PLUMA, INC.
________________ Shares
Common Stock
Underwriting Agreement
_____________, 1997
J.P. Morgan Securities Inc.
Interstate/Johnson Lane Corporation
Wheat, First Securities, Inc.
As Representative
of the Several Underwriters
Listed in Schedule I hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Dear Sirs:
Pluma, Inc., a North Carolina corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), and certain shareholders of the Company (the "Selling
Shareholders") named in Schedule II hereto severally propose to sell to the
several Underwriters, an aggregate of _______ shares of common stock, no par
value (the "Underwritten Shares"), of which ______ shares are to be issued and
sold by the Company and ______ shares are to be sold by the Selling
Shareholders, each Selling Shareholder selling the amount set forth opposite
such Selling Shareholder's name in Schedule II hereto. The Company and the
Selling Shareholders are hereinafter sometimes collectively referred to as the
"Sellers."
In addition, for the sole purpose of covering over-allotments
in connection with the sale of the Underwritten Shares, the Company has granted
the Underwriters an option to purchase up to an additional
_________ shares of common stock, no par value, of the Company (the "Option
Shares"). To the extent such option is exercised, each Underwriter will become
obligated, subject to certain conditions, to purchase approximately the same
percentage of such additional shares as the number set forth next to such
Underwriter's name in Schedule I bears to the total number of shares set forth
in such Schedule I. The Underwritten Shares and the Option Shares are herein
referred to as the "Shares." The shares of common stock of the Company to be
outstanding after giving effect to the sale of the Shares are herein referred to
as the "Common Stock."
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it shall become effective, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, together
with any related registration statement filed with the Commission for
registration of a portion of the Shares that becomes effective pursuant to Rule
462(b) under the Securities Act, is referred to in this Agreement as the
"Registration Statement", and the prospectus in the form first used to confirm
sales of Shares is referred to in this Agreement as the "Prospectus".
The Sellers hereby agree with the Underwriters as follows:
1. Each Seller, severally and not jointly, agrees to issue and
sell the Underwritten Shares to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from such Seller the respective
number of Underwritten Shares set forth opposite such Underwriter's name in
Schedule I hereto at a purchase price (the "Purchase Price") of $____ per share.
In addition, the Company agrees to issue and sell the Option
Shares to the several Underwriters as hereinafter provided, and the Underwriters
on the basis of the
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representations and warranties herein contained, but subject to the conditions
hereafter stated, shall have the option to purchase, severally and not jointly,
from the Company up to an aggregate of ___ Option Shares at the Purchase Price
for the sole purpose of covering over-allotments (if any) in the sale of
Underwritten Shares by the several Underwriters.
If any Option Shares are to be purchased, the number of Option
Shares to be purchased by each Underwriter shall be the number of Option Shares
which bears the same ratio to the aggregate number of Option Shares being
purchased as the number of Underwritten Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such amount increased as set forth in
Section 10 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Sellers by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional shares as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the
Option Shares at any time (but not more than once) on or before the thirtieth
day following the date of this Agreement, by written notice from the
Representatives to the Company. Such notice shall set forth the aggregate number
of Option Shares as to which the option is being exercised and the date and time
when the Option Shares are to be delivered and paid for which may be the same
date and time as the Closing Date (as hereinafter defined) but shall not be
earlier than the Closing Date nor later than the tenth full Business Day (as
hereinafter defined) after the date of such notice (unless such time and date
are postponed in accordance with the provisions of Section 10 hereof). Any such
notice shall be given at least two Business Days prior to the date and time of
delivery specified therein.
2. The Sellers understand that the Underwriters intend (i) to
make a public offering of the Shares as soon after the Registration Statement
and this Agreement have become effective as in the judgment of the
Representatives is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
3. Payment for the Shares shall be made to each Seller or to
its order by certified or official bank check or checks payable in New York
Clearing House or other next day funds at the office of J.P. Morgan Securities
Inc., 60 Wall Street, New York, New York 10260 at 10:00 A.M., New York City
time, in the case of the Underwritten Shares, on _______, 1996, or at such other
time on the same or such other date, not later than the fifth Business Day
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thereafter, as the Representatives and the Company may agree upon in writing or,
in the case of the Option Shares, on the date and time specified by the
Representatives in the written notice of the Underwriters' election to purchase
such Option Shares. The time and date of such payment for the Underwritten
Shares are referred to herein as the Closing Date and the time and date for such
payment for the Option Shares, if other than the Closing Date, are herein
referred to as the Additional Closing Date. As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required to
be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid. The certificates for the Shares
will be made available for inspection and packaging by the Representatives at
the office of J.P. Morgan Securities Inc. set forth above not later than 1:00
P.M., New York City time, on the Business Day prior to the Closing Date or the
Additional Closing Date, as the case may be.
