WARNACO GROUP INC /DE/ - 8-K - 20030127 - EXHIBIT_2
PLAN SCHEDULE 1.70
ORIGINAL FOREIGN FACILITIES
-----------------------------------------------------------------------------------------------------------
Balance +
Facility Currency(1)
-----------------------------------------------------------------------------------------------------------
CDN $30,000,000 Revolving Facility, dated 9/24/96 26,051,319 CDN
827,487 USD
-----------------------------------------------------------------------------------------------------------
'L'9,000,000 U.K. Facility Agreement, dated 5/15/95 6,992,400 GBP
-----------------------------------------------------------------------------------------------------------
FRF 480,000,000 French Franc Revolving Line of Credit, dated 10/31/96 and amended 4/17/98 5,170,240 EUR
-----------------------------------------------------------------------------------------------------------
2,500,000,000 Italian Lire Unicredito Credit Line Facility, dated 7/9/98 708,342 EUR
-----------------------------------------------------------------------------------------------------------
35,000,000 Belgian Francs Overdraft Facility, dated 12/2/98 662,410 EUR
-----------------------------------------------------------------------------------------------------------
U.S. $6,000,000 Bank of Nova Scotia Hong Kong Overdraft Facility, dated 8/24/99 5,520,000 USD
-----------------------------------------------------------------------------------------------------------
U.S. $10,000,000 Bank of East Asia Letter of Credit Facility, dated 9/13/96 4,421,300 USD
-----------------------------------------------------------------------------------------------------------
U.S. $75,000,000 Bank of America Letter of Credit Facility, dated 1/10/00 30,395,002 USD
-----------------------------------------------------------------------------------------------------------
Societe Generale Overdraft Facilities:
20,000,000 Austrian Shillings dated 7/26/99 764,300 EUR
4,000,000 Deutsche Marks dated 3/21/00 2,042,122 EUR
U.S. $6,000,000 Multi-Purpose dated 10/29/97 5,864,951 USD
7,500,000 French Francs dated 7/31/98 1,141,923 EUR
-----------------------------------------------------------------------------------------------------------
U.S. $500,000,000 6th Amended and Restated Credit Agreement, dated 11/17/99 $0
-----------------------------------------------------------------------------------------------------------
U.S. $91,700,000 Uncommitted Citibank Letter of Credit, dated 8/4/99 6,238,241 USD
-----------------------------------------------------------------------------------------------------------
U.S. $27,000,000 Standard Chartered Bank Letter of Credit Facility Letter, dated 12/29/99 $0
-----------------------------------------------------------------------------------------------------------
(1) Approximate balance only and subject to adjustment.
==============================================================================================================================
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.1
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT REJECTION
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE EFFECTIVE DATE
------------------------------------------------------------------------------------------------------------------------------
Impulse (India) Private B-12 Nizamuddin West Buying Agency 3/28/00 Earlier of
Limited New Delhi 110013, India Agreement - Non Effective Date
Attention: Ashwani Gupta exclusive of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
ASNA P.O. Box 701250 Utility Tool 1/31/03 Reject as of
San Antonio, TX 78270-1250 (software) 1/31/03
------------------------------------------------------------------------------------------------------------------------------
Infinium 25 Communications Highway, Software 2000 / Earlier of
Drawer 6000 Financial Sys. Effective Date
Hyannis, MA 02601 of Plan and
Attention: Kristen Hambleton expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Cable & Wireless 909 Third Ave. 12th Floor Internet T1 11/3/99 Earlier of
New York, NY 10022 Effective Date
Attention: Robert Law of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Pitney Bowes (PBCC) 2225 American Dr 1 DL4S Copier 11/1/99 Earlier of
Neenah, WI 54656-1005 Effective Date
of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
G.E. Capital P.O. Box 642555 Konica 7265 Digital 7/1/00 Earlier of
Pittsburgh, PA 15264-2555 Copier Effective Date
of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Vista Business Equipment 99 Park Ave. Two Iris printers Earlier of
New York, NY 10016 Effective Date
of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Canon Financial Services P.O. Box 42937 MP90 6/25/96 Earlier of
Inc. Philadelphia, PA 19101-2937 Effective Date
of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Citicorp Vendor Finance P.O. Box 41647 2 Fax Machines NY May 99 Earlier of
Philadelphia, PA 19101 Effective Date
of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
1385 Broadway Company Helmsley-Spear, Inc. Real property lease 2/28/95 10/31/03
60 E. 42nd Street at 1385 Broadway,
New York, NY 10165 New York, NY
230 Park Ave. Ste 559
New York, NY 10169
Copy to: Helmsley-Noyes
PO Box 5852
New York, NY 10087-5852
------------------------------------------------------------------------------------------------------------------------------
149 Madison, LLC Abramson Brothers Inc. Real property lease at 4/1/96 10/31/03
501 Fifth Ave. 149 Madison Ave
New York, NY 10017 5th Floor
Attention: Alan B. Abramson
==============================================================================================================================
1
==============================================================================================================================
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.1
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT REJECTION
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE EFFECTIVE DATE
------------------------------------------------------------------------------------------------------------------------------
Ninety Park Property LLC C/O MRC Management LLC Real property lease 10/24/63 as 10/31/03
330 Madison Ave. at 90 Park Ave. amended 5/27/99
New York, NY 10017 (12th, 13th and 26th
Att: Mr. David L Sims Floor)
Copy to: Proskaur Rose
1585 Broadway
New York, NY 10036
Attention: Lawrence J.
Lipson, Esq.
Vornado Realty Trust
(MRC Management, LLC)
PO Box 11191
Church Street Station
New York, NY 10286
Copy to: Ninety Park
Property, LLC
c/o Vornado Office
Management LLC
888 Seventh Ave
New York, NY 10019
Attention: Mr. David R.
Greenbaum
Copy to: Vornado Realty Trust
210 Route 4 East
Paramus, New Jersey 07652
Attention: Mr. Joseph Macnow
------------------------------------------------------------------------------------------------------------------------------
MCI 200 Park Ave. 6th Floor Telecommunications 10/1/98 Earlier of
New York, NY 10016 Voice and Effective Date
Attention: Deborah Drake Data/Service of Plan and
Contract expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Iron Mountain 71 Hammer Mill Rd. Iron Mountain Off 6/21/05 Earlier of
Rocky Hill, CT 06067 Site Data Storage Effective Date
Attention: Matt Cronin of Plan and
expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Veri-Sign 500 W. Madison St. AS/400 Software 9/29/01 Earlier of
Suite 2050 Effective Date
Chicago IL 60661 of Plan and
Attention: Eric Johnson expiration date
of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #77) 01/31/03
Pembroke, MA 02359 Camarillo, CA
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
Hagopian Realty Corp. 71 Route 17 M Storage (Store #95 1/1/97 01/31/03
Harriman, NY 10926 Central Valley, NY)
------------------------------------------------------------------------------------------------------------------------------
Shurgard of Vineland 4508 S. Vineland Storage (Store #503 01/31/03
Orlando, FL 32811 Orlando, FL)
------------------------------------------------------------------------------------------------------------------------------
Mills-Kan Am Sawgrass 1300 Wilson Blvd. Storage (Store #620 12/1/01 01/31/03
Phase 3 LP Suite 400 Sunrise, FL) Unit 9
Arlington VA 22209 and Unit 14
Attention: Bill Berry/Bob
Marona
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #620 01/31/03
Pembroke, MA 02359 Sunrise, FL)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 E. Pine Street Music (Store #620 01/31/03
Seattle, WA 98122 Sunrise, FL)
Attention: Debra Comer-Craft
------------------------------------------------------------------------------------------------------------------------------
The Store Room 24635 SE Stark Storage (Store #701) 01/31/03
Troudale, OR 97060
------------------------------------------------------------------------------------------------------------------------------
Storage USA Plainville 90 Tauntan Storage (Store #821 01/31/03
Planeville, MA 02762 Wrentham, MA)
------------------------------------------------------------------------------------------------------------------------------
CKI 111 Morse St. Alarm Monitoring None 10/31/03
Norwood, MA 02062-4646 205 W. 39th
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security Lease 01/31/03
Pembroke, MA 02359 (Store #21)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #79 01/31/03
Pembroke, MA 02359 Carlsbad, CA)
Attention: John O'Keffe
==============================================================================================================================
2
==============================================================================================================================
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.1
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT REJECTION
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE EFFECTIVE DATE
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #91 01/31/03
Pembroke, MA 02359 Castle Rock, CO)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #95 01/31/03
Pembroke, MA 02359 Central Valley, NY)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #101 01/31/03
Pembroke, MA 02359 Clinton, CT)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #169 01/31/03
Pembroke, MA 02359 Dawsonville, GA)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #172 01/31/03
Pembroke, MA 02359 Destin, FL)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #207 01/31/03
Pembroke, MA 02359 Foley, AL)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #281 01/31/03
Pembroke, MA 02359 Gilroy, CA)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #315 01/31/03
Pembroke, MA 02359 Jackson, NJ)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #323 01/31/03
Pembroke, MA 02359 Kittery, ME)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #367 01/31/03
Pembroke, MA 02359 Las Vegas, NV)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #435 01/31/03
Pembroke, MA 02359 Milpitas, CA)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (#485 01/31/03
Pembroke, MA 02359 Napa, CA)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #489 01/31/03
Pembroke, MA 02359 Niagara Falls, NY)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #503 01/31/03
Pembroke, MA 02359 Orlando, FL)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #541 01/31/03
Pembroke, MA 02359 Primm, NV)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #561 01/31/03
Pembroke, MA 02359 Riverhead, NY)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #597 01/31/03
Pembroke, MA 02359 San Marcos, TX)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #613 01/31/03
Pembroke, MA 02359 San Ysidro, CA)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #633 01/31/03
Pembroke, MA 02359 Secaucus, NJ)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #701 01/31/03
Pembroke, MA 02359 Troutdale, OR)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #775 01/31/03
Pembroke, MA 02359 Finger Lakes, NY)
Attention: John O'Keffe
==============================================================================================================================
3
==============================================================================================================================
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.1
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT REJECTION
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE EFFECTIVE DATE
------------------------------------------------------------------------------------------------------------------------------
American Sentinel Group Inc. 75 Barker Street Security (Store #821 01/31/03
Pembroke, MA 02359 Wrentham, MA)
Attention: John O'Keffe
------------------------------------------------------------------------------------------------------------------------------
ADT Security Systems P.O. Box 371956 Alarm/Access None 10/31/03
Pittsburgh PA 15250-7956 Control Main
Attention: Shawnail King
------------------------------------------------------------------------------------------------------------------------------
Miss Universe L.P. LLP Miss Universe Organization 1999 Miss Universe, 7/30/98 Earlier of
1370 Ave. of the Americas Miss USA 1998 Effective Date
16th Floor Miss Teen USA of Plan and
New York, NY 10019 Sponsorship expiration date
Attention: Craig A. Isaacs of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Miss Universe L.P. LLP Miss Universe Organization 2000 Miss Universe 7/26/99 Earlier of
1370 Ave. of the Americas Miss USA, 1999 Effective Date
16th Floor Miss Teen USA of Plan and
New York, NY 10019 Sponsorship expiration date
Attention: Craig A. Isaacs of contract or
lease
------------------------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street 11th Floor 5th Floor/205 W. 11/1/93 10/31/03
New York, NY 10018 39th Street
Attention: Stephanie Goldstein
------------------------------------------------------------------------------------------------------------------------------
205 W. 39th St. Company 205 W. 39th St. 13th and 14th Floor 3/1/97 10/31/03
New York NY 10018
Attention: Daniel Mintz, Esq.
Copy to :
Newman Tannenbaum Helpern
Syracuse & Hirschtritt LLP
900 Third Ave.
New York, NY 10022
Attention: Neil E. Botwinoff,
Esq.
------------------------------------------------------------------------------------------------------------------------------
Deerfoot Mall 901 64th Ave. NE Lease at Deerfoot 11/1/99 8/29/2002
Calgary, Alb. Outlet
Canada T2E 7P4
------------------------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #64 12/31/99 01/31/03
Seattle WA 98122 Houston Galleria)
Attention: Debra Comer-Craft
------------------------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #20 12/31/99 01/31/03
Seattle WA 98122 Towson Town
Attention: Debra Comer-Craft Center)
------------------------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #199 12/31/99 01/31/03
Seattle WA 98122 611 Duval Street)
Attention: Debra Comer-Craft
------------------------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #199 01/31/03
Hawthorne, CA 90250 611 Duval Street)
Attention: Nadine Gunderson
------------------------------------------------------------------------------------------------------------------------------
Allen B. Schwartz 2399 Mandeville Canyon Road Employment 9/1/99 Effective Date
Los Angeles, CA 90049 Agreement of Plan
(Allen B. Schwartz)
------------------------------------------------------------------------------------------------------------------------------
Except as set forth in the following sentence, any agreements by and between any
of the Debtors and any of their employees regarding the terms and conditions of
such employees' employment shall be deemed to be rejected as of the Effective
Date. However, any Employee Patent and Confidentiality Agreements and
Arbitration Agreements, including, without limitation, those that are
substantially in the same form as Plan Schedules 3.1(a) and (b), by and between
any of the Debtors and any of their employees shall be deemed to be assumed with
a zero cure amount.
==============================================================================================================================
4
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Inseco Inc. 15 W. 39th Street Buying Agency 02/07/97 0.00
New York, NY 10015 Agreement - Non
Attention: exclusive
Mike Behmoaras
-----------------------------------------------------------------------------------------------------------------
Allen B. Schwartz 2399 Mandeville Agreement and Assignment 09/01/99 0.00
Canyon Road, (Schwartz Name)
Los Angeles,
CA 90049
-----------------------------------------------------------------------------------------------------------------
Nancy Ganz Nancy Ganz Name Agreement 07/17/96 0.00
300 Central Park
West Apt. 2L
New York, NY 10024
and
Paul Weiss Rifkind
Wharton & Garrison
1285 Avenue of the Americas,
New York, NY 10019
-----------------------------------------------------------------------------------------------------------------
Amanda Beard c/o Evan Morgenstein Athlete/ 06/01/01 0.00
Premier Management Coach Agreement
200 Merry Hill Drive
Raleigh, NC 27606
-----------------------------------------------------------------------------------------------------------------
Ambrose (Rowdy) 4948 Caldwell Athlete/ 01/01/01 0.00
Gaines Mill Road Coach Agreement
Birmingham, AL 35243
-----------------------------------------------------------------------------------------------------------------
Amy Van Dyken c/o Gold Medal Athlete/ 03/01/99 0.00
Management Coach Agreement
1750-14th Street
Boulder, CO 80302
-----------------------------------------------------------------------------------------------------------------
Barbara Lindquist P.O. Box 284 Athlete/ 01/01/01 0.00
Wilson, WY 83014 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Bob Steele 505 Attleboro Avenue Athlete/ 01/01/01 0.00
Bakersfield, CA 93314-4909 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Brooke Bennett c/o Evan Morgenstein Athlete/ 01/01/01 0.00
Premier Management Coach Agreement
200 Merry Hill Drive
Raleigh, NC 27606
-----------------------------------------------------------------------------------------------------------------
Chris Thompson c/o Evan Morgenstein Athlete/ 06/01/01 0.00
Premier Management Coach Agreement
200 Merry Hill Drive
Raleigh, NC 27606
-----------------------------------------------------------------------------------------------------------------
Colleen Lanne 1914 David St. Athlete/ 03/27/01 0.00
Austin, TX 78705 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
College Swimming Coaches P.O. Box 63285 Athlete/ 07/01/98 0.00
Association of America Colorado Springs, Coach Agreement
CO 801962
-----------------------------------------------------------------------------------------------------------------
Courtney Shealy 155 International Athlete/ 09/01/00 0.00
Drive #609 Coach Agreement
Athens, GA 30605
-----------------------------------------------------------------------------------------------------------------
Cristina Teuscher c/o SFX Athlete/ 04/01/00 0.00
220 West 42nd Coach Agreement
St. 12th Floor
New York, NY 10036
(SFX, N1272)
-----------------------------------------------------------------------------------------------------------------
Cynthia Gallagher 1586 Electric Ave. Athlete/ 07/01/99 0.00
Venice, CA 90291 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Dara Torres (Wilhelmina) 245 E. 72nd St. Apt. 9G Athlete/ 08/01/99 0.00
New York, NY 10021-4588 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Dave Parrington 8604 Constance Way Athlete/ 04/17/98 0.00
Knoxville, TN 37923 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Dave Salo 21762 Quiet Oak Drive Athlete/ 01/01/99 0.00
Lake Forest, CA 92630 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Dennis Dale 1774 Girard Ave. Athlete/ Jan 01 0.00
S. Minneapolis, MN 55403 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Donald Gibb 201 Sesqui Trail Athlete/ 01/01/00 0.00
Columbia, SC 29223 Coach Agreement
1
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Ed Sinnott 8222 Forest Hills Athlete/ 01/01/01 0.00
Dallas, TX 75218 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Ed Spencer 3640 Churchwell Ct. Athlete/ 01/01/01 0.00
Tucker, GA 30084 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Eddie Reese 5924 Gorham Athlete/ 01/01/01 0.00
Glen Lane Coach Agreement
Austin, TX 78739
-----------------------------------------------------------------------------------------------------------------
Greg Louganis P.O. Box 4130 Athlete/ 01/01/01 0.00
Malibu, CA 90265 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Hongping Li 4962 Starling Way Athlete/ 01/01/99 0.00
La Palma, CA 90623 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Hunter Kemper 500 Crooked Oak Ct. Athlete/ 01/01/01 0.00
Longwood, FL 32779 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Ira Klein 1335 Mountain Ave. Athlete/ 01/01/01 0.00
Santa Barbara, Coach Agreement
CA 93101
-----------------------------------------------------------------------------------------------------------------
Jack Bauerle 125 Tipperary Rd. Athlete/ 1/1/2001 0.00
Athens, GA 30606 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Jack Nelson 417 Idlewyld Drive Athlete/ 01/01/01 0.00
Ft. Lauderdale, FL 33301 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Jason Lezak 5377 Traci Drive Athlete/ 10/15/98 0.00
Santa Barbara, Coach Agreement
CA 93111
-----------------------------------------------------------------------------------------------------------------
Jay Schryver 6116 Jordan Drive Athlete/ 05/01/01 0.00
Loveland, CO 80537 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Jerry Holtrey 3522 Glencairn Rd. Athlete/ 01/01/99 0.00
Shaker Heights, OH 44122 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Jill Sterkel 5507 Mr. Bonnell Rd. Athlete/ 01/01/01 0.00
Austin, TX 78731 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Joanna Zeiger c/o Epstein Athlete/ 01/01/99 0.00
8631 Constence Way Coach Agreement
Knoxville, TN 37923
-----------------------------------------------------------------------------------------------------------------
John Carroll 806 Defense Drive Athlete/ 09/01/98 0.00
Marlton, NJ 08053 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
John Collins 105 Rockland Ave. Athlete/ 01/01/01 0.00
Larchmont, NY 10538 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
John Mattos 190 S. County Road #5 Athlete/ 01/01/01 0.00
Ft. Collins, CO 80524 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
John Morse 2713 Wortham Athlete/ 01/01/01 0.00
Nashville, TN 37215 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
John Trembley 7515 Little River Road Athlete/ 01/01/01 0.00
Knoxville, TN 37920 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Josh Davis 4408 Airport Blvd. Athlete/ 01/01/98 0.00
Austin TX 78722 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Kerry Classen 801 Astoria Park Dr. Athlete/ 01/01/01 0.00
Bakersfield, CA 93311 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Kerstin Weule 4743 S. Cedar Rd. Athlete/ 03/27/01 0.00
Evergreen, CO 80439 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Kris Kirchner 6000 N. Maple Grove Rd. Athlete/ 01/01/01 0.00
Bloomington, IN 47404 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Kristy Kowal 1726 Colony Drive Athlete/ 04/01/00 0.00
Wyomissing, PA 19610 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Larry Shofe 7315 San Carlos Road Athlete/ 07/01/98 0.00
Jacksonville, FL 32217 Coach Agreement
2
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Lenny Krayzelburg LK Sports Inc. Athlete/ 07/01/98 0.00
Octagon Coach Agreement
50 Courtland Pier
Portland, ME 04101
Attention: Peter Carlisle
OR
LK Sports Inc.
Octagon Box 17574
Portland, ME 04112
-----------------------------------------------------------------------------------------------------------------
Lindsay Benko c/o Evan Morgenstein Athlete/ 07/01/99 0.00
Premier Management Coach Agreement
200 Merry Hill Drive
Raleigh, NC 27606
-----------------------------------------------------------------------------------------------------------------
Mark Ruiz c/o Premier Management Athlete/ 07/01/98 0.00
Merry Hill Drive Coach Agreement
Raleigh, NC 27606
-----------------------------------------------------------------------------------------------------------------
Mark Schubert A-104 Surfside Ave. Athlete/ 01/01/01 0.00
Surfside, CA 90743 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Matt Scoggins 4900 Calhoun Athlete/ 10/15/98 0.00
Canyon Loop Coach Agreement
Austin, TX 78735
-----------------------------------------------------------------------------------------------------------------
Megan Quann 11602-135th Athlete/ 10/01/00 0.00
Street, Court Coach Agreement
E. Puyallup, WA 98374
-----------------------------------------------------------------------------------------------------------------
Melvin Nash 1704 Todd Trail Athlete/ 01/01/01 0.00
College Station, Coach Agreement
TX 77845
-----------------------------------------------------------------------------------------------------------------
Michael Smedley 1 Olympic Plaza Athlete/ Mar 01 0.00
Colorado Springs, Coach Agreement
CO 80909
-----------------------------------------------------------------------------------------------------------------
Mike Chasson 3431 E. Cherokee Street Athlete/ 01/01/01 0.00
Phoenix, AZ 85044 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Mike Hastings 10755 Voyaitzes Athlete/ 01/01/01 0.00
Auburn, CA 95603 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Mike Walker 1801 Lakeshore Drive Athlete/ 01/01/01 0.00
Austin, TX 78746 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Misty Hyman 1869 Alma Road Athlete/ 06/01/01 0.00
Palo Alto, CA 94301 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Muray Stephens 11123 Powers Avenue Athlete/ 01/01/01 0.00
Cockeyville, MD 21030 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Neil Walker c/o IMG 1360 East Athlete/ 08/01/98 0.00
9th St., Ste 100 Coach Agreement
Cleveland, OH 44114
-----------------------------------------------------------------------------------------------------------------
Nort Thornton 4 Irvine Athlete/ 01/01/01 0.00
Moraga, CA 64556 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Patrick Hogan 10104 Whitehorn Drive Athlete/ 01/01/01 0.00
Charlotte, NC 28277 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Paul Bergen 14910 SW Carlsbad Drive Athlete/ 01/01/01 0.00
Beaverton, OR 97007 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Paul Blair 216 Ridgeway Drive Athlete/ 01/01/01 0.00
Little Rock, AR 72205 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Pete Raykovich 22253 N. DeAnza Circle Athlete/ 01/01/01 0.00
Cupertino, CA 95014 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Peter Banks 14320 Diplomat Drive Athlete/ 01/01/99 0.00
Tampa, FL 33613 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Peter Malone 8008 West Gate Athlete/ 01/01/01 0.00
Lenexa, KS 66215 Coach Agreement
3
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Pierre LaFontaine 3252 E. Highland Athlete/ 01/01/99 0.00
Phoenix, AZ 85018 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Rada Owen c/o Premier Athlete/ 09/01/00 0.00
Management Merry Coach Agreement
Hill Drive Raleigh,
NC 27606
-----------------------------------------------------------------------------------------------------------------
Richard Curl 730 Springvale Rd. Athlete/ 07/31/95 0.00
Great falls, Coach Agreement
VA 22066
-----------------------------------------------------------------------------------------------------------------
Richard Quick 725 Hobart Street Athlete/ 01/01/01 0.00
Menlo Park, Coach Agreement
CA 94025
-----------------------------------------------------------------------------------------------------------------
Richard Shoulberg 3208 Sunset Athlete/ 01/01/01 0.00
Avenue Norristown, Coach Agreement
PA 19401
-----------------------------------------------------------------------------------------------------------------
Rick Benner 2618 5th St. Athlete/ 01/01/00 0.00
SW Puyallup, Coach Agreement
WA 98373
-----------------------------------------------------------------------------------------------------------------
Rick Schavone 48 Pearce Mitchell Athlete/ 01/01/01 0.00
Stanford, Coach Agreement
CA 94305
-----------------------------------------------------------------------------------------------------------------
Robert Bowman 941 N. Calvert Athlete/ 01/01/01 0.00
St. Baltimore, Coach Agreement
MD 21202
-----------------------------------------------------------------------------------------------------------------
Scott Tucker 197 Pineview Irvine, Athlete/ 05/01/01 0.00
CA 92620 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Janet Evans c/o SFX 220 West Athlete/ 01/01/01 0.00
42nd Street, Coach Agreement
12th Floor New York,
NY 10036 SFX(N1598)
-----------------------------------------------------------------------------------------------------------------
Sheila Taormina 30542 Puritan Athlete/ 01/01/99 0.00
Livonia, MI 48154 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Skip Runkle 1316 Ann Court Athlete/ 01/01/01 0.00
West Linn, OR 97068 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Speedo/NISCA Sponsorship c/o Thomas Wojslowoucs Athlete/ 09/01/00 0.00
93 Kennedy Blvd. Coach Agreement
Bayonne, NJ 07002
-----------------------------------------------------------------------------------------------------------------
Steve Collins 5233 Vanderbilt Athlete/ 01/01/01 0.00
Dallas, TX 75206 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Susan Teeter 44 Maplewood Drive Athlete/ 01/01/98 0.00
Cranbury, NJ 08512 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Tim O'Brien 501 Seabreeze Blvd. Athlete/ 01/01/01 0.00
Ft. Lauderdale, FL 33316 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
Tom Malchow c/o Evan Morgenstein Athlete/ 07/01/99 0.00
Premier Management Coach Agreement
200 Merry Hill Drive
Raleigh, NC 27606
-----------------------------------------------------------------------------------------------------------------
Tom Wilkens 2 Alpha Ct. Middletown, NJ Athlete/ 07/15/98 0.00
07748 Coach Agreement
-----------------------------------------------------------------------------------------------------------------
University of Florida Universtiy Athletic Athlete/ 07/01/98 0.00
Assoc. Inc. Coach Agreement
PO 14485 Gainesville,
FL 32604-2485
-----------------------------------------------------------------------------------------------------------------
University of Michigan Athletic Department Athlete/ 07/01/00 0.00
1000 S. State Street Coach Agreement
Ann Arbor, MI 48109
-----------------------------------------------------------------------------------------------------------------
University of Minnesota Jean Freeman 3508 Athlete/ 01/01/01 0.00
Spain Place NE Coach Agreement
Minneapolis, MN 55418
-----------------------------------------------------------------------------------------------------------------
University of Virginia Athletic Department Athlete/ 07/15/00 0.00
University Hall Coach Agreement
Charlottesville, VA 22903
-----------------------------------------------------------------------------------------------------------------
USA Swimming 1 Olympic Plaza Athlete/ 01/01/01 0.00
Colorado Springs, Coach Agreement
CO 80909
-----------------------------------------------------------------------------------------------------------------
Vince Panzano 2600 Darling Road Athlete/ 01/01/01 0.00
Blacklick, OH 43004 Coach Agreement
4
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Citibank 111 Wall Street New Retirement Plan 06/29/89 0.00
York, NY 10043 Attention: Trustee
David Humza
-----------------------------------------------------------------------------------------------------------------
Merrill Lynch 1400 Merrill Lynch Drive, Savings Plan Trustee 05/01/95 0.00
MSC 04BSPRO, Pennington, and Recordkeeper
NJ 08534-
4125 Attention: Connie
Carpenter
-----------------------------------------------------------------------------------------------------------------
Deloite & Touche Tax 1751 Lake Cook Road CORPTax Return 1/01/01- 0.00
Technologies LLC Deerfield, IL 60015 Preparation Software 12/31/03
Attention: Chris Popson License
-----------------------------------------------------------------------------------------------------------------
AAFES 3911 S. Walton Vendor agreement 03/08/02 0.00
Walker Blvd. Dallas, for markdowns,
TX 75236 Attention: advertising, etc.
Ramona Brookshire
-----------------------------------------------------------------------------------------------------------------
Gart's PO Box 46527 Vendor agreement 03/14/02 0.00
Denver, CO 80201 for markdowns,
advertising, etc.
-----------------------------------------------------------------------------------------------------------------
Sam's Club 702 SW 8th St. Vendor agreement 11/01/01 0.00
Bentonville, for markdowns,
AK 72716 advertising, etc.
-----------------------------------------------------------------------------------------------------------------
Sport Chalet 920 Foothill Blvd. Vendor agreement 03/14/02 0.00
La Canada, CA 91011 for markdowns,
advertising, etc.
-----------------------------------------------------------------------------------------------------------------
Sports Authority PO Box 508003 Vendor agreement 05/28/02 0.00
Lauderdale, for markdowns,
FL 33340-7002 advertising, etc.
-----------------------------------------------------------------------------------------------------------------
Wal-Mart 702 SW 8th St. Vendor agreement 0.00
Bentonville, for markdowns,
AK 72716 advertising, etc.
-----------------------------------------------------------------------------------------------------------------
Bed, Bath & Beyond 650 Liberty Ave. EDI Agreement 11/10/98 0.00
Union, NJ 07083
Copy to: City of
Philadelphis
c/o Liberty
Place Retail Assoc.
