disclosure Package, any Company Additional Written Communication or the Final Offering Memorandum (or in any amendment or supplement thereto). This indemnity agreement will be

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in addition to any liability which any Initial Purchaser may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page regarding the delivery of the Notes and, under the heading “Plan of Distribution”, (i) the list of Initial Purchasers; and (ii) the paragraphs under the subheading “Short Positions”, in the Pricing Disclosure Package and the Final Offering Memorandum constitute the only information furnished in writing by or on behalf of the Initial Purchasers for inclusion in the Pricing Disclosure Package, any Company Additional Written Communication or the Final Offering Memorandum (or in any amendment or supplement thereto).
          (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) does not include an admission of fault and (ii) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. The indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for fees and expenses of more than one separate law firm of attorneys (in addition to any local counsel) for all indemnified parties and all such fees and expenses shall be reimbursed as incurred. Such firm shall be designated by Banc of America Securities LLC in the case of the parties indemnified

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pursuant to Section 8(a) and by the Company in the case of parties indemnified pursuant to Section 8(b). Each indemnified party shall use all reasonable efforts to cooperate with the indemnifying party in the defense of any such action or claim.
          (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Initial Purchasers severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “Losses”) to which the Company and one or more of the Initial Purchasers may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Initial Purchasers on the other from the offering of the Notes; provided, however, that in no case shall any Initial Purchaser (except as may be provided in any agreement among the Initial Purchasers relating to the offering of the Notes) be responsible for any amount in excess of the purchase discount or commission applicable to the Notes purchased by such Initial Purchaser hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Initial Purchasers severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Initial Purchasers on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (after deducting discounts and commissions to the Initial Purchasers, but before deducting expenses) received by it, and benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions in each case set forth in this Agreement. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Initial Purchasers on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Initial Purchaser within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Initial Purchaser shall have the same rights to contribution as such Initial Purchaser, and each person who controls the Company within the meaning of either the Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
     9. Default by an Initial Purchaser.
          (a) If any one or more Euro Notes Purchasers shall fail to purchase and pay for any of the Euro Notes agreed to be purchased by such Euro Notes Purchaser hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Euro Notes Purchasers shall be obligated severally to take

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up and pay for (in the respective proportions which the principal amount of Euro Notes set forth opposite their names on Schedule I hereto bears to the aggregate principal amount of Euro Notes set forth opposite the names of all the remaining Euro Notes Purchasers) the Euro Notes which the defaulting Euro Notes Purchaser or Euro Notes Purchasers agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Euro Notes which the defaulting Euro Notes Purchaser or Euro Notes Purchasers agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Euro Notes set forth on Schedule I hereto, the remaining Euro Notes Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Euro Notes, and if such non-defaulting Euro Notes Purchasers do not purchase all the Euro Notes, this Agreement will terminate without liability to any non-defaulting Euro Notes Purchaser or the Company. In the event of a default by any Euro Notes Purchaser as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as Merrill Lynch International shall determine in order that the required changes in the Final Offering Memorandum or in any other documents or arrangements may be effected.
          (b) If any one or more Dollar Notes Purchasers shall fail to purchase and pay for any of the Dollar Notes agreed to be purchased by such Dollar Notes Purchaser hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Dollar Notes Purchasers shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Dollar Notes set forth opposite their names on Schedule II hereto bears to the aggregate principal amount of Dollar Notes set forth opposite the names of all the remaining Dollar Notes Purchasers) the Dollar Notes which the defaulting Dollar Notes Purchaser or Dollar Notes Purchasers agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Dollar Notes which the defaulting Dollar Notes Initial Purchaser or Dollar Notes Purchasers agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Dollar Notes set forth on Schedule II hereto, the remaining Dollar Notes Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Dollar Notes, and if such non-defaulting Dollar Notes Purchasers do not purchase all the Dollar Notes, this Agreement will terminate without liability to any non-defaulting Dollar Notes Purchaser or the Company. In the event of a default by any Dollar Notes Purchaser as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as Banc of America Securities LLC shall determine in order that the required changes in the Final Offering Memorandum or in any other documents or arrangements may be effected.
          (c) Nothing contained in this Agreement shall relieve any defaulting Initial Purchaser of its liability, if any, to the Company or any non-defaulting Initial Purchaser for damages occasioned by its default hereunder.
     10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of and payment for the Notes, if at any time prior to such time (i) trading in securities generally on the New York Stock Exchange or the NASDAQ Global Market shall have been suspended or limited or minimum prices shall have been established on such Exchange or the NASDAQ Global Market; (ii) a banking moratorium shall have been declared either by Federal or New York State authorities; or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United