4. The Company represents and warrants to each
Underwriter that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use therein;
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(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as
of the date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented at the Closing Date, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
the foregoing representations and warranties shall not apply to
statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein;
(c) the financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company as of the
dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included in the Registration Statement present fairly the
information required to be stated therein; the pro forma financial
information, and the related notes thereto, included in the
Registration Statement and the Prospectus is based upon good faith
estimates and assumptions believed by the Company to be reasonable; and
the accountants who have certified or shall certify the financial
statements filed or to be filed with the Commission as part of the
Registration Statement are independent accountants with respect to the
Company as required by the Securities Act;
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(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company, otherwise
than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Registration Statement the Company has not
entered into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of North Carolina, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the Company; the Company has no
subsidiaries;
(f) this Agreement has been duly authorized,
executed and delivered by the Company;
(g) the authorized capital stock of the Company conforms as to
legal matters to the description thereof set forth in the Registration
Statement and the Prospectus, and all of the outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable and are not subject to any
pre-emptive or similar rights; and, except as described in or expressly
contemplated by the Prospectus, there are no outstanding rights
(including, without limitation, preemptive rights), warrants or options
to acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interest in the Company, or any
contract, commitment, agreement, understanding or arrangement of any
kind relating to the issuance of any capital stock of the Company, any
such convertible or exchangeable securities or any such rights,
warrants or options;
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(h) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and, when delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will have
been duly issued and will be fully paid and non-assessable and will
conform to the descriptions thereof in the Prospectus; and the issuance
of the Shares is not subject to any preemptive or similar right;
(i) the Company is not, or with the giving of notice or lapse
of time or both would not be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company is a party or by which it or any of its respective
properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company; the
issue and sale of the Shares and the performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated herein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of
the Company is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, or any of its respective properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Shares or the consummation by
the Company of the transactions contemplated by this Agreement, except
such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and as
may be required under state securities or Blue Sky Laws in connection
with the purchase and distribution of the Shares by the Underwriters;
(j) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company is or may be
a
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party or to which any property of the Company is or may be the subject
which, if determined adversely to the Company, could individually or in
the aggregate reasonably be expected to have a material adverse effect
on the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company,
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
(k) the Company has good and marketable title in fee simple to
all items of real property and good and marketable title to all
personal property it owns, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in
the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be made
of such property by the Company; and any real property and buildings
held under lease by the Company and is held under valid, existing and
enforceable leases with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company;
(l) no relationship, direct or indirect, exists between the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or on the other hand, which is
required by the Securities Act to be described in the Registration
Statement and the Prospectus which is not so described;
(m) no person has the right to require the Company to register
any securities for offering and sale under the Securities Act by reason
of the filing of the Registration Statement with the Commission or the
issue and sale of the Shares;
(n) the Company and its subsidiaries (i) are in compliance
with any and all 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"), (ii) have received all permits,
licenses or other approvals
8
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, reasonably be expected to have a material
adverse effect on the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company (a "Material Adverse Effect");
(o) in the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
material associated costs and liabilities (including, without
limitation, any material capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, any material related constraints on
operating activities and any material potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities could not, singly
or in the aggregate, reasonably be expected to have a Material Adverse
Effect;
(p) the Company has complied with all provisions
of Section 517.075, Florida Statutes (Chapter 92-198,
Laws of Florida); and
(q) all tax returns required to be filed by the Company and
any of the Subsidiaries in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees
and other charges due or claimed to be due from such entities have been
paid, other than (i) those being contested in good faith and for which
adequate reserves have been provided, (ii) those currently payable
without penalty or interest and (iii) those which, if not paid, would
not have a Material Adverse Effect.
