EXHIBIT 4.4
FORM OF REGULATION S GLOBAL NOTE
[FORM OF FACE OF NOTE]
No. C-1 $
-----------------
CUSIP U65415 AA6
NINE WEST GROUP INC.
5-1/2% Convertible Subordinated Notes Due 2003
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS REGULATION S GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS REGULATION S GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NINE WEST GROUP INC., a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Company"), which term
includes any Successor Company under the Indenture referred to on the reverse
hereof, for value received hereby promises to pay to ---------------------------
- --------------------------, or registered assigns, the principal sum of --------
- ------------- Dollars (subject to adjustment as set forth in the next paragraph
hereof) on July 15, 2003, at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, or, at the
option of the holder of this Regulation S Global Note, at the Corporate Trust
Office of the Trustee, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts. The Company shall pay interest on said principal sum
semi-annually on January 15 and July 15 of each year (each, an "Interest Payment
Date"), commencing on January 15, 1997, at said office or agency, in like coin
or currency, at the rate per annum specified in the title of this Regulation S
Global Note. Interest on this Regulation S Global Note will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance and until payment of said principal sum has been
made or duly provided for. The interest so payable on any Interest Payment Date
will be paid to the person in whose name this Regulation S Global Note (or one
or more Predecessor Notes) is registered at the close of business on the record
date, which shall be the January 1 or July 1 (whether or not a Business Day)
next preceding such Interest Payment Date respectively; provided that any such
interest not punctually paid or duly provided for shall be payable as provided
in the Indenture. Interest shall be paid by check mailed to the registered
holder at the registered address of such person unless other arrangements are
made in accordance with the provisions of the Indenture.
The aggregate principal amount of this Regulation S Global Note
represented hereby may from time to time be reduced or increased to reflect
exchanges of a part of this Regulation S Global Note for interests in the
Restricted Global Note or definitive Notes or exchanges of interests in the
Restricted Global Note or definitive Notes for a part of this Regulation S
Global Note or conversions or redemptions of a part of this Regulation S Global
Note or cancellations of a part of this Regulation S Global Note or transfers of
interests in the Restricted Global Note or definitive Notes in return for a part
of this Regulation S Global Note or transfers of a part of this Regulation S
Global Note effected by delivery of interests in the Restricted Global Note or
definitive Notes, in each case, and in any such case, by means of notations on
the Schedule of Exchanges, Conversions, Redemptions, Cancellations and Transfers
on the last page hereof. Notwithstanding any provision of this Regulation S
Global Note to the contrary, (i) exchanges of a part of this Regulation S Global
Note for interests in the Restricted Global Note or definitive Notes, (ii)
exchanges of interests in the Restricted Global Note or definitive Notes for a
part of this Regulation S Global Note, (iii) conversions or redemptions of a
part of this Regulation S Global Note, (iv) cancellations of a part of this
Regulation S Global Note, (v) transfers of interests in the Restricted Global
Note or definitive Notes in return for a part of this Regulation S Global Note
and (vi) transfers of a part of this Regulation S Global Note effected by
delivery of interests in the Restricted Global Note or definitive Notes may be
effected without the surrendering of this Regulation S Global Note, provided
that appropriate notations on the Schedule of Exchanges, Conversions,
Redemptions, Cancellations and Transfers are made by the Trustee, or the
Custodian at the direction of the Trustee, to reflect the appropriate reduction
or increase, as the case may be, in the aggregate principal amount of this
Regulation S Global Note resulting therefrom or as a consequence thereof.
Reference is made to the further provisions of this Regulation S
Global Note set forth on the reverse hereof, including, without limitation,
provisions giving the holder of this Regulation S Global Note the right to
convert this Regulation S Global Note into Common Stock of the Company on the
terms (or, at the option of the Company, into an amount of cash as set forth in
the Indenture) and subject to the limitations referred to on the reverse hereof
and as more fully specified in the Indenture. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This Regulation S Global Note shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be construed
in accordance with and governed by the laws of said State, without regard to
conflicts of laws principles thereof.
This Regulation S Global Note shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee or a duly authorized authenticating agent under
the Indenture.
IN WITNESS WHEREOF, the Company has caused this Regulation S Global
Note to be duly executed under its corporate seal.
NINE WEST GROUP INC.
By:
------------------------
Name:
Title:
Attest:
- -----------------------
Secretary
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes described in the within-named indenture.