1625 Chestnut St.
Philadelphia,
Pennsylvania 19103
-----------------------------------------------------------------------------------------------------------------
Dillards 1600 Cantrell Rd. EDI Agreement 07/31/00 0.00
Little Rock,
AR 72201 Attention:
Dean Worley
-----------------------------------------------------------------------------------------------------------------
Footstar Corp 3201 W. Royal Lane EDI Agreement 0.00
Irving, TX 75063
-----------------------------------------------------------------------------------------------------------------
Meijer 2929 Walker Ave. EDI Agreement 02/21/00 0.00
NW Grand Rapids,
MI 49504
-----------------------------------------------------------------------------------------------------------------
Oshman's Sporting goods Gart's Sports Co. EDI Agreement 01/07/00 0.00
PO Box 46527
Denver, CO 80201
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren Karen Kong Polo/ EDI Agreement 07/10/00 0.00
Ralph Lauren Corp
9 Polito Ave.
Lyndhurst,
NY 07071
-----------------------------------------------------------------------------------------------------------------
Zellers AP Dept. EDI Agreement 06/09/00 0.00
Serv Cptes.Foum.
PO Box 4220,
Station A Toronto,
ON Canada
-----------------------------------------------------------------------------------------------------------------
David Saxl & Spencer 205 W. 39th Indp Rep 12/01/98 0.00
Weinberg Street New York,
NY 10018
-----------------------------------------------------------------------------------------------------------------
Lawler Grp & Pam Lawler 250 Spring St. Indp Rep 12/01/98 0.00
Ste.135 118A
Atlanta, GA 30303
-----------------------------------------------------------------------------------------------------------------
Price Inc & James Price J. Price Inc. Indp Rep 11/01/00 0.00
1320 Fairway Drive
Chesapeake,
VA 23320
-----------------------------------------------------------------------------------------------------------------
Stacey Gossman 4764 La Villa Indp Rep 03/01/99 0.00
Marina, Suite A
Marina Del Rey,
CA 90292
-----------------------------------------------------------------------------------------------------------------
TALXUC Express 10101 Woodfield Unemployment 12/30/94 0.00
Lane St. Luis, Compensation and
MO 63132 Service Agreement amended 1/02
(formerly The Frick
Company)
-----------------------------------------------------------------------------------------------------------------
UNITE Local 1701 UNITE Mid-Atlantic Collective 03/02/01 0.00
Regional Joint Board Bargaining
903 Russell Ave. Agreement
Suite 400,
Gaithersburg,
PA 20879
5
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
VPSI 1220 Rankin Street Rideshare 07/01/97 0.00
Troy, MI 48083 transportation
-----------------------------------------------------------------------------------------------------------------
Elaine Villano 25 Phesant Run Independent Sales 0.00
Kinnelon, NJ 07405 Representative
-----------------------------------------------------------------------------------------------------------------
Pam Lawler 1 Bay Club Dr. Ste. Independent Sales 12/01/98 0.00
19-A Bayside, Representative
NY 11360
-----------------------------------------------------------------------------------------------------------------
AFC - Canada 9770 Trans Canada Royalty-Speedo 0.00
Saint Larent, Que,
H4S 1V9
-----------------------------------------------------------------------------------------------------------------
Agnes B. Trouble 194 Rue de Rivoli Agreement on 02/20/01 0.00
75001 Paris France ALLEN B mark
-----------------------------------------------------------------------------------------------------------------
Anne Cole 1709 Ambassador License agreement in 10/26/93 0.00
Ave. Beverly Hills, perpetuity to as amended
CA 90210 manufacture and
distribute swimwear
and activewear
under the ANNE
COLE trademark
-----------------------------------------------------------------------------------------------------------------
Body Art Australia 79-81 Coppin Street Export Customer 08/01/98 0.00
Richmond Victoris 3121 Exclusive Distribution as amended
Australia Attention: Agreement and extended
Mr. Clyde Davenport
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street Royalty CK Jeans 03/31/99 0.00
New York,
NY 10018 Attention:
Mr. Barry K. Schwartz
Copy to: Calvin Klein, Inc.,
205 W. 39th Street New York,
NY 10018 Attention:
Deirdre Miles-Graeter
Copy to: Paul, Weiss,
Rifkind, Wharton & Garrison
1285 Avenue of the
Americas New York,
NY 10019-6064
Attention:
Robert M. Hirsh, Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street Royalty CK 0.00
New York, Jeans - Kids
NY 10018 Attention:
Mr. Barry K. Schwartz Copy
to:
Calvin Klein, Inc.,
205 W. 39th Street
New York,
NY 10018 Attention:
Deirdre Miles-Graeter
Copy to: Paul, Weiss,
Rifkind, Wharton & Garrison
1285 Avenue of the
Americas New York,
NY 10019-6064
Attention:
Robert M. Hirsh, Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street National Advertising 0.00
New York, CK Jeans
NY 10018 Attention:
Mr. Barry K. Schwartz
Copy to: Calvin Klein, Inc.,
205 W. 39th Street
New York,
NY 10018 Attention:
Deirdre Miles-Graeter
Copy to: Paul, Weiss,
Rifkind, Wharton & Garrison
1285 Avenue of the
Americas New York,
NY 10019-6064
Attention:
Robert M. Hirsh, Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street Men's Accessories 03/14/94 0.00
New York, License for as extended
NY 10018 Attention: CALVIN KLEIN
Mr. Barry K. Schwartz Copy products on men's
to: accessories
Calvin Klein, Inc.,
205 W. 39th Street
New York,
NY 10018 Attention:
Deirdre Miles-Graeter
Copy to: Paul, Weiss,
Rifkind, Wharton & Garrison
1285 Avenue of the
Americas New York,
NY 10019-6064
Attention:
Robert M. Hirsh, Esq.
6
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Exclusive License to 08/04/94 as 0.00
NY 10018 Attention: manufacture, distribute amended and
Mr. Barry K. Schwartz and sell Men's and extended
Copy to: Calvin Klein, Inc., Women's jeans and
205 W. 39th Street jeans related items for
New York, NY 10018 CALVIN KLEIN/CK
Attention: Deirdre Miles- CALVIN KLEIN and
Graeter Copy to: Paul, Variations and
Weiss, Rifkind, Wharton & CALVIN KLEIN
Garrison 1285 Avenue of the JEANS, CK/CALVIN
Americas New York, NY CLEIN JEANS AND
10019-6064 CK/CALVIN KLEIN
Attention: Robert M. Hirsh, KHAKIS
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Exclusive License for 08/04/94 as 0.00
NY 10018 Attention: CALVIN KLEIN marks amended and
Mr. Barry K. Schwartz for jeans and jeans extended
Copy to: Calvin Klein, Inc., related items
205 W. 39th Street
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of the
Americas New York, NY
10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Settlement Agreement 01/22/01 0.00
NY 10018 Attention:
Mr. Barry K. Schwartz
Copy to: Calvin Klein, Inc.,
205 W. 39th Street
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of the
Americas New York, NY
10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Trust Agreement 03/14/94 0.00
NY 10018 Attention: transferring all CALVIN
Mr. Barry K. Schwartz KLEIN marks worldwide
Copy to: Calvin Klein, Inc.,
205 W. 39th Street
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of the
Americas New York, NY
10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Men's Underwear License 03/14/94 0.00
NY 10018 Attention: Agreement between
Mr. Barry K. Schwartz Calvin Klein Trademark
Copy to: Calvin Klein, Inc., Trust and Clavin Klein,
205 W. 39th Street Inc.
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of the
Americas New York, NY
10019-6064
Attention: Robert M. Hirsh,
Esq.
7
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Women's Intimate Apparel 03/14/94 0.00
NY 10018 Attention: License Agreement
Mr. Barry K. Schwartz
Copy to: Calvin Klein, Inc.,
205 W. 39th Street
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of the
Americas New York, NY
10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Quality Assurance 03/14/94 0.00
NY 10018 Attention: Agreement
Mr. Barry K. Schwartz
Copy to: Calvin Klein,
Inc., 205 W. 39th Street
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of
the Americas New York,
NY 10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Servicing Agreement 03/14/94 0.00
NY 10018 Attention:
Mr. Barry K. Schwartz
Copy to: Calvin Klein,
Inc., 205 W. 39th Street
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of the
Americas New York,
NY 10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Acquisition Agreement 03/14/94 0.00
NY 10018 Attention: acquiring the beneficial
Mr. Barry K. Schwartz ownership interest in
Copy to: Klein, Inc., 205 the CALVIN KLEIN
W. 39th Street Trademarks
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of
the Americas New York, NY
10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Administration Agreement 03/14/94 0.00
NY 10018 Attention: Mr. Barry (Underwear and Intimate
K. Schwartz Copy to: Calvin Apparel)
Klein, Inc., 205 W.
39th Street New York,
NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton
& Garrison 1285 Avenue of
the Americas
New York, NY 10019-6064
Attention: Robert M. Hirsh,
Esq.
8
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Calvin Klein Inc. 205 W. 39th Street New York, Worldwide Transfer 03/14/94 0.00
NY 10018 Attention: Agreement
Mr. Barry K. Schwartz
Copy to: Calvin Klein, Inc.,
205 W. 39th Street
New York, NY 10018
Attention: Deirdre Miles-
Graeter Copy to: Paul,
Weiss, Rifkind, Wharton &
Garrison 1285 Avenue of the
Americas New York, NY
10019-6064
Attention: Robert M. Hirsh,
Esq.
-----------------------------------------------------------------------------------------------------------------
Christine 17 Cosdrew Lane Patent license for 10/31/1995 0.00
Grimaldi/Matthew East Hampton, NY 11907 Fitness Rope
Grimaldi
-----------------------------------------------------------------------------------------------------------------
Cradle Togs, Inc. 77 South First Street Termination of 05/06/99 0.00
Elizabeth, NJ 07206 Sublicense
and d/b/a Children's Agreement to
Apparel Network 112 manufacture
West 34th Street New children's swimwear
York, NY 10102
-----------------------------------------------------------------------------------------------------------------
Deere & Company John Deere Road Settlement 06/23/97 0.00
Moline, Illinois 61265 agreement on
expanded use of
leaping stag design
mark
-----------------------------------------------------------------------------------------------------------------
Deere & Company John Deere Road Settlement 10/14/1975 0.00
Moline, Illinois 61265 agreement of pending
litigation on use of
leaping stag design
mark
-----------------------------------------------------------------------------------------------------------------
Endurance Sports 3455 Edison Way Swim Foil Paddles Oct 96 - 0.00
Tech./Hydraulic Swim Menlo Park, CA perpetuity
94025 Attention: Marc Evans (or expiration
of last
patent)
-----------------------------------------------------------------------------------------------------------------
Face First, Inc. and FaceFirst, Inc., 34342 Patent license for 11/10/98 0.00
Skellerup Industries Pacific Coast Hwy, non-stick compound
(Malaysia) Unti "A", Dana Point, SlickFinish
CA 92629; and
Skellerup Industries
(Malaysia) SDN BHD,
K.B. 705, Ulu Tiram
Estate, 80990 Johor
Bahru, Malaysia
-----------------------------------------------------------------------------------------------------------------
Fleetcraft International House 2 Export Customer 07/25/00
International Limited Lower Ashley Road Non-Exclusive
Ashley New Milton Distribution
Hampshire BH24 5AD Agreement
England
-----------------------------------------------------------------------------------------------------------------
Jaco Enterprises, Inc. 740 West Aire Libre Method for sealing Aug 00 - life 0.00
Avenue PO Box external auditory ear of patent
22084 Phoenix, AZ 85028 canal
(earplugs/headband
product)
-----------------------------------------------------------------------------------------------------------------
Jashanmal National Al Lotus Building Distribution
Company, LLC Salah-Al-Din Street Agreement for
PO Box 1545 Dubai, UAR intimate apparel and
men's accessories
-----------------------------------------------------------------------------------------------------------------
Jordan Marsh Jordan March Ltda. Settlement Agreement 02/02/01 0.00
Ltda./Jordan March Avenida Estacion No. terminating the
Latin American, Inc. 5AN-17, Cali, Distribution Agreement
Columbia/Jordan and related Consent
March Latin Judgment Against
American, Inc. 16th Jordan Marsh
Street, Roosevelt Ave,
Silbros Bldg. Rm. 2,
PO Box 32-0024
Colon Free Zone,
Republic of Panama
-----------------------------------------------------------------------------------------------------------------
Khalil Fattal Et Fils Sindia s.a.r.l., B.P. Export Customer 10/13/99 0.00
S.A.L. 773 Beyrouth-Liban Non-Exclusive
Jisr el Wati - Sin El Fil Distribution Agreement
-----------------------------------------------------------------------------------------------------------------
Lambert Howarth Safety Marshalls Road NN9 Coexistence Agreement 0.00
Limited 6EX Wellingborough
Great Britain
-----------------------------------------------------------------------------------------------------------------
Larema Distribuion, 36 Rue des Export Customer 1/1/99 as 0.00
S.A. Maraichers P.O. Box Non-Exclusive amended and
113 1211 Geneva, Distribution Agreement extended
Switzerland Attention:
Mr. Bernard Comre
9
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
-----------------------------------------------------------------------------------------------------------------
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Leading Lady, Inc. Settlement Agreement to 07/05/00 0.00
cease manufacture of
Sparkle Satin padded
underwire bra
-----------------------------------------------------------------------------------------------------------------
Lifeguard Licensing c/o Ruby Azrak Trademark License for July 1, 1995 0.00
Corp. 1385 Broadway, Ste. 1407 LIFEGUARD used on as extended
New York, NY 10018 apparel and sporting
accessories
-----------------------------------------------------------------------------------------------------------------
Macroconceptos S.A. Presa Salinillas No. 370 Termination and Release 05/01/01 0.00
de C.V. desp. 704, Col. of Sales
Irrigacion, C.P. 11200, Representative
Mexico, D.F. Letter Agreement
dated May 14, 1998
-----------------------------------------------------------------------------------------------------------------
Martin Philip Hull Martin Philip Hull Settlement agreement of 11/02/98 0.00
Menlo Park, CA litigation of
Pro Short Fins
-----------------------------------------------------------------------------------------------------------------
Mayer-Bershire 25 Edison Road Coexistence Agreement 05/03/96 0.00
Corporation Wayne, NJ 07470 for WARNER'S IN
CONTROL and IN
CONTROL products
-----------------------------------------------------------------------------------------------------------------
N. & AN. Kanellakis & 30-32 Perikleous Export Customer Non 1/1/99 as 0.00
Co. O.E. Str. 105 62 Exclusive Distribution amended
Athens, Greece Agreement and extended
-----------------------------------------------------------------------------------------------------------------
O.B.T. CO., LTD 6-5-1 Nishi Shinjuku Export Customer Non- 8/1/98 as 0.00
Shinjuku-ku Exclusive Distribution amended
Tokyo Japan Agreement and extended
Attention: Mr. Takashi
Sudo
-----------------------------------------------------------------------------------------------------------------
Piccoli International Oster Alle 48, DK-2100 Termination of 08/26/97 0.00
A/S Copenhaen, Denmark Distribution Agreement
dated January 1, 1997
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Chaps License 06/02/98 0.00
Corporation New York, NY 10022 Amendment adding
Attention: President with Mexico to Territory
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Letter Agreement 06/16/99 0.00
Corporation New York, NY 10022 extending U.S. Chaps
Attention: President with License and assigning
copy to Sherry Jetter Canadian Chaps License
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren, 650 Madison Avenue Amended and Restated 01/01/96 0.00
L.P. New York, NY 10022 License Agreement
Attention: President with
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
PRL Fashions of 650 Madison Avenue Distribution Agreement 02/08/99 0.00
Europe Sr. New York, NY 10022
Attention: President with
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
PRL USA Inc. 650 Madison Avenue Royalty Chaps 01/01/02 0.00
New York, NY 10022
Attention President; with
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
PRL USA USA, 650 Madison Avenue Men's Sportswear 1/1/96 0.00
successor to Polo New York, NY 10022 License for CHAPS BY as amended
Ralph Lauren, LP and Attention President with RALPH LAUREN AND and extended
the Polo/Lauren copy to Sherry Jetter CHAPS marks
Company LP
-----------------------------------------------------------------------------------------------------------------
PRL USA, Inc. and 650 Madison Avenue License Agreement to 2/1/98, 0.00
Polo/Lauren New York, NY 10022 manufacture and as amended
Company, LP Attention: President with distribute swimwear and extended
copy to Sherry Jetter under the
RALPH LAUREN, POLO
SPORT RALPH
LAUREN and POLO
SPORT-RLX, LAUREN-
RALPH LAUREN,
RALPH-RALPH LAUREN
trademarks
-----------------------------------------------------------------------------------------------------------------
San Floria 1 F, No. 3 Lane 20 Export Customer Non- 8/1/97 0.00
International Co., Ltd. Jen Ai Road Exclusive Distribution as amended
Section 2 Taipei, Taiwan Agreement and extended
Attention: Mr. Woody Liu
-----------------------------------------------------------------------------------------------------------------
Speedo Holdings B.V. Pentland Group PLC Authentic Fitness 5/8/92 0.00
The Pentland Centre, Name Agreement effective
Lakside, Squires Lane, 4/29/92
Finchley, London N#
2QL England
10
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
-----------------------------------------------------------------------------------------------------------------
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Speedo Holdings B.V. Pentland Group PLC addendum to address 12/07/95 0.00
The Pentland Centre, use of name and
Lakside, Squires Lane, marks in connection
Finchley, London N# with retail stores
2QL England
-----------------------------------------------------------------------------------------------------------------
Speedo Holdings Pentland Group PLC Memorandum of 12/15/95 0.00
B.V./Speedo The Pentland Centre, Understanding
International Ltd. Lakside, Squires Lane, Regarding Calculation
Finchley, London N# of Royalties for
2QL England Licensed Products Sold
By the SPEEDO/
AUTHENTIC FITNESS
Retail Stores
-----------------------------------------------------------------------------------------------------------------
Speedo International Pentland Group PLC License Agreement in 5/10/90 0.00
Limited The Pentland Centre, perpetuity for SPEEDO as amended
Lakside, Squires Lane, marks in
Finchley, London N# U.S. and Canada
2QL England
-----------------------------------------------------------------------------------------------------------------
Speedo International Pentland Group PLC Sublicense Agreement 05/14/90 0.00
Limited The Pentland Centre,
Lakside, Squires Lane,
Finchley, London N#
2QL England
-----------------------------------------------------------------------------------------------------------------
Speedo International Pentland Group PLC License Agreement in 5/10/90 0.00
Ltd. The Pentland Centre, perpetuity for SPEEDO as amended
Lakside, Squires Lane, marks in Mexico and
Finchley, London N# Caribbean
2QL England
-----------------------------------------------------------------------------------------------------------------
Sportzone S.A. Avda. Francisco de Customer Letter 03/06/00 0.00
Miranda, Torre Agreement for sale of
Proviincial B, Piso 3, multibrand products in
Ofic. 32, Chacao, Venezuela
Caracas Venezuela
-----------------------------------------------------------------------------------------------------------------
Store Specialists, Inc. Midland Buendia Bldg., Export Customer Non- 1/1/01 0.00
Sen Gil Puyat Avenue, Exclusive Distribution as amended
Makati City, Metro Agreement and extended
Manila, Philippines
-----------------------------------------------------------------------------------------------------------------
U.S. Luggage United States Luggage Termination of Sales 03/14/01 0.00
Company, L.P. Company, L.P., 400 Representative Agreement
Wireless Blvd. dated June 1, 1999
Hauppauge NY 11788
Attention: Mr. Richard
Krulik, Chairman and
CEO
-----------------------------------------------------------------------------------------------------------------
Wal-Mart Stores 702 SW 8th St. License agreement 08/01/93 0.00
Bentonville, AK 72716 /White Stag as amended
and extended
-----------------------------------------------------------------------------------------------------------------
Wal-Mart Stores 702 SW 8th St. License agreement 08/01/93 0.00
Bentonville, AK 72716 /White Stag as amended
and extended
-----------------------------------------------------------------------------------------------------------------
Wal-Mart Stores 702 SW 8th St. License agreement 12/29/93 0.00
Bentonville, AK 72716 /Catalina as amended
and extended
-----------------------------------------------------------------------------------------------------------------
Wal-Mart Stores 702 SW 8th St. License agreement 12/29/93 0.00
Bentonville, AK 72716 /Catalina as amended
and extended
-----------------------------------------------------------------------------------------------------------------
Western Glove 555 Logan Avenue Termination of 02/28/00 0.00
Works R.S. Winnipeg, Manitoba, Independent
Canada R3A OS4 Sales Representative
Attention: Mr. R. Silver Agreement
-----------------------------------------------------------------------------------------------------------------
Anne Cole 1709 Ambassador Ave. Consultant - Design 10/26/1993 0.00
Beverly Hills, CA 90210 Services as amended
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Compensation/Design Jul 98 - 0.00
New York, NY 10022 services Jun 99
Attention: President with
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Compensation/Design Jul 99 - 0.00
New York, NY 10022 services Jun 00
Attention: President with
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Compensation/Design Jul 00 - 0.00
New York, NY 10022 services Jun 01
Attention: President with
copy to Sherry Jetter
11
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
-----------------------------------------------------------------------------------------------------------------
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Compensation/Design Jul 01 - 0.00
New York, NY 10022 services Jun 02
Attention: President with
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Compensation/Design Jul 02 - 0.00
New York, NY 10022 services Jun 03
Attention: President with
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren 650 Madison Avenue Design Agreement 2/1/98 as 0.00
Corporation New York, NY 10022 amended and
Attention: President with extended
copy to Sherry Jetter
-----------------------------------------------------------------------------------------------------------------
Polo Ralph Lauren, 650 Madison Avenue Design Services and 11/1/96 0.00
L.P. New York, NY 10022 Copyright License (assigned to
Attention: President with Agreement for Warnaco of
copy to Sherry Jetter CHAPS BY Canada on
RALPH LAUREN 6/16'99)
mark on men's
sportswear
-----------------------------------------------------------------------------------------------------------------
PRL USA USA, 650 Madison Avenue Design Services 01/01/96 0.00
successor to Polo New York, NY 10022 Agreement for CHAPS
Ralph Lauren, LP and Attention: President with
the Polo/Lauren copy to Sherry Jetter
Company LP
-----------------------------------------------------------------------------------------------------------------
El Corte Ingles calle Hermosilla, 112 Commercial 08/15/99 0.00
Madrid, SPAIN Collaboration
(Non-Exclusive)
-----------------------------------------------------------------------------------------------------------------
Aldon 1999 Harrison Software License 0.00
St. Suite 1500
Oakland, CA 94612
Attention: Bob Anderson
-----------------------------------------------------------------------------------------------------------------
CGS 1675 Broadway Hardware Maintenance 12/30/01 0.00
New York, NY 10019
Attention: Phil Williams
-----------------------------------------------------------------------------------------------------------------
CGS 1675 Broadway Software 0.00
New York, NY 10019
Attention: Phil Williams
-----------------------------------------------------------------------------------------------------------------
DataVault 12515 Sherman Way Off-Site Data Storage 06/20/00 4,300.16
North Hollywood,
CA 91605
Attention: Gary Swaigen
-----------------------------------------------------------------------------------------------------------------
Datavault 12515 Sherman Way Network backup 482.20
North Hollywood,
CA 91605
Attention: Gary Swaigen
-----------------------------------------------------------------------------------------------------------------
DSA 2 Pin Plaza Suite 1500 UPS systems 0.00
New York, NY 10121
Attention: John Raio
-----------------------------------------------------------------------------------------------------------------
EMS 19 Tompkins Ave. EMS Cleaning of 2,432.70
Pleasantville, NY 10570 Data Center
Attention: Rich DeBlasi
-----------------------------------------------------------------------------------------------------------------
Firemaster 2684 Lacy Street Inergen system, server 1,320.00
Los Angeles,
California 90031
-----------------------------------------------------------------------------------------------------------------
GE Global Exchange 100 Edison Maintenance 0.00
Services Park Drive MS52A2
Gaithersburg,
MD 20878-3204
-----------------------------------------------------------------------------------------------------------------
Gerber Technologies 24 Industrial Web PDM/PDS 24,795.43
Inc. Park Road West
Tolland, CT 06084
Attention: Malcom
Gullish
-----------------------------------------------------------------------------------------------------------------
Hartford Fire 543 Boston Post Rd. Hartford Fire DC fire 0.00
Milford, CT 06640 surpression
-----------------------------------------------------------------------------------------------------------------
Hawkeye P.O. Box 2167 Software License 0.00
Fort Collins, CO 80522
Attention: Cindy Starck
-----------------------------------------------------------------------------------------------------------------
IBM Corp. 2929 North Central Ave. Lease of Standalone 12/01/01 0.00
Phoenix, AZ 85012 Modem V.32
-----------------------------------------------------------------------------------------------------------------
IBM Corp. 2929 North Central Ave. Hardware maintenance 0.00
Phoenix, AZ 85012
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
Integrated Visual 1207-E. Crew Rd. AS/400 Software 2,875.50
Systems Matthew, NC 28105 /Inventory (IVS)
Attention: Joe Wadlinger
-----------------------------------------------------------------------------------------------------------------
Interworld 41 East 11th Street Speedo.com 0.00
11th Floor E-commerce Sys.
New York NY 10003
Attention: Robert Weis
-----------------------------------------------------------------------------------------------------------------
JDA 14400 North 87th Street AS/400 0.00
Scottsdale, SOFTWARE (RETAIL)
AZ 85260-3649
Attention: Victor Foreman
12
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS CONTRACT DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Manhattan Associates P.O. Box 102851 AS/400 SOFTWARE PkMS 0.00
Atlanta, GA 90368
Attention:
Patricia Tessendorf
-----------------------------------------------------------------------------------------------------------------
Microsoft 1 Microsoft Way Software License 0.00
Redmond, WA 98052
-----------------------------------------------------------------------------------------------------------------
Monarch 175 Cabot Street, Suite 503 Report 0.00
Kiwekkm, NA 01854 Formatting/Merchandising
-----------------------------------------------------------------------------------------------------------------
Peregrine 1277 Lenox Park Blvd. Software License 08/01/00 0.00
Atlanta, GA 30319
Attention: Chris Mascis
-----------------------------------------------------------------------------------------------------------------
Prodata 2809 South 160th St., AS/400 Software/DBU 05/30/01 960.00
Suite 401 Omaha,
NE+H292 68130
Attention: Rachel Hartley
-----------------------------------------------------------------------------------------------------------------
QRS 1400 Marina Way Maintenance Agreement 0.00
South Richmond, CA 94804
-----------------------------------------------------------------------------------------------------------------
Ron Lynn Management 1037 Route 45 East Software License & 0.00
Ste C-106 Clifton, Consulting
NJ 07013
-----------------------------------------------------------------------------------------------------------------
Safestone 600 Alexander Park, Suite AS/400 15,900.00
303 Princeton, NJ 08540 Software/Detect-IT
Attention: Martin Norman
-----------------------------------------------------------------------------------------------------------------
Secured Document Systems 10550 Dearwood Park Blvd. A/P Check Printing 0.00
(SDDS) Bldg 300 Jacksonville, software
FL 32256
Attention: Kim Wolfe
-----------------------------------------------------------------------------------------------------------------
Showcase Vista 4131 Highway 52 North Ste Data Base 0.00
G11 Rochester, MN 55901 Query/Finance/software
Attention: Tammie Myers
-----------------------------------------------------------------------------------------------------------------
SVI 5607 Plamer Way AS/400 Software SVI 03/23/00 0.00
Carlsbad, CA 92008 Retail
Attention: Pat Jordon
-----------------------------------------------------------------------------------------------------------------
Touchtone Corporation 3151 Airway Bldg. I-3 AS/400 Retail 06/12/01 1,498.50
Costa Mesa, CA. 92626
-----------------------------------------------------------------------------------------------------------------
Vital Records Inc., P.O. Box 688563 Maintenance Agreement 5,147.25
New Center Road
Flagtown, NJ 08821
-----------------------------------------------------------------------------------------------------------------
ICI Solutions 1212 E. Grandview Rd. Software Maintenance 7/02 - 6/03 0.00
Phoenix, AZ 85022 or
7201 W. Oakland, Suite 2
Chandler, AZ 85226
Attention: Kim Meche
-----------------------------------------------------------------------------------------------------------------
The GetPaid Corporation 300 Lanidex Plaza Software Maintenance 12/01 - 12/02 0.00
Parsippany, NJ 07054-3409
Attention: James Kinney
-----------------------------------------------------------------------------------------------------------------
Hyperion Solutions 1344 Crossman Avenue Software Maintenance 7/02 - 6/03 164.50
Sunnyvale, CA 94089
Attention: Shereen Moubayed
Headquarters
-----------------------------------------------------------------------------------------------------------------
Fiware, Inc. 155 Technology Parkway #400 Software Maintenance 11/01 - 10/02 0.00
(formerly Westcorp) Norcross, Georgia 30092
Attention: Evette Jackson
-----------------------------------------------------------------------------------------------------------------
Business Software Inc. 155 Technology Parkway #100 Software Maintenance 5/02 - 5/03 0.00
(BSI) Norcross, Georgia 30092
Attention: Patty Odell
-----------------------------------------------------------------------------------------------------------------
SPS Commerce 1450 Energy Park Dr. Suite EDI 02/23/01 0.00
127 St. Paul, MN 55108 Testing/Certification
-----------------------------------------------------------------------------------------------------------------
Automation Taft 1230 Long Beach Ave Parking Lease N/A 166.60
Printing Company Los Angeles, CA 90021
Attention: Aileen Platon
-----------------------------------------------------------------------------------------------------------------
Chin Jung Co. 936 Long Beach Ave. Parking Lease N/A 382.95
Los Angeles, CA 90021
Attention: Julie
-----------------------------------------------------------------------------------------------------------------
Parpark 100 W. Walnut GE104A Parking Lease N/A 91.57
Pasadena, CA 91124
Attention: Eli Portiallo
13
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS CONTRACT DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
A.P.I. Security 30 Rayette Rd. Alarm monitoring 02/02/02 0.00
Concord, Ont., L4K 2G3 (King St.)
