Exhibit 5.1
Porter Wright Morris & Arthur LLP 41 South High Street Suites 2800-3200 Columbus, OH 43215
Fax: 614.227.2100 Main: 614.227.2000
www.porterwright.com
CHICAGO
CINCINNATI
CLEVELAND
COLUMBUS
DAYTON
NAPLES
PITTSBURGH
TAMPA
WASHINGTON, DC |
| May 15, 2023
Designer Brands Inc. 810 DSW Drive Columbus, Ohio 43219
Ladies and Gentlemen:
We have acted as counsel for Designer Brands Inc., an Ohio corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration Statement”) being filed with the Securities and Exchange Commission (the “SEC”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”): (i) Class A Common Shares of the Company, without par value (the “Common Shares”), (ii) Preferred Shares of the Company, without par value (the “Preferred Shares”); (iii) debt securities, which may be senior debt securities, senior subordinated debt securities or subordinated debt securities (collectively, the “Debt Securities”); (iv) warrants to purchase Common Shares, Preferred Shares, Debt Securities or other securities (the “Warrants”); (v) rights to purchase Common Shares, Preferred Shares, Debt Securities or other securities (“Rights”); and (vi) units representing any combination of the foregoing securities (“Units”), which Registration Statement is automatically effective under the Securities Act pursuant to Rule 462(e) promulgated thereunder. The Common Shares, Preferred Shares, Debt Securities, Warrants, Rights and Units are collectively referred to herein as the “Securities”.
The Debt Securities will be issued under a debt indenture, the form of which is included as Exhibit 4.2 to the Registration Statement, between the Company and U.S. Bank Trust Company, National Association (the “Trustee”), and qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), at a later date, as such debt indenture may be amended or supplemented from time to time (the “Indenture”).
The Warrants will be issued pursuant to one or more warrant agreements between the Company and a financial institution to be identified therein as warrant agent (the “Warrant Agent”), as each such warrant agreement may be supplemented from time to time (each, the “Warrant Agreement”).
The Rights will be issued pursuant to one or more rights agreements (each, a “Rights Agreement”) between the Company and a rights agent to be identified therein (each, a “Rights Agent”).
The Units will be issued pursuant to one or more unit agreements (each, a “Unit Agreement”) between the Company and a unit agent to be identified therein (each, a “Unit Agent”).
As counsel for the Company, in rendering the opinions below, we have reviewed and relied upon the Company’s Amended and Restated Articles of Incorporation, as amended (the “Articles”), the exhibits filed with the |
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Registration Statement or incorporated therein by reference, and certain resolutions (“Resolutions”) adopted by the Board of Directors of the Company (the “Board”) on May 8, 2023 in connection with the Registration Statement and the registration of the Securities, and such other documents and authorities as we deem relevant for the purpose of this opinion. We have assumed the genuineness of all signatures on all documents examined by us, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals and the conformity with authentic original documents of all documents submitted to us as copies for examination.