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States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impracticable or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
     11. No Advisory or Fiduciary Responsibilities. The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Initial Purchasers, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Initial Purchaser is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Initial Purchaser has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Initial Purchaser has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement; (iv) the several Initial Purchasers and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Initial Purchasers have no obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship; and (v) the Initial Purchasers have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
     This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Initial Purchasers, or any of them, with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Initial Purchasers with respect to any breach or alleged breach of fiduciary duty. Nothing in this Section 11, however, shall limit the Initial Purchasers’ liability pursuant to Section 8 hereof.
     12. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Initial Purchasers or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Notes; provided, however, that the representations and warranties of the Company shall be deemed to be made at the Execution Time and the Closing Date only. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
     13. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to the Banc of America Securities LLC Legal Department (fax no.: (212)  ###-###-####) and confirmed to the Legal

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Department, Banc of America Securities LLC at One Bryant Park, New York, New York 10036, Attention: Legal Department; or, if sent to the Company, will be mailed, delivered or telefaxed to (415)  ###-###-#### and confirmed to it at Levi’s Plaza, 1155 Battery Street, San Francisco, CA 94111, attention of the Legal Department.
     14. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no other person will have any right or obligation hereunder.
     15. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
     16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument.
     17. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
     18. Definitions. The terms which follow, when used in this Agreement, shall have the meanings indicated.
     “Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
     “Affiliate” shall have the meaning specified in Rule 501(b) of Regulation D.
     “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in the City of New York.
     “Clearstream, Luxembourg” means Clearstream Banking, S.A.
     “Commission” shall mean the Securities and Exchange Commission.
     “Euroclear System” means the Euroclear Bank S.A./N.V., as operator of the Euroclear Clearance System.
     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
     “Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
     “Investment Company Act” shall mean the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.

-23-


 

     “Regulation D” shall mean Regulation D under the Act.
     “Regulation S” shall mean Regulation S under the Act.
     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.

-24-


 

     If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement between the Company and the several Initial Purchasers.
             
    Very truly yours,    
 
           
    LEVI STRAUSS & CO.    
 
           
 
  by   /s/ Roger J. Fleischmann, Jr.
 
   
 
      Name: Roger J. Fleischmann, Jr.    
 
      Title: Vice President and Treasurer    

 


 

The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MERRILL LYNCH INTERNATIONAL
By: Merrill Lynch International
         
by
  /s/ Stephen B. Paras
 
Name: Stephen B. Paras
   
 
  Title: Managing Director    
For itself and the other several Initial Purchasers
named in Schedule I to
the foregoing Agreement.

 


 

The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BANC OF AMERICA SECURITIES LLC
By: Banc of America Securities LLC
         
by
  /s/ Thomas M. Brown
 
Name:
   
 
  Title:    
For itself and the other several Initial Purchasers
named in Schedule II to
the foregoing Agreement.