-----------------------------------------------------------------------------------------------------------------
ADT Security 940 6th Ave. St. W. Alarm monitoring 01/01/02 0.00
Calgary, Alb., T2P 3R1 (Leeds)
-----------------------------------------------------------------------------------------------------------------
ADT Security 940 6th Ave. St. W., Alarm monitoring 08/01/02 0.00
Calgary, Alb., T2P 3T1 (Gervais)
-----------------------------------------------------------------------------------------------------------------
ADT Security Services 2858 Banksville Rd. Security services 01/30/00 7,211.54
Pittsburgh, PA 45216 (US Sports Building)
Attention: Tom Madigan Account # 010 081
S 08149 010 081
S 06027 010 084
S 05533
-----------------------------------------------------------------------------------------------------------------
Ascom 150 Steelcase Rd. W. Equipment Lease 07/31/02 0.00
Markham, Ont. LeR 3J9 (Postage)
-----------------------------------------------------------------------------------------------------------------
Ascom 150 Steelcase Rd. W. Service (Postage) 12/01/01 0.00
Markham, Ont. LeR 3J9
-----------------------------------------------------------------------------------------------------------------
Ascom 150 Steelcase Rd. W. Rate Update Agreem 12/01/01 0.00
Markham, Ont. LeR 3J9 (Postage)
-----------------------------------------------------------------------------------------------------------------
Canon 110 W. Walnut St. Service contract for 893.06
Gardena, CA 90248 color copiers/Van Nuys
-----------------------------------------------------------------------------------------------------------------
Canon Financial P.O. Box 42937 1 CLC 1000 NFH 02662 8/28/98 13,037.32
Services Inc. Philadelphia, PA 19101-2937
-----------------------------------------------------------------------------------------------------------------
Canon Financial P.O. Box 42937 3 Canon Color Copiers 0.00
Philadelphia, PA 19101-2937
-----------------------------------------------------------------------------------------------------------------
Citicapital 1600 Blvd Rene Levesque Equipment Lease 03/01/98 0.00
Ste 1400 Mtl., Que., H3H 1p9 (Routers)
-----------------------------------------------------------------------------------------------------------------
Empire Sewing 830 San Julian Street Equipment Lease 04/20/99 166.32
Los Angeles, CA 90014
Attention: David or Craig
-----------------------------------------------------------------------------------------------------------------
Empire Sewing 830 San Julian Street Equipment Lease 04/20/99 0.00
Los Angeles, CA 90014
Attention: David or Craig
-----------------------------------------------------------------------------------------------------------------
Empire Sewing 830 San Julian Street Equipment Lease 08/25/99 0.00
Los Angeles, CA 90014
Attention: David or Craig
-----------------------------------------------------------------------------------------------------------------
Empire Sewing 830 San Julian Street Equipment Lease 03/01/00 0.00
Los Angeles, CA 90014
Attention: David or Craig
-----------------------------------------------------------------------------------------------------------------
GE Capital P.O. Box 642555 Static Cutter May-00 10,113.79
Pittsburgh, PA 15264-2555
-----------------------------------------------------------------------------------------------------------------
Georgia Florida 206 Plantation Oak Dr. Security system/fire monthly 1,065.00
Burglar Alarm Co. Thomasville, GA 31792 alarm
Attention: Reese Brookered
-----------------------------------------------------------------------------------------------------------------
Honeywell Inc. 1979 Marcus Ave. Suite 137 Security System Feb-99 36,831.76
Lake Success, NY 11042
Attention: Tim Floyd
-----------------------------------------------------------------------------------------------------------------
Image Financial PO Box 4552 Stn A Toronto Equipment Lease (Fax) 7/1/01 0.00
Ontario M5W 4R9
-----------------------------------------------------------------------------------------------------------------
Image Financial PO Box 4552, Stn A, Equipment Lease (Copier) 3/1/00 0.00
Toronto Ontario M5W 4R9
14
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS CONTRACT DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
IOS Capital P.O. Box 13078 Lease of Canon CLC 1150 11/30/00 5,746.47
Macon, GA 31208 and Color Pass 240 for
Design Room
(Color Copier).
-----------------------------------------------------------------------------------------------------------------
IOS Capital PO Box 9115 Copiers/Van Nuys 13,727.51
Macon, GA 31208-9115
-----------------------------------------------------------------------------------------------------------------
Mobile Mini 1834 West Third Street Storage Contract 0.00
Tempe, AZ
-----------------------------------------------------------------------------------------------------------------
Neopost P.O. Box 45822 Postage Metere Lease Jan-01 1,998.43
San Francisco, CA 94145-0822
-----------------------------------------------------------------------------------------------------------------
Newcourt P.O. Box 33057 Dell Computer Lease Feb-99 18,407.88
Newark, NJ 07188-0057
-----------------------------------------------------------------------------------------------------------------
Newcourt Leasing 1769 Paragon Dr. Canon 2400 Color Laser June 99 11,542.52
Memphis, TN 38101 NKZ-01017
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes 2225 American DR Equipment Lease 01/30/97 5,970.67
Neenah, WI 54956-1005
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes 2225 American DR Equipment Lease 09/27/99 1,200.28
Neenah, WI 54956-1005
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes 105 Gamma Drive Equipment lease(1) 05/30/00 0.00
Suite 100 Postage Meter Head-U570
Pittsburgh, PA 15238 (2) METER BASE U560
Attention:
Michael Behringer, George
Homan, Ned Miller
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes 105 Gamma Drive Suite 100 Equipment 06/20/00 3,535.00
Pittsburgh, PA 15238 Lease/Postage
Attention: Michael Behringer, Machine-Shipping #6500
George Homan, Ned Miller
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes PO Box 5311 Equipment Lease 09/01/99 0.00
Burlington, Ont. L7R 4T9 (Postage)
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes PO Box 5311 Equipment Lease 11/01/99 0.00
Burlington, Ont. L7R 4T9 (Postage)
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes PO Box 5311 Equipment Lease 12/01/99 0.00
Burlington, Ont. L7R 4T9 (Postage)
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes 2225 American Dr. Postage machine/Van 0.00
Credit Corp Neenah, WI 54956-1005 Nuys
-----------------------------------------------------------------------------------------------------------------
Security Systems Inc. 1090 Elm Street Suite 201 Security System Oct-01 0.00
Rocky Hill, CT 06067
Attention: Tony Marrico
-----------------------------------------------------------------------------------------------------------------
Symbolease Inc. P.O. Box 26538 Equipment Inventory Ctrl Dec-00 4,572.04
New York, NY 10087-6538 Lease
and
Kroger, Gardis & Regas, LLP
111 Monument Circle,
Suite 900 Indianapolis,
IN 46204-5125
Attention: Jay P. Kennedy
----------------------------------------------------------------------------------------------------------------
Xerox 1301 Ridgeview Drive Equipment Lease 09/09/98 0.00
Lewisville, TX 75057
15
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Xerox PO Box 4568 Equipment Lease 06/22/99 0.00
Stn A. Toronto, (Fax)
Ontario M5W 4T8
-----------------------------------------------------------------------------------------------------------------
Xerox PO Box 4568 Equipment Lease 09/10/01 0.00
Stn A. Toronto, (Copier)
Ontario M5W 4T8
-----------------------------------------------------------------------------------------------------------------
Xerox PO Box 4568 Equipment Lease 09/10/01 0.00
Stn A. Toronto, (Copier)
Ontario M5W 4T8
-----------------------------------------------------------------------------------------------------------------
Xerox PO Box 4568 Equipment Lease 04/30/02 0.00
Stn A. Toronto, (Copier)
Ontario M5W 4T8
-----------------------------------------------------------------------------------------------------------------
Xerox PO Box 4568 Equipment Lease 07/15/99 0.00
Stn A, Tor. (Copier)
Ont. M5W 4T8
-----------------------------------------------------------------------------------------------------------------
Xerox Corporation 580 White Plains Rd Leased copiers Jun-00 0.00
Tarrytown, NY 10591
Attention
Gretchen Reasnor
-----------------------------------------------------------------------------------------------------------------
3437931 Canada 740 Rue St., Maurice Real Property 06/01/01 0.00
Mt. Que., H3C 1L5 (Crescent St.)
-----------------------------------------------------------------------------------------------------------------
Allen B. Schwartz 1231 Long Beach Ave. Real Property Lease 02/25/98 5,299.23
and Pamela Schwartz Los Angeles, CA 90021
Attention: Allen Schwartz
Copy to: Allen B. and Pamela
Schwartz
c/o Gelfand Rennet & Feldman
1880 Century Park E.
Los Angeles, CA 90067
-----------------------------------------------------------------------------------------------------------------
AMC, Inc. 240 Peachtree Stree, N.W. Real Property Lease 03/22/99 2,107.95
Suite 2200
Atlanta, GA 30303
Attention: Glen Bell
Copy to: AMC, Inc
(Americasmart Real
Estate, LLC)
PO Box 116381
Atlanta, Georgia 30368
-----------------------------------------------------------------------------------------------------------------
Aventura Mall Venture 19501 Biscayne Blvd. Store Lease (Store #41 September-94 3,350.24
Suite 400 Aventura Mall)
Aventura, FL 33180
-----------------------------------------------------------------------------------------------------------------
Bared and Sons 264 Fortaleza Street Store Lease (Store #177 March-97 1,666.67
Old San Juan, PR 00901 Cristo Street)
Attention: Evelio Santiago
-----------------------------------------------------------------------------------------------------------------
Bayside Limited Part 401 Biscayne Blvd. R106 Store Lease (Store #40 September-94 2,440.09
Miami, FL 33132 Bayside Mall)
Copy to: Bayside
Center Limited
PO Box 64181
Baltimore, Maryland
21044-4181
Copy to: Bayside
Center Limited
(Central Parking System)
2 South Biscayne BLvd.,
Suite 1684
Miami, Florida 33131
-----------------------------------------------------------------------------------------------------------------
Bayside Market Place 401 Biscayne Blvd. R106 Storage (Store #40) January-02 1,363.00
Miami, FL 33132
Attention: Wendy Hernandez
16
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Bellview Sq. Managers, 575 Bellevue Square Store Lease (Store #4 November-93 2,686.10
Inc. Bellevue, WA 98004 Bellevue Square)
Attention: Wesley W. Harris
copy to: Bellevue Square
Managers PO Box 908
Bellevue, Washington 98009
-----------------------------------------------------------------------------------------------------------------
Ben Wunsch d/b/a Bee & 2335 South Ocean Blvd. #4A Storage and Distribution 2,686.10
Bee Realty Palm Beach, FL 33480
Attention: Ben Abel
Copy to: Davis & Gilbert LLP
1740 Broadway, 3rd Floor
New York, NY 10019
Attention: Jeffrey A.
Moross, Esq.
Copy to: Jones, Day,
Reavis & Pouge
599 Lexington Ave.
New York, NY 10022
Attention: Corinne Bull,
Esq.,
Reginald A. Greene, Esq.
-----------------------------------------------------------------------------------------------------------------
Bohannon Del 60 31St. Ave Store Lease (Store #101 November-95 4,200.91
San Mateo, CA 64403 Hillsdale Shopping
Copy to: Bohannon Center)
Development Company
60 Hillsdale Mall
San Mateo, CA 94403
-----------------------------------------------------------------------------------------------------------------
Boston Properties 4 Embarcacero Center, Store Lease (Store #17 July-94 2,365.98
Lobby Level, Embarcadero Center)
Suite 2600,
San Francisco, CA 94111
Attention: Laura Gigante
-----------------------------------------------------------------------------------------------------------------
Boston Properties 800 Boylston Street Store Lease (Store #5 December-93 0.00
Suite 450 Boston, MA 02199 Prudential Center)
Attention: Christine
Bouffard
Copy to: Boston Properties
PO Box 3557
Boston, Massachusetts 02241
-----------------------------------------------------------------------------------------------------------------
BP PRU Center 800 Boylston Street, Store Lease (Store #5 November-01 594.77
Acquisition LLC Suite 450 Prudential Center)
Boston, MA 02199
Attention: Christine
Bouffard
-----------------------------------------------------------------------------------------------------------------
Bridgewater 400 Commons Way, Suite 100 Store Lease (Store #75 July-95 2,719.74
Commons Bridgewater, NJ 08807 Bridgewater Commons)
Attention: Janell Vaughan
Copy to: Rouse Property
Management PO Box 64001
Baltimore, Maryland
21264-4001
-----------------------------------------------------------------------------------------------------------------
Caparr Center P.O. Box 9506 Store Lease (Store #175 December-96 1,455.89
Assoc San Juan, PR 00908-9506 San Patricio Plaza)
-----------------------------------------------------------------------------------------------------------------
CVM Assoc P.O. Box 31147 Store Lease (Store #165 November-96 3,475.36
Raleigh, NC 27622 Crabtree Valley)
2840 Plaza Place, Suite 100
Raleigh, NC 27612
-----------------------------------------------------------------------------------------------------------------
Corporate Campus C/O Lend Lease Real Real property lease at 12/24/98 0.00
I Joint Venture Estate Investments, Inc. Milford Crowne Plaza/
787 Seventh Ave. Wheelers Farms Road
New York, NY 10019
Copy to: Corporate Campus/
Joint Venture
(Crown Milford, LLC)
PO Box 9440
Uniondale, New York 11555
Copy to: Rogin Nassau,
Caplan, Lassman & Hirtle,
LLC City Place I-22nd FLoor
Hartford, CT 06103
Attention: Barry S.
Feigenbaum, Esq.
17
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Danjon Realty, LLC 1231 Long Beach Ave. Real Property Lease 07/01/00 7,664.98
Los Angeles CA 90021
Attention: Allen Schwartz
Copy to: Danjon Realty, LLC
c/o Gelfand Rennert &
Feldman
1880 Century Park East
Los Angeles, CA 90067
-----------------------------------------------------------------------------------------------------------------
Downtown Mini 1050 W. Washington Blvd. Storage Lease 06/01/98 775.00
Warehouse Los Angeles CA 90015
Attention: Oscar
-----------------------------------------------------------------------------------------------------------------
Downtown Mini 1050 W. Washington Blvd. Storage Lease 09/23/99 555.00
Warehouse Los Angeles CA 90015
Attention: Oscar
-----------------------------------------------------------------------------------------------------------------
Elenore Heller 501 Woodruff Ave. Real Property Lease 12/03/97 2,871.08
Los Angeles CA 90024
Attention: Elenor Heller
-----------------------------------------------------------------------------------------------------------------
General Growth 1585 Kapiolani Blvd., Store Lease (Store #77 February-96 7,502.89
Management of Ste. 800 Honolulu, HI 96814 Ala Moana Shp. Ctr.)
Hawaii, Inc. Attention: Phyllis M. Okuma
Copy to: GGP Ala Moana, LLC
PO Box 1300 Honolulu,
Hawaii 96807-1300
-----------------------------------------------------------------------------------------------------------------
Goldtree P.O. Box 65262 Store Lease (Store #126 October-96 2,597.22
Investment Co. Washington DC 20035 3416 "M" Street)
Attention: Gary Nath/Judith
-----------------------------------------------------------------------------------------------------------------
Huntingdon Storage 5506 Sixth Ave Rear, Warehouse Lease 32,186.60
and Distribution Altoona PA 16602
Limited Attention: John Radionoff/
Leonard
Fiore Copy to: Jones, Day,
Reavis & Pogue 599
Lexington Ave.
New York, NY 10022
Attention: Corinne
Bull, Esq.
and Reginald A. Greene, Esq.
-----------------------------------------------------------------------------------------------------------------
Hycel Properties 101 South Hanley Road Store Lease (Store #32 November-94 3,196.24
Ste. 1300 St. Louis, St. Louis Galleria)
MO 63105-2494
Attention: Mary L. Rollins
-----------------------------------------------------------------------------------------------------------------
Ivanhoe Inc. 413 Rue St-Jacques Real Property Lease 03/15/99 0.00
Mtl., Que., H2Y 3Z4 (Ctre J. Cartier-
Longueuil)
-----------------------------------------------------------------------------------------------------------------
Kimco 3333 New Hyde Park Store Lease (Store #11 May-94 1,317.99
Road, Ste. 100 Bridgehampton Com.)
P.O. Box 5020
New Hyde Park,
NY 11042-0020
Attention: Patricia Danielo
-----------------------------------------------------------------------------------------------------------------
L&B Realty Advisors L&B Realty Advisors/ Store Lease (Store #13 May-94 3,822.33
Lehndorff Tysons Joint Tysons Corner Center)
Venture/L&B
Insititutional Property
Managers, Inc.
19 61 Chain Bridge Road
Mc Lean, VA 22101-4562
Copy to: Tysons Corner, LLC
PO Box 847058
Dallas, Texas 75284-7058
-----------------------------------------------------------------------------------------------------------------
London Arms/Lyn Affordable Landmarks Inc./ Store Lease (Store #155 January-97 1,403.07
Mar Ltd. London Arms/Lyn Mar LTD Collins Ave.)
1130 Washington Ave.
4th Floor
Miami Beach, FL
Attention: Guy Pue
-----------------------------------------------------------------------------------------------------------------
Macerich Arden Fair Mall The Macerich Store Lease (Store #12 April-94 2,530.33
Company 1689 Arden Way, Arden Fair Mall)
Ste. 1167 Sacramento,
CA 95815-4031
-----------------------------------------------------------------------------------------------------------------
Macerich 401 Wilshire Blvd., Ste. 700 Store Lease (Store #70 November-95 2,580.48
Santa Monica, CA 60401 Santa Monica Place)
Attention: Mark Strain
Copy to: Macerich Santa
Monica, LLP 395
Santa Monica PL Santa
Monica, CA 90401-2350
18
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Macerich 401 Wilshire Blvd., Ste. 700 Store Lease (Store #79 June-95 2,986.14
Santa Monica, CA 60401 Broadway Plaza)
Attention: Mark Strain
Copy to: Macerich
Northeastern
Assoc. (Macerick
Northwestern Assoc.)
1275 Broadway Plaza
Walnut Creek, CA 94596
-----------------------------------------------------------------------------------------------------------------
Macerich 401 Wilshire Blvd., Ste. 700 Store Lease (Store #80 June-95 4,335.01
Santa Monica, CA 60401 Village @ Corte Madera)
Attention: Mark Strain
Copy to: Macerich Corte
Madera
1554 Redwood Highway
Corte Madera, CA 94925
-----------------------------------------------------------------------------------------------------------------
Mall of America 60 East Broadway Store Lease (Store #38 October-94 5,651.26
Bloomington, MN 55425-5550 Mall of America)
Attention: Stephanie Miller
-----------------------------------------------------------------------------------------------------------------
Millenium Partners 148-154 Columbus Avenue Store Lease (Store #26 July-95 10,978.42
Partner Columbus Ave.)
1995 Broadway, 3rd Floor
New York, NY 10023
-----------------------------------------------------------------------------------------------------------------
MRC Management LLC P.O. Box 11191 Store Lease (Store #3 90 November-93 144,914.00
New York, NY 10286-4142 Park Ave. NY, NY)
Attention: Roger Larson
-----------------------------------------------------------------------------------------------------------------
Newmark New Mark & Co. Store Lease (Store #145 November-96 10,391.28
Real Estate Inc. 500 Fifth Ave.)
125 Park Ave. 11th Floor
New York, NY 10017
Attention: William G. Cohen
-----------------------------------------------------------------------------------------------------------------
Northam Realty 875 Don Mills Rd. Ltd., Real Property Lease 06/01/97 0.00
c/o Carlton St., Ste 909, (Gervais Warehouse)
Toronto, Ont. M5B 1J3
-----------------------------------------------------------------------------------------------------------------
O & Y Enterprises 725 Warden Ave. Real Property Lease 11/08/96 0.00
Toronto Ont., M1L 4R7 (Warden Outlet)
Canada
-----------------------------------------------------------------------------------------------------------------
Occidental Life Transamerica Occidental Life Authentic Fitness 06/14/67 2,614.84
Insurance Co of Calif Milldrop Corp Corporate
5441 AEGON 4333 Edgewood NE Office 6040 Bandini Blvd.
Cedar Rapids, IA 52499 Los Angeles, CA 90040.
Offices & Common Area
Designer Div.
Warehouse and Sewing
Plant
-----------------------------------------------------------------------------------------------------------------
Olmstead Properties, 525 Building Co., LLC Real Property Lease 08/30/99 0.00
Inc. 575 Eight Ave STE 2400
New York, NY 10018
Attention: Waler Muller
-----------------------------------------------------------------------------------------------------------------
Olmstead Properties, 525 Building Co., LLC Real Property Lease 12,239.19
Inc. 575 Eight Ave STE 2400
New York, NY 10018
Attention: Waler Muller
-----------------------------------------------------------------------------------------------------------------
One Colorado Associates 24 East Union Street Real Property Lease 2/12/91 2,464.30
Pasadena, CA 31103
Attention: Sally Lunetta
Copy to
1 Colorado Investments
PO Box 31001-0399
Pasadena, CA 9110-0399
-----------------------------------------------------------------------------------------------------------------
Plaza Las Americas, Inc. La Torre de Plaza Store Lease (Store #176 July-00 6,546.53
525 F.D. Roosevelt Ave. Plaza Las Americas)
Ste. 1000 Hato Rey, PR 00918
Copy to: Plaza Las America,
Inc.
PO Box 363268
San Juan, Puerto Rico 00936
-----------------------------------------------------------------------------------------------------------------
Public Storage 4889 Valley Blvd. Storage Lease 12/09/99 372.00
Los Angeles, CA 90032
Attention: Veronica
-----------------------------------------------------------------------------------------------------------------
Public Storage 4889 Valley Blvd. Storage Lease 10/15/99 438.40
Los Angeles, CA 90032
Attention: Veronica
19
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Public Storage 4889 Valley Blvd. Storage Lease 02/03/00 263.00
Los Angeles, CA 90032
Attention: Veronica
-----------------------------------------------------------------------------------------------------------------
Realspace Manag. 20 Adelaide St. East., Real Property Lease 11/01/86 0.00
Ste 1103 Tor. Ont., M5C 2T6 (Leeds Ave.)
Canada
-----------------------------------------------------------------------------------------------------------------
Realty Associated Fund Realty Associates Fund V Authentic Fitness Corp 10/17/00 0.00
V.I.P Irwindale Distribution 5305 Rivergrade Road
Center Irwindale, CA
PO 51921, Unit I 91076 Speedo Finished
Los Angeles, CA 90051-6210 Goods Warehouse
Landlord: TZ Associates
Realty 4100 Newport Place,
Suite 830 Newport Beach,
CA 92660
Notices to: Wohl Property
Group
30200 Rancho Viejo Road,
Suite C San Juan
Capistrano, CA 92675
-----------------------------------------------------------------------------------------------------------------
Riverwalk Partners 1 Poydras Street, Ste. 101 Store Lease (Store #113 October-96 2,572.10
New Orleans, LA 70130 Riverwalk Market Pl.)
Copy to: Riverwalk
Partnership
PO Box 64865 Baltimore,
Maryland 21264-4433
-----------------------------------------------------------------------------------------------------------------
Rouse 10275 Little Patuxant Pky. Store Lease (Store #82 June-95 0.00
Columbia, MD 21044 Beachwood Place)
Attention: Charles Lanier
Copy to: Beachwood Place
PO Box 64350 Baltimore,
Maryland 21264-4350
-----------------------------------------------------------------------------------------------------------------
Rouse 10275 Little Patuxant Pky. Store Lease (Store #124 August-96 6,037.44
Columbia, MD 21044 Northstar Mall)
Attention: Charles Lanier
-----------------------------------------------------------------------------------------------------------------
Scottsdale Fashion Sq. 7014-590 East Camelback Rd. Store Lease (Store #6 November-93 3,957.13
Scottsdale, AZ 85251 Scottsdale Fashion
Copy to: Scottsdale Fashion Square)
Square
P.O. Box 3557 Boston,
Massachusetts 02241
-----------------------------------------------------------------------------------------------------------------
Seniority Investments 37A Hazelton Ave. Real Property Lease 10/01/99 0.00
Tor. Ont., M5R 2E3 (King St. - 3rd Floor)
-----------------------------------------------------------------------------------------------------------------
Seniority Investments 37A Hazelton Ave. Real Property Lease 01/01/02 0.00
Tor. Ont., M5R 2E3 (King St. - 2nd Floor)
-----------------------------------------------------------------------------------------------------------------
SH&S Limited Partnership 210 North Walton Blvd. Real Property Lease 10/1/2001 as 810.00
Suite 30 Rain Tree Business amended 5/02
Bentonville, Arkansas 72712 Center/Suite 13&14
-----------------------------------------------------------------------------------------------------------------
Sherman Oaks Fashion 14006 Riverside Drive, Store Lease (Store #66 April-95 1,901.50
Associates Ste. 17 Fashion Square Mall)
Shearman Oaks, A 91423
Attention: Ruth Twealt
Copy to: Sherman Oaks
Fashion Association
PO Box 35107 Newark,
New Jersey 07193-5107
-----------------------------------------------------------------------------------------------------------------
Short Hills Assc 1200 Morris Turnpike, Store Lease (Store #19 November-94 0.00
Ste. A-001 Shorthills, The Mall @ Shorthills)
NJ 07078
Attention: Christine Barros
Copy to: Short Hills
Associates
PO Box 67000 Dept. 53501
Detroit, Michigan 48267-0523
-----------------------------------------------------------------------------------------------------------------
Silk Mills Properties Ward Corporation of Warehouse Lease 0.00
LLC Pennsylvania
(Silk Mills Properties Inc.)
5506 Sixth Ave., Com Rear
Altoona, PA 16602
Attention: John Radionoff/
Leonard Fiore
Copy to: Jones, Day, Reavis
& Pogue
599 Lexington Ave.
New York, NY 10022
Attention: Corinne Bull, Esq.
Reginald A. Greene, Esq.
20
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Simon P.O. Box 7033 Store Lease (Store #22 November-94 8,505.50
Indianapolis, Indiana 46207 Boca Raton Mall)
Attention: John Geletka
Copy to: Town Center at
B. Raton Trust
PO Box 10909
Newark Post Office
Newark, NJ 07193-0909
-----------------------------------------------------------------------------------------------------------------
Simon P.O. Box 7033 Store Lease (Store #34 November-95 4,570.39
Indianapolis, Indiana 46207 Lenox Square)
Attention: Barney Quinn
Copy to: The Retail Property
Trust
PO Box 10909
Newark, New Jersey 07193
-----------------------------------------------------------------------------------------------------------------
Simon P.O. Box 7033 Store Lease (Store #44 03/17/95 6,512.19
Indianapolis, India 46207 The Westchester)
Attention: Vicki Hanor
Copy to: Fashion Mall
Partners ID
#774676 PO Box 5541
Indianapolis,
Indiana 46255-5541
-----------------------------------------------------------------------------------------------------------------
Simon Property Group P.O. Box 7033 Store Lease (Store #182 November-96 4,100.01
Indianpolis, IN 46207 Northgate Mall)
Attention: Matthew Barger
Copy to: Northgate Mall
Partnership
PO Box 2004
Indianaapolis,
Indiana 46255
-----------------------------------------------------------------------------------------------------------------
St. Jacobs Countryside 47 King St. Real Property Lease 06/01/00 0.00
St. Jacobs, Ont., N0B 2NO (St. Jacobs Outlet)
-----------------------------------------------------------------------------------------------------------------
Taubman 200 East Long Lake Road, Store Lease (Store #9 February-94 0.00
Suite 300 Cherry Creek Shop. Ctr.)
Bloomfield Hills, MI 48303
Attention: Thomas S. Russom
-----------------------------------------------------------------------------------------------------------------
The Forbes Company 100 Galleria Officentre, Store Lease (Store #102 August-96 2,129.52
Ste. 427 Somerset Collection N)
P.O. Box 667 Southfield,
Michigan 48037-066
Copy to: Franklin/
Forbes-Cohen
PO Box 79001
Detroit, Michigan 48279-1252
-----------------------------------------------------------------------------------------------------------------
TRI Development 115 Fairbanks Ave. Building Lease 08/01/96 0.00
Thomasville, GA 31792
Attention: Harry Thomlinson
Copy to: PO Box 848
Thomasville, Georgia 31799
-----------------------------------------------------------------------------------------------------------------
Trizec Hahn Development 4350 Lajolla Drive, Store Lease (Store #33 September-94 2,421.81
Corporation Suite 700 University Town Ctr.)
San Diego, CA 92122-1233
Attention: Lee H. Wagman
Copy to: University Town
Center
Assoc. File #55976
Los Angeles, CA 90074-5976
-----------------------------------------------------------------------------------------------------------------
Urban 845 North Michigan Ave. Store Lease (Store #14 May-94 3,402.59
Suite 987W Water Tower Place)
Chicago, IL 60611
Attention: Dan Pollard
-----------------------------------------------------------------------------------------------------------------
Urban 845 North Michigan Ave. Store Lease (Store #25 October-94 2,716.87
Suite 987W Century City Shop. Ctr.)
Chicago, IL 60611
Attention: Dan Pollard
Copy to: Century Hill
Center Inc.
