EX-5.1 4 d840531dex51.htm EX-5.1 EX-5.1

Exhibit 5.1

 

LOGO  

ONE BISCAYNE TOWER

2 SOUTH BISCAYNE BLVD.

21ST FLOOR

MIAMI, FL 33131

TELEPHONE: 305.373.9400

FACSIMILE: 305.373.9443

WWW.BROADANDCASSEL.COM

December 22, 2014

Perry Ellis International, Inc.

3000 NW 107th Avenue

Miami, FL 33172

 

  Re: Perry Ellis International, Inc.

Registration Statement on Form S-3

Ladies and Gentlemen:

We have acted as counsel to Perry Ellis International, Inc., a Florida corporation (the “Company”), in connection with the preparation of the registration statement on Form S-3 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) on the date hereof. The Registration Statement relates to the offering, from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act of 1933, as amended (the “Act”), of: (a) up to 1,500,000 shares of common stock of the Company, par value $0.01 per share (the “Common Stock”) that are currently issued and outstanding by certain selling shareholders; and (b) up to an aggregate of $250,000,000 of Securities (as hereinafter defined) that may be issued from time to time by the Company, including (i) shares of Common Stock, (ii) shares of preferred stock of the Company, par value $0.01 per share (the “Preferred Stock”), (iii) debt securities of the Company (the “Debt Securities”), which may be, as to the Company’s obligations thereunder, fully and unconditionally guaranteed (the “Subsidiary Guarantees”) by certain subsidiaries of the Company (the “Subsidiary Guarantors”), (iv) warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”), (v) the Common Stock that may be issued upon the conversion of Debt Securities or Preferred Stock, (vi) the Preferred Stock that may be issued upon the conversion of Debt Securities, and (vii) the Common Stock, Preferred Stock and Debt Securities that may be issued upon the exercise of Warrants (all of the securities described above are collectively referred to as the “Securities”). The Securities may be issued, sold, delivered or resold from time to time as set forth in the Registration Statement, any amendments thereto, the prospectus contained therein (the “Prospectus”), and one or more supplements to the Prospectus.

As counsel to the Company, we have examined (a) the Company’s Third Restated Articles of Incorporation, as in effect on the date hereof (the “Articles of Incorporation”); (b) the Company’s Amended and Restated Bylaws, as in effect on the date hereof; (c) resolutions of the Company’s Board of Directors (the “Board”) approved at a meeting held on June 5, 2014; (d)

 

BOCA RATON Ÿ DESTIN Ÿ FT. LAUDERDALE Ÿ JACKSONVILLE Ÿ MIAMI Ÿ ORLANDO Ÿ TALLAHASSEE Ÿ TAMPA Ÿ WEST PALM BEACH


Perry Ellis International, Inc.

December 22, 2014

Page 2

 

applicable organizational documents for each of the Subsidiary Guarantors, as in effect on the date hereof; (e) resolutions of the Board of Directors, sole member or manager, as applicable, of each of the Subsidiary Guarantors adopted effective as of December 19, 2014; (f) the Registration Statement and all exhibits to the Registration Statement; and (g) such other documents as we deemed necessary to render the opinions set forth below.

In such examination, we have assumed the genuineness of all signatures on original documents, and the conformity to original documents of all copies submitted to us as conformed or photostatic copies. We have also assumed that: (1) upon the issuance of shares of Common Stock, including the issuance of shares of Common Stock upon conversion of Preferred Stock or Debt Securities or exercise of Warrants or options to purchase Common Stock, the total number of shares of Common Stock issued and outstanding will not exceed the number of shares of Common Stock the Company is then authorized to issue under its Articles of Incorporation; (2) upon the issuance of shares of one or more series of Preferred Stock, including the issuance of shares of one or more series of Preferred Stock upon conversion of Debt Securities or exercise of Warrants to purchase Preferred Stock, the total number of shares of such series of Preferred Stock issued and outstanding will not exceed the number of shares of such series of Preferred Stock the Company is then authorized to issue under its Articles of Incorporation; (3) at the time of the execution, authentication, issuance and delivery of Debt Securities and the associated indenture (the “Indenture”), the Indenture will have been duly authorized, executed and delivered by the Company and the applicable trustee, and the Indenture will be a valid and legally binding obligation of the Company and the applicable trustee; and (4) at the time of the execution, countersignature, issuance and delivery of Warrants, the related warrant agreement (the “Warrant Agreement”) will have been duly authorized, executed and delivered by the Company and, if applicable, each counterparty thereto and the Warrant Agreement will be a valid and legally binding obligation of the Company and each counterparty thereto, if applicable. As to various questions of fact material to such opinions, we have relied upon statements or certificates of officials and representatives of the Company and others.