 


 

SCHEDULE I
         
    Principal Amount  
    of Euro Notes  
Euro Notes Purchasers   to be Purchased  
Merrill Lynch International
  108,000,000.00  
J.P. Morgan Securities Ltd.
    75,000,000.00  
Credit Suisse Securities (Europe) Limited
    30,000,000.00  
Goldman Sachs International
    30,000,000.00  
Wells Fargo Securities International Limited
    30,000,000.00  
HSBC Bank plc
    9,000,000.00  
Scotia Capital Inc.
    9,000,000.00  
UBS Limited
    9,000,000.00  
 
     
Total
  300,000,000.00  

 


 

SCHEDULE II
         
    Principal Amount  
    of Dollar Notes  
Dollar Notes Purchasers   to be Purchased  
Banc of America Securities LLC
  $ 189,000,000.00  
J.P. Morgan Securities Inc.
    131,250,000.00  
Credit Suisse Securities (USA) LLC
    52,500,000.00  
Goldman, Sachs & Co.
    52,500,000.00  
Wells Fargo Securities, LLC
    52,500,000.00  
HSBC Securities (USA) Inc.
    15,750,000.00  
Scotia Capital (USA) Inc.
    15,750,000.00  
UBS Securities LLC
    15,750,000.00  
 
     
Total
  $ 525,000,000.00  

 


 

SCHEDULE III
PRICING SUPPLEMENT
     
PRICING SUPPLEMENT   STRICTLY CONFIDENTIAL
Levi Strauss & Co.
€300,000,000 7.750% Senior Notes due 2018
$525,000,000 7.625% Senior Notes due 2020
April 28, 2010
          This supplement (this “Pricing Supplement”) is qualified in its entirety by reference to the preliminary offering memorandum dated April 22, 2010 (the “Preliminary Offering Memorandum”). The information in this Pricing Supplement supplements the Preliminary Offering Memorandum and supersedes the information in the Preliminary Offering Memorandum to the extent inconsistent with the information in the Preliminary Offering Memorandum.
          The Notes have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and are being offered only to qualified institutional buyers pursuant to Rule 144A under the Securities Act and outside the United States to non-U.S. persons in accordance with Regulation S under the Securities Act.
Terms Applicable to the €300,000,000 7.750% Senior Notes due 2018
     
Issuer:
  Levi Strauss & Co.
 
   
Title of Securities:
  7.750% Senior Notes due 2018 (the “Euro Notes” and, together with the Dollar Notes, the “Notes”).
 
   
Principal Amount:
  €300,000,000. Note that this is an increase of €25,000,000 from the contemplated €275,000,000 contained in the Preliminary Offering Memorandum.
 
   
Maturity Date:
  May 15, 2018. 
 
   
Issue Price:
  100.000% plus accrued interest, if any, from May 6, 2010.
 
   
Coupon:
  7.750% 
 
   
Yield to Maturity:
  7.750% 
 
   
Spread:
  +496 bps vs DBR 4.250% due 07/04/2018
 
   
Initial Purchasers:
  Merrill Lynch International
 
  J.P. Morgan Securities Ltd.
 
  Credit Suisse Securities (Europe) Limited
 
  Goldman Sachs International
 
  Wells Fargo Securities International Limited
 
  HSBC Bank plc
 
  Scotia Capital Inc.
 
  UBS Limited
 
   
Make-Whole Redemption:
  Bund plus 50 basis points prior to May 15, 2014.

 


 

     
Optional Redemption:
  On or after May 15, 2014, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the Euro Notes to be redeemed to the applicable redemption date, if redeemed during the twelve-month period beginning on May 15 of the years indicated below:
         
Year   Price
2014
    103.875 %
2015
    101.938 %
2016 and thereafter
    100.000 %
     
Equity Clawback:
  Up to 35% at 107.750% prior to May 15, 2013.
 
   
Common Code and ISIN Numbers:
  050639835 (144A Common Code) XS0506398352 (144A ISIN)
 
  050627942 (Reg S Common Code) XS0506279420 (Reg S ISIN)
 
   
Minimum Denominations:
  €50,000 and €1,000 increments in excess thereof.
 
   
Terms Applicable to the $525,000,000 7.625% Senior Notes due 2020
 
   
Issuer:
  Levi Strauss & Co.
 