Based upon the foregoing and in reliance thereon, we are of the opinion that, as of the date hereof:
| 1. | With respect to an offering of Common Shares covered by the Registration Statement, such Common Shares will be duly authorized, and each Common Share will be validly issued, fully paid and nonassessable when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a Prospectus Supplement with respect to the sale of such Common Shares shall have been filed with the SEC in compliance with the Securities Act and the General Rules and Regulations promulgated by the SEC thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions, in conformity with the Articles, the Amended and Restated Code of Regulations of the Company (the “Regulations”), and the Resolutions, authorizing the issuance and sale of such Common Shares; and (iv) certificates representing such Common Shares shall have been duly executed, countersigned, registered and delivered, or such Common Shares shall have been duly registered and settlement duly effected by book-entry delivery, in accordance with the applicable definitive purchase, underwriting, distribution or similar agreement approved by the Board or a duly authorized committee thereof to the purchasers thereof against payment of the agreed consideration therefor. |
| 2. | The issuance and sale of each series of Preferred Shares covered by the Registration Statement will be duly authorized, and each share of such series of Preferred Shares will be validly issued, fully paid and nonassessable when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a Prospectus Supplement with respect to the sale of such series of Preferred Shares shall have been filed with the SEC in compliance with the Securities Act and the General Rules and Regulations promulgated by the SEC thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions, in conformity with the Articles, the Regulations and the Resolutions, establishing and designating such series of Preferred Shares and fixing and determining the relative, participating, optional or other special rights and privileges of such series and the qualifications, limitations or restrictions thereof and authorizing the issuance and sale of such series of Preferred Shares; (iv) the Company shall have filed with the Ohio Secretary of State a certificate of amendment to the Articles duly executed on behalf of the Company with respect to such series of Preferred Shares in conformity with the Articles and such final resolutions; and (v) certificates representing such series of Preferred Shares shall have been duly executed, countersigned, registered and delivered, or, if applicable, such series of Preferred Shares shall have been duly registered and settlement duly effected by book-entry delivery, in accordance with the applicable definitive purchase, underwriting, distribution or similar agreement approved by the Board or a duly authorized committee thereof to the purchasers thereof against payment of the agreed consideration therefor. |
| 3. | Each issue of Warrants covered by the Registration Statement will be validly issued and constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become |
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effective under the Securities Act; (ii) a Prospectus Supplement with respect to such issue of Warrants and the Common Shares, Preferred Shares or Debt Securities issuable upon exercise of such Warrants shall have been filed with the SEC in compliance with the Securities Act and the General Rules and Regulations promulgated by the SEC thereunder; (iii) a Warrant Agreement relating to such issue of Warrants shall have been duly authorized, executed and delivered by the Company and duly authorized, executed and delivered by the Warrant Agent named in the Warrant Agreement; (iv) the specific terms of a particular issuance of Warrants shall have been duly established in accordance with the Warrant Agreement and applicable law; (v) the Board or a duly authorized committee thereof shall have duly adopted final resolutions, in conformity with the Articles, the Regulations, the Resolutions and applicable law, authorizing the execution and delivery of the Warrant Agreement and the issuance and sale of such issue of Warrants; and (vi) certificates representing such issue of Warrants shall have been duly executed, countersigned and issued in accordance with such Warrant Agreement and the final resolutions of the Board or a duly authorized committee thereof and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting, distribution or similar agreement approved by the Board or a duly authorized committee thereof to the purchasers thereof against payment of the agreed consideration therefor. |
| 4. | Each series of Debt Securities covered by the Registration Statement will be validly issued and constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) the Trustee shall have been selected and qualified under the TIA and the Indenture (including any necessary indenture supplement to the Indenture) shall have been qualified under the TIA; (iii) a Prospectus Supplement with respect to such series of Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the General Rules and Regulations promulgated by the SEC thereunder; (iv) the specific terms of a particular series of Debt Securities shall have been duly established in accordance with the Indenture (including any necessary indenture supplement to the Indenture) and applicable law; (v) the Board or a duly authorized committee thereof shall have duly adopted final resolutions, in conformity with the Articles, the Regulations, the Resolutions and applicable law, authorizing the terms, issuance and sale of such series of Debt Securities and the execution and delivery of the Indenture (including any necessary indenture supplement to the Indenture), any applicable indenture supplement, and the final resolutions of the Board or a duly authorized committee thereof and shall have been duly delivered in accordance with the Indenture, any applicable indenture supplement and the applicable definitive purchase, underwriting, distribution or similar agreement approved by the Board or a duly authorized committee thereof to the purchasers thereof against payment of the agreed consideration therefor or upon conversion or exercise of any Securities, in accordance with the terms of such Securities or the instrument governing such Securities providing for such conversion or exercise as approved by the Board or a duly authorized committee thereof. |