CHEMICAL BANK, as Trustee
By:
--------------------------
Authorized Signatory
As Authenticating Agent
(if different from Trustee)
[FORM OF REVERSE OF REGULATION S GLOBAL NOTE]
NINE WEST GROUP INC.
5-1/2% Convertible Subordinated Notes Due 2003
This Regulation S Global Note is one of a duly authorized issue of
Notes of the Company, designated as its 5-1/2% Convertible Subordinated Notes
Due 2003 (herein called the "Notes"), limited to the aggregate principal amount
of $---------- all issued or to be issued under and pursuant to an Indenture
dated as of June 26, 1996 (the "Indenture"), between the Company and Chemical
Bank, the trustee (the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a complete description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the holders of the Notes. Each Note is subject to,
and qualified by, all such terms as set forth in the Indenture, certain of which
are summarized hereon and each holder of a Note is referred to the corresponding
provisions of the Indenture for a complete statement of such terms. To the
extent that there is any inconsistency between the summary provisions set forth
in the Notes and the Indenture, the provisions of the Indenture shall govern.
Capitalized terms used but not defined in this Note shall have the meanings
ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of, premium, if any, and accrued
interest on all Notes may be declared, and upon said declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The payment of principal of, premium, if any, and interest on the
Notes will, to the extent set forth in the Indenture, be subordinated in right
of payment to the prior payment in full of all Senior Indebtedness (as defined
in the Indenture). Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding related to the Company or its
property, in an assignment for the benefit of creditors or any marshalling of
the Company's assets and liabilities, the holders of all Senior Indebtedness
will first be entitled to receive payments in full of all amounts due or to
become due thereon before the holders of the Notes will be entitled to receive
any payment in respect of the principal of, premium, if any, or interest on the
Notes (except that holders of Notes may receive securities that are subordinated
at least to the same extent as the Notes to Senior Indebtedness and any
securities issued in exchange for Senior Indebtedness).
The Company also may not make any payment of principal, premium (if
any) or interest on the Notes (except in such subordinated securities) any may
not repurchase, redeem or otherwise retire any Notes if (a) a default in the
payment of the principal of, premium, if any, or interest on Senior Indebtedness
occurs and is continuing beyond any applicable period of grace or (b) any other
default occurs and is continuing with respect to Senior Indebtedness that
permits holders of the Senior Indebtedness as to which such default relates to
accelerate its maturity and the Trustee receives a notice of such default (a
"Payment Blockage Notice") from the representative or representatives of holders
of at least a majority in principal amount of Senior Indebtedness then
outstanding. Payments on the Notes may and shall be resumed (i) in the case of
a payment default, upon the date on which such default is cured or waived, or
(ii) in the case of a non-payment default, 179 days after the date on which the
applicable Payment Blockage Notice is received, unless the maturity of any
Senior Indebtedness has been accelerated. No new period of payment blockage may
be commenced within 360 days after the receipt by the Trustee of any prior
Payment Blockage Notice. No nonpayment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the Trustee shall be,
or be made, the basis for a subsequent Payment Blockage Notice unless such
default shall have been cured or waived for a period of not less than 180 days.
In the event that the Trustee (or paying agent if other than the
Trustee) or any holder of the Notes receives any payment of principal or
interest with respect to the Notes at a time when such payment is prohibited
under the Indenture, such payment shall be held in trust for the benefit of, and
shall be paid over and delivered to, the holders of Senior Indebtedness (if
there are no representatives thereof) or their representative as their
respective interests may appear. After all Senior Indebtedness is paid in full
and until the Notes are paid in full, the holders of the Notes shall be
subrogated (equally and ratably with all other Indebtedness pari passu with the
Notes) to the rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distributions otherwise
payable to the holders of the Notes have been applied to the payment of Senior
Indebtedness.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the holders of the Notes; provided that no such supplemental indenture shall
(i) extend the fixed maturity of any Note, or reduce the rate or extend the time
of payment of interest thereon, or reduce the principal amount thereof or
premium, if any, thereon, or reduce any amount payable on redemption thereof,
alter the obligation of the Company to redeem the Notes at the option of the
holders upon the occurrence of a Change of Control or impair or affect the right
of any Noteholder to institute suit for the payment thereof, or make the
principal thereof or interest or premium, if any, thereon payable in any coin or
currency other than that provided in the Notes, modify the subordination
provisions in a manner adverse to the holders of the Notes, or impair the right
to convert the Notes into Common Stock subject to the terms set forth in the
Indenture without the consent of the holder of each Note so affected or (ii)
reduce the aforesaid percentage of Notes, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of all Notes then outstanding. It is also provided in the Indenture that, prior
to any declaration accelerating the maturity of the Notes, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the holders of all of the Notes waive any past default or Event of
Default under the Indenture and its consequences except a default in the payment
of interest or any premium on or the principal of any of the Notes, a failure by
the Company to convert any Notes into Common Stock of the Company or a default
in respect of a covenant or provision of the Indenture that under Article X
thereof cannot be modified or amended without the consent of the holders of all
Notes then outstanding. Any such consent or waiver by the holder of this
Regulation S Global Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Regulation S Global Note and any Notes that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Regulation S Global Note or such other Notes.