7950 Collection Center Dr.
Chicago, Illinois 60693
-----------------------------------------------------------------------------------------------------------------
Westfield 11601 Wilshire Blvd. Store Lease (Store #16 May-94 3,464.87
12th Floor Montgomery Mall)
Los Angeles, CA 90025
Attention: Len Maenza
Copy to: Montgomery Mall, LP
File #54738 3L
Los Angeles, CA 90074-4738
21
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Westfield 11601 Wilshire Blvd. Store Lease (Store #50 November-95 7,402.70
12th Floor Los Valley Fair Mall)
Angeles, CA 90025
Attention:
Len Maenza
Copy to:
Valley Fair Mall, LLC
File #55702 Los
Angeles,
CA 90074-5702
-----------------------------------------------------------------------------------------------------------------
Wheatley Plaza 2110 Northern Blvd. Real Property Lease 02/13/92 2,982.53
Associates Manhasset,
NY 11030
Attention:
Frank Castagna
-----------------------------------------------------------------------------------------------------------------
Windsor Factory 2155 Fasan Dr., Real Property Lease 11/26/99 0.00
RR #1 Oldcastle, (Windsor Factory
Ont. N0R 1L0 Outlet)
-----------------------------------------------------------------------------------------------------------------
Worldland Dev. c/o Great Oak Capital Real Property Lease 06/11/02 0.00
Corp. 36 Toronto St. (Cookstown Outlet)
Ste 1160 Toronto,
Ont., M5C 2C5
-----------------------------------------------------------------------------------------------------------------
Greenwich Ins. One Exchange Place Security Agreement 05/24/01 0.00
Company Suite 501 Jersey
City, NJ 07302
Attention: Kieran Moran
-----------------------------------------------------------------------------------------------------------------
Greenwich Ins. One Exchange Place Security Agreement 12/19/01 0.00
Company Suite 501 Jersey
City, NJ 07302
Attention: Kieran Moran
-----------------------------------------------------------------------------------------------------------------
Greenwich Ins. One Exchange Place General Indemnity 05/21/01 0.00
Company Suite 501 Jersey Agreement
City, NJ 07302
Attention: Kieran Moran
-----------------------------------------------------------------------------------------------------------------
Greenwich Ins. One Exchange Place Security Agreement 05/21/01 0.00
Company Suite 501 Jersey
City, NJ 07302
Attention: Kieran Moran
-----------------------------------------------------------------------------------------------------------------
AAA Rubish P.O. Box 2158 Bell Trash Collection 1,019.25
Gardens, CA 90202 Service
-----------------------------------------------------------------------------------------------------------------
Action Carting 429 Frelinghuysen Trash Collection 1,623.78
Ave. Newark, Service
NJ 07114
Attention: Joe
-----------------------------------------------------------------------------------------------------------------
ADP, Inc. 5355 Orangethorpe Payroll Software/ 1,431.04
Ave. La Palma, Hardware Fee
CA 90623
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #3 0.00
Hawthorne, 90 Park Ave. NY, NY)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #11 0.00
Hawthorne, Bridgehampton Com.)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #17 0.00
Hawthorne, Embarcadero Center)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #25 0.00
Hawthorne, Century City Shp. Ctr.)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #26 0.00
Hawthorne, Columbus Ave.)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #29 0.00
Hawthorne, Pacific Center)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #33 0.00
Hawthorne, University Town Ctr.)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #40 0.00
Hawthorne, Bayside Mall)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #77 0.00
Hawthorne, Ala moana Shp. Ctr.)
CA 90250
Attention:
Nadine Gunderson
22
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #79 0.00
Hawthorne, Broadway Plaza)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #80 0.00
Hawthorne, Village @ Corte Madera)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #113 0.00
Hawthorne, Riverwalk Market Pl.)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #126 0.00
Hawthorne, 3146 "M" Street)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #145 0.00
Hawthorne, 500 Fifth Ave.)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT 5400 W. Rosencrans Security (Store #205 0.00
Hawthorne, 150 Bloor Street)
CA 90250
Attention:
Nadine Gunderson
-----------------------------------------------------------------------------------------------------------------
ADT Security Services P.O. Box 371956 Security services 1,779.14
Pittsburgh
PA 15250-7956
Attention:
Shawnail King
-----------------------------------------------------------------------------------------------------------------
Antoni's Landscaping 14938 Vose Street Van Landscaping services 1,378.63
Nuys, CA 91405
Attention:
Debbie/Antony
-----------------------------------------------------------------------------------------------------------------
Arch Wireless 6330 Commerce Pager Service N/A 113.23
Dr. Ste 150 Irving,
TX 75063
-----------------------------------------------------------------------------------------------------------------
Arrowhead 2767 E. Imperial Bottled Water Service 340.46
HWY #100 Brea,
CA 92821
-----------------------------------------------------------------------------------------------------------------
AT&T Broadband 900 N. Cahuenga Cable Service 160.48
Blvd. Los Angeles,
CA 90038
-----------------------------------------------------------------------------------------------------------------
Avaya 14400 Hertz Quail Telephone System N/A 79.96
Spring Pkwy Maintenance
Oklahoma City,
OK 73134
-----------------------------------------------------------------------------------------------------------------
Avi's Air Conditioning 5084 Benedict Court Air Condition/Heating 435.00
Oak Park, CA 91301 Maintenance Services
Attention:
Avi
-----------------------------------------------------------------------------------------------------------------
Barton Exterminating 360 Lexington Ave. Pest Control Services 232.75
15th Fl.
New York, NY 10017
-----------------------------------------------------------------------------------------------------------------
Bell South 301 W. Bay Street Telephone System 0.00
Room 12DD1,
Jacksonville, Fla 32202
Attention:
Judy Arcey
-----------------------------------------------------------------------------------------------------------------
Bellringer 830 County Road Fire Alarm (Store #11 May-01 259.80
Communications Southhampton, Bridgehampton Com.)
NY 11968
-----------------------------------------------------------------------------------------------------------------
Cartegy (Equifax) P.O. Box 30272 0.00
Tampa, FL 33630
Attention:
Mel Smith
-----------------------------------------------------------------------------------------------------------------
Central Window Cleaning P.O. Box 106 Window Cleaning Service N/A 173.60
Commack, NY 11725
-----------------------------------------------------------------------------------------------------------------
Ceridian Tax Service 17390 Brookhurst Payroll Tax Service 12/13/91 0.00
Street Fountain Valley, last amended
CA 92708 01/02/02
Attention:
Becky Nelson
and
Scott Vollmer
-----------------------------------------------------------------------------------------------------------------
Certegy Check Services P.O. Box 30272 Check Guard 0.00
Tampa, FL 33630
Attention: Pearl Perry
-----------------------------------------------------------------------------------------------------------------
Champion Garage Parking 545 Madion Ave. New Parking 0.00
York, NY 10022
-----------------------------------------------------------------------------------------------------------------
City Centurion Security P.O. Box 60176 Guard Service New York 46,174.9
Oakwood, S.I. NY
10306-0716
-----------------------------------------------------------------------------------------------------------------
City of Los Angeles PO Box 806 Industrial Waste 0.00
Dept of Public Works Sacramento, Disposal Fee/Van Nuys
CA 95812-0806
-----------------------------------------------------------------------------------------------------------------
Clarica 227 King St. South RRSP Administration Fee 03/01/02 0.00
Waterloo, Ont. N2J 4C5
23
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Culligan of Tallahassee 944 W. Brevard St. Water Softner System 0.00
Tallahassee, Fla, 32304
Attention: Max Ullrich
-----------------------------------------------------------------------------------------------------------------
Culligan Water 101 North Park Street Bottled Water Service 160.41
East Orange, NJ 07017
-----------------------------------------------------------------------------------------------------------------
Data Capture Solutions 151 Sheldon Rd. Warehouse Scanning Guns 0.00
Inc. Manchester, CT 06040
Attention: Tom Venezia
-----------------------------------------------------------------------------------------------------------------
Deer Park Spring Water P.O. Box 52271 Bottled Water Service 177.54
Phoenix, AZ 85072
-----------------------------------------------------------------------------------------------------------------
Dewey Pest Control 3711 Beverly Blvd. Pest Control Services 466.70
Los Angeles, CA 90004
-----------------------------------------------------------------------------------------------------------------
Dixon Exterminating 114 Business Circle Exterminator 0.00
Thomasville, GA 31792
Attention:
Charles Dixon
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #3 December-99 0.00
Seattle WA 98122 90 Park Ave. NY, NY)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #4 December-99 0.00
Seattle WA 98122 Bellevue Square)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #5 December-99 0.00
Seattle WA 98122 Prudential Center)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #6 December-99 0.00
Seattle WA 98122 Scottsdale Fashion Sq.)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #9 December-99 0.00
Seattle WA 98122 Cherry Creek Shop.
Attention: Ctr.)
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #11 December-99 0.00
Seattle WA 98122 Bridgehampton Com.)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #12 December-99 0.00
Seattle WA 98122 Arden Fair Mall)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #13 December-99 0.00
Seattle WA 98122 Tysons Corner Center)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #14 December-99 0.00
Seattle WA 98122 Water Tower Place)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #16 December-99 0.00
Seattle WA 98122 Montgomery Mall)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #17 December-99 0.00
Seattle WA 98122 Embaracdero Center)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #19 December-99 0.00
Seattle WA 98122 The Mall @ Short Hills)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #22 December-99 0.00
Seattle WA 98122 Boca Raton Mall)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #25 December-99 0.00
Seattle WA 98122 Century City Shop.
Attention: Ctr.)
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #26 December-99 0.00
Seattle WA 98122 Columbus Ave.)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #29 December-99 0.00
Seattle WA 98122 Pacific Center)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #32 December-99 0.00
Seattle WA 98122 St. Louis Galleria)
Attention:
Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #33 December-99 0.00
Seattle WA 98122 University Town Center)
Attention:
Debra Comer-Craft
24
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #34 December-99 0.00
Seattle WA 98122 Lenox Square)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #38 December-99 0.00
Seattle WA 98122 Mall of America)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #40 December-99 0.00
Seattle WA 98122 Bayside Mall)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #41 December-99 0.00
Seattle WA 98122 Aventura Mall)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #44 December-99 0.00
Seattle WA 98122 The Westchester)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #50 December-99 0.00
Seattle WA 98122 Valley Fair Mall)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #66 December-99 0.00
Seattle WA 98122 Fashion Square
Attention: Debra Comer-Craft Mall)
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #70 December-99 0.00
Seattle WA 98122 Santa Monica
Attention: Debra Comer-Craft Place)
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #75 December-99 0.00
Seattle WA 98122 Bridgewater
Attention: Debra Comer-Craft Commons)
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #77 December-99 0.00
Seattle WA 98122 Ala Moana Shp. Ctr.)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #79 December-99 0.00
Seattle WA 98122 Broadway Plaza)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #80 December-99 0.00
Seattle WA 98122 Village @ Corte
Attention: Debra Comer-Craft Madera
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #82 December-99 0.00
Seattle WA 98122 Beachwood Place)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #101 December-99 0.00
Seattle WA 98122 Hillsdale Shopping
Attention: Debra Comer-Craft Center)
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #102 December-99 0.00
Seattle WA 98122 Somerset Collection N)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #113 December-99 0.00
Seattle WA 98122 Riverwlak Market Pl.)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #124 December-99 0.00
Seattle WA 98122 Northstar Mall)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #126 December-99 0.00
Seattle WA 98122 3146 "M" Street)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #145 500 December-99 0.00
Seattle WA 98122 Fifth Ave.)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #155 December-99 0.00
Seattle WA 98122 Collins Ave.)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #165 December-99 0.00
Seattle WA 98122 Crabtree Valley)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #175 San December-99 0.00
Seattle WA 98122 Patricio Plaza)
Attention: Debra Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Music (Store #176 December-99 0.00
Seattle WA 98122 Plaza Las Americas)
Attention: Debra Comer-Craft
25
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Seattle Music (Store #177 December-99 0.00
WA 98122 Attention: Debra Cristo Street)
Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Seattle Music (Store #182 December-99 0.00
WA 98122 Attention: Debra Northgate Mall)
Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX AEI Music 900 East Pine Street Seattle Music (Store #205 150 December-99 0.00
WA 98122 Attention: Debra Bloor Street)
Comer-Craft
-----------------------------------------------------------------------------------------------------------------
DMX Music/AEI 900 East Pine Street Music Service Provider 1,601.00
Seattle, WA 98122
-----------------------------------------------------------------------------------------------------------------
Foodcraft 1625 Riverside Drive Los Coffee and Water 0.00
Angeles, CA 90031 Dispensing Equipment
Attention: Linda Rental
-----------------------------------------------------------------------------------------------------------------
IBM PO Box 5100, Stn F Tor. Service/Maint. 01/29/02 0.00
Ont. M3Y 2T5 (4 printers)
-----------------------------------------------------------------------------------------------------------------
IBM Corporation 2929 N. Central Ave. Maintenance 0.00
Phoeniz, AZ 85012
Attention: Ray J. Beye
-----------------------------------------------------------------------------------------------------------------
Ines Cacedo 33 Shalimar Place Maple, Office Cleaning 01/01/02 0.00
Ont. L6A 1T6
-----------------------------------------------------------------------------------------------------------------
ITR (Information 6722 Orangethorpe Ave. IS Consulting 11/01/00 0.00
Technology Resources, Buena Park CA 90622
Inc.) Attention: Linda Chase
-----------------------------------------------------------------------------------------------------------------
Jimenez Janitorial P.O. Box 4877 Cleaning Service 0.00
Whittier CA 90607
Attention: Juan Jimenez
-----------------------------------------------------------------------------------------------------------------
JVC Cleaning Services JVC Cleaning Services Cleaning Service 0.00
P.O. Box 630083
Little Neck, NY 11363
Attention: Maria
-----------------------------------------------------------------------------------------------------------------
Lanier De Costa Rica Lanier de Costa Rica, Maintenance of 08/28/99 0.00
S.A. Apartado Postal 301-1005 Copiers and Faxes
Barrio Mexico - Costa Rica
Mr. Jose Antonio Ramierz
-----------------------------------------------------------------------------------------------------------------
Methods Workshop 300 River Valley Road Suite GSD/Van Nuys 0.00
100 Atlanta GA
-----------------------------------------------------------------------------------------------------------------
Nu-Waye Water 1244 West 9th St Upland, Dye house/Van Nuys 568.50
Conditioning CA 91786 Attention:
Christina Pattison
-----------------------------------------------------------------------------------------------------------------
Oliver & Williams 3039 Roswell Street Elevator Maintenance 0.00
Elevator Company Los Angeles, CA 90065
Attention: Stephen Crow
-----------------------------------------------------------------------------------------------------------------
Paymentech 1401 S. 52nd St Tempe, AZ Credit Card Service Dec-98 0.00
85281 Attention: Christy
Houmes
-----------------------------------------------------------------------------------------------------------------
Pinkerton 16118 Sherman Way Security/Van Nuys 0.00
Van Nuys, CA 91406
Attention: Pat Slater
-----------------------------------------------------------------------------------------------------------------
Post Alarm Systems 610 N. Santa Anita Ave. Alarm Monitoring 293.35
Arcadia, CA 91006 Services
Attention: Tony Garcia
-----------------------------------------------------------------------------------------------------------------
Q Data 105-6 Shields Court Bar Coding Guns 08/01/00 0.00
Markham Ont., L3R 4S1 Maintenance
-----------------------------------------------------------------------------------------------------------------
Rayne Water System 6953 Canoga Ave. Canoga Dye house/Van Nuys 0.00
Park, CA 91303
-----------------------------------------------------------------------------------------------------------------
Retail Cleaning 644-P Poplar Orange, CA Cleaning Service 0.00
Specialists 92868 Attention: Jse Torres
-----------------------------------------------------------------------------------------------------------------
Robinson Pest Control 44248 Palo Verde St. Exterminator/Van Nuys 0.00
Lancaster, CA 93536
Attention: Michael Robinson
-----------------------------------------------------------------------------------------------------------------
Security Link National Account Group Security Services 207.20
DEPT L277 Columbus, OH
43260
26
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Selami Bauta 129 Central Ave. Pompton Cleaning Service 3,733.20
Lake NJ 07442
Attention: Selami Bauta
-----------------------------------------------------------------------------------------------------------------
Siemens De Costa Rica Siemens de Costa Rica Telephone system 01/01/97 0.00
Apartado Postal 10022- lease
1000 San Jose - Costa Rica
Attention: Rosibel Ulate
-----------------------------------------------------------------------------------------------------------------
Sola Security of 7661 Densmore Ave. Alarm system/Van 1,956.00
Los Angeles Van Nuys, CA 91406 Nuys
-----------------------------------------------------------------------------------------------------------------
Telcorp PO Box 176 Hewlett NY, Data services Mar-00 161,557.38
11557 Attention: Steve
Samuels
-----------------------------------------------------------------------------------------------------------------
Top Protection 15720 Ventura BL Ste 421 Security Services 0.00
Encino, CA 91436 Attention:
Adel Ali
-----------------------------------------------------------------------------------------------------------------
United Alarm 2707 W. Temple Street Alarm Monitoring 120.00
Los Angeles, CA 90026 Services
-----------------------------------------------------------------------------------------------------------------
Waste Management of LI 1198 Prospect Ave. Trash Collection 175.12
Westbury, NY 11590 Service
-----------------------------------------------------------------------------------------------------------------
Waste Management 9081 Tujunga Ave. Trash/Van Nuys 0.00
Sun Valley, CA 91352
-----------------------------------------------------------------------------------------------------------------
Wells Fargo Merchant 265 Broad Hollow Rd. Credit Card Services 0.00
Services Melville, NY 11747
Attention: Charles Caputo
-----------------------------------------------------------------------------------------------------------------
Drennings Tractor 2300 N. Branch Ave. Tractor ZJ72380 2,347.95
PO Box 1762 Altoona, PA
16603-1762 Attention: Jeff
Drenning
-----------------------------------------------------------------------------------------------------------------
BMW Financial 920 Champlain Court Car Lease 05/15/01 0.00
Whitby, Ont. L1K 6K9
-----------------------------------------------------------------------------------------------------------------
G.E. Capital P.O. Box 802556 Chicago, Freightliner Truck Feb-99 2,097.06
IL 60680-2556
-----------------------------------------------------------------------------------------------------------------
K-Line 890 Mountain Ave. Murray Ocean Freight 04/01/01 0.00
Hill, NJ 07974 Attention:
Pamela Donovan
-----------------------------------------------------------------------------------------------------------------
Ryder Truck 15 Ingram Avenue Lease of Truck 10/07/99 0.00
Pittsburgh, PA 15205-2023 328425
Attention: Sandra Becker
-----------------------------------------------------------------------------------------------------------------
Zoresco 404 Kettle Street Altoona, Lease of road trailer- 1,558.91
PA 16602 T45-2193 T-48-1415
(Account #23018)
-----------------------------------------------------------------------------------------------------------------
DlL Peterson Trust DL Peterson Trust 5924 Nissan Altima Lease 34.75
Collections Drive Chicago,
IL 60693
-----------------------------------------------------------------------------------------------------------------
Ford Motor Credit PO Box 7151 Springfield, Lease of 2001 147.35
Ohio 45501 Explorer VIN#
1FMZU73E61ZA03053
-----------------------------------------------------------------------------------------------------------------
Ford Motor Credit PO Box 7151 Springfield, Lease of 2000 Mercury Dec-00 139.00
Ohio 45501 Sable VIN#
1MEFM55S4YA624247
-----------------------------------------------------------------------------------------------------------------
Ford Motor Credit Co. 17197 N. Laurel Park Drive Vehicle Lease 05/09/00 166.27
Livonia, Michigan 48152
Attention: Jack Champagne
-----------------------------------------------------------------------------------------------------------------
Smart Lease by GMAC PO Box 630071 Dallas, TX Lease of 2000 Chevrolet Nov-99 173.00
75263-0071 Blazer
VIN#1GNDT1BW9Y2107030
-----------------------------------------------------------------------------------------------------------------
Smart Lease by GMAC PO Box 630071 Dallas, TX Lease of GMC Yukon VIN# Feb-01 1,505.01
75263-0071 1GKEK13T21J198477
-----------------------------------------------------------------------------------------------------------------
Warnaco Inc. The Warnaco Group 90 Corporate Services 01/01/99 0.00
Park Ave. 26th Fl New York, Agreement
NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco Inc. The Warnaco Group 90 Corporate Services 01/05/97 0.00
Park Ave. 26th Fl New York, Agreement
NY 10016
-----------------------------------------------------------------------------------------------------------------
Gregory Street Inc. The Warnaco Group 90 Servicing Agreement 01/05/97 0.00
Park Ave. 26th Fl New York,
NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco Inc. The Warnaco Group 90 Corporate Services 01/01/99 0.00
Park Ave. 26th Fl New York, Agreement
NY 10016
27
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Warnaco Inc. The Warnaco Group Speedo Sports Bra 06/01/95 0.00
90 Park Ave. 26th Fl
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Trade Management Bldg 4 Botany Grove Indemnity Agreement 05/15/00 0.00
Services Pty Ltd. Estate 14A Baker Street
Botany NSW 2019
PO Box 547
Mascot NSW
1460 Australia
-----------------------------------------------------------------------------------------------------------------
Trade Management Bldg 4 Botany Grove Client services 05/15/00 0.00
Services Pty Ltd. Estate 14A Baker Street agreement
Botany NSW 2019
PO Box 547 Mascot
NSW 1460 Australia
-----------------------------------------------------------------------------------------------------------------
Summer Sanders c/o SFX 220 Coach/Athlete 01/01/01 0.00
(SFX, N1584) West 42nd Street, Agreement
12th Floor New York,
NY 10036
Attention: Lowell Taub
-----------------------------------------------------------------------------------------------------------------
Karch Kiraly 307 Bpca del Canon Coach/Athlete 01/01/97 0.00
San Clemente, CA 92672 Agreement
-----------------------------------------------------------------------------------------------------------------
American Express 50189 AXP Financial Retirement Plan 1994 0.00
Center Minneapolis, Investment Mgr.