| 5. | Each issue of Rights covered by the Registration Statement will be validly issued and constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a Prospectus Supplement with respect to such issue of Rights and the Common Shares, Preferred Shares, Debt Securities and/or other securities underlying such Rights shall have been filed with the SEC in compliance with the Securities Act and the General Rules and Regulations promulgated by the SEC thereunder; (iii) the Rights Agreement relating to such issue of Rights shall have been duly authorized, executed and delivered by the Company and duly authorized, executed and delivered by the Rights |
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Agent named in the Rights Agreement; (iv) the specific terms of a particular issue of Rights shall have been duly established in accordance with the Rights Agreement and applicable law; (v) the Board or a duly authorized committee thereof shall have duly adopted final resolutions, in conformity with the Articles, the Regulations, the Resolutions and applicable law, authorizing the execution and delivery of the Rights Agreement and the issuance and sale of such issue of Rights; (vi) certificates representing the Common Shares and/or the Preferred Shares underlying such Rights shall have been duly executed, countersigned and registered; (vii) the Debt Securities underlying such Rights shall have been duly authorized and executed by the Company and duly authenticated by the Trustee; and (viii) the Rights shall have been duly executed, authenticated and delivered by the Rights Agent in the manner set forth in the Rights Agreement. |
| 6. | Each issue of Units covered by the Registration Statement will be validly issued and constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a Prospectus Supplement with respect to such issue of Units and the Common Shares, Preferred Shares, Debt Securities, Warrants and/or Rights underlying such Units shall have been filed with the SEC in compliance with the Securities Act and the General Rules and Regulations promulgated by the SEC thereunder; (iii) the Unit Agreement relating to such issue of Units shall have been duly authorized, executed and delivered by the Company and duly authorized, executed and delivered by the Unit Agent named in the Unit Agreement; (iv) the specific terms of a particular issue of Units shall have been duly established in accordance with the Unit Agreement and applicable law; (v) the Board or a duly authorized committee thereof shall have duly adopted final resolutions, in conformity with the Articles, the Regulations, the Resolutions and applicable law, authorizing the execution and delivery of the Unit Agreement and the issuance and sale of such issue of Units; (vi) certificates representing the Common Shares and/or the Preferred Shares underlying such Units shall have been duly executed, countersigned and registered or, if applicable, the Common Shares and/or the Preferred Shares underlying such Warrants shall have been duly registered and settlement duly effected by book-entry delivery; (viii) certificates representing the Warrants underlying such Units shall have been duly executed, countersigned and issued; (ix) the Debt Securities underlying such Units shall have been duly authorized and executed by the Company and duly authenticated by the Trustee; (x) the Rights underlying such Units shall have been duly executed, authenticated and delivered by the Rights Agent in the manner set forth in the Rights Agreement; and (xi) the Units shall have been duly executed, authenticated and delivered by the Unit Agent in the manner set forth in the Unit Agreement against payment of the agreed consideration therefor and in accordance with the applicable definitive purchase, underwriting, distribution or similar agreement approved by the Board or a duly authorized committee thereof. |
The opinions in numbered paragraphs 3 through 6 above are qualified to the extent that the enforcement of the Debt Securities, the Indenture, the Warrants and the related Warrant Agreement, the Rights and the related Rights Agreement, and the Units and the related Unit Agreement may be limited: (i) by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting the enforcement of the rights and remedies of creditors (including, without limitation, the effect of statutory or other laws regarding preferential transferees); (ii) by the effect of general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought; (iii) under certain circumstances under law or court decisions in respect of provisions providing for the indemnification of or contribution to a party with respect to a liability
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where such indemnification or contribution is contrary to public policy; and (iv) in respect of any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy.