No reference herein to the Indenture and no provision of this
Regulation S Global Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Regulation S Global Note at
the place, at the respective times, at the rate and in the coin or currency
herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The Notes are issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration or exchange of Notes, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
The Notes are not redeemable at the option of the Company prior to
July 16, 1996. At any time on or after that date, the Notes may be redeemed at
the Company's option, upon notice as set forth in the Indenture, in whole at any
time or in part from time to time, at the optional redemption prices set forth
below, together with accrued interest to the date fixed for redemption.
If redeemed during the 12-month period beginning:
Date Percentage
---- ----------
July 16, 1999 102.75%
July 15, 2000 101.83%
July 15, 2001 100.92%
and 100% on or after July 15, 2002; provided that if the date fixed for
redemption is on a date or after the record date and on or before the next
following interest payment date, then the interest payable on such date shall be
paid to the holder of record on the next preceding January 1 or June 1,
respectively.
If a Change of Control (as defined in the Indenture) shall occur at
any time, then each holder of Notes shall have the right to require that the
Company purchase such holder's Notes in whole or in part in integral multiples
of $1,000, at a purchase price in cash in an amount equal to 101% of the
principal amount of such Notes, plus accrued and unpaid interest, if any, to the
repurchase date pursuant to an offer to be made by the Company and in accordance
with the procedures set forth in the Indenture.
Subject to the provisions of the Indenture, the holder hereof has the
right, at its option, at any time after 60 days following the latest date of
original issuance of the Notes and prior to the close of business on July 15,
2003, or, as to all or any portion hereof called for redemption, prior to the
close of business on the Trading Day next preceding the date fixed for
redemption (unless the Company shall default in payment due upon redemption
thereof), to convert the principal hereof or any portion of such principal that
is $1,000 or an integral multiple thereof, into that number of fully paid and
non-assessable shares of Company's Common Stock, as said shares shall be
constituted at the date of conversion, obtained by dividing the principal amount
of this Regulation S Global Note or portion thereof to be converted by the
conversion price of $60.76 or such conversion price as adjusted from time to
time as provided in the Indenture, upon surrender of this Regulation S Global
Note, together with a conversion notice as provided in the Indenture, to the
Company at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York, or at the option of such holder,
the Corporate Trust Office of the Trustee, and, unless the shares issuable on
conversion are to be issued in the same name as this Regulation S Global Note,
duly endorsed by, or accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the holder or by his duly authorized attorney.
No adjustment in respect of interest or dividends will be made upon any
conversion; provided that if this Regulation S Global Note shall be surrendered
for conversion during the period from the close of business on any record date
for the payment of interest and through the opening of business on the next
succeeding interest payment date, this Regulation S Global Note (unless it or
the portion being converted shall have been called for redemption) must be
accompanied by an amount, in funds acceptable to the Company, equal to the
interest payable on such interest payment date on the principal amount being
converted. The interest payment with respect to a Note called for redemption on
a date during the period from the close of business on or after any record date
to the opening of business on the business day following the corresponding
payment date will be payable on the corresponding interest payment date to the
registered Holder at the close of business on that record date (notwithstanding
the conversion of such Note before the corresponding interest payment date) and
a Holder who elects to convert need not include funds equal to the interest
paid. No fractional shares will be issued upon any conversion, but an
adjustment in cash will be made, as provided in the Indenture, in respect of any
fraction of a share that would otherwise be issuable upon the surrender of any
Note or Notes for conversion.
At the sole option of the Company, in lieu of delivering shares of
Common Stock (or other Securities into which the Notes are then convertible)
upon conversion of the Notes pursuant to the provisions of the Indenture, the
Company may pay to a holder of Notes who properly exercises the conversion
privilege, as set forth in the Indenture, an amount in cash equal to the Market
Cash Conversion Price (as defined in the Indenture) of the shares of Common
Stock into which such Notes are then convertible, plus any property or assets
into which such Notes are then convertible.