5. Each Selling Shareholder represents and
warrants to each Underwriter that:
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(a) this Agreement has been duly authorized,
executed and delivered by or on behalf of such Selling
Shareholder;
(b) the execution and delivery by such Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations under, this
Agreement, the Custody Agreement signed by such Selling Shareholder and
__________, as Custodian, relating to the deposit of the Shares to be sold by
such Selling Shareholder (the "Custody Agreement") and the Power of Attorney
appointing certain individuals as such Selling Shareholder's attorneys-in-fact
to the extent set forth therein, relating to the transactions contemplated
hereby and by the Registration Statement (the "Power of Attorney") will not
contravene any provision of applicable law, or the certificate of incorporation
or by-laws of such Selling Shareholder (if such Selling Shareholder is a
corporation), or any agreement or other instrument binding upon such Selling
Shareholder or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Shareholder, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by such Selling Shareholder of
its obligations under this Agreement or the Custody Agreement or Power of
Attorney of such Selling Shareholder, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Sellers;
(c) such Selling Shareholders has, and on the Closing Date
will have, valid title to the Shares to be sold by such Selling Shareholder and
the legal right and power, and all authorization and approval required by law,
to enter into this Agreement, the Custody Agreement and the Power of Attorney
and to sell, transfer and deliver the Shares to be sold by such Selling
Shareholder;
(d) the Shares to be sold by such Selling Shareholder pursuant
to this Agreement have been duly authorized and are validly issued, fully paid
and non-assessable;
(e) the Custody Agreement and the Power of Attorney have been
duly authorized, executed and delivered by such Selling Shareholder and are
valid and binding agreements of such Selling Shareholder; and
(f) delivery of the Shares to be sold by such
Selling Shareholder pursuant to this Agreement will pass
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title to such Shares free and clear of any security interests, claims, liens,
equities and other encumbrances.
6. The Company covenants and agrees with the
several Underwriters as follows:
(a) to use its best efforts to cause the Registration
Statement to become effective at the earliest possible time and, if
required, to file the final Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A under the
Securities Act;
(b) to deliver, at the expense of the Company, to the
Representative, 4 signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case without exhibits and, during the period mentioned
in paragraph (e) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements thereto) as
the Representatives may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the
time the Registration Statement becomes effective, to furnish to the
Representative a copy of the proposed amendment or supplement for
review and not to file any such proposed amendment or supplement to
which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm
such advice in writing, (i) when the Registration Statement shall
become effective, (ii) when any amendment to the Registration Statement
shall have become effective, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (v) of the receipt
by the Company of any notification with respect to any suspension of
the qualification of the Shares for offer and sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
and to use its best efforts to prevent the issuance of any
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such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to
be delivered in connection with sales by the Underwriters or any
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company, to the Underwriters
and to the dealers (whose names and addresses the Representatives will
furnish to the Company) to which Shares may have been sold by the
Representatives on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may
be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Shares and to pay all fees and expenses (including fees and
disbursements of counsel to the Underwriters) reasonably incurred in
connection with such qualification; provided that the Company shall not
be required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) so long as the Shares are outstanding, to furnish to the
Representatives copies of all reports or other communications
(financial or other) furnished to
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holders of Shares, and copies of any reports and
financial statements furnished to or filed with the
Commission or any national securities exchange;
(i) for a period of 180 days after the date of the initial
public offering of the Shares not to offer, sell, contract to sell or
otherwise dispose of any shares of common stock of the Company or any
securities convertible into or exercisable or exchangeable for shares
of common stock of the Company without the prior written consent of
J.P. Morgan Securities Inc., other than the Shares to be sold hereunder
and any shares of common stock of the Company issued upon the exercise
of options granted under existing employee stock option plans,
including the Pluma, Inc. 1995 Stock Option Plan;
(j) to pay all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution and delivery of the Shares, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the
registration or qualification of the Shares under the laws of such
state and local jurisdictions as the Representative may designate
(including fees of counsel for the Underwriters and its disbursements),
(iv) in connection with the listing of the Shares on any stock
exchange, (v) related to the filing with, and clearance of the offering
by, the National Association of Securities Dealers, Inc. and (vi) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, the Preliminary and Supplemental
Blue Sky Memoranda and the furnishing to the Underwriters and dealers
of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided.