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

1. With respect to the shares of Common Stock included in the Registration Statement that are currently outstanding as of the date hereof, such shares of Common Stock are validly issued, fully paid and nonassessable.

2. With respect to the shares of Common Stock included in the Registration Statement that have not been issued as of the date hereof, assuming (a) the taking by the Board of all necessary corporate action to authorize and approve the issuance of the Common Stock, (b) if applicable, the exercise, in accordance with their terms, of Warrants or options to purchase Common Stock, or the conversion, in accordance with their terms, of Debt Securities or Preferred Stock into Common Stock, and (c) the due issuance and delivery of the Common Stock

 

BOCA RATON Ÿ DESTIN Ÿ FT. LAUDERDALE Ÿ JACKSONVILLE Ÿ MIAMI Ÿ ORLANDO Ÿ TALLAHASSEE Ÿ TAMPA Ÿ WEST PALM BEACH


Perry Ellis International, Inc.

December 22, 2014

Page 3

 

upon payment therefor in accordance with the applicable definitive underwriting agreement, Warrant Agreement, option agreement or similar agreement approved by the Board, the Common Stock will be validly issued, fully paid and nonassessable.

3. With respect to the Preferred Stock, assuming (a) the taking by the Board of all necessary corporate action to authorize and approve the issuance of the Preferred Stock, (b) due filing with the Florida Department of State of Articles of Amendment to the Company’s Articles of Incorporation that comply with Florida Statutes Section 607.0602(4) setting forth the terms, rights and preferences of such Preferred Stock, (c) if applicable, the exercise, in accordance with their terms, of Warrants to purchase Preferred Stock, or the conversion, in accordance with their terms, of Debt Securities convertible into Preferred Stock, and (d) the due issuance and delivery of the Preferred Stock upon payment therefor in accordance with the applicable definitive underwriting agreement, Warrant Agreement or similar agreement approved by the Board, the Preferred Stock will be validly issued, fully paid and nonassessable.

4. With respect to the Debt Securities and the Subsidiary Guarantees, assuming (a) the taking by the Board of all necessary corporate action by the Company, and the taking by the members or managers of all necessary limited liability company action by the applicable Subsidiary Guarantors to approve the issuance and terms of the Debt Securities and the Subsidiary Guarantees, and (b) the due execution, authentication, issuance and delivery of such Debt Securities and Subsidiary Guarantees, upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and by the members or managers of the applicable Subsidiary Guarantors, and otherwise in accordance with the provisions of the applicable Indenture and such agreement, such Debt Securities and Subsidiary Guarantees will constitute valid and legally binding obligations of the Company and the Subsidiary Guarantors, respectively, enforceable against the Company and the Subsidiary Guarantors, respectively, in accordance with their terms.

5. With respect to the Warrants, assuming (a) the taking by the Board of all necessary corporate action to approve the execution and delivery of the applicable Warrant Agreement and (b) the due execution, countersignature, issuance and delivery of such Warrants, upon payment of the consideration for such Warrants provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Warrant Agreement, such Warrants will constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms.

Our opinions set forth herein are further subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.

 

BOCA RATON Ÿ DESTIN Ÿ FT. LAUDERDALE Ÿ JACKSONVILLE Ÿ MIAMI Ÿ ORLANDO Ÿ TALLAHASSEE Ÿ TAMPA Ÿ WEST PALM BEACH


Perry Ellis International, Inc.

December 22, 2014

Page 4

 

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.

This opinion letter is limited to the specific matters addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should any applicable law change after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.

 

Very truly yours,

/s/ Broad and Cassel

BROAD AND CASSEL

 

BOCA RATON Ÿ DESTIN Ÿ FT. LAUDERDALE Ÿ JACKSONVILLE Ÿ MIAMI Ÿ ORLANDO Ÿ TALLAHASSEE Ÿ TAMPA Ÿ WEST PALM BEACH