We express no opinion (i) as to the effectiveness (a) of any waiver (whether or not stated as such) contained in the Indenture (including any necessary indenture supplement to the Indenture) relating to the Debt Securities or otherwise, or any consent thereunder relating to the Debt Securities, of any unknown future rights or the rights of any party thereto existing, or duties owing to it, as a matter of law; (b) of any provisions of the Indenture (including any necessary indenture supplement to the Indenture), the Warrant Agreement, the Rights Agreement or the Unit Agreement that may be construed as penalties or forfeitures; or (c) of any covenants (other than covenants relating to the payment of principal, interest, premium, indemnities and expenses) in the Indenture (including any necessary indenture supplement to the Indenture), the Warrant Agreement, the Rights Agreement or the Unit Agreement to the extent they are construed to be independent requirements as distinguished from conditions to the declaration or occurrence of a default or any event of default; or (ii) with respect to whether acceleration of the Debt Securities may affect the collectability of any portion of the stated principal thereof which might be determined to constitute unearned interest thereon.
For the purposes of this opinion letter, we have assumed that, at the time of the issuance, sale and delivery of each Common Share, each Preferred Share, each Warrant, each Right, each Unit, and each series of Debt Securities, as the case may be: (i) the Registration Statement, and any amendments thereto, will have become effective and such effectiveness will not have been terminated or rescinded; (ii) a Prospectus Supplement describing the Securities, to the extent required by the Securities Act and the General Rules and Regulations promulgated by the SEC thereunder, will have been timely filed with the SEC; (iii) any Securities being offered will be issued and sold in compliance with all applicable federal and state securities laws and as contemplated in the Registration Statement or the Prospectus Supplement(s) relating thereto; (iv) the terms of any Security will not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and will comply with any requirements or restrictions imposed by any court or governmental or regulatory body having jurisdiction over the Company; (v) the authorization thereof by the Company will not have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability thereof; (vi) in the case of the issue of Warrants, the terms and conditions of the Warrants and the related Warrant Agreement will be as expressly contemplated in the Prospectus Supplement relating thereto; (vii) in the case of the issue of the Debt Securities, the form of Indenture (including any necessary indenture supplement to the Indenture) will be as expressly contemplated in the Prospectus Supplement relating thereto; (viii) in the case of the issue of Rights, the terms and conditions of the Rights, the underlying Common Shares, Preferred Shares, Warrants and/or Debt Securities, and the related Rights Agreement will be as expressly contemplated in the Prospectus Supplement related thereto; (ix) in the case of the issue of Units, the terms and conditions of the Units, the underlying Common Shares, Preferred Shares, Warrants, Debt Securities, and/or Rights and the related Unit Agreement will be as expressly contemplated in the Prospectus Supplement relating thereto; and (x) the Articles, as currently in effect, will not have been modified or amended (except as contemplated above) and will be in full force and effect.
With respect to any instrument or agreement executed or to be executed by any party other than the Company, we have assumed, to the extent relevant to the opinions set forth herein, that: (i) such party (if not a natural person) has been duly formed or organized and is validly existing and in good standing under the laws of its jurisdiction of formation or organization; (ii) such party is or will be duly qualified to engage in the activities contemplated by each instrument or agreement to which it is or will become a party; (iii) such party has or will have full right, power and authority to execute, deliver and perform its obligations under each instrument or agreement to which it is or will become a party and each such instrument or agreement has been or will be duly authorized (if applicable), executed and delivered by,
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and is or will be a valid, binding and enforceable agreement or obligation, as the case may be, of such party and (iv) such party will be in compliance, at all applicable times and in all respects material to each instrument or agreement to which it is or will become a party, with all applicable laws and regulations.
The opinions expressed herein are limited solely to: (i) the federal laws of the United States of America; and (ii) the laws of the State of Ohio, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction on the opinions expressed herein. Our opinions are limited to those expressly set forth herein, and we express no opinions by implication.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur that could affect the opinions contained herein.
This opinion letter is being furnished in accordance with the requirements of Item 16 of Form S-3 and Item 601(b)(5) of SEC Regulation S-K. We hereby consent to your filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the Prospectus comprising a part of the Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the General Rules and Regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Porter Wright Morris & Arthur LLP
PORTER WRIGHT MORRIS & ARTHUR LLP