MN 55474
Attention: Lisa Reitsma
-----------------------------------------------------------------------------------------------------------------
Gage Marketing CB-0014 Buy 2 Fulfillment 0.00
PO Box 1164 Center
Minneapolis MN 55480
Attention: Cheri Strand
-----------------------------------------------------------------------------------------------------------------
Lanier de Costa Rica, Lanier de Costa Rica Maintenance of the 08/28/99 0.00
SA Apartado Postal 301-1005 copiers and faxes
Barrio Mexico -
Costa Rica
Attention: Mr. Jose
Antonio Ramirez
-----------------------------------------------------------------------------------------------------------------
Warehouse (Mr. Jorge Sr. Jorge Barrantes, Warehouse 09/13/01 0.00
Barrantes) Apartado Postal 457-4100
Grecia, Costa Rica
-----------------------------------------------------------------------------------------------------------------
Vertex 1041 Old Cassat Rd. Tax Compliance 0.00
Berwyn, PA 19312-1151
-----------------------------------------------------------------------------------------------------------------
Meyers P.O. Box 4206 Myers Storage 5,082.26
Bridgeport, CT 06607
Attention: Thomas
Striffolino
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Ave. IBM Global Finance 0.00
Phoenix, AZ 85012 - All AS/400 in
Attention: Ray Beye Milford and
Secaucus
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Ave. IslandP (S40) 12/31/98 0.00
Phoenix, AZ 85012
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Ave. Intidata (S40) 12/31/98 0.00
Phoenix, AZ 85012
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Ave. Menswear (S40) 12/31/98 0.00
Phoenix, AZ 85012
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Ave. Mensdata (S40) 12/31/98 0.00
Phoenix, AZ 85012
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Ave. Intimate (740) 11/27/00 0.00
Phoenix, AZ 85012
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Ave. Secaucus(730) 03/31/99 0.00
Phoenix, AZ 85012
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
GE Information Services 20 Waterview Blvd. EDI VAN Services 12/01/00 0.00
Suite 302
Parsippany, NY 07054
Attention: William Henke
-----------------------------------------------------------------------------------------------------------------
Vertex 1041 Old Cassat Rd. Vertex Tax 0.00
Berwyn, PA 19312-1151
-----------------------------------------------------------------------------------------------------------------
Limited Limited Logistics Master Sourcing 05/01/00 0.00
Services, Inc. Agreement
Two Limited Parkway
Columbus, Ohio
43230 U.S.A
Attention: President/CEO
-----------------------------------------------------------------------------------------------------------------
Transimaj Pinar Bakir Senol Agency Agreement 0.00
Sok Feride Han No. 3
Kat2 Gayrettepe
Instanbul Turkey
28
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Alphatex Rua Funchal, 538, Agency Agreement 0.00
Conj. 132,
Sao Paulo, SP, Brazil
-----------------------------------------------------------------------------------------------------------------
Warnaco of Canada The Warnaco Group License Agreement 01/03/99 0.00
Company/Warnaco 90 Park Ave. 26th Fl to Warnaco of
Netherlands B.V. New York, NY 10016 Canada Company
-----------------------------------------------------------------------------------------------------------------
Warnaco of Canada The Warnaco Group Third Amendment to 01/01/98 0.00
Limited/Warnaco Inc 90 Park Ave. 26th Fl (Intimate Apparel)
and Warnaco New York, NY 10016 Inter - Company
International Inc. Canada License
Agreement
-----------------------------------------------------------------------------------------------------------------
Warnaco of Canada/ The Warnaco Group Royalty - Warners, 01/03/99 0.00
Warners BV 90 Park Ave. 26th Fl Olga
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty - Body 0.00
Canada/Warnaco US 90 Park Ave. 26th Fl Slimmers
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty CK 07/01/99 0.00
Canada/Intercompany 90 Park Ave. 26th Fl Men's Underwear
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty CK 07/01/99 0.00
Canada/Intercompany 90 Park Ave. 26th Fl Women's Underwear
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty CK 07/01/99 0.00
Canada/Intercompany 90 Park Ave. 26th Fl Boy's Underwear
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty CK 07/01/99 0.00
Canada/Intercompany 90 Park Ave. 26th Fl Girl's Underwear
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty CK 07/01/99 0.00
Canada/Intercompany 90 Park Ave. 26th Fl Accessories
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty CK U/W 0.00
Canada/Intercompany 90 Park Ave. 26th Fl & Access - rtl stores
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group Royalty CK Jeans - 0.00
Canada/Intercompany 90 Park Ave. 26th Fl retail store
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Warnaco of The Warnaco Group National Advertising 07/01/99 0.00
Canada/Intercompany 90 Park Ave. 26th Fl CK Underwear
New York, NY 10016
-----------------------------------------------------------------------------------------------------------------
Myers Records Center 255 Long Beach Blvd. Record storage Apr-99 0.00
Stratford CT 06497
Attention: Steve Garger
-----------------------------------------------------------------------------------------------------------------
Postmaster 15707 Sherman Way PO Box in 0.00
Van Nuys, CA 91409 Van Nuys
-----------------------------------------------------------------------------------------------------------------
Pitney Bowes 2225 American Dr. Postage Machine 01/30/01 0.00
Credit Corp Neenah, WI 54956-1005
-----------------------------------------------------------------------------------------------------------------
Danka Business P.O. Box 3083 Copier 03/28/95 0.00
Systems Cedar Rapids,
IA 52406-3083
-----------------------------------------------------------------------------------------------------------------
Dallas Market 2100 Stemmons Freeway Real Property 06/13/01 1,686.50
Center, Ltd. Dallas, TX 75207 Lease
Attention: Kristin Rucker
-----------------------------------------------------------------------------------------------------------------
South Coast Plaza 3315 Fairview Road Real Property 10/12/93 0.00
Costa Mesa Lease
CA 92626
Attention: Connie Harrison
-----------------------------------------------------------------------------------------------------------------
Schur Management Co. 2432 Grand Concourse Basement 0.00
Bronx, NY 10458
-----------------------------------------------------------------------------------------------------------------
Market Center Dallas Market Center Authentic Fitness 11/15/01 0.00
Management Co, Ltd. PO Box 845467 Corp Dallas Market
Dallas, TX 75284-5467 Center Space 2412
2100 Stemmons
Freeway Dallas,
TX 75207
Sales Office
(Designer)
-----------------------------------------------------------------------------------------------------------------
Wells Fargo Storage 450 Camarillo Wells Fargo Storage 0.00
Center Drive (Store #77
Camarillo, CA 93010 Camarillo, CA)
-----------------------------------------------------------------------------------------------------------------
Market Center Dallas Market Center Showroom 0.00
Management Company PO Box 845467
Dallas, TX 75284-5467
-----------------------------------------------------------------------------------------------------------------
Warnaco Inc. The Warnaco Group Master Agreement 01/05/97 0.00
90 Park Ave. 26th Fl of Sale of
New York, NY 10016 Receivables
-----------------------------------------------------------------------------------------------------------------
UPS 643 West 43rd St. Covers ground May-99 0.00
8th Floor New York, and domestic air
NY 10036
Attention: Janise
Anderson
29
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
CONTRACT DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Data2Logistics 6056 South Fashion 3rd party auditing 0.00
Square Drive 300 & account allocation
Salt Lake City, UT 84107 firm for our FedEx
Attention: Gary Remley Express shipments
----------------------------------------------------------------------------------------------------------------
AT&T Wireless 300 Broadacres Drive Cell service Jul-02 0.00
2nd Floor
Bloomfield, NJ 07003
Attention: Gregory Windisch
----------------------------------------------------------------------------------------------------------------
AT&T 32 Avenue of the Data Mar-02 0.00
Americas 4th Floor
New York, NY 10013
----------------------------------------------------------------------------------------------------------------
AT&T 32 Avenue of the Data May-02 0.00
Americas 4th Floor
New York, NY 10013
----------------------------------------------------------------------------------------------------------------
AT&T 32 Avenue of the Americas Data Jul-02 0.00
4th Floor
New York, NY 10013
----------------------------------------------------------------------------------------------------------------
Fruit of the Loom, Inc. Fruit of the Loom, Inc., Termination, Settlement 04/18/01 0.00
One Fruit of the and Release Agreement
Loom Drive, terminating the
Bowling Green, Kentucky License Agreement
42102-9015 dated
Attention, Vice President August 26, 1991
and General Counsel
----------------------------------------------------------------------------------------------------------------
Digiterra 5251 DTC Parkway Consulting 1/02 - 12/02 0.00
Suite 1400 Greenwood
Village, CO 80111
Attention: Brian Bognar
----------------------------------------------------------------------------------------------------------------
Cisco Systems 170 West Tasman Dr. Lan/Wan Equipment 01/15/02 0.00
San Jose, CA 95134 Maintenance/Network
Attention: Nancy Hans Hardware
----------------------------------------------------------------------------------------------------------------
Compaq 10400 N. Tantau Ave. Servers contract 01/15/02 7,533.35
CAC14-43 maintenance/network
Cupertino, CA 95014 hardware
----------------------------------------------------------------------------------------------------------------
Dell Computers 8801 Research Blvd. Servers contract 06/13/02 0.00
Austin, TX 78758 maintenance/Network
Attention: Dana Sanditeu Hardware
----------------------------------------------------------------------------------------------------------------
Hewlett-Packard 300 Hanover Street Servers contract 08/15/02 0.00
Palo Alto, CA 94304 maintenance/Network
Hardware
----------------------------------------------------------------------------------------------------------------
RSA Inc. 174 Middle Tpke RSA Dial-up 05/01/02 0.00
Bedford, MA 01730 Security Software
----------------------------------------------------------------------------------------------------------------
Soft Choice 3 Quincy Street Norton Anti- 02/01/02 0.00
Norwalk, CT 06850 Virus Software
----------------------------------------------------------------------------------------------------------------
Sybari Software Inc. 353 Larkfield Rd. Antigent-Email 04/01/02 0.00
East Northport, Anti-Virus/Network
NY 11731-2964 Software
----------------------------------------------------------------------------------------------------------------
Integration Technologies 1201 Dove Street, Firewall contract 06/06/02 13,647.00
Suite 350 maintenance/Network
Newport Beach, Software
CA 92660
----------------------------------------------------------------------------------------------------------------
Integration Technologies 1201 Dove Street, Stonebeat, Web filter, 01/02/02 cure, if
Suite 350 Clustering/Network any, is
Newport Beach, Software included in
CA 92660 the cure
amount
set forth
directly
above
----------------------------------------------------------------------------------------------------------------
Microsoft 1 Microsoft Way MS Support contract/ 01/01/02 0.00
Redmond, WA 98052 Network Software
----------------------------------------------------------------------------------------------------------------
Argent 6 Forest Park Dr. Monitoring Software 05/01/02 0.00
Farmington, CT 06032 contract/Network
Attention: Scott Software
McCauslaw
----------------------------------------------------------------------------------------------------------------
Decision One 50 E. Swedesford Rd Memorex 800LPM 07/01/02 4,686.94
Frazer, PA 19355 IPDS Line Mtx
Printer/AS 400 Hardware
----------------------------------------------------------------------------------------------------------------
Decision One 50 E. Swedesford Rd Memorex 800LPM 07/01/02 cure, if
Frazer, PA 19355 IPDS Line Mtx any, is
Printer AS 400 Hardware included in
the cure
amount
set forth
directly
above
----------------------------------------------------------------------------------------------------------------
Decision One 50 E. Swedesford Rd Printronix P9212 Line 07/01/02 cure, if
Frazer, PA 19355 Mtrx Printer/AS any, is
400 Hardware included in
the cure
amount set
forth 2
lines
above
----------------------------------------------------------------------------------------------------------------
Decision One 50 E. Swedesford Rd Printronix P9212 07/01/02 cure, if
Frazer, PA 19355 Line Mtrx Printer/AS any, is
400 Hardware included
in the cure
amount set
forth 3
lines
above
----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Standalone Modem 07/01/02 0.00
Phoenix, AZ 85012 V.32 Lease/AS400
Attention: Ray Beye Hardware
30
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS CONTRACT DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Optical Library 07/01/02 0.00
Phoenix, AZ 85012 DataServer/AS400
Attention: Ray Beye Hardware
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue DOT Band Printer 07/01/02 0.00
Phoenix, AZ 85012 (Twinaxial)/AS 400
Attention: Ray Beye Hardware
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Impacwriter/ AS 400 07/01/02 0.00
Phoenix, AZ 85012 Hardware
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Printer/AS 400 07/01/02 0.00
Phoenix, AZ 85012 Hardware
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue 5GB Ext. 8mm Tape Drive 07/01/02 0.00
Phoenix, AZ 85012 MOD 12/AS 400 Hardware
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue 5GB Ext. 8mm Tape Drive 07/01/02 0.00
Phoenix, AZ 85012 MOD 12/AS 400 Hardware
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Rack Enclosure 1.6 07/01/02 0.00
Phoenix, AZ 85012 meter/AS 400 Hardware
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Rack Enclosure 1.6 07/01/02 0.00
Phoenix, AZ 85012 meter/AS 400 Hardware
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Base System Unit/AS 400 07/01/02 0.00
Phoenix, AZ 85012 Software
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
Oce Printing Systems 3265 Ramos Circle #200, Siemans laser printer/AS 01/01/02 0.00
Sacramento, CA 95827 400 Hardware
Attention: Berry Oberg
-----------------------------------------------------------------------------------------------------------------
Oce Printing Systems 3265 Ramos Circle #200, Siemans laser printer/AS 01/01/02 0.00
Sacramento, CA 95827 400 Hardware
Attention: Berry Oberg
-----------------------------------------------------------------------------------------------------------------
Decision One 50 E. Swedesford Rd 800 LPM IPDS Line 07/01/02 0.00
Frazer, PA 19355 Matrix Printer/AS 400
Hardware
-----------------------------------------------------------------------------------------------------------------
Decision One 50 E. Swedesford Rd MTC 1251 800 LPM IPDS 07/01/02 0.00
Frazer, PA 19355 Line Mtrx AS 400
Hardware
-----------------------------------------------------------------------------------------------------------------
Decision One 50 E. Swedesford Rd Printronix P5215 1500LPM 07/01/02 0.00
Frazer, PA 19355 Line Mtrx AS400
Hardware
-----------------------------------------------------------------------------------------------------------------
IBM Credit 2929 North Central Avenue Impactwriter/AS400 07/01/02 0.00
Phoenix, AZ 85012 Hardware
Attention: Ray Beye
-----------------------------------------------------------------------------------------------------------------
Advanced Systems 1300 Woodfield Rd. Suite Sequel/AS 400 Software 01/01/02 0.00
Concepts 310 Schaumburg, IL 60173
Attention: Stacy Jenson
-----------------------------------------------------------------------------------------------------------------
Aldon Computer Group 1999 Harrison St. Suite ACMS/AS 400 Software 02/01/02 0.00
1500 Oakland, CA 94612
Attention: Bob Anderson
-----------------------------------------------------------------------------------------------------------------
Broderick Data Systems 64 Main St. Lexington, Spool Organizer P40 AS 07/01/02 0.00
OH 44904 400 Software
Attention: Beth Shasky
-----------------------------------------------------------------------------------------------------------------
Gauss 8717 Research Drive Spyview/AS 400 Software 05/01/02 0.00
Irvine, CA 92618
Attention: Pat Decaprial
-----------------------------------------------------------------------------------------------------------------
Hawkeye Information P.O. Box 2167 Pathfinder/AS 400 01/06/02 0.00
Systems Fort Collins, CO 80522 Software
Attention: Cindy Starck
-----------------------------------------------------------------------------------------------------------------
ROI Corporation/GO 5000 Business Center Java Card/Credit Card 06/16/02 0.00
Software Drive Suite.1000, Processing
Savannah, GA 31405
Attention: Beth Murdock
-----------------------------------------------------------------------------------------------------------------
Aldon Computer Group 1999 Harrison St., Suite Aldon/AS400 Software 11/30/01 0.00
1500 Oakland, CA 94612
Attention: Bob Anderson
-----------------------------------------------------------------------------------------------------------------
Broderick Data Systems 64 Main St. Broderick/AS 400 12/01/01 0.00
Lexington, OH 44904 Software
Attention: Beth Shasky
-----------------------------------------------------------------------------------------------------------------
Hawkeye Information P.O. Box 2167 Hawkeye/AS 400 Software 07/02/02 0.00
Systems Fort Collins, CO 80522
Attention: Cindy Starck
31
SECOND AMENDED AND RESTATED PLAN SCHEDULE 3.2
LIST OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED
(as amended and restated as of January 13, 2003)
CONTRACT
DATE/CONTRACT
CONTRACT PARTY NOTICE ADDRESS CONTRACT DESCRIPTION EXTENSION DATE CURE AMOUNT
-----------------------------------------------------------------------------------------------------------------
Advanced Systems 1300 Woodfield Rd. Suite Sequel/AS 400 Software 01/01/02 0.00
Concepts 310 Schaumburg, IL 60173
Attention: Stacy Jenson
-----------------------------------------------------------------------------------------------------------------
Touchtone Corporation 3151 Airway Bldg. I-3 Questview/AS 400 05/30/02 0.00
Costa Mesa, CA 92626 Software
Attention: Pahoa Chang
-----------------------------------------------------------------------------------------------------------------
Cybra 1 Executive Blvd. Mark Magic/AS 400 07/23/02 0.00
Yonkers, NY 10701 Software
Attention: John Parisi
-----------------------------------------------------------------------------------------------------------------
Digex 19200 Von Karman Speedo Ecommerce 03/01/02 0.00
Ave. #530 Irvine, CA 92612 Website
Attention: Edward Z.
Martinez
-----------------------------------------------------------------------------------------------------------------
Bell South 301 W. Bay Street Room Telephone prior to 15,625.62
12DD1 Jacksonville, system/Thomasville 1/1/01
FL 32202
Attention: Judy Arcey
-----------------------------------------------------------------------------------------------------------------
Come Land Maintenace 4917 West Melrose Ave. Janitorial 11/26/01 0.00
Los Angeles, CA 90029
-----------------------------------------------------------------------------------------------------------------
Metropolitan Interests 3838 Oak Lawn Ave. Sales Office/Texas 12/01/99 0.00
Corp. Suite 1416
Dallas, TX 75219
Attention: Cecil Kirksey
-----------------------------------------------------------------------------------------------------------------
Data Captured Solutions 151 Sheldon Rd. RF Scanner Service 07/31/02 0.00
Manchester, CT 06040 Agreements
Attention: Tom Venezia
-----------------------------------------------------------------------------------------------------------------
Data Captured Solutions 151 Sheldon Rd. RF Scanner Service 11/30/01 0.00
Manchester, CT 06040 Agreements
Attention: Tom Venezia
-----------------------------------------------------------------------------------------------------------------
Data Captured Solutions 151 Sheldon Rd. RF Scanner Service 03/01/02 0.00
Manchester, CT 06040 Agreements
Attention: Tom Venezia
-----------------------------------------------------------------------------------------------------------------
Sunguard Treasury 2777 Summer St. 4th Floor Tresury Cash Management 02/02/88 0.00
Systems Stamford, CT 06905 software system
Attention: Joe Arouni
-----------------------------------------------------------------------------------------------------------------
Vertex 1041 Old Cassat Rd. Software Maintenance 10/01 - 9/02 0.00
Berwyn, PA 19312-1151
-----------------------------------------------------------------------------------------------------------------
Peregrine 1277 Lenox Park Blvd. Premenos (EDI) 11/01/01 0.00
Atlanta, GA 30319
Attention: Chris Mascis
-----------------------------------------------------------------------------------------------------------------
Any Employee Patent and Confidentiality Agreements and Arbitration Agreements,
including, without limitation, those that are substantially in the same form as
Plan Schedules 3.1(a) and (b), by and between any of the Debtors and any of
their employees shall be deemed to be assumed with a zero cure amount. However,
any agreements by and between any of the Debtors and any of their employees
regarding any other terms and conditions of such employees' employment shall be
deemed to be rejected as of the Effective Date.
32
PLAN SCHEDULE 5.6
OFFICERS AND DIRECTORS OF THE REORGANIZED DEBTORS
==============================================================================================================
I. The Warnaco Group, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
Director - Non- Stuart D. Buchalter Current Director and Non- $500,000 per annum(1)
Executive Chairman Executive Chairman of the
Board; see Attachment 5.6(a)
for biographical information
--------------------------------------------------------------------------------------------------------------
Director Richard Karl Goeltz Current Director; see Retainer: $65,000(2);
Attachment 5.6(a) for Meeting Fees: $2,500 per
biographical information day plus expenses(3)
--------------------------------------------------------------------------------------------------------------
Director Harvey Golub Current Director; see Retainer: $65,000(2);
Attachment 5.6(a) for Meeting Fees: $2,500 per
biographical information day plus expenses(3)
--------------------------------------------------------------------------------------------------------------
Director, President and Antonio C. Alvarez II Current Director, President, $125,000 per month base
Chief Executive Officer and Chief Executive Officer; salary(4)
see Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Director, Senior Vice James P. Fogarty Current Senior Vice President- $475 per hour(5)
President - Finance and Finance and Chief Financial
Chief Financial Officer Officer; see Attachment 5.6(a)
for biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - Stanley P. Silverstein Current Vice President, Officer Compensation:
Administration and Chief General Counsel, Secretary and $450,000 per annum base
Administrative Officer Chief Administrative Officer; salary(6)
see Attachment 5.6(a) for
biographical information
==============================================================================================================
(1) To be reduced to $250,000 upon the retention of a permanent Chief Executive
Officer and two additional Board members.
(2) Retainer Fee payable as follows: (i) 60% cash payable quarterly in advance
and (ii) 40% equity payable annually in advance.
(3) Members of the Board of Reorganized Warnaco will serve on Board Committees,
to be formed on or after the Effective Date of the Plan, and will receive
additional compensation as follows:
Audit Committee:
* Chairman Fee $10,000
* Member Fee per meeting $ 1,000 (plus expenses)
Compensation Committee:
* Chairman Fee $ 5,000
* Member Fee per meeting $ 1,000 (plus expenses)
Governance/Nominating Committee:
* Chairman Fee $ 5,000
* Member Fee per meeting $ 1,000 (plus expenses)
Finance Committee:
* Chairman Fee $ 5,000
* Member Fee per meeting $ 1,000 (plus expenses)
(4) Payable pursuant to an engagement letter between The Warnaco Group, Inc. and
Alvarez & Marsal, Inc. Prior to the engagement of a permanent Chief Executive
Officer, Mr. Alvarez will not receive compensation on account of his service as
a director. Upon the engagement of a permanent Chief Executive Officer, Mr.
Alvarez will receive directors' compensation.
(5) Payable pursuant to an engagement letter between The Warnaco Group, Inc. and
Alvarez & Marsal, Inc. Prior to the engagement of a permanent Chief Financial
Officer, Mr. Fogarty will not receive compensation on account of his service as
a director. Upon the engagement of a permanent Chief Financial Officer, Mr.
Fogarty will receive directors' compensation.
(6) Plus incentive compensation opportunity, to be determined.
==============================================================================================================
II. 184 Benton Street Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
III. Abbeville Manufacturing Company
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
IV. A.B.S. Clothing Collection, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
V. Authentic Fitness Corporation
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
VI. Authentic Fitness Products Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
VII. Authentic Fitness On-Line, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
VIII. Authentic Fitness Retail Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
IX. Calvin Klein Jeanswear Company
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
X. CCC Acquisition Corp.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XI. C.F. Hathaway Company
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XII. CKJ Holdings, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XIII. Designer Holdings Ltd.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XIV. Gregory Street, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XV. Jeanswear Holdings, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XVI. Kai Jay Manufacturing Company
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XVII. Myrtle Avenue, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XVIII. Penhaligon's by Request, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, None
General Counsel, Secretary and
Chief Administrative Officer
of The Warnaco Group, Inc. and
Warnaco Inc. and Officer of
Various Subsidiaries; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XIX. Outlet Holdings, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XX. Outlet Stores, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XXI. Rio Sportswear , Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XXII. Ubertech Products, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XXIII. Warmana Limited
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XXIV. Warnaco Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
Director - Non- Stuart D. Buchalter Current Director and None
Executive Chairman Non-Executive Chairman of the
Board; see Attachment 5.6(a)
for biographical information
--------------------------------------------------------------------------------------------------------------
Director Richard Karl Goeltz Current Director; see None
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Director Harvey Golub Current Director; see None
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Director, President and Antonio C. Alvarez II Current Director, President, None
Chief Executive Officer and Chief Executive Officer;
see Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Director, Senior Vice James P. Fogarty Current Senior Vice None
President - Finance and President-Finance and Chief
Chief Financial Officer Financial Officer; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
Vice President - Stanley P. Silverstein Current Vice President, General None
Administration and Chief Counsel, Secretary and Chief
Administrative Officer Administrative Officer; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
XXV. Warnaco International, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XXVI. Warnaco International, LLC
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
XXVII. Warnaco of Canada Company
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XXVIII. Warnaco of Puerto Rico, Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XXIX. Warnaco Sourcing Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XXX. Warnaco U.S., Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
--------------------------------------------------------------------------------------------------------------
XXXI. Warner's De Costa Rica Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
==============================================================================================================
XXXII. Warnaco Men's Sportswear Inc.
--------------------------------------------------------------------------------------------------------------
Proposed
Title Name Affiliation Compensation
--------------------------------------------------------------------------------------------------------------
President - Secretary Stanley P. Silverstein Current Vice President, General None
Counsel, Secretary and Chief
Administrative Officer of The
Warnaco Group, Inc. and Warnaco
Inc. and Officer of Various
Subsidiaries; see Attachment
5.6(a) for biographical
information
--------------------------------------------------------------------------------------------------------------
Vice President - James P. Fogarty Current Senior Vice None
Treasurer President-Finance and Chief
Financial Officer of The
Warnaco Group, Inc.; see
Attachment 5.6(a) for
biographical information
==============================================================================================================
Attachment 5.6(a)(1)
Biographical Information for Proposed Officers and Directors of the
Reorganized Debtors
(1) Antonio C. Alvarez II. Mr. Alvarez was elected President and Chief
Executive Officer of the Company on November 16, 2001 and was elected to the
Board of Directors on March 19, 2002. Mr. Alvarez is also a member of the
Board's Restructuring Committee. Prior to his election to these positions, Mr.
Alvarez served the Company as Chief Restructuring Officer from June 11, 2001 to
November 16, 2001 and as Chief Restructuring Advisor to the Company (while
employed by Alvarez & Marsal, Inc., a leading turnaround and crisis management
consulting firm, which Mr. Alvarez co-founded) from April 30, 2001 to June 11,
2001. Over the last 18 years as a founding Managing Director of A&M, Mr. Alvarez
has served as restructuring officer, consultant or operating officer of numerous
troubled companies.
(2) James P. Fogarty. Mr. Fogarty was elected Senior Vice President-Finance
and Chief Financial Officer of the Company on December 20, 2001. Prior to his
election to these positions, Mr. Fogarty served the Company as Senior Vice
President from June 11, 2001 to December 20, 2001, and served as an advisor to
the Company (while employed by A&M) from April 30, 2001 to June 11, 2001. Mr.
Fogarty has been associated with A&M since August 1994. As part of his work with
A&M, Mr. Fogarty has held management positions with Bridge Information Systems,
DDS Partners LLC, AM Cosmetics, Inc. and Color Tile, Inc. In addition, Mr.
Fogarty provided restructuring advisory services to Fruehauf Trailer and
Homeland Stores, Inc. Mr. Fogarty was associated with the accounting firm KPMG
from June 1990 until July 1994. Mr. Fogarty holds a B.A. degree in Economics and
Computer Science from Williams College, a MS in Accounting from the Leonard
Stern School of Business at New York University and a MBA in Finance and
Accounting from the Leonard Stern School of Business at New York University.
(3) Stanley P. Silverstein. Mr. Silverstein has served as Vice President,
General Counsel and Secretary of the Company since December 1990. Mr.
Silverstein was elected Chief Administrative Officer of the Company in December
2001. Mr. Silverstein served as Assistant Secretary of the Company from June
1986 until his appointment as Secretary in January 1987. Mr. Silverstein
received a B.A. from Yale College in 1974 and received a J.D. from Harvard Law
School in 1977.
(4) Stuart D. Buchalter. Mr. Buchalter currently serves as Non-Executive
Chairman of the Board of Directors for the Company and is a member of the
Board's Restructuring, Pension and Audit Committees. Mr. Buchalter joined the
Company in February 2000 as a Director. Mr. Buchalter is Of Counsel to the
California law firm of Buchalter, Nemer, Fields & Younger P.C. He served as
Chairman of the Board of Standard Brands Paint Company, which successfully
reorganized under chapter 11 of the Code, through June 15, 1993. He serves as
director of City National Corporation. He also serves as the Chairman of the
Board of Trustees of Otis College of Art & Design. Mr. Buchalter did his
undergraduate work at the University of
(1) Members of the Board of Reorganized Warnaco will serve on Board Committees,
to be formed on or after the Effective Date of the Plan.
California at Berkeley, receiving a B.A. in 1959, and attended Harvard Law
School, earning an L.L.B. in 1962.
(5) Richard Karl Goeltz. Richard Karl Goeltz has been a Director of the
Company since July 2002, and is a member of the Board's Audit Committee. Mr.
Goeltz served as Vice Chairman and Chief Financial Officer of the American
Express Company from 1996 to 2000. Previously, Mr. Goeltz was Group Chief
Financial Officer and a member of the Board of Directors of NatWest Group
("NatWest"), the parent company of National Westminster Bank PLC. Prior to
joining NatWest, Mr. Goeltz served The Seagram Company for over 20 years in a
variety of management positions. Mr. Goeltz previously held various financial
positions in the treasurer's department of Exxon Corporation in New York and
Central America. Mr. Goeltz is a director of the New Germany Fund, a member of
the Board of Overseers of Columbia Business School, a director of Opera
Orchestra of New York, a member of the Council on Foreign Relations and a member
of the Court of Governors of the London School of Economics and Political
Science. Mr. Goeltz received his M.B.A. from Columbia Business School, his B.A.
in economics from Brown University and also studied at the London School of
Economics and New York University.
(6) Harvey Golub. Mr. Golub has been a Director of the Company since
January 2001. Mr. Golub is the Chairman of the Board's Restructuring Committee,
and also serves on the Compensation and Pension Committees. Mr. Golub served as
a member of the Board of Directors of American Express Company from September
1990 until his retirement in April 2001, as Chairman of American Express Company
from August 1993 until April 2001 and as Chief Executive Officer from January
1993 to January 2001. Mr. Golub serves as a Director of Campbell Soup Company
and Dow Jones & Co., and as the Chairman of Airclic Inc., Chairman of
ClientLogic and Chairman of TH Lee Putnam Ventures. Mr. Golub also serves on the
Boards of Lincoln Center for the Performing Arts, the American Enterprise
Institute and the New York-Presbyterian Hospital. Mr. Golub serves as a Senior
Advisor to Lazard Freres.
PLAN SCHEDULE 5.7
SUMMARY OF PRINCIPAL TERMS AND
CONDITIONS OF EXIT FINANCING FACILITY
On June 11, 2001 (the "Petition Date"), The Warnaco Group, Inc.
("Group") and its domestic subsidiaries filed voluntary petitions to commence
reorganization proceedings under chapter 11 of the Bankruptcy Code (the
"Cases"). This Summary of Terms and Conditions outlines certain terms of the
Senior Secured Credit Facility referred to in the Plan of Reorganization (as
defined in the Commitment Letter). Unless otherwise defined herein, terms
defined in the Commitment Letter and used herein have the meanings given to them
in the Commitment Letter.
Borrower: Reorganized Warnaco Inc. ("Warnaco" or the "Borrower").
Guarantors: Group and each existing and subsequently acquired or
organized domestic subsidiary of Group (other than
Warnaco Operations Corporation) (collectively, the
"Guarantors" and, together with the Borrower, the "Loan
Parties").
Lenders: Citicorp North America, Inc. or one of its affiliates
(collectively, "CNAI"), JPMorgan Chase Bank ("JPMorgan
Chase") and other financial institutions or entities
acceptable to the Arrangers (as defined below)
(together with CNAI, and JPMorgan Chase, the
"Lenders").
Administrative and CNAI or one of its affiliates (the "Administrative
Collateral Agent: Agent").
Syndication Agent: JPMorgan Chase Bank (together with the Administrative
Agent, the "Agents")
Joint Lead Arrangers: Salomon Smith Barney Inc. and J.P. Morgan Securities
Inc. (collectively, the "Arrangers").
Joint Lead Book Salomon Smith Barney Inc. and J.P. Morgan Securities
Managers: Inc.
Issuers: CNAI, JP Morgan Chase and/or other Lenders (or
affiliates of Lenders) acceptable to the Agents and
Group.
The Facility: Revolving Loans. A non-amortizing revolving credit
facility made available to the Borrower in a principal
amount of up to $275,000,000 on the Closing Date, and
thereafter (if applicable), after giving effect to the
Facility Increase (as defined below), such increased
amount up to $325,000,000 (the "Facility"), subject to
Availability (as defined below). All revolving loans
outstanding under the Facility (the "Loans") shall
become due and payable on the Termination Date (as
defined below).
o Letters of Credit. Up to $150,000,000 of the
Facility, subject to Availability, will be
available for the issuance of letters of credit by
the Issuers for the account of the Borrower
("Letters of Credit"). No Letter of Credit will
have a termination date after the fifth day
preceding the Termination Date and none shall have
a term of more than one year. No more that
$35,000,000 of the Facility will be available for
the issuance of standby Letters of Credit. Letters
of Credit may be denominated in U.S., Canadian or
Hong Kong dollars or Euros. The amount of
commitments utilized by foreign currency
denominated Letters of Credit shall be
marked-to-market on each day on which a Borrowing
Base Certificate (as defined below) is delivered,
based on currency exchange rates determined by the
applicable Issuing Bank. To the extent acceptable
to the applicable issuer thereof, letters of
credit existing under Warnaco's debtor in
possession credit facility shall be deemed to be
"Letters of Credit" under the Facility.
o Swing Loans: Subject to Availability, an amount up
to the lesser of (a) $20,000,000 and (b) the
Administrative Agent's ratable portion of the
aggregate commitments plus $10,000,000 will be
available to the Borrower for discretionary swing
loans from the Administrative Agent.
Term: The period from the Closing Date to the fourth
anniversary of the Closing Date (the "Termination
Date").
Closing Date: The date of the initial funding of the Facility, which
shall be a date which occurs on or after the effective
date of the Plan of Reorganization and which in any
event shall occur on or before February 28, 2003 (the
"Closing Date").
Availability: Availability under the Facility (the "Availability")
shall equal (i) the lesser of (A) the maximum
commitments under the Facility and (B) the Borrowing
Base (as defined below) minus (ii) such Availability
Reserves as the Administrative Agent, in its sole
discretion, exercised reasonably, deems appropriate.
"Availability Reserves" means, as of 3 business days
after the date of written notice of any determination
thereof to the Borrower by the Administrative Agent,
such amounts as the Administrative Agent may from time
to time establish against the Facility, in the
Administrative Agent's sole discretion exercised
reasonably, in order to (a) preserve the value of the
Collateral or the Administrative Agent's Lien thereon,
(b) provide for the payment of unanticipated
liabilities of any of the Loan Parties arising after
the Closing Date, or (c) provide for the effect, or
anticipated effect, of the loss of the benefit to Group
or any of its Subsidiaries of a material license (to be
defined).
Borrowing Base: "Borrowing Base" means, an amount equal to the sum of
(a) up to 75% of eligible accounts receivable of the
Loan Parties and (b) up to the lesser of (i) (A) up to
67% of eligible finished inventory of the Loan Parties,
(B) up to 55% of eligible raw inventory (including
eligible raw inventory covered by trade letters of
credit and eligible finished inventory covered by trade
letters of credit) of the Loan Parties, and (C) up to
25% of work in process of the Loan Parties and (ii) up
to 85% of the U.S. dollar equivalent of the orderly
liquidation value of such eligible inventory (as
determined by reference to the most recent appraisal
received by the Lenders (and, if no appraisal has been
made after the Closing Date, the appraisal received by
the Lenders prior to the Closing Date), in each case
less such eligibility reserves and dilution reserves as
the Administrative Agent, in its sole discretion,
exercised reasonably, deems appropriate. The Borrowing
Base as of the Closing Date to be determined based on
appraisals be delivered to the Agents under the
provisions titled "Conditions Precedent to the
Closing".
Any reduction in the foregoing advance rates (or any
increase up to the percentages set forth above) shall
be determined by the Administrative Agent in its sole
discretion exercised reasonably and shall take effect
10 Business Days after the Administrative Agent
delivers written notice thereof to the Borrower.
Not less than once each week, each Borrowing Base will
be certified by the Responsible Financial Officer of
Group to the Administrative Agent pursuant to a
borrowing base certificate (with appropriate supporting
data) in form reasonably satisfactory to the
Administrative Agent (the "Borrowing Base
Certificate").
Eligibility: Eligibility criteria for accounts receivable and
inventory will be defined in the loan documentation and
will otherwise be determined by the Agents in
accordance with their customary criteria.