   
Title of Securities:
  7.625% Senior Notes due 2020 (the “Dollar Notes”).
 
   
Principal Amount:
  $525,000,000. Note that this is an increase of $65,000,000 from the contemplated $460,000,000 contained in the Preliminary Offering Memorandum.
 
   
Maturity Date:
  May 15, 2020.
 
   
Issue Price:
  100.000% plus accrued interest, if any, from May 6, 2010.
 
   
Coupon:
  7.625% 
 
   
Yield to Maturity:
  7.625% 
 
   
Spread:
  +389 bps vs UST 3.625% due 2/15/20
 
   
Initial Purchasers:
  Banc of America Securities LLC
 
  J.P. Morgan Securities Inc.
 
  Credit Suisse Securities (USA) LLC
 
  Goldman, Sachs & Co.
 
  Wells Fargo Securities, LLC
 
  HSBC Securities (USA) Inc.
 
  Scotia Capital (USA) Inc.
 
  UBS Securities LLC
 
   
Make-Whole Redemption:
  Treasury plus 50 basis points prior to May 15, 2015.

-2-


 

     
Optional Redemption:
  On or after May 15, 2015, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the Dollar Notes to be redeemed to the applicable redemption date, if redeemed during the twelve-month period beginning on May 15 of the years indicated below:
         
Year   Price
2015
    103.813 %
2016
    102.542 %
2017
    101.271 %
2018 and thereafter
    100.000 %
     
Equity Clawback:
  Up to 35% at 107.625% prior to May 15, 2013.
 
   
CUSIP and ISIN Numbers:
  52736R BA9 (144ACUSIP)
 
  U52799 AU4 (Reg S CUSIP)
 
   
Minimum Denominations:
  $100,000 and $1,000 increments in excess thereof.
 
   
Terms Applicable to All Notes
 
   
Interest Payment Dates:
  May 15 and November 15 of each year, commencing November 15, 2010.
 
   
Record Dates:
  May 1 and November 1 of each year.
 
   
Trade Date:
  April 28, 2010.
 
   
Settlement Date:
  May 6, 2010 (T+6) (T+5 Europe).
 
 
  The settlement date of May 6, 2010 is the 6th business day (5th business day in Europe) following the trade date (such settlement being referred to as “T+6” (T+5 in Europe)). Under Rule 15c6-1 under the Exchange Act, trades in the secondary market are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade Notes prior to the date that is three business days preceding the settlement date will be required, by virtue of the fact that the Notes initially settle in T+6 (T+5 in Europe), to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade the Notes during such period should consult their advisors.
 
   
Distribution:
  144A and Regulation S with registration rights.
 
   
Use of Proceeds:
  As set forth in the Preliminary Offering Memorandum, proceeds not used to purchase notes in the Tender Offer, including proceeds attributable to the increased offering size, will be reflected as cash on the Company’s balance sheet and will be used for general corporate purposes, which may include the repayment of indebtedness.
 
   
Change of Control:
  101% 

-3-


 

          Other information (including financial information) presented in the Preliminary Offering Memorandum is deemed to have changed to the extent affected by the changes described herein.
          This material is confidential and is for your information only and is not intended to be used by anyone other than you. This information does not purport to be a complete description of these securities or the offering. Please refer to the Preliminary Offering Memorandum for a complete description.
          This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
          Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers were automatically generated as a result of this communication being sent via Bloomberg email or another communication system.