Upon due presentment for registration of transfer of this Regulation S
Global Note at the office or agency of the Company in the Borough of Manhattan,
The City of New York, or at the option of the holder of this Regulation S Global
Note, at the Corporate Trust Office of the Trustee, a new Note or Notes of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange thereof, subject to the conditions and limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent,
any conversion agent and any Note registrar may deem and treat the registered
holder hereof as the absolute owner of this Regulation S Global Note (whether or
not this Regulation S Global Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon made by anyone other than the
Company or any Note registrar), for the purpose of receiving payment hereof, or
on account hereof, for the conversion hereof and for all other purposes, and
neither the Company nor the Trustee nor any other authenticating agent nor any
paying agent nor any other conversion agent nor any Note registrar shall be
affected by any notice to the contrary. All payments made to or upon the order
of such registered holder shall, to the extent of the sum or sums paid, satisfy
and discharge liability for monies payable on this Regulation S Global Note.
No recourse for the payment of the principal of or any premium or
interest on this Regulation S Global Note, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any Successor Company, either directly or through the Company or
any Successor Company, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Regulation S Global Note, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right ------------------Custodian
of survivorship and not as (Cust)
tenants in common Uniform Gifts To
Minors Act
---------------
(State)
Additional abbreviations may also be used though not in the above list.
- ----------------------------
Signature Guarantee
Fill in for registration of share if to
be issued, and Notes if to be delivered,
other than to an in the name of the
registered holder:
- -----------------------------
(Name)
- -----------------------------
(Street Address)
- -----------------------------
(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all) $
------------------
--------------------------------
Social Security or Other
Taxpayer Identification Number
[FORM OF OPTION TO ELECT REPAYMENT
UPON A CHANGE OF CONTROL]
TO: Nine West Group Inc.
The undersigned registered owner of this Regulation S Global Note
hereby irrevocably acknowledges receipt of a notice from Nine West Group Inc.
(the "Company") as to the occurrence of a Change of Control with respect to the
Company and requests and instructs the Company to repay the entire principal
amount of this Regulation S Global Note, or the portion thereof (which is $1,000
principal amount or an integral multiple thereof) below designated, in
accordance with the terms of the Indenture referred to in this Regulation S
Global Note, together with accrued interest to such date, to the registered
holder hereof.
Dated:
----------------
---------------------------
---------------------------
Signature(s)
------------------------
Social Security or Other Taxpayer
Identification Number
Principal amount to be repaid (if
less than all): $
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[FORM OF ASSIGNMENT]
For value received --------------------------------------------------
hereby sell(s), assign(s) and transfer(s) unto ---------------------------------
(please insert social security or other identifying number of assignee) the
within Note, and hereby irrevocably constitutes and appoints -------------------
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
In connection with any transfer of the within Note (or any issuance of
shares of Common Stock upon conversion of the within Note) occurring prior to
the third anniversary of the date of original issuance of such Note, the
undersigned confirms that such Note (or shares of Common Stock, as the case may
be) are being transferred pursuant to and in compliance with Regulation S under
the Securities Act of 1933, as amended.
In addition, the holder must furnish to the Trustee such
certifications, legal opinions or other information as it may reasonably require
to confirm that such transfer is being made pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the Securities
Act of 1933, as amended.
Dated:
---------------
- ---------------------
- ---------------------
Signature(s)
Signature(s) must be guaranteed by
an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15.
- ---------------------
Signature Guarantee
NOTICE: The signature on the conversion notice, the option to elect payment upon
a Change of Control or the assignment must correspond with the name as written
upon the face of the Note in every particular without alteration or enlargement
or any change whatever.
SCHEDULE A
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SCHEDULE OF EXCHANGES
The initial principal amount of this Regulation S Global Note is
U.S.$------------- . The following additions to principal, redemptions,
exchanges of a part of this Regulation S Global Note for an interest in the
Restricted Global Note, definitive Note and conversions into Common Shares have
been made:
Date of Addition to Principal Amount Principal Amount Remaining Principal Notation Made by
Principal, Redemption, Added on Exchange Redeemed, Amount Outstanding or on behalf of
Exchange or of Interest in the Exchanged for Following such Trustee
Conversion Regulation S Global Interest in the Transaction
Note or Definitive Regulation S
Notes Global Note or
Definitive Notes
or Converted into
Common Shares
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