Purpose: Proceeds of the Facility will be used solely (i) to
fund transaction costs and expenses, (ii) to provide
working capital from time to time for Group and its
subsidiaries and (iii) for other general and corporate
purposes.
Facility Increase: The Borrower shall have the right to a one time
increase of the commitments under the Facility from
$275,000,000 up to a maximum amount of $325,000,000
(the "Facility Increase"); provided that (i) no event
of default (as defined in the loan documentation), or
event which with the giving of notice or lapse of time
or both would be an event of default, has occurred and
is continuing and (ii) the Borrower shall have paid to
the Agents a fee to be determined (but in any event
reasonably acceptable to Group) and to the Lenders
providing the Facility Increase fees required in order
to clear the market in an amount to be determined. The
Borrower shall have the right to offer the Facility
Increase to (x) the existing Lenders, and each existing
Lender will have the right, but no obligation, to
commit to all or a portion of the Facility Increase or
(y)
third party financial institutions acceptable to the
Arrangers; provided that the minimum commitment of each
such third party institution equals or exceeds
$5,000,000.
Interest: Loans will bear interest, at the option of the
Borrower, at one of the following rates:
(a) the Applicable Margin (as defined below) plus the
Administrative Agent's fluctuating Alternate Base
Rate (as defined below) (the "Base Rate"), payable
quarterly in arrears; or
(b) the Applicable Margin plus the current LIBO rate
as quoted by the Administrative Agent adjusted for
reserve requirements, if any, and subject to
customary change of circumstance provisions, for
interest periods of one, two, three or six months
(the "LIBO Rate"), payable at the end of the
relevant interest period, but in any event at
least quarterly.
"Applicable Margin" means (i) for an initial period of
one year after the Closing Date, 1.50% per annum, in
the case of Base Rate Loans, and 2.50% per annum, in
the case of LIBO Rate Loans; and (ii) thereafter, such
higher or lower rates per annum determined by reference
to a pricing grid to be determined (the "Pricing
Grid").
"Alternate Base Rate" means the highest of (i)
Citibank, N.A.'s base rate, (ii) the three-month
certificate of deposit rate plus 1/2 of 1% and (iii)
the Federal Funds Effective Rate plus 1/2 of 1%.
Interest shall be calculated on the basis of the actual
number of days elapsed in a 360-day year. No more than
ten (10) LIBO Rate interest periods may be in effect at
any one time.
Default Interest: During the continuance of an Event of Default (to be
defined in the loan documentation), Loans will bear
interest at an additional 2.0% per annum.
Unused Commitment Fee: From and after the Closing Date, a non-refundable
unused commitment fee at the Unused Commitment Fee Rate
will accrue as a percentage of the daily average unused
portion of the Facility (whether or not then
available), payable quarterly in arrears and on the
Termination Date. The "Unused Commitment Fee Rate"
means (i) for an initial period of one year after the
Closing Date, 0.375% per annum and (ii) thereafter,
such higher or lower rates per annum determined by
reference to the Pricing Grid.
Letter of Credit Fees: A percentage per annum equal to the Applicable Margin
for LIBO Rate Loans less the amount of fees paid to the
applicable Issuer (0.125% to 0.25%) to the Lenders will
accrue on the outstanding undrawn amount of any Letter
of Credit, payable quarterly in arrears and computed on
a 360-day basis.
A percentage per annum equal to 0.125% to 0.25% to the
applicable Issuer will accrue on the outstanding
undrawn amount of any Letter of Credit, payable
quarterly in arrears and computed on a 360-day basis.
In addition, the Borrower will pay to the applicable
Issuer standard opening, amendment, presentation, wire
and other administration charges applicable to each
Letter of Credit.
During the continuance of an Event of Default (as
defined in the loan documentation), the Letter of
Credit Fees will increase by an additional 2% per
annum.
Optional Repayment and The Borrower may repay the Loans in whole or in part at
Commitment Reductions: any time without premium or penalty (other than
breakage costs, if applicable) and may reduce the
commitments under the Facility upon at least five
business days' notice; provided that each such
reduction shall be in an amount of $5,000,000 or
multiples of $1,000,000 in excess thereof and any
mandatory prepayment resulting from such reduction
shall have been made.
Mandatory Repayments: Mandatory repayments of the Loans (and corresponding
reductions in the commitments under the Facility) shall
be required in an amount equal to:
(a) 100% of the net cash proceeds received by Group or
any of its subsidiaries from any issuance or
incurrence of balance sheet debt, subject to an
exception for a refinancing of the Second Lien
Notes (as defined below) and other customary
exceptions to be agreed upon;
(b) 100% of the net sale proceeds received by Group or
any of its subsidiaries from asset sales, subject
to limited exceptions and certain reinvestment
rights within 180 days to be agreed; and
(c) 100% of insurance and condemnation proceeds
received by Group or any of its subsidiaries,
subject to limited exceptions and certain
reinvestment rights within 180 days to be agreed.
Amounts repaid under the Facility pursuant to the
paragraph above shall be applied first to repay all
outstanding Loans and then to cash collateralize
Letters of Credit.
Any amount collected in the Concentration Account (as
defined below) will be applied to the repayment of the
Loans.
The Borrower shall repay the outstanding Loans under
the Facility (and cash collateralize outstanding
Letters of Credit) to the extent that such Loans and
Letters of Credit exceed Availability.
Security: All amounts owing by the Borrower under the Facility
and by the Guarantors in respect thereof (including,
without limitation, any exposure of a Lender in respect
of cash management or hedging
transactions incurred on behalf of the Borrower or any
Guarantor) will be secured by all of the assets of each
Loan Party (whether now existing or subsequently
acquired or organized, or domestic or foreign, but
limited to the extent necessary to avoid materially
adverse tax consequences to Group and its subsidiaries,
taken as a whole and by restrictions imposed by
applicable law), including but not limited to (i) a
first priority perfected pledge of (x) all notes owned
by the Loan Parties and (y) all of the capital stock
held by any Loan Party (whether now owned or
subsequently acquired or organized, or domestic or
foreign, but limited to the extent necessary to avoid
materially adverse tax consequences to the Group and
its subsidiaries, taken as a whole, and, in any event,
no more than 65% of the capital voting stock of each
first tier foreign subsidiary of any domestic
subsidiary shall be pledged to secure the borrowing
obligations of the Borrower) and (ii) a first priority
perfected security interest in all other assets owned
by the Loan Parties, including, without limitation,
accounts, inventory, equipment, investment property,
instruments, chattel paper, material owned real estate,
contracts, patents, copyrights, trademarks and other
general intangibles, subject to customary exceptions
for transactions of this type.
Conditions Precedent The loan documentation will contain conditions to the
to the Closing: closing of the Facility customarily found in the
Agents' loan agreements for similar exit financings and
other conditions deemed by the Agents to be appropriate
to the specific transaction, and in any event including
without limitation:
(a) All documentation relating to the Facility shall
be in form and substance satisfactory to each
Lender and its counsel.
(b) All fees and expenses (including reasonable fees
and expenses of the Agents' counsel) required to
be paid to the Agents and the Lenders on or before
the Closing Date shall have been paid.
(c) The Plan of Reorganization (including any
amendment, modification or supplement thereto)
shall be on terms and conditions reasonably
satisfactory to the Lenders. The Plan of
Reorganization shall have been confirmed by the
Bankruptcy Court pursuant to a confirmation order
(the "Confirmation Order") on terms and conditions
satisfactory to the Administrative Agent. The
Confirmation Order shall not be subject to a stay
and, unless otherwise agreed to by the
Administrative Agent, at least 10 days shall have
passed since the entry of the Confirmation Order.
All conditions precedent to the effectiveness of
the Plan of Reorganization shall have been
satisfied (or, with the prior written consent of
the Administrative Agent, waived) in the
reasonable judgment of the Administrative Agent.
Except as consented to by the Administrative
Agent, the Bankruptcy Court's retention of
jurisdiction under the Confirmation Order shall
not govern the enforcement of the loan
documentation for the Facility or any rights or
remedies related thereto.
(d) The Lenders shall have reviewed and be satisfied
with the terms of the restructuring of Group and
its subsidiaries, including, without limitation,
(i) the appointment of a Board of Directors and
senior management acceptable to the Agents, (ii)
the issuance of notes to the prepetition lenders
(the "Second Lien Notes") on terms and conditions
set forth in the term sheet attached hereto as
Exhibit A and otherwise reasonably acceptable to
the Agents, and (iii) other documentation entered
into in connection with the consummation of the
Plan of Reorganization.
(e) The holders of the Second Lien Notes and the
Administrative Agent shall have entered into an
intercreditor agreement on terms and conditions
satisfactory to the Lenders providing, among other
things, for the complete subordination of all
liens securing the Second Lien Notes to the liens
securing the Facility.
(f) The Lenders shall have received and be satisfied
with a Borrowing Base Certificate dated as of the
Closing Date.
(g) The Lenders shall have received and be satisfied
with (i) a pro forma estimated balance sheet of
Group and its subsidiaries at the Closing Date
giving effect to the Plan of Reorganization and
the transactions contemplated thereby, (ii)
unaudited consolidating (by business unit) and
audited consolidated financial statements of Group
and its subsidiaries for the fiscal period ending
January 5, 2002 and (iii) Group's projections
which shall include a financial forecast on a
monthly basis for the first twelve months after
the Closing Date and on an quarterly basis
thereafter through the year of the Termination
Date prepared by Group's management.
(h) The Lenders shall be satisfied in their reasonable
judgment that Group's and its subsidiaries'
existing debts (including all accrued and unpaid
interest in respect of any indebtedness) and liens
do not exceed an amount agreed upon prior to the
Closing Date, and there shall not occur as a
result of the consummation of the Plan of
Reorganization and the funding of the Facility, a
default (or any event which with the giving of
notice or lapse of time or both would be a
default) under any of Group's or its subsidiaries'
debt instruments and other material agreements.
(i) Group shall have delivered letters, in form and
substance satisfactory to the Agents, attesting to
the solvency of the Borrower, individually, and of
the subsidiary Guarantors, taken as a whole, after
giving effect to the transactions contemplated
hereby, from its chief financial officer.
(j) The Agents shall have received asset appraisals
(including,
without limitation, appraisals/field audits with
respect to the Loan Parties' inventory), in form,
scope and substance satisfactory to the Agents.
(k) The Lenders shall have received satisfactory
opinions of independent counsel to Group,
addressing such matters as the Agents shall
reasonably request, including, without limitation,
the enforceability of all loan documentation,
compliance with all laws and regulations
(including Regulations T, U and X of the Board of
Governors of the Federal Reserve System), the
perfection of security interests purported to be
granted, and no conflicts with material
agreements.
(l) There shall have occurred no material adverse
change in (i) the business, condition (financial
or otherwise), operations, performance, properties
or prospects of the Loan Parties, taken as a
whole, or Group and its subsidiaries, taken as a
whole, since January 5, 2002 (it being understood
that the commencement, continuation and
prosecution of the Cases and the confirmation and
implementation of the Plan of Reorganization do
not constitute such a change), (ii) the ability of
the Loan Parties to perform their respective
obligations under the loan documentation or (iii)
the ability of the Administrative Agent and the
Lenders to enforce the loan documentation (any of
the foregoing being a "Material Adverse Change").
(m) Each material license agreement in effect as of
the date hereof shall be in full force and effect
on the Closing Date.
(n) There shall exist no action, suit, investigation,
litigation or proceeding pending or threatened in
any court or before any arbitrator or governmental
instrumentality that (i) could reasonably be
expected to result in a Material Adverse Change
(it being understood that the commencement,
continuation and prosecution of the Cases and the
confirmation and implementation of the Plan of
Reorganization do not constitute such a change) or
(ii) restrains, prevents or imposes or can
reasonably be expected to impose materially
adverse conditions upon the Facility or the
transactions contemplated thereby or in the Plan
of Reorganization.
(o) All necessary governmental and third party
consents and approvals necessary in connection
with the Facility and the transactions
contemplated thereby shall have been obtained
(without the imposition of any conditions that are
not reasonably acceptable to the Agents) and shall
remain in effect; and no law or regulation shall
be applicable in the judgment of the Agents that
restrains, prevents or imposes materially adverse
conditions upon the Facility or the transactions
contemplated thereby or by the Plan of
Reorganization.
(p) The Lenders shall have completed a due diligence
investigation of Group and its subsidiaries in
scope, and with results, satisfactory to them
(including without limitation as to employee
benefit issues, environmental issues, contingent
liabilities, material agreements and intellectual
property rights). The Lenders shall have been
given such access to the management, records,
books of account, contracts, and properties of
Group and its subsidiaries and shall have received
such financial, business, legal and other
information regarding Group and such subsidiaries
as the Lenders shall have reasonably requested.
(q) The Administrative Agent shall have a valid and
perfected first priority lien on and security
interest in the collateral referred to above under
"Security" (subject only to those liens specified
therein).
(r) The existing debtor-in-possession facility and all
liens granted thereunder shall have been
terminated in form and substance satisfactory to
the Administrative Agent.
(s) The Administrative Agent shall have received
endorsements naming the Administrative Agent, on
behalf of the Lenders, as an additional insured
and loss payee under all insurance policies to be
maintained with respect to the properties of Group
and its subsidiaries forming part of the Lenders'
collateral.
(t) Availability as of the Closing Date shall be not
less than $75,000,000.
Conditions Precedent On the Closing Date and the funding date of each Loan
to Each Loan: (and on the date of issuance of any Letter of Credit)
the following conditions precedent shall have been
satisfied:
(a) There shall exist no default under the loan
documentation.
(b) The representations and warranties of each Loan
Party therein shall be true and correct on and as
of the Closing Date and shall be true and correct
in all material respects on and as of any such
date after the Closing Date, except to the extent
such representations and warranties expressly
relate to an earlier date.
(c) The making of such Loan (or the issuance of such
Letter of Credit) shall not violate any
requirement of law and shall not be enjoined,
temporarily, preliminarily or permanently.
Representations and The loan documentation will contain representations and
Warranties: warranties customarily found in the Agents' loan
agreements for similar exit financings and other
representations and warranties deemed by the Agents
appropriate to the specific transaction (which shall be
applicable to Group and its subsidiaries), including,
without limitation, with respect to: valid existence,
requisite power, due
authorization, no conflict with agreements or
applicable law, enforceability of loan documentation,
accuracy of financial statements and all other
information provided, compliance with law, absence of
Material Adverse Change, no default under the loan
documentation, absence of material litigation, absence
of liens on assets, ownership of properties and
necessary rights to intellectual property, no
burdensome restrictions, and inapplicability of
Investment Company Act or Public Utility Holding
Company Act.
Affirmative and The loan documentation will contain affirmative and
Negative Covenants: negative covenants customarily found in the Agents'
loan agreements for similar exit financings and other
covenants deemed by the Agents appropriate to the
specific transaction (which will be applicable to Group
and its subsidiaries), including, without limitation,
the following:
(a) Comply in all material respects with laws
(including, without limitation, the Bankruptcy
Code, ERISA and environmental laws), pay taxes,
maintain all necessary licenses and permits and
trade names, trademarks, patents and other
intellectual property, preserve corporate
existence, maintain appropriate and adequate
insurance and permit inspection of properties,
books and records, perform obligations under
leases, related documents, material contracts and
other material agreements.
(b) Conduct all transactions with affiliates on terms
reasonably equivalent to those obtainable in arm's
length transactions, including, without
limitation, restrictions on management fees to
affiliates.
(c) Subject to exceptions to be agreed (including an
exception for $10,000,000), each deposit account
located in the US other than the Blocked Accounts
(defined below) (each a "Restricted Account")
shall be subject to standing irrevocable
instructions providing that such account shall be
swept twice weekly (except to the extent
impracticable during public holiday weeks) into
one of the Blocked Accounts.
(d) Maintain with the Administrative Agent a cash
concentration account under the control of the
Administrative Agent (the "Concentration Account")
and with the Administrative Agent or other banks
acceptable to the Agents blocked accounts (the
"Blocked Accounts") into which all proceeds of
collateral are paid and which are swept daily into
the Concentration Account (and with respect to
accounts at other banks blocked account agreements
in form and substance acceptable to the Agents
shall have been executed).
(e) Use reasonable best efforts to assist an
independent appraiser appointed by the Agents to
conduct and conclude (i) a field audit with
respect to Group's inventory not more frequently
than four
times in any 12 month-period and (ii) asset
appraisals as reasonably requested by the
Administrative Agent (which, in the case of
inventory and receivables shall be conducted not
less frequently than once during each 12
month-period), in each case at the sole expense of
the Loan Parties.
(f) Not incur or assume any additional debt, give any
guaranties, create any liens, charges or
encumbrances or incur additional lease
obligations, in each case, beyond agreed upon
limits; provided that (i) Warnaco will be
permitted to redeem the Second Lien Notes with the
proceeds of unsecured indebtedness that is
subordinated to the Facility and otherwise issued
on terms that are reasonably acceptable to the
Administrative Agent, and (ii) foreign
subsidiaries of Group shall be permitted to incur
working lines up to an aggregate principal amount
not in excess of $25,000,000 provided that such
facilities are entered into with one or more of
the Lenders and on terms that are reasonably
acceptable to the Agents.
(g) Not make amortization payments in respect of the
Second Lien Notes in excess of $40,188,000 per
year (plus any amounts scheduled but not paid
during any prior year); and, in any event, not
make any amortization payment in respect of the
Second Lien Notes (i) prior to 30 days after the
end of the 12th full month following the Effective
Date and thereafter only on each anniversary of
the first payment date, and (ii) unless after
giving effect thereto, the following conditions
are satisfied as of the date of such payment:
(A) Availability exceeds $75,000,000;
(B) the pro forma Fixed Charge Coverage
Ratio (as defined below) for the past 12
months as of the most recently completed
month is not less than 1.25 :1.00; and
(C) no Event of Default shall have
occurred and be continuing.
"Fixed Charge Coverage Ratio" means, for any period,
the ratio of (a) EBITDAR(1) for such period minus cash
capital expenditures for such period minus the total
income tax liability actually payable in respect of
such period minus the total restructuring charges
incurred after the Effective Date and paid during such
period, to (b) cash interest expense for such period,
the principal amount of debt (other than the Second
Lien Notes) having a scheduled due date during such
period, and the principal amount of the Second Lien
Notes to be paid.
Not withstanding the foregoing, in the event the
Borrower shall be unable to pay all or a portion of a
scheduled amortization payment, the Borrower shall be
permitted to pay any portion of such unpaid
amortization amount on any subsequent date (but not
more than once each fiscal quarter); provided that the
conditions set forth in clauses (A) and (C) are
satisfied as of the date of such payment and the
condition set forth in clause (B) is satisfied as of
the most recently completed fiscal quarter, in each
case, after giving effect to such payment.
(h) Not merge or consolidate with any other person,
change the nature of business or corporate
structure or create new subsidiaries, in each
case, beyond agreed upon limits or amend its
charter or by-laws.
(i) Not sell, lease or otherwise dispose of assets
(including, without limitation, in connection with
a sale leaseback transaction), but excluding: (i)
sales of real estate, machinery and equipment no
longer used or useful in the business of the Loan
Parties and (ii) other sales of assets subject to
agreed upon limits.
(j) Not give a negative pledge on any assets in favor
of any person other than the Administrative Agent
and the Lenders.
(k) Not permit to exist any consensual encumbrance on
the ability of any subsidiary to pay dividends or
other distributions to any Borrower or any
Guarantor.
(l) Not prepay, redeem, purchase, defease, exchange or
repurchase any debt or amend or modify any of the
terms of any such debt or
(1) "EBITDAR" means, with respect to any Person for any period, an amount equal
to (a) unaudited Consolidated Net Income of such Person for such period plus (b)
the sum of, in each case to the extent included in the calculation of such
Consolidated Net Income but without duplication, (i) any provision for income
taxes, (ii) Interest Expense, (iii) all restructuring charges announced during
the period, (iv) loss from extraordinary items and from the sale, exchange or
other disposition of capital assets, (v) depreciation, depletion and
amortization of intangibles or financing or acquisition costs and (vi) all other
non-cash charges and non-cash losses for such period, including non-cash charges
relating to any change in the methodology of estimating reserves against
Receivables and Inventory minus (c) the sum of, in each case to the extent
included in the calculation of such Consolidated Net Income but without
duplication, (i) any credit for income tax, (ii) interest income, (iii) gains
from extraordinary items for such period, (iv) any aggregate net gain (but not
any aggregate net loss) from the sale, exchange or other disposition of capital
assets by such Person, (v) any other non-cash gains which have been added in
determining Consolidated Net Income and (vi) cash payments for charges that have
been reserved.
other similar agreements entered into by Group or
its subsidiaries, subject to certain exceptions to
be agreed, including, but not limited to the
Second Lien Notes.
(m) Not make any loans, advances, capital
contributions or acquisitions, form any joint
ventures or partnerships or make any other
investments in subsidiaries or any other person,
subject to certain exceptions to be agreed or as
otherwise provided herein.
(n) Not make or commit to make any payments in respect
of warrants, options, repurchase of stock,
dividends or any other distributions to
shareholders.
(o) Not permit any change in ownership or control of
Group or any of Group's subsidiaries or any change
in accounting treatment or reporting practices,
except as required by GAAP and as permitted by the
loan documentation.
Financial Covenants: To be determined but in any event to include a maximum
leverage covenant, a minimum fixed charge coverage
covenant and a limitation on capital expenditures.
Financial Reporting Group shall provide:
Requirements:
(a) Monthly consolidated financial statements of Group
and its subsidiaries, including balance sheet,
income statement and cash flow statement within 40
days of month-end for the first two months of each
fiscal quarter, certified by Group's chief
financial officer;
(b) Quarterly consolidated financial statements of
Group and its subsidiaries within 50 days of
quarter-end for the first three quarters of each
fiscal year, certified by Group's chief financial
officer;
(c) Annual unaudited consolidating (by business unit)
and audited consolidated financial statements of
Group and its subsidiaries within 95 days of
year-end, certified with respect to such
consolidated statements by Deloitte & Touche LLP
or other independent certified public accountants
acceptable to the Agents;
(d) To the extent available, annual audited financial
statements of any subsidiary of Group, in each
case certified by independent certified public
accountants;
(e) Copies of all reports on Form 10-K, 10-Q or 8-K
filed with the Securities and Exchange Commission;
and
(f) Projections for the balance of the term of the
Facility provided annually and annual business and
financial plans provided in each
case not later than 45 days after the end of each
fiscal year.
Other Reporting The loan documentation will contain other reporting
Requirements: requirements customarily found in the Agents' loan
documents for similar exit financings and other
reporting requirements deemed by the Agents appropriate
to the specific transaction, including, without
limitation, with respect to litigation, ERISA or
environmental events and the borrowing base
certificates referred to above.
Events of Default: The loan documentation will contain events of default
customarily found in the Agents' loan agreements for
similar exit financings and other events of default
deemed by the Agents appropriate to the specific
transaction (which will be applicable to Group and its
subsidiaries), including, without limitation, failure
to make payments when due, defaults under other
indebtedness, noncompliance with covenants,
representations and warranties prove to have been
incorrect in any material respect when made or deemed
made, bankruptcy events, failure to satisfy or stay
execution of judgments in excess of specified amounts,
the existence of certain materially adverse employee
benefit or environmental liabilities, impairment of
loan documentation or security and change of ownership
or control.
Indemnification: Each Loan Party shall, jointly and severally, indemnify
and hold harmless the Agents, the Arrangers, each
Lender and each of their affiliates and each of the
respective officers, directors, employees, agents,
advisors, attorneys and representatives of each (each,
an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and
disbursements of counsel), joint or several, that may
be incurred by or asserted or awarded against any
Indemnified Party (including, without limitation, in
connection with or relating to any investigation,
litigation or proceeding or the preparation of any
defense in connection therewith), in each case arising
out of or in connection with or by reason of the
Facility, the loan documentation or any of the
transactions contemplated thereby, or any actual or
proposed use of the proceeds of the Facility, except to
the extent such claim, damage, loss, liability or
expense is found in a final non-appealable judgment by
a court of competent jurisdiction to have resulted from
such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation
or other proceeding to which the indemnity in this
paragraph applies, such indemnity shall be effective
whether or not such investigation, litigation or
proceeding is brought by a Loan Party, any of its
directors, securityholders or creditors, an Indemnified
Party or any other person, or an Indemnified Party is
otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. Each
Loan Party further agrees that no Indemnified Party
shall have any liability (whether direct or indirect,
in contract, tort or otherwise) to any Loan Party or
any of its securityholders or creditors for or in
connection with the transactions contemplated hereby,
except for direct damages (as opposed to special,
indirect,
consequential or punitive damages (including,
without limitation, any loss of profits, business
or anticipated savings)) determined in a final
non-appealable judgment by a court of competent
jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful
misconduct.
Expenses: Each Loan Party shall jointly and severally pay all (i)
reasonable costs and expenses of the Agents and the
Arrangers (including all reasonable fees, expenses and
disbursements of outside counsel) in connection with
the preparation, execution and delivery of the loan
documentation and the funding of all Loans under the
Facility, including, without limitation, all due
diligence, syndication (including printing,
distribution and bank meeting), transportation,
computer, duplication, messenger, audit, insurance,
appraisal and consultant costs and expenses, and all
search, filing and recording fees, incurred or
sustained by the Agents or the Arrangers in connection
with the Facility, the loan documentation or the
transactions contemplated thereby, the administration
of the Facility and any amendment or waiver of any
provision of the loan documentation and (ii) costs and
expenses of the Lenders (including reasonable fees,
expenses and disbursements of counsel) in connection
with the enforcement or protection of any of their
rights and remedies under the loan documentation.
Assignments and Assignments must be in a minimum amount of $5,000,000,
Participations: other than in the case of an assignment to a Lender (or
an affiliate of a Lender) or an assignment of a
Lender's entire interest in the Facility, and are
subject to the approval of the Administrative Agent and
Group (such approval by Group shall not be unreasonably
withheld or delayed and in any event shall not be
required in connection with initial syndication or
following the occurrence and during the continuation of
an Event of Default). No participation shall include
voting rights, other than for matters requiring consent
of 100% of the Lenders.
Requisite Lenders: Lenders holding more than 50% of the outstanding
commitments and/or exposure under the Facility (the
"Requisite Lenders")
The consent of each affected Lender shall be required
to:
(a) increase such Lender's commitment;
(b) extend the Termination Date;
(c) defer payment of any principal, interest or fees
to a date beyond the date on which the same is
due;
(d) reduce the amount of any principal, interest or
fee payment payable to such Lender; or
(e) release all or substantially all of the collateral
or any Guarantor from its obligations under the
guaranty (other than in connection
with permitted asset sales or other dispositions
approved by the Requisite Lenders).
Miscellaneous: The loan documentation will include standard yield
protection provisions (including, without limitation,
provisions relating to compliance with risk-based
capital guidelines, increased costs and payments free
and clear of withholding taxes).
Governing Law and State of New York.
Submission to
Jurisdiction:
Counsel to Agents Weil, Gotshal & Manges LLP.
and the Arrangers:
PLAN SCHEDULE 5.17
LIST OF CONTINUED EMPLOYMENT, RETIREMENT,
AND INCENTIVE COMPENSATION PROGRAMS(1)
Benefits
o Employee Retirement Plan of Warnaco Inc.
o The Warnaco Group, Inc. Employee Savings Plan
o Authentic Fitness Corporation Savings Plan
o Employees' 401(k) Plan of ABS Clothing Collection, Inc.
o Warnaco Flexible Benefits Plan (employee and retiree medical plans)
o United Healthcare Medical Plan (Ubertech Cobra)
o Warnaco Inc. Basic Life and Accidental Death & Dismemberment Insurance Plan
o Hartford Life Voluntary Supplemental Life Insurance Program
o Warnaco Inc. Voluntary Met Life Dental
o Cole Vision One
o Warnaco Inc. Short-Term Disability Plan
o Warnaco Inc. Long-Term Disability Plan
o Travel Accident Insurance Plan
o Hyatt Legal Voluntary Group Legal Plan (effective 1/1/03)
o Warnaco Employees Federal Credit Union
Compensation
o Key Domestic Employee Retention Plan
o Warnaco Inc. Management Incentive Bonus Plan
o Warnaco Inc. Sales Incentive Bonus Plan
o Warnaco 1996 Separation Pay Plan
(1) All employment, retirement and incentive compensation plans and programs
listed on this Plan Schedule 5.17 will remain in effect in accordance with
their existing terms and conditions, including, without limitation,
termination and modification provisions.
PLAN SCHEDULE 7.6
LIST OF SPECIFIC CAUSES OF ACTION
RETAINED BY REORGANIZED DEBTORS*
1. Any and all Causes of Action, including, without limitation, any
unpaid accounts receivable, held by any of the Debtors that arose prior to, on,
or after the Petition Date;
2. Subject to the provisions of Section 7.5(B) of the Plan, any and
all Causes of Action held by any of the Debtors against any Investigated Person
(as defined in Section 7.5(B) of the Plan) in connection with such Investigated
Person's service as an officer and/or director of any of the Debtors; and
3. Any and all Causes of Action held by any of the Debtors against any
of their auditors or accountants in respect of services provided to any of the
Debtors prior to the Petition Date.
More specifically, the foregoing Causes of Action include, without
limitation, the Causes of Action set forth on the following lists, which are
annexed hereto: (i) Intellectual Property Claims; (ii) Other Causes of Action;
and (iii) Claims Arising From Aged Accounts Receivables.