7. The several obligations of the Underwriters hereunder to
purchase the Underwritten Shares are subject to the performance by the Sellers
of their obligations hereunder and to the following additional conditions:
(a) the Registration Statement shall have become effective (or
if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective)
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not later than 5:00 P.M., New York City time, on the date hereof; and
no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall
be pending before or threatened by the Commission; and all requests for
additional information shall have been complied with to the
satisfaction of the Representative;
(b) the representations and warranties of the Sellers
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Sellers shall have
complied with all agreements and all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities
of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material adverse
change or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company, otherwise than as set forth or contemplated
in the Prospectus, the effect of which in the judgment of the
Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in
the manner contemplated in the Prospectus;
(e) the Representative shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to the Representative to the effect set forth in
subsections (a) through (c) of this Section and to the further effect
that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial
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position, stockholders' equity or results of operations
of the Company from that set forth or contemplated in
the Registration Statement;
(f) Allman Spry Leggett & Crumpler, P.A., counsel for the
Company, shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be
so qualified or in good standing would not have a material
adverse effect on the Company;
(iii) other than as set forth or contemplated in the
Prospectus, to the best of such counsel's knowledge after due
inquiry, there are no legal or governmental proceedings
pending or threatened to which the Company is or may be a
party or to which any property of the Company is or may be the
subject which, if determined adversely to the Company could
individually or in the aggregate reasonably be expected to
have a material adverse effect on the general affairs,
business, prospects, management, financial position,
stockholders' equity or results of operations of the Company
taken as a whole; to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed
or described as required;
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(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(vi) the shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be sold by
the Company have been duly authorized and are validly issued,
fully paid and non-assessable;
(vii) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and when delivered to and
paid for the Underwriters in accordance with the terms of this
Agreement, will be validly issued, fully paid and
non-assessable and the issuance of the Shares is not subject
to any preemptive or similar rights;
(viii) the Company is not, or with the giving of
notice or lapse of time or both would not be, in violation of
or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which it or any
of its respective properties is bound, except for violations
and defaults which individually and in the aggregate are not
material to the Company; the issue and sale of the Shares and
the performance by the Company of its obligations under this
Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to
such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject, nor will any such action result in any
violation of the provisions of the Certificate of
Incorporation, or the By-Laws of the Company or any applicable
law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the
Company or any of its respective properties;
16
(ix) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation of the other transactions
contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as
have been obtained under the Securities Act and as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriter;
(x) the statements in the Prospectus under
"____________", "Description of Capital Stock" and
"Underwriting", and in the Registration Statement in Items 14
and 15, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents or proceedings; and
(xi) such counsel (A) is of the opinion that the
Registration Statement and the Prospectus and any amendments
and supplements thereto (except for the financial statements
included therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and (B) believes that
(except for the financial statements included therein as to
which such counsel need express no belief) the Registration
Statement and the prospectus included therein at the time the
Registration Statement became effective did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus as amended or supplemented, if applicable, does 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.
In rendering such opinions, such counsel may rely (A)
as to matters involving the application of laws other than the laws of
the United States and the State of North Carolina, to the extent such
counsel deems proper and to the extent specified in such
17
opinion, if at all, upon an opinion or opinions (reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable
laws; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to
the matters to be covered in subparagraph (xi) above, counsel may state
their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and review and discussion of the
contents thereof but is without independent check or verification
except as specified.
(g) The Underwriters shall have received on the Closing Date
an opinion or opinions of counsel (satisfactory to the Underwriters)
for the Selling Shareholders, dated the Closing Date, to the effect
that:
(i) this Agreement has been duly authorized,
executed and delivered by or on behalf of each of
the Selling Shareholders;
(ii) the execution and delivery by each Selling
Shareholder of, and the performance by such Selling
Shareholder of its obligations under, this Agreement and the
Custody Agreement and Powers of Attorney of such Selling
Shareholder will not contravene any provision of applicable
law, or the certificates of incorporation or by-laws of such
Selling Shareholder (if such Selling Shareholder is a
corporation), or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon such Selling
Shareholder or, to the best or such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Shareholder, and
no consent, approval authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by such Selling Shareholder of
its
18
obligations under this Agreement or the Custody Agreement or
Power of Attorney of such Selling Shareholder, except such as
may be required by the securities or Blue Sky laws of the
various states in connection with offer and sale of the
Shares;
(iii) each of the selling Shareholders has valid
title to the Shares to be sold by such Selling Shareholder and
has the legal right and power, and all authorization and
approval required by law, to enter into this Agreement and the
Custody Agreement and Power of Attorney of such Selling
Shareholder and to sell, transfer and deliver the Shares to be
sold by such Selling Shareholder;
(iv) the Custody Agreement of each Selling
Shareholder has been duly authorized, executed and delivered
by such Selling Shareholder and is a valid and binding
agreement of such Selling Shareholder; and
(v) delivery of the Shares to be sold by each Selling
Shareholder pursuant to this Agreement will pass title to such
Shares free and clear of any security interests, claims,
liens, equities and other encumbrances.
(h) on the effective date of the Registration Statement and
the effective date of the most recently filed post-effective amendment
to the Registration Statement and also on the Closing Date, Deloitte &
Touche LLP shall have furnished to the Representative letters, dated
the respective dates of delivery thereof, in form and substance
satisfactory to the Representative, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus;
(i) the Representative shall have received on and as of the
Closing Date an opinion of Davis Polk & Wardwell, counsel to the
Underwriters, with respect to the Registration Statement, the
Prospectus and other related matters as the Representative may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
19
(j) the Shares shall have been approved for [listing on the
New York Stock Exchange, Inc./Qouatation on the Nasdaq National Market]
subject to official notice of issuance;
(k) on or prior to the Closing Date the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
The several obligations of the Underwriters to purchase Option Shares hereunder
are subject to satisfaction of the conditions set forth in paragraphs (a) - (k)
above on and as of the Additional Closing Date, except that the certificate
called for by paragraph (e) above, the opinions called for by paragraphs (f) and
(i) above and the third letter called for by paragraph (g) above shall be dated
the Additional Closing Date.
8. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use therein; provided
that the foregoing indemnity with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
20
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Shares to such person.
Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless the Underwriters, the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to such Selling Shareholder furnished in writing by or on behalf of
such Selling Shareholder expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Shareholders, the directors
of the Company, the officers of the Company who sign the Registration Statement
and each person who controls the Company or any Selling Shareholder within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
three preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the
21
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by J.P.
Morgan Securities Inc. Any such separate firm for the Company, its directors,
its officers who sign the Registration Statement and such control persons of the
Company shall be designated in writing by the Company. Any such separate firm
for the Selling Shareholders and such controlling persons of Selling
Shareholders, shall be designated in writing by the persons named as
attorney-in-fact of the Selling Shareholders under the Powers of Attorney. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
22
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and third
paragraphs of this Section 8 is unavailable to an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying person or persons on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
person or persons on the one hand and the indemnified person or persons on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Sellers on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by each Seller and the total underwriting discounts
and the commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate public offering
price of the Shares. The relative fault of the Sellers on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Sellers or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Sellers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even
23
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 8 are several in proportion to the respective number of Shares set forth
opposite their names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company and the Selling
Shareholders set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or by or on behalf of any
Selling Shareholder or any person controlling any Selling Shareholder or any
person controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and (iii)
acceptance of and payment for any of the Shares.
9. Notwithstanding anything herein contained, this Agreement
(or the obligations of the several Underwriters with respect to the Option
Shares) may be terminated in the absolute discretion of the Representatives, by
notice given to the Company, if after the execution and delivery of this
Agreement and prior to
24
the Closing Date or, in the case of the Option Shares, prior to the Additional
Closing Date) (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representative, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus.
10. This Agreement shall become effective upon the later of
(x) execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If, on the Closing Date or the Additional Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they have agreed to purchase hereunder on such date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Shares set forth opposite their respective names in Schedule I hereto bears to
the aggregate number of Underwritten Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase Shares which it or they have agreed to purchase
hereunder on such date, and the number of Shares with respect to which
25
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date, and arrangements satisfactory to the Representative,
the Company and the Selling Shareholders for the purchase of such Shares are not
made within 36 hours after such default, this Agreement (or the obligations of
the several Underwriters to purchase the Option Shares, as the case may be)
shall terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Shareholders. In any such case either the
Representative or the relevant Sellers shall have the right to postpone the
Closing Date (or, in the case of the Option Shares, the Additional Closing
Date), but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of any Seller to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason any Seller shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement or the
offering contemplated hereunder.
12. This Agreement shall inure to the benefit of and be
binding upon the Company, the Selling Shareholders, the Underwriters, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
13. Any action by the Underwriters hereunder may be taken by
J.P. Morgan Securities Inc. on behalf of the Underwriters, and any such action
taken by J.P. Morgan Securities shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in
26
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
given to the Representative c/o J.P. Morgan Securities Inc., 60 Wall Street, New
York, New York 10260, Attention: Syndicate Department. Notices to the Company
shall be given to it at Pluma, Inc., 801 Fieldcrest Road, Eden, North Carolina
27288, Attention: Nancy B. Barksdale.
14. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
27
If the foregoing is in accordance with your understanding,
please sign and return four counterparts hereof.
Very truly yours,
PLUMA INC.
By:_________________________
Title:
The Selling Shareholders named
in Schedule II hereto, acting
severally
By:___________________________
Name:
Attorney-in-fact
Accepted: _______________, 1996
J.P. Morgan Securities Inc.
Interstate/Johnson Lane Corporation
Wheat, First Securities, Inc.
Acting severally on behalf of itself
and the several Underwriters listed in
Schedule I hereto.
By: J.P. Morgan Securities Inc.
Acting on behalf of itself and
the several Underwriters listed
in Schedule I hereto.
By:______________________________
Title:
28
SCHEDULE I
Number of Shares
Underwriter To Be Purchased
J.P. Morgan Securities Inc. . . . . .
Interstate/Johnson Lane
Corporation . . . . . . . . . . . .
Wheat, First Securities, Inc. . . . .
----------------
Total: . . . . . .
SCHEDULE II
Number of Shares
Selling Shareholder To Be Sold
----------------
Total: . . . . . . . .