-4-


 

ANNEX A
Significant Subsidiaries
Levi Strauss International, Inc.
Levi Strauss International
501 Holdings C.V.
505 Finance, C.V.
550 Holdings C.V.
Levi Strauss Asia Pacific Division Pte Ltd.
Levi Strauss Nederland B.V.
Levi Strauss Continental S.A.
Levi Strauss & Co. Europe SCA
LVC, B.V.
Levi Strauss Nederland Holding B.V.
Levi Strauss International Group Finance Coordination Services SCA

 


 

ANNEX I
Selling Restrictions for Offers and
Sales Outside the United States
     Each Initial Purchaser understands that:
     Such Initial Purchaser agrees that it has not offered or sold and will not offer or sell the Securities in the United States or to, or for the benefit or account of, a U.S. Person (other than a distributor), in each case, as defined in Rule 902 of Regulation S (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering of the Notes pursuant hereto and the Closing Date, other than in accordance with Regulation S or another exemption from the registration requirements of the Act. Such Initial Purchaser agrees that, during such 40-day restricted period, it will not cause any advertisement with respect to the Notes (including any “tombstone” advertisement) to be published in any newspaper or periodical or posted in any public place and will not issue any circular relating to the Notes, except such advertisements as are permitted by and include the statements required by Regulation S.
     Such Initial Purchaser agrees that, at or prior to confirmation of a sale of Notes by it to any distributor, dealer or person receiving a selling concession, fee or other remuneration during the 40-day restricted period referred to in Rule 903 of Regulation S, it will send to such distributor, dealer or person receiving a selling concession, fee or other remuneration a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise until 40 days after the later of the date the Securities were first offered to persons other than distributors in reliance upon Regulation S and the Closing Date, except in either case in accordance with Regulation S under the Securities Act (or in accordance with Rule 144A under the Securities Act or to accredited investors in transactions that are exempt from the registration requirements of the Securities Act), and in connection with any subsequent sale by you of the Securities covered hereby in reliance on Regulation S under the Securities Act during the period referred to above to any distributor, dealer or person receiving a selling concession, fee or other remuneration, you must deliver a notice to substantially the foregoing effect. Terms used above have the meanings assigned to them in Regulation S under the Securities Act.”
     In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) an offer to the public of any Notes which are the subject of the offering contemplated by this offering memorandum may not be made in that Relevant Member State, except that an offer to the public in that Relevant
Annex I-1

 


 

Member State of any Notes may be made at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
  (a)   to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
 
  (b)   to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000, and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
 
  (c)   by the initial purchasers to fewer than 100 natural or legal persons (other than “qualified investors” as defined in the Prospectus Directive) subject to obtaining the prior consent of the representatives for any such offer; or
 
  (d)   in any other circumstances falling within Article 3(2) of the Prospectus Directive;
provided that no such offer of Notes shall result in a requirement for the publication by us or any representative of a prospectus pursuant to Article 3 of the Prospectus Directive.
     Any person making or intending to make any offer of Notes within the EEA should only do so in circumstances in which no obligation arises for us or any of the initial purchasers to produce a prospectus for such offer. Neither we nor the initial purchasers have authorized, nor do they authorize, the making of any offer of Notes through any financial intermediary, other than offers made by the initial purchasers which constitute the final offering of Notes contemplated in this offering memorandum.
     For the purposes of this provision, and each Initial Purchaser’s representation below, the expression an “offer to the public” in relation to any Notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any Notes to be offered so as to enable an investor to decide to purchase any Notes, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
     Each person in a Relevant Member State who receives any communication in respect of, or who acquires any Notes under, the offer of Notes contemplated by this offering memorandum will be deemed to have represented, warranted and agreed to and with us and each initial purchaser that:
  (a)   it is a “qualified investor” within the meaning of the law in that Relevant Member State implementing Article 2(1)(e) of the Prospectus Directive; and
 
  (b)   in the case of any Notes acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (i) the Notes acquired by it in the offering have not been acquired on behalf of, nor have they been acquired with a
Annex I-2

 


 

      view to their offer or resale to, persons in any Relevant Member State other than “qualified investors” (as defined in the Prospectus Directive), or in circumstances in which the prior consent of the representatives has been given to the offer or resale; or (ii) where Notes have been acquired by it on behalf of persons in any Relevant Member State other than qualified investors, the offer of those Notes to it is not treated under the Prospectus Directive as having been made to such persons.
Annex I-3