* As described in Section 7.6 of the Plan, the specific Causes of Action set
forth on this Schedule 7.6 do not constitute a limitation on Causes of Action
retained by the Debtors and the Reorganized Debtors, as the case may be, and in
no way shall be construed to grant a release to any party not specifically
identified on this Schedule 7.6.
Intellectual Property Claims
o The Debtors own a great deal of intellectual property including patents,
copyrights and trademarks. The Debtors continually monitor the marketplace
and trademark registries for infringing conduct and vigilantly enforce
their proprietary rights, including in counterfeiting matters. The Debtors
hereby reserve their rights to assert Causes of Action related thereto.
o On November 20, 2002, the Organized Crime Investigations Division of the
New York Police Department executed a search warrant on the location of 415
Second Avenue, New Hyde Park, New York. Approximately 6,600 pairs of
counterfeit "Calvin Klein" underwear (traditional fit boxers) were seized
along with other potentially counterfeit garments bearing logos of other
trademark holders. In addition, Mr. Garfinkel was arrested and charged with
Conspiracy in the Fifth Degree and Trademark Counterfeiting in the First,
Second and Third Degrees. This matter is continuing.
o On December 13, 2002, the Debtors sent a letter to Miken Clothing placing
Miken on formal, legal notice of the Debtors' objections to Miken's use of
the mark SUNSET BEACH BEACH CLUB in connection with the clothing that it
provides. The Debtors own various trademark registrations for SUNSET BEACH
formative marks and, accordingly, believe that Miken's use of the SUNSET
BEACH mark infringes the Debtors' trademark rights. This matter is
continuing.
o On October 29, 2002, the Debtors sent a letter to G-III Apparel Group
placing G-III on formal, legal notice of the Debtors' objections to G-III's
attempts to obtain a trademark registration for the mark COLE B. CO. &
Design. In this regard, the Debtors have filed a Request for Extension of
Time to File a Notice of Opposition to registration of G-III's COLE B. CO.
& Design mark. The Debtors are the owners of many COLE formative marks and,
accordingly, believe that G-III's attempt to register the COLE B. CO. &
Design mark infringes the Debtors' trademark rights. The Debtors have been
working with counsel for G-III to resolve this matter amicably and the
matter is continuing.
Other Causes of Action
During the pendency of these chapter 11 cases, the Debtors commenced a
single adversary proceeding entitled Authentic Fitness Corporation v. Dobbs
Temporary Help Services, Inc. d/b/a ProStaff Personnel Services, Inc., Adversary
Proceeding No. 01-03628 (RLB), seeking, inter alia, recovery of a preferential
transfer pursuant to Section 547 of the Bankruptcy Code. As of the date of the
filing of this Schedule 7.6, this Cause of Action remained pending.
The amounts stated in this list are as of December 12, 2002.
Claims Arising From Aged Accounts Receivable
Cust # Customer Total
------ ----------------------------- ------------
Cust # Customer Total
AE033 SOFTWEAR & SERVICE COL 626,271.77
C2445 CASABLANCA CLOTHING COL 580,336.25
AC328 THE ATHLETE'SFOOT C 338,666.19
50426 WORLD MARKETING INC C 272,366.22
M2150 M & A MARKETING CORP C 115,332.36
S0036 SPORTZONE S.A. COL 95,156.04
M2311 METRO RETAILING CLOTHING C 75,388.43
K1400 KHAKIS INC.C 73,517.57
AE044 SWIM PLUSCOL 70,052.62
H0584 HERMAN ASSOCIATES C 50,973.09
AX099 MAKI CORPORATION C 47,642.18
M1352 MARUN FASHIONS CO 47,469.26
AD946 WHARF / GORDYS COL 46,343.25
AX228 JEFFREY MICHAEL 42,596.11
10028 H.B. MAZARYK,S.A.DE C.V. COL 38,002.66
AA802 COURTNAY PHILLIPS COL 36,938.03
19124 COMPETITIVE EDGE GOLF 36,286.64
A1788 ANTENNACOL 36,209.84
AE012 VARSITY SPORTS & JEWELRY 35,728.97
AX039 FLASH USA INC 33,310.93
AX171 PREMIER GROUPOF SO FL 29,388.85
AB800 LETHER PLUS INCORPORATED C 28,654.66
P0033 PANACHE LTD.C 27,189.26
Y1133 SUMMIT APPAREL INC 26,632.51
AA393 BING PURCHASING CORP COL 25,354.00
AX143 SWIM CENTER INC 22,825.37
AD166 PREMIER SPORTS 21,551.09
10439 SWIMGEARCOL 20,152.16
A1216 AKITA INT'L INC C 19,071.15
B2310 BROOKLYN PANTS COL 17,142.72
E0432 EXFINSACOL 16,863.11
B2545 BRANCO ENTERPRIZES CO 16,475.35
AX411 GRAPHICALLY SPEAKING C 16,282.48
AD205 T S S DBA SPORT SHOP COL 15,979.71
U0191 JENNIFER'SCOL 15,077.81
90082 VALENTE STYLEINC C 15,020.42
P1251 PHILLY SPORTSWEAR KIDS COL 14,956.36
07677 S & D MEN'S WEAR COL 14,947.96
AB927 CAPLANS SPORTSHOP COL 14,856.68
10457 APPAREL BRANDHOLDING DOB CO 14,229.56
M2314 MINI MAXINCOL 14,119.76
N0031 NEW WORLD INDUSTRIES 13,787.88
AX148 NORTHERN VA SPTS SHOP COL 13,662.20
AB993 HOLLYWORKS 13,656.19
A1234 ADONIS & VENUS COL 13,584.57
AC889 THE FRIPP COMPANY INC C 13,064.47
AE206 GABRIEL'SCO 12,632.82
W1227 WORLD OF SPORTS 12,626.01
A0010 ALLEN'S OF NANTUCKET COL 12,526.89
AB345 HEADWORLDCOL 12,391.32
1
F1709 FASHION LEADER INC C 12,343.09
W1491 WALTON FASHIONS C 12,317.75
61976 NICOHL/INTIMATE APPAREL C 12,170.73
L5454 LOBI LOBI LEATHER INC. COL 11,793.59
10389 MISTI DEPORTES S.A.DE C.V C 11,666.16
AA727 COACHES CHOICE SPORTS COL 11,276.87
AX012 TEAM IMAGE SPORTING GOODS CO 10,952.12
02539 GABRIELSC 10,752.00
S0112 SLEEK ON BLEECKER LLC CO 10,324.31
S0081 SIMPLE & SPECIAL LLC 10,320.75
P0015 POLKA DOTS LIMITED C 10,310.70
M0070 MICHELLE LA NUIT LTD C 10,266.23
A0061 AA ACTIVE WEAR INTERNA. COL 10,266.17
K0051 KAMELLIASCOL 10,210.40
AC467 YONIS SPORTSWEAR 9,959.49
V0573 ACCESS STYLE,INC. COL 9,787.95
D4555 DAVIDO INC. 9,747.13
AX412 WORLD OF SPORTS 9,480.36
M2329 MEDUSAC 9,425.05
AC678 SURFSIDE CASUALS 9,414.20
N1088 N.Y.C. KIDS INC C 9,331.97
C0064 C.L.DIGGS INCCOL 8,927.30
AX255 WORLD CYCLE/BSNSS CLSD !! 8,784.43
H0029 HINA'S WEAR 8,618.49
AC570 SURF INDUSTRIES COL 8,516.61
V0279 T. PERKINSCOL 8,434.85
69967 POCKETBOOK MAN*THE C 8,432.45
AE016 PEDAL SHOPCOL 8,138.23
C0087 COLISEUM 8,082.43
AD387 SPORTS DEPOTHOLD AR 8,029.93
L0116 LONDON SUPPLYS.A.C.I.F.I C 7,799.42
Y1426 YVONNE LTDC 7,710.09
17750 CANON & WILLIAMS C 7,693.09
AB278 GREEN & CO/HOLLYWORKS 7,624.35
L1553 LUCKY LADYC 7,072.00
Y0007 YO YO FASHIONCOL 6,755.20
B0083 B.M. SPORTSWEAR INC COL 6,645.87
AD003 SKI STATIONC 6,456.93
AB108 FITNESS MASTERS COL 6,383.72
B0098 BELLA LUNACOL 6,325.14
AA336 BERMUDA TRIANGLE 6,228.23
R0060 RENEE 6,018.39
AC363 VISHART GALLERY COL 6,015.28
X0402 CECIL ELRODC 5,951.19
N1070 NINO BELLINICOL 5,918.41
AC124 SPLASH INT'LCO 5,759.82
U0057 UNIQUE'S INCCOL 5,744.30
E0206 EXTREME SUNGLASSES INC COL 5,722.34
U0264 KATWALK 5,662.49
AB087 FIERSONS YOUNG FASHIONS C 5,536.01
AA653 CHELSEA'S CLOSET C 5,494.04
B0226 BRAS UNLIMITED COL 5,400.88
S0088 SPOTLIGHTCOL 5,370.35
M2074 M.C.STORECOL 5,310.28
P0043 PRIVADA INCCOL 5,107.32
AC812 WALL STREET INC COL 4,936.25
X0426 CHERYL'S CLOSET C 4,926.95
2
K1123 KIDS IMPRESSIONS C 4,686.90
L1919 SHEBLEY BROTHERS INC COL 4,589.78
03199 FIRST CLASS ACCOMODATIONS 4,441.00
F0057 FASHION CITY- 4,253.40
D1250 DARS OF MIAMICORP 4,207.64
M1895 MENSLANDC 4,184.88
V0516 JOLIE 4,139.10
V0260 SYBELE INCC 4,108.44
AX131 BOUTIQUE SOLEIL, INC 4,009.50
U0000 UNIQUE SHOPPE*THE COL 4,000.00
10487 COMPLETE SPORTS COL 3,907.46
K0076 KOUKLACOL 3,891.29
Y2450 GISELLECOL 3,787.90
V0548 Mickey SlickCOL 3,780.08
U0517 MI PLACECOL 3,698.90
M0145 MIRELLA--NJCOL 3,667.28
M0054 MAI'REE'S 3,647.50
AC323 SUMMER SOLSTICE COL 3,632.19
AA528 C A D CLOTHESC 3,623.48
T0132 TEA ROOM FASHION COL 3,562.88
10364 TEAM SPORTS CONCEPTS COL 3,555.77
G0024 GET INTIMATECOL 3,534.83
X0321 BEN COMO KADAIR COL 3,483.70
F1769 CLOTHING CORPC 3,374.04
S0049 SCRUPLES 3,328.44
H4569 HOWARD BLUMBERG COMPANIES C 3,294.37
T1111 TRES CHIC NICOLE COL 3,275.46
AB154 FOX WATERSPORTS OF DARE C 3,247.75
U0474 M'SCOL 3,226.69
S1863 STEPH'S II INC COL 3,205.43
AE228 PHOENIXVILLEPHARMACY COL 3,192.91
C1030 CLASSIC KIDSINC C 3,173.26
U0372 LILLY DODSON 3,117.25
C1152 CROSSROADSCOL 3,092.18
V0141 MR.CEE'S FASHION COL 3,064.31
U0777 PYGMALION BOUTIQUE COL 3,059.33
U0636 NORAHS OF N.Y. COL 3,036.26
10410 TIE-ONE-ON INC COL 3,020.54
W1300 WALL STREETINC COL 2,898.97
C0033 CAPTAIN HOOK'S TREASURE C 2,839.22
AC661 YOUR KID-N-ME 2,802.47
F0047 FINAL TOUCHC 2,768.91
AD934 THE CLUBCOL 2,578.50
G1613 GIRAFFE 2,576.29
U0773 PUBLIC I,LTDCOL 2,551.31
U0479 MAXICOL 2,545.20
A0166 ALLYSON'S CLOSET COL 2,531.02
S0001 SARAH ANNESCOL 2,506.76
V0420 MUSETTECOL 2,461.57
N2345 NOELLECOL 2,453.59
10089 ABBE'S PLACECOL 2,441.86
K1120 KIDS DIMENTIONS C 2,343.90
V0519 PAPER WHITECOL 2,267.05
L0741 LA WILLIAMS ENTERPRISES CO 2,264.63
04132 HILL STREET'SBLUES C 2,223.99
V0116 CHATEAU JEAN 2,196.86
10713 ALL STAR AQUATICS INC COL 2,195.12
3
M0130 MO TRESESCIA 2,063.02
U0550 MITZI/ROMANOCOL 2,055.28
AC281 PLEASE MOM I& II C 2,054.28
D0049 DIVINE MODE INC COL 2,000.68
L0058 LADY BUG INCCOL 2,000.00
L1775 LADY'S TREASURE CHEST COL 1,994.56
U0766 PRINCESS SHOPCOL 1,991.47
S2267 SILVER SPOONCO 1,935.88
G0015 GUYS DEPT STORE COL 1,933.78
AD168 RUNAWAY SPORTS 1,916.82
F0032 FASHION SHOWCASE COL 1,894.99
D0058 DECO COLLECTION COL 1,867.55
B0101 BLUETIQUECOL 1,857.83
06912 PROGRESSIVE MENS SHOP C 1,820.13
D0041 DERVISH ENTERPRISES LLC CO 1,817.39
V0117 MEADOW CREEKCOL 1,811.56
C0060 COLLECTIONS ATL COL 1,750.86
10428 STINGER HOCKEY LLC COL 1,750.75
V0619 TUCKER BROWNCOL 1,750.00
T1725 T J COLLECTION LTD COL 1,738.28
A0160 ADVENTURE CUTS INC COL 1,702.74
AB880 AUSTIN SPORTSCENTER COL 1,696.55
V0215 STATEMENT LTD. COL 1,643.44
L1888 L & W CLOTHING COMPANY COL 1,608.85
P0032 PURE ORIGINALGEAR COL 1,586.55
AD192 OCEAN FRONT TRADING CO COL 1,579.50
Y1105 YOUNG'S GIFT 1,538.57
C4567 CHELSEA BLAKE 1,535.71
Y5381 SCHWABE & MAYINC COL 1,530.56
V0402 VALENTINE ROSE COL 1,517.27
C0098 C.U.BOUTIQUECOL 1,507.79
C0112 CHARLES PORTER BOUTIQUE COL 1,482.41
AE071 MARIONS OF FTMORGAN CO 1,474.26
B0078 BACK STREETSTEENAGE CLOT CO 1,453.41
AD393 INTEGRITY MKTG INT'L 1,448.29
E0007 EMAD & JOSEPHINC 1,342.56
M9036 MOTHERHOOD MATTERS COL 1,336.09
AD165 TAAKE BENNETTCOL 1,327.77
M2239 MAWI INCCOL 1,316.98
U0148 ITALIAN ACCENT COL 1,295.28
R0043 RC'S FASHIONSCOL 1,287.83
U0396 LONESTARCO 1,278.41
88217 UFARCOL 1,236.10
AC809 P O KNUTH COCOL 1,187.16
V0034 LOMBARDSCOL 1,146.01
C0049 CURVECOL 1,132.00
AD524 SANTA FE SPORTS & IMAGES 1,073.05
R1660 RED WAGONCOL 1,027.98
AD909 STADIUM SPORTS INC COL 1,022.02
T0027 TRES JOLIE-PA 1,000.00
AC679 TANNER INC 994.45
10632 TEAM MVP SPORT 990.60
X0202 ALBERT'SCO 900.58
T0049 TRES JOLICOL 891.52
U0133 INFINITYCOL 859.31
U0101 HOLLY WORKS 858.82
AB208 GATEWOOD SPORTS COL 852.13
4
L1820 LITTLE BO'TIQUE C 842.47
D4444 D'ELIASCO 822.85
AD467 SUNSET SPORTSOR COL 812.01
S0116 S BOUTIQUECIA 747.15
E0345 ENVICOL 737.90
AC515 UPWIND SURFING COL 728.50
08083 SIR RICHARDSCOL 726.47
AA854 DANNY SPORTING GOODS C 717.70
Y1723 DIANES BTQCOL 700.50
L0037 LUZ DISTRIBUTORS COL 685.70
R0246 RUGGED ROSE 643.53
AC892 THE CALICO PONY 641.30
AD004 OLDER BROS SPTG GDS INC CO 614.91
A0141 AZZUMA FINE IMPD LINGERIE C 593.43
H0022 HIP HOP TRENDZ COL 585.82
M0036 MAZEL-FASHIONCO 577.06
M0099 MR.M FASHIONSCOL 576.36
K2100 KIDDIE DUDS 569.73
J1297 JUNE REEDSCOL 542.77
S0065 SOUTH BEACH COUTURE COL 513.56
U0350 LE MODELECOL 424.10
AC348 THE ELITE RUNNER INC CO 356.29
E0650 ENYA 305.62
K0015 KATHLEEN'S CAREER&FORMAL CO 241.33
AA028 AARDVARKBKP 1,329,652.47
K0027 K-MARTBKP 1,253,541.27
AC053 PHOENIX BEACHINC B 226,409.71
J1000 JACOBSON STORES INC BKP 209,389.33
AB509 J BAKER INCBKP 101,475.00
AD703 RETAIL CONCEPTS INC BKP 74,635.46
AX044 JEANS PACIFICINC 73,346.35
R1500 R.P. MCCOY APPAREL BKP 54,616.68
18227 CHILDRENSWEARHOUSE INC 41,510.29
AB778 LAWLORS INCB 41,068.00
AC744 WATERWEARBKP 40,786.01
V4646 VIRGO TRADING BKP 26,654.81
AX155 KENLIN INC 23,115.30
AX249 G & W SPORTS 21,054.59
AX263 WHITE SHUTTERSWIMWEAR CO 17,658.92
AD199 NEWSTORK INC 15,305.89
BR032 NEW ENGLANDGOLF SUPPLY B 12,941.53
04844 J BAKER INC 12,675.76
04112 GOLDBERG*IBKP 11,773.58
AX225 SPAZ'S PRO STUFF CORP 10,126.81
10210 J BAKER INC 10,034.16
13015 BARKING BASSCLOTHING CO. C 9,920.26
AX191 UPTOWN ATHLETICS/DIP 9,695.48
07218 REED'S MENSSHOP BKP 9,494.41
AX196 SPORTLIFE (INC) 9,177.57
BR039 SOUTHERN COMPANY B 9,080.03
AX229 GYMNASIUM INC 8,864.17
AX260 FLYING FIN 8,470.82
AX146 TURNER SPORTSBAG INC 7,203.53
A7901 ALMACENES RIVIERA BKP 6,640.00
AX031 STADIUM STUFF 6,324.75
AX133 POINT SPORTING GOODS BKP 5,729.20
AX184 LITTLE SKI SHOP 5,241.44
The undersigned officer of The Warnaco Group, Inc., a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), does hereby certify as follows:
(1) The name of the corporation is The Warnaco Group, Inc.;
(2) The Certificate of Incorporation of the Corporation was originally
filed with the Secretary of State of the State of Delaware on March 14, 1986
under the name W Acquisition Corp.
(3) The Certificate of Incorporation of the Corporation has now been
amended and restated pursuant to the authority of Section 303 of the General
Corporation Law of the State of Delaware ("General Corporation Law") and Section
5.5 of the First Amended Joint Plan of Reorganization of The Warnaco Group, Inc.
and its Affiliated Debtors and Debtors in Possession under Chapter 11 of the
Bankruptcy Code, dated November 8, 2002 (the "Plan") and shall be effective on
the "Effective Date" as defined in the Plan.
(4) This Amended and Restated Certificate of Incorporation supersedes
the original Certificate of Incorporation as heretofore amended.
(5) The text of the Amended and Restated Certificate of Incorporation
of the Corporation, as further amended hereby, is restated to read in its
entirety as follows:
ARTICLE I
Name
The name of the corporation is The Warnaco Group, Inc. (the
"Corporation").
ARTICLE II
Registered Office and Registered Agent
The address of the registered office of the Corporation in the State
of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its registered agent at such address is United States Corporation
Company.
ARTICLE III
Corporate Purpose
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law.
ARTICLE IV
Capital Stock
(1) Authorized Capital
(a) The total number of shares of capital stock that the Corporation
shall have authority to issue is: (i) 112,500,000 shares of Common Stock, $0.01
par value ("Common Stock") and (ii) 20,000,000 shares of Preferred Stock, $0.01
par value, of which 112,500 shares shall be Series A Preferred Stock ("Series A
Preferred Stock").
(b) The number of authorized shares of Common Stock or Preferred Stock
may be increased or decreased (but not then below the number of shares thereof
then outstanding) from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation then entitled to vote.
(2) Common Stock
(a) Identical Rights and Privileges. Except as otherwise expressly
provided in this Amended and Restated Certificate of Incorporation, all
outstanding shares of Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges.
(b) Dividends and Distributions. As, if and when dividends or
distributions are declared on outstanding shares of Common Stock, whether
payable in cash, in property or in securities of the Corporation, the holders of
outstanding shares of Common Stock shall be entitled to share equally, share for
share, in such dividends and distributions.
(c) Liquidation. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, the holders of outstanding
shares of Common Stock shall be entitled to share equally, share for share, in
the assets of the Corporation to be distributed among the holders of shares of
the Common Stock.
(d) Voting Rights
i. In General. The holders of outstanding shares of Common Stock
shall have the right to vote on the election and removal of the
directors of the Corporation and on all other matters to be voted on
by the stockholders of the Corporation.
ii. Procedures at Meetings. At every meeting with respect to
matters on which the holders of outstanding shares of Common Stock are
entitled to vote,
2
the holders of outstanding shares of Common Stock shall be entitled to
one vote per share.
(3) Preferred Stock.
(a) Authority to Issue. The Board of Directors of the Corporation is
hereby expressly granted authority, subject to the provisions of this Amended
and Restated Certificate of Incorporation, to authorize in accordance with the
laws of the State of Delaware from time to time the issue of one or more series
of Preferred Stock and with respect to any such series to fix the numbers,
designations, rights (other than voting rights), preferences and limitations of
such series.
(b) Voting Rights. Each share of Preferred Stock of any series shall
have voting rights equal to 1/1000th of the vote of one share of Common Stock
and all holders of shares of Preferred Stock shall vote together with the
holders of Common Stock.
(c) Changes. The Board of Directors may, subject to the provisions of
this Amended and Restated Certificate of Incorporation and the laws of the State
of Delaware, change the designation, rights, preferences, limitations,
description and terms of, and number of shares in, any series as to which no
shares have theretofore been issued.
(d) Series. All shares of any one series shall be identical in all
respects with all the other shares of such series, except that shares of any one
series issued at different times may differ as to the dates from which dividends
thereon shall be cumulative.
(e) Status of Redeemed Preferred Stock. Shares of any series of
Preferred Stock which have been redeemed (whether through the operation of a
sinking fund or otherwise) or purchased by the Corporation, or which, if
convertible, have been converted into shares of the Corporation of any other
class or classes, shall have the status of authorized and unissued shares of
Preferred Stock which are not classified into any series.
(4) Series A Preferred Stock
The Series A Preferred Stock shall have the voting power, preferences
and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, as set forth in the
Certificate of Designation attached hereto as Annex A.
ARTICLE V
Directors
(1) The number of directors shall be not less than 5 or more than 12,
which number may be fixed or changed from time to time, within such minimum and
maximum.
(2) Elections of directors of the Corporation need not be by written
ballot, except and to the extent provided in the By-laws of the Corporation.
3
(3) To the fullest extent permitted by the General Corporation Law as
it now exists and as it may hereafter be amended, no director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director.
ARTICLE VI
Stockholders
(1) Special meetings of stockholders may be called in accordance with
and by the persons set forth in the By-laws of the Corporation; provided,
however that the recordholders of at least 15% of the Common Stock of the
Corporation shall always have the power to call such meetings.
(2) Any action required by the General Corporation Law to be taken at
any annual or special meeting of stockholders, and any action which may be taken
at any annual or special meeting of stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the recordholders of
Common Stock having not less than the minimum number of votes necessary to
authorize or take such action at a meeting at which the recordholders of all
Common Stock entitled to vote thereon were present and voted.
ARTICLE VII
Indemnification of Directors, Officers and Others
(1) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director, officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in, or not opposed
to, the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe the person's conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(2) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that the person is or was a director, officer of
the Corporation, or is or was serving at the request of the
4
Corporation as a director, officer of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(3) To the extent that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections (1) and (2) of this Article
VII, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(4) Any indemnification under Sections (1) and (2) of this Article VII
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer is proper in the circumstances because the person has
met the applicable standard of conduct set forth in such Sections (1) and (2).
Such determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (a) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (b) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (c) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (d) by the stockholders of the Corporation.
(5) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation authorized in this Article VII. Such expenses
(including attorneys' fees) incurred by former directors and officers may be so
paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
(6) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
(7) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer of the Corporation, or is or was
serving at the request of
5
the Corporation as a director, officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of Section 145 of the General
Corporation Law.
(8) For purposes of this Article VII, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, so that any
person who is or was a director, officer of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(9) For purposes of this Article VII, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer of the Corporation which
imposes duties on, or involves service by, such director, officer with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VII.
(10) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VIII
By-Laws
The Board shall have the power to adopt, amend or repeal by-laws.
ARTICLE IX
Reorganization
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of
6
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE X
Amendment
The Corporation reserves the right to amend, alter, change or repeal
any provision of this Certificate of Incorporation, in the manner now or
hereafter prescribed by law, and all rights conferred on stockholders in this
Amended and Restated Certificate of Incorporation are subject to this
reservation.
ARTICLE XI
Section 1123 of the United States Bankruptcy Code
The Corporation shall not issue any class of non-voting equity
securities unless and solely to the extent permitted by Section 1123(a)(6) of
the United States Bankruptcy Code (the "Bankruptcy Code") as in effect on the
effective date of the Plan of Reorganization; provided, however, that this
Article XI of this Amended and Restated Certificate of Incorporation: (a) will
have no further force and effect beyond that required under Section 1123(a)(6)
of the Bankruptcy Code; (b) will have such force and effect, if any, only for so
long as Section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to
the Corporation; and (c) in all events may be amended or eliminated in
accordance with applicable law as from time to time in effect.
7
IN WITNESS WHEREOF, The Warnaco Group, Inc. has caused this Amended
and Restated Certificate of Incorporation to be executed this __ day of
______________, 2003.
THE WARNACO GROUP, INC.
By:
Name:
Title:
8
ANNEX A
CERTIFICATE OF DESIGNATION
OF THE VOTING POWERS, DESIGNATION,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS OF THE
SERIES A PREFERRED STOCK
Pursuant to Section 303 of the
General Corporation Law of
the State of Delaware
I, __________________, [President and Chief Executive Officer] of The
Warnaco Group, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), DO HEREBY CERTIFY:
that, pursuant to authority conferred upon the Board of Directors of
the Corporation by its Amended and Restated Certificate of Incorporation (the
"Certificate"), and, pursuant to the provisions of Section 303 of the General
Corporation Law of the State of Delaware and Section 5.5 of the First Amended
Joint Plan of Reorganization of the Warnaco Group, Inc. and its Affiliated
Debtors and Debtors in Possession under Chapter 11 of the Bankruptcy Code, dated
November 8, 2002 (the "Plan"), effective as of the "Effective Date" as defined
in the Plan, the following Series A Preferred Stock, par value $0.01 per share,
is hereby created and authorized, having the voting powers, designation,
relative, participating, optional and other special rights, preferences, and
qualifications, limitations and restrictions as set forth below:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Stock" and the number of shares constituting
such series shall be [112,500].
Section 2. Dividends and Distributions. (A) Subject to the prior and
superior rights of the holders of any shares of preferred stock of the
Corporation ranking prior and superior to the shares of Series A Preferred Stock
with respect to dividends, each holder of one one-thousandth (1/1,000) of a
share (a "Unit") of Series A Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
that purpose, (i) quarterly dividends payable in cash on the last day of March,
June, September and December in each year (each such date being a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of such Unit of Series A Preferred Stock, in an amount
per Unit (rounded to the nearest cent) equal to the greater of (a) $0.01 or (b)
subject to the provision for adjustment hereinafter set forth, the aggregate per
share amount of all cash dividends declared on shares of the Common Stock since
1
the immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of a Unit of
Series A Preferred Stock, and (ii) subject to the provision for adjustment
hereinafter set forth, quarterly distributions (payable in kind) on each
Quarterly Dividend Payment Date in an amount per Unit equal to the aggregate per
share amount of all non-cash dividends or other distributions (other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock, by reclassification or otherwise) declared on shares of
Common Stock since the immediately preceding Quarterly Dividend Payment Date, or
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of a Unit of Series A Preferred Stock. In the event that the
Corporation shall at any time after _________ __, ____ (the "Rights Declaration
Date") (i) declare any dividend on outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or
(iii) combine outstanding shares of Common Stock into a smaller number of
shares, then in each such case the amount to which the holder of a Unit of
Series A Preferred Stock was entitled immediately prior to such event pursuant
to the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common Stock
that are outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution on Units
of Series A Preferred Stock as provided in paragraph (A) above immediately after
it declares a dividend or distribution on the shares of Common Stock (other than
a dividend payable in shares of Common Stock); provided, however, that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $0.01 per Unit on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on each
outstanding Unit of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issuance of such Unit of Series A Preferred
Stock, unless the date of issuance of such Unit is prior to the record date for
the first Quarterly Dividend Payment Date, in which case, dividends on such Unit
shall begin to accrue from the date of issuance of such Unit, or unless the date
of issuance is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of Units of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on Units of Series A Preferred
Stock in an amount less than the aggregate amount of all such dividends at the
time accrued and payable on such Units shall be allocated pro rata on a
Unit-by-Unit basis among all Units of Series A Preferred Stock at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of Units of Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of Units of Series A Preferred
Stock shall have the following voting rights:
2
(A) Subject to the provision for adjustment hereinafter set forth,
each Unit of Series A Preferred Stock shall entitle the holder thereof to one
vote on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
then in each such case the number of votes per Unit to which holders of Units of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which shall
be the number of shares of Common Stock outstanding immediately after such event
and the denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
Units of Series A Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If, at any time, dividends on any Units of Series A Preferred
Stock shall be in arrears in an amount equal to six quarterly dividends thereon,
then during the period (a "default period") from the occurrence of such event
until such time as all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all Units of
Series A Preferred Stock then outstanding shall have been declared and paid or
set apart for payment, all holders of Units of Series A Preferred Stock, voting
separately as a class, shall have the right to elect [two] Directors.
(ii) During any default period, such voting rights of the holders of
Units of Series A Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting rights nor any right of the
holders of Units of Series A Preferred Stock to increase, in certain cases, the
authorized number of Directors may be exercised at any meeting unless one-third
of the outstanding Units of Preferred Stock shall be present at such meeting in
person or by proxy. The absence of a quorum of the holders of Common Stock shall
not affect the exercise by the holders of Units of Series A Preferred Stock of
such rights. At any meeting at which the holders of Units of Series A Preferred
Stock shall exercise such voting rights initially during an existing default
period, they shall have the right, voting separately as a class, to elect
Directors to fill up to two vacancies in the Board of Directors, if any such
vacancies may then exist, or, if such right is exercised at an annual meeting,
to elect two Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the Series A
Preferred Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of the required
number. After the holders of Units of Series A Preferred Stock shall have
exercised their right to elect Directors during any default period, the number
of Directors shall not be increased or decreased except as approved by a vote of
the holders of Units of Series A Preferred Stock as herein provided or pursuant
to the rights of any equity securities ranking senior to the Series A Preferred
Stock.
(iii) Unless the holders of Series A Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors
3
may order, or any stockholder or stockholders owning in the aggregate not less
than 25% of the total number of the Units of Series A Preferred Stock
outstanding may request, the calling of a special meeting of the holders of
Units of Series A Preferred Stock, which meeting shall thereupon be called by
the Secretary of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Units of Series A Preferred Stock are entitled to
vote pursuant to this paragraph (C)(iii) shall be given to each holder of record
of Units of Series A Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days and not later than
60 days after such order or request, or, in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the aggregate not
less than 25% of the total number of outstanding Units of Series A Preferred
Stock. Notwithstanding the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the 60 days immediately preceding the
date fixed for the next annual meeting of the stockholders.
(iv) During any default period, the holders of shares of Common Stock
and Units of Series A Preferred Stock, and other classes or series of stock of
the Corporation, if applicable, shall continue to be entitled to elect all the
Directors until holders of the Units of Series A Preferred Stock shall have
exercised their right to elect two Directors voting as a separate class, after
the exercise of which right (x) the Directors so elected by the holders of Units
of Series A Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration of the default
period, and (y) any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of capital
stock that elected the Director whose office shall have become vacant.
References in this paragraph (C) to Directors elected by the holders of a
particular class of capital stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Units of Series A Preferred Stock as a separate class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
Units of Series A Preferred Stock as a separate class shall terminate, and (z)
the number of Directors shall be such number as may be provided for in the
Certificate or by-laws irrespective of any increase made pursuant to the
provisions of paragraph (C)(ii) of this Section 3 (such number being subject,
however, to change thereafter in any manner provided by law or in the
Certificate or by-laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be filled by a
majority of the remaining Directors.
(vi) The provisions of this paragraph (C) shall govern the election of
Directors by holders of Units of Preferred Stock during any default period
notwithstanding any provisions of the Certificate to the contrary, including,
without limitation, the provisions of Article V of the Certificate.
(D) Except as set forth herein, holders of Units of Series A Preferred
Stock shall have no special voting rights and their consents shall not be
required (except to the extent
4
they are entitled to vote with holders of shares of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions. (A) Whenever quarterly dividends or
other dividends or distributions payable on Units of Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on outstanding
Units of Series A Preferred Stock shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of junior
stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of parity stock, except dividends paid ratably on Units of Series A
Preferred Stock and shares of all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
such Units and all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any parity stock; provided, however, that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any junior stock; or
(iv) purchase or otherwise acquire for consideration any Units of
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such Units.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any Units of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares of
junior stock unless the holders of Units of Series A Preferred Stock shall have
received, subject to adjustment as hereinafter provided in paragraph (B), the
greater of either (a) $[0.01] per Unit plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not earned or declared,
to the date of such payment, or (b) the amount equal to the aggregate per share
amount to be distributed to holders of shares of Common Stock, or (ii) to the
holders of shares of parity stock, unless simultaneously therewith distributions
are made ratably on Units of Series A Preferred Stock and all other shares of
such parity stock in proportion to the total amounts to which the holders of
Units of Series A Preferred Stock are entitled under clause (i)(a) of this
sentence and to which the holders of shares of such parity stock are entitled,
in each case upon such liquidation, dissolution or winding up.
5
(B) In the event the Corporation shall, at any time after the Rights
Declaration Date, (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case the aggregate amount to which holders of Units
of Series A Preferred Stock were entitled immediately prior to such event
pursuant to clause (i)(b) of paragraph (A) of this Section 6 shall be adjusted
by multiplying such amount by a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of common stock are exchanged for or converted into other stock or
securities, cash and/or any other property, then in any such case Units of
Series A Preferred Stock shall at the same time be similarly exchanged for or
converted into an amount per Unit (subject to the provision for adjustment
hereinafter set forth) equal to the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is converted or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i) declare any
dividend on outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the immediately preceding sentence with respect to the
exchange or conversion of Units of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be the number
of shares of Common Stock that are outstanding immediately after such event and
the denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. Redemption. The Units of Series A Preferred Stock shall not
be redeemable.
Section 9. Ranking. The Units of Series A Preferred Stock shall rank
junior to any other class of preferred stock that hereafter may be issued by the
Corporation as to the payment of dividends and the distribution of assets,
unless the terms of any such class shall provide otherwise.
Section 10. Amendment. The Certificate, including, without limitation,
this resolution, shall not hereafter be amended, either directly or indirectly,
or through merger or consolidation with any other corporation or corporations in
any manner that would alter or change the powers, preferences or special rights
of the Series A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding Units
of Series A Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. The Series A Preferred Stock may be
issued in Units or other fractions of a share, which Units or fractions shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock.
6
Section 12. Certain Definitions. As used herein with respect to the
Series A Preferred Stock, the following terms shall have the following meanings:
(A) The term "Common Stock" shall mean the class of stock designated
as the common stock, par value $0.01 per share, of the Corporation at the date
hereof or any other class of stock resulting from successive changes or
reclassification of such common stock.
(B) The term "junior stock" (i) as used in Section 4, shall mean the
Common Stock and any other class or series of capital stock of the Corporation
hereafter authorized or issued over which the Series A Preferred Stock has
preference or priority as to the payment of dividends and (ii) as used in
Section 6, shall mean the Common Stock and any other class of capital stock of
the Corporation over which the Series A Preferred Stock has preference or
priority in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation.
(C) The term "parity stock" (i) as used in Section 4, shall mean any
class of stock of the Corporation hereafter authorized or issued ranking pari
passu with the Series A Preferred Stock as to the payment of dividends and (ii)
as used in Section 6, shall mean any class of capital stock ranking pari passu
with the Series A Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
7
IN WITNESS WHEREOF, The Warnaco Group, Inc. has caused this
Certificate to be signed by its [President and Chief Executive Officer] and
attested by its Secretary this ____ day of _________, ____.
THE WARNACO GROUP, INC.
By
Name:
Title:
Attest:
8
EXHIBIT 2
AMENDED BYLAWS
BY-LAWS
OF
THE WARNACO GROUP, INC.
Table of Contents
Section Page
ARTICLE I OFFICES
SECTION 1.01. Registered Office.............................................................. 1
SECTION 1.02. Other Offices.................................................................. 1
ARTICLE II MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual Meetings................................................................ 1
SECTION 2.02. Special Meetings............................................................... 1
SECTION 2.03. Notice of Meetings............................................................. 1
SECTION 2.04. Waiver of Notice............................................................... 2
SECTION 2.05. Adjournments................................................................... 2
SECTION 2.06. Quorum......................................................................... 2
SECTION 2.07. Voting......................................................................... 2
SECTION 2.08. Proxies........................................................................ 3
SECTION 2.09. Stockholders' Consent in Lieu of Meeting....................................... 3
ARTICLE III BOARD OF DIRECTORS
SECTION 3.01. General Powers................................................................. 3
SECTION 3.02. Number and Term of Office...................................................... 3
SECTION 3.03. Resignation.................................................................... 3
SECTION 3.04. Removal........................................................................ 3
SECTION 3.05. Vacancies...................................................................... 3
SECTION 3.06. Meetings....................................................................... 4
SECTION 3.07. Committees of the Board........................................................ 5
SECTION 3.08. Directors' Consent in Lieu of Meeting.......................................... 6
SECTION 3.09. Action by Means of Telephone or Similar Communications Equipment............... 6
SECTION 3.10. Compensation................................................................... 6
SECTION 3.11. Interested Directors........................................................... 6
ARTICLE IV OFFICERS
SECTION 4.01. Officers....................................................................... 6
SECTION 4.02. Authority and Duties........................................................... 7
SECTION 4.03. Term of Office, Resignation and Removal........................................ 7
SECTION 4.04. Vacancies...................................................................... 8
SECTION 4.05. The Chairman................................................................... 8
SECTION 4.06. The President.................................................................. 8
i
SECTION 4.07. Vice Presidents................................................................ 8
SECTION 4.08. The Secretary.................................................................. 8
SECTION 4.09. Assistant Secretaries.......................................................... 9
SECTION 4.10. The Treasurer.................................................................. 9
SECTION 4.11. Assistant Treasurers........................................................... 9
ARTICLE V SHARES AND TRANSFERS OF SHARES
SECTION 5.01. Certificates Evidencing Shares................................................. 9
SECTION 5.02. Stock Ledger.................................................................. 10
SECTION 5.03. Transfers of Shares........................................................... 10
SECTION 5.04. Addresses of Stockholders..................................................... 10
SECTION 5.05. Lost, Destroyed and Mutilated Certificates.................................... 10
SECTION 5.06. Regulations................................................................... 10
SECTION 5.07. Fixing Date for Determination of Stockholders of Record....................... 11
ARTICLE VI SEAL
SECTION 6.01. Seal.......................................................................... 11
ARTICLE VII FISCAL YEAR
SECTION 7.01. Fiscal Year................................................................... 11
ARTICLE VIII AMENDMENTS
SECTION 8.01. Amendments.................................................................... 11
ii
BY-LAWS
OF
THE WARNACO GROUP, INC.
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of The Warnaco
Group, Inc. (the "Corporation") in the State of Delaware shall be 2711
Centerville Road, Suite 400, Wilmington, Delaware 19808. The name of its
registered agent at such address is United States Corporation Company.
SECTION 1.02. Other Offices. The Corporation may also have an office
or offices at any other place or places within or without the State of Delaware
as the Board of Directors of the Corporation (the "Board") may from time to time
determine or the business of the Corporation may from time to time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual Meetings. The annual meeting of stockholders of
the Corporation for the election of directors of the Corporation ("Directors"),
and for the transaction of such other business as may properly come before such
meeting, shall be held at such place, date and time as shall be fixed by the
Board and designated in the notice or waiver of notice of such annual meeting;
provided, however, that no annual meeting of stockholders need be held if all
actions, including the election of Directors, required by the General
Corporation Law of the State of Delaware (the "General Corporation Law") to be
taken at such annual meeting are taken by written consent in lieu of meeting
pursuant to Section 2.09 hereof.
SECTION 2.02. Special Meetings. Special meetings of stockholders for
any purpose or purposes may be called by the Board or the Chairman of the Board,
the President or the Secretary of the Corporation or by the recordholders of at
least 15% of the shares of common stock of the Corporation issued and
outstanding ("Shares") and entitled to vote thereat, to be held at such place,
date and time as shall be designated in the notice or waiver of notice thereof.
SECTION 2.03. Notice of Meetings. (a) Except as otherwise provided by
law, written notice of each annual or special meeting of stockholders stating
the place, date and time of such meeting and, in the case of a special meeting,
the purpose or purposes for which such meeting is to be held, shall be given
personally or by first-class mail (airmail in the case of international
communications) to each recordholder of Shares (a "Stockholder") entitled to
vote thereat, not less than 10 nor more than 60 days before the date of such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid,
1
directed to the Stockholder at such Stockholder's address as it appears on the
records of the Corporation. If, prior to the time of mailing, the Secretary of
the Corporation (the "Secretary") shall have received from any Stockholder a
written request that notices intended for such Stockholder are to be mailed to
some address other than the address that appears on the records of the
Corporation, notices intended for such Stockholder shall be mailed to the
address designated in such request.
(b) Notice of a special meeting of Stockholders may be given by the
person or persons calling the meeting, or, upon the written request of such
person or persons, such notice shall be given by the Secretary on behalf of such
person or persons. If the person or persons calling a special meeting of
Stockholders give notice thereof, such person or persons shall deliver a copy of
such notice to the Secretary. Each request to the Secretary for the giving of
notice of a special meeting of Stockholders shall state the purpose or purposes
of such meeting.
SECTION 2.04. Waiver of Notice. Notice of any annual or special
meeting of Stockholders need not be given to any Stockholder who files a written
waiver of notice with the Secretary, signed by the person entitled to notice,
whether before or after such meeting. Neither the business to be transacted at,
nor the purpose of, any meeting of Stockholders need be specified in any written
waiver of notice thereof. Attendance of a Stockholder at a meeting, in person or
by proxy, shall constitute a waiver of notice of such meeting, except when such
Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the grounds that
the notice of such meeting was inadequate or improperly given.
SECTION 2.05. Adjournments. Whenever a meeting of Stockholders, annual
or special, is adjourned to another date, time or place, notice need not be
given of the adjourned meeting if the date, time and place thereof are announced
at the meeting at which the adjournment is taken. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
Stockholder entitled to vote thereat. At the adjourned meeting, any business may
be transacted which might have been transacted at the original meeting.
SECTION 2.06. Quorum. Except as otherwise provided by law or the
Amended and Restated Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation"), the recordholders of a majority of the Shares
entitled to vote thereat, present in person or by proxy, shall constitute a
quorum for the transaction of business at all meetings of Stockholders, whether
annual or special. If, however, such quorum shall not be present in person or by
proxy at any meeting of Stockholders, the Stockholders entitled to vote thereat
may adjourn the meeting from time to time in accordance with Section 2.05 hereof
until a quorum shall be present in person or by proxy.
SECTION 2.07. Voting. Unless otherwise provided in the Certificate of
Incorporation, each Stockholder shall be entitled to one vote for each Share
held of record by such Stockholder. Except as otherwise provided by law or the
Certificate of Incorporation, when a quorum is present at any meeting of
Stockholders, the vote of the recordholders of a majority of the Shares
constituting such quorum shall decide any question brought before such meeting.
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SECTION 2.08. Proxies. Each Stockholder entitled to vote at a meeting
of Stockholders or to express, in writing, consent to or dissent from any action
of Stockholders without a meeting may authorize another person or persons to act
for such Stockholder by proxy. Such proxy shall be filed with the Secretary
before such meeting of Stockholders or such action of Stockholders without a
meeting, at such time as the Board may require. No proxy shall be voted or acted
upon more than three years from its date, unless the proxy provides for a longer
period.
SECTION 2.09. Stockholders' Consent in Lieu of Meeting. Any action
required by the General Corporation Law to be taken at any annual or special
meeting of Stockholders, and any action which may be taken at any annual or
special meeting of Stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the recordholders of Shares having not less than the
minimum number of votes necessary to authorize or take such action at a meeting
at which the recordholders of all Shares entitled to vote thereon were present
and voted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. General Powers. The business and affairs of the
Corporation shall be managed by the Board, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law, the
Certificate of Incorporation or these By-laws directed or required to be
exercised or done by Stockholders.
SECTION 3.02. Number and Term of Office. The number of Directors shall
be not less than 5 or more than 12, which number may be fixed or changed from
time to time, within the minimum and maximum, by the Board of Directors.
Directors shall be elected at the annual meeting of Stockholders or, if, in
accordance with Section 2.01 hereof, no such annual meeting is held, by written
consent in lieu of meeting pursuant to Section 2.09 hereof, and each Director
shall hold office until his successor is elected and qualified, or until his
earlier death or resignation or removal in the manner hereinafter provided.
SECTION 3.03. Resignation. Any Director may resign at any time by
giving written notice to the Board, the Chairman of the Board of the Corporation
(the "Chairman") or the Secretary. Such resignation shall take effect at the
time specified in such notice or, if the time be not specified, upon receipt
thereof by the Board, the Chairman or the Secretary, as the case may be. Unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
SECTION 3.04. Removal. Any or all of the Directors may be removed,
with or without cause, at any time by vote of the recordholders of a majority of
the Shares then entitled to vote at an election of Directors, or by written
consent of the recordholders of Shares pursuant to Section 2.09 hereof.
SECTION 3.05. Vacancies. Vacancies occurring on the Board as a result
of the removal of Directors without cause may be filled only by vote of the
recordholders of a majority
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of the Shares then entitled to vote at an election of Directors, or by written
consent of such recordholders pursuant to Section 2.09 hereof. Vacancies
occurring on the Board for any other reason, including, without limitation,
vacancies occurring as a result of the creation of new directorships that
increase the number of Directors, may be filled by such vote or written consent
or by vote of the Board or by written consent of the Directors pursuant to
Section 3.08 hereof. If the number of Directors then in office is less than a
quorum, such other vacancies may be filled by vote of a majority of the
Directors then in office or by written consent of all such Directors pursuant to
Section 3.08 hereof. Unless earlier removed pursuant to Section 3.04 hereof,
each Director chosen in accordance with this Section 3.05 shall hold office
until the next annual election of Directors by the Stockholders and until his
successor shall be elected and qualified.
SECTION 3.06. Meetings. (a) Annual Meetings. As soon as practicable
after each annual election of Directors by the Stockholders, the Board shall
meet for the purpose of organization and the transaction of other business,
unless it shall have transacted all such business by written consent pursuant to
Section 3.08 hereof.
(b) Other Meetings. Other meetings of the Board shall be held at such
times as the Chairman, the President of the Corporation (the "President"), the
Secretary or a majority of the Board shall from time to time determine.
(c) Notice of Meetings. The Secretary shall give written notice to
each Director of each meeting of the Board, which notice shall state the place,
date, time and purpose of such meeting. Notice of each such meeting shall be
given to each Director, if by mail, addressed to him at his residence or usual
place of business, at least two days before the day on which such meeting is to
be held, or shall be sent to him at such place by telecopy, telegraph, cable, or
other form of recorded communication, or be delivered personally or by telephone
not later than the day before the day on which such meeting is to be held. A
written waiver of notice, signed by the Director entitled to notice, whether
before or after the time of the meeting referred to in such waiver, shall be
deemed equivalent to notice. Neither the business to be transacted at, nor the
purpose of any meeting of the Board need be specified in any written waiver of
notice thereof. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except as provided by law.
(d) Place of Meetings. The Board may hold its meetings at such place
or places within or without the State of Delaware as the Board or the Chairman
may from time to time determine, or as shall be designated in the respective
notices or waivers of notice of such meetings.
(e) Quorum and Manner of Acting. A majority of the total number of
Directors then in office (but in no event less than two if the total number of
directorships, including vacancies, is greater than one and in no event a number
less than a majority of the total number of directorships, including vacancies)
shall be present in person at any meeting of the Board in order to constitute a
quorum for the transaction of business at such meeting, and the vote of a
majority of those Directors present at any such meeting at which a quorum is
present shall be necessary for the passage of any resolution or act of the
Board, except as otherwise expressly required by law, the Certificate of
Incorporation or these By-laws. In the absence of a
4
quorum for any such meeting, a majority of the Directors present thereat may
adjourn such meeting from time to time until a quorum shall be present.
(f) Organization. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside, in the following order of
precedence:
(i) the Chairman;
(ii) the President;
(iii) any Director chosen by a majority of the Directors present.
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary is present) whom the chairman of
the meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 3.07. Committees of the Board. The Board may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more Directors. The Board may designate one or
more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of such committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another Director to act at the
meeting in the place of any such absent or disqualified member. Any committee of
the Board, to the extent provided in the resolution of the Board designating
such committee, shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that no such committee shall have such power or
authority in reference to amending the Certificate of Incorporation (except that
such a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board as provided
in Section 151(a) of the General Corporation Law, fix the designations and any
of the preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
of stock of the Corporation or fix the number of shares of any series of stock
or authorize the increase or decrease of the shares of any series), adopting an
agreement of merger or consolidation under Section 251 or 252 of the General
Corporation Law, recommending to the Stockholders the sale, lease or exchange of
all or substantially all the Corporation's property and assets, recommending to
the Stockholders a dissolution of the Corporation or the revocation of a
dissolution, or amending these By-laws; provided further, however, that, unless
expressly so provided in the resolution of the Board designating such committee,
no such committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law. Each committee of
the Board shall keep regular minutes of its proceedings and report the same to
the Board when so requested by the Board.
5
SECTION 3.08. Directors' Consent in Lieu of Meeting. Any action
required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by all the members of the Board or such committee and such
consent is filed with the minutes of the proceedings of the Board or such
committee.
SECTION 3.09. Action by Means of Telephone or Similar Communications
Equipment. Any one or more members of the Board, or of any committee thereof,
may participate in a meeting of the Board or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
SECTION 3.10. Compensation. Unless otherwise restricted by the
Certificate of Incorporation, the Board may determine the compensation of
Directors. In addition, as determined by the Board, Directors may be reimbursed
by the Corporation for their expenses, if any, in the performance of their
duties as Directors. No such compensation or reimbursement shall preclude any
Director from serving the Corporation in any other capacity and receiving
compensation therefor.
SECTION 3.11. Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction, or solely because his, her or their votes are
counted for such purpose if (a) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (b) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (c) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee that authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
SECTION 4.01. Officers. The officers of the Corporation shall be the
Chairman, the President, the Secretary and a Treasurer and may include one or
more Vice Presidents and one or more Assistant Secretaries and one or more
Assistant Treasurers. Any two or more offices may be held by the same person.
6
SECTION 4.02. Authority and Duties. All officers shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these By-laws or, to the extent not so provided, by resolution of
the Board.
SECTION 4.03. Term of Office, Resignation and Removal. (a) Each
officer shall be appointed by the Board and shall hold office for such term as
may be determined by the Board. Each officer shall hold office until his
successor has been appointed and qualified or his earlier death or resignation
or removal in the manner hereinafter provided. The Board may require any officer
to give security for the faithful performance of his duties.
(b) Any officer may resign at any time by giving written notice to the
Board, the Chairman, the President or the Secretary. Such resignation shall take
effect at the time specified in such notice or, if the time be not specified,
upon receipt thereof by the Board, the Chairman, the President or the Secretary,
as the case may be. Unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective.
(c) All officers and agents appointed by the Board shall be subject to
removal, with or without cause, at any time by the Board or by the action of the
recordholders of a majority of the Shares entitled to vote thereon.
SECTION 4.04. Vacancies. Any vacancy occurring in any office of the
Corporation, for any reason, shall be filled by action of the Board. Unless
earlier removed pursuant to Section 4.03 hereof, any officer appointed by the
Board to fill any such vacancy shall serve only until such time as the unexpired
term of his predecessor expires unless reappointed by the Board.
SECTION 4.05. The Chairman. The Chairman shall have the power to call
special meetings of Stockholders, to call special meetings of the Board and, if
present, to preside at all meetings of Stockholders and all meetings of the
Board. The Chairman shall perform all duties incident to the office of Chairman
of the Board and all such other duties as may from time to time be assigned to
him by the Board or these By-laws.
SECTION 4.06. The President. The President shall be the chief
executive officer of the Corporation and shall have general and active
management and control of the business and affairs of the Corporation, subject
to the control of the Board, and shall see that all orders and resolutions of
the Board are carried into effect. The President shall perform all duties
incident to the office of President and all such other duties as may from time
to time be assigned to him by the Board or these By-laws.
SECTION 4.07. Vice Presidents. Vice Presidents, if any, in order of
their seniority or in any other order determined by the Board, shall generally
assist the President and perform such other duties as the Board or the President
shall prescribe, and in the absence or disability of the President, shall
perform the duties and exercise the powers of the President.
SECTION 4.08. The Secretary. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of Stockholders
and shall record all votes and the minutes of all proceedings in a book to be
kept for that purpose, and shall perform the same duties for any committee of
the Board when so requested by such committee. He shall give or
7
cause to be given notice of all meetings of Stockholders and of the Board, shall
perform such other duties as may be prescribed by the Board, the Chairman or the
President and shall act under the supervision of the Chairman. He shall keep in
safe custody the seal of the Corporation and affix the same to any instrument
that requires that the seal be affixed to it and which shall have been duly
authorized for signature in the name of the Corporation and, when so affixed,
the seal shall be attested by his signature or by the signature of the Treasurer
of the Corporation (the "Treasurer") or an Assistant Secretary or Assistant
Treasurer of the Corporation. He shall keep in safe custody the certificate
books and stockholder records and such other books and records of the
Corporation as the Board, the Chairman or the President may direct and shall
perform all other duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Board, the Chairman or
the President.
SECTION 4.09. Assistant Secretaries. Assistant Secretaries of the
Corporation ("Assistant Secretaries"), if any, in order of their seniority or in
any other order determined by the Board, shall generally assist the Secretary
and perform such other duties as the Board or the Secretary shall prescribe,
and, in the absence or disability of the Secretary, shall perform the duties and
exercise the powers of the Secretary.
SECTION 4.10. The Treasurer. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit such funds in such
banks or other depositories as the Board, or any officer or officers, or any
officer and agent jointly, duly authorized by the Board, shall, from time to
time, direct or approve. He shall disburse the funds of the Corporation under
the direction of the Board and the President. He shall keep a full and accurate
account of all moneys received and paid on account of the Corporation and shall
render a statement of his accounts whenever the Board, the Chairman or the
President shall so request. He shall perform all other necessary actions and
duties in connection with the administration of the financial affairs of the
Corporation and shall generally perform all the duties usually appertaining to
the office of treasurer of a corporation. When required by the Board, he shall
give bonds for the faithful discharge of his duties in such sums and with such
sureties as the Board shall approve.
SECTION 4.11. Assistant Treasurers. Assistant Treasurers of the
Corporation ("Assistant Treasurers"), if any, in order of their seniority or in
any other order determined by the Board, shall generally assist the Treasurer
and perform such other duties as the Board or the Treasurer shall prescribe,
and, in the absence or disability of the Treasurer, shall perform the duties and
exercise the powers of the Treasurer.
ARTICLE V
SHARES AND TRANSFERS OF SHARES
SECTION 5.01. Certificates Evidencing Shares. Shares shall be
evidenced by certificates in such form or forms as shall be approved by the
Board. Certificates shall be issued in consecutive order and shall be numbered
in the order of their issue, and shall be signed by the Chairman, the President
or any Vice President and by the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. If such a certificate is manually signed
by one such officer, any other signature on the certificate may be a facsimile.
In the event any such officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to hold
8
such office or to be employed by the Corporation before such certificate is
issued, such certificate may be issued by the Corporation with the same effect
as if such officer had held such office on the date of issue.
SECTION 5.02. Stock Ledger. A stock ledger in one or more counterparts
shall be kept by the Secretary, in which shall be recorded the name and address
of each person, firm or corporation owning the Shares evidenced by each
certificate evidencing Shares issued by the Corporation, the number of Shares
evidenced by each such certificate, the date of issuance thereof and, in the
case of cancellation, the date of cancellation. Except as otherwise expressly
required by law, the person in whose name Shares stand on the stock ledger of
the Corporation shall be deemed the owner and recordholder thereof for all
purposes.
SECTION 5.03. Transfers of Shares. Registration of transfers of Shares
shall be made only in the stock ledger of the Corporation upon request of the
registered holder of such shares, or of his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, and upon the
surrender of the certificate or certificates evidencing such Shares properly
endorsed or accompanied by a stock power duly executed, together with such proof
of the authenticity of signatures as the Corporation may reasonably require.
SECTION 5.04. Addresses of Stockholders. Each Stockholder shall
designate to the Secretary an address at which notices of meetings and all other
corporate notices may be served or mailed to such Stockholder, and, if any
Stockholder shall fail to so designate such an address, corporate notices may be
served upon such Stockholder by mail directed to the mailing address, if any, as
the same appears in the stock ledger of the Corporation or at the last known
mailing address of such Stockholder.
SECTION 5.05. Lost, Destroyed and Mutilated Certificates. Each
recordholder of Shares shall promptly notify the Corporation of any loss,
destruction or mutilation of any certificate or certificates evidencing any
Share or Shares of which he is the recordholder. The Board may, in its
discretion, cause the Corporation to issue a new certificate in place of any
certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon the surrender of the mutilated certificate or, in the
case of loss, theft or destruction of the certificate, upon satisfactory proof
of such loss, theft or destruction, and the Board may, in its discretion,
require the recordholder of the Shares evidenced by the lost, stolen or
destroyed certificate or his legal representative to give the Corporation a bond
sufficient to indemnify the Corporation against any claim made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
SECTION 5.06. Regulations. The Board may make such other rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates evidencing
Shares.
SECTION 5.07. Fixing Date for Determination of Stockholders of Record.
In order that the Corporation may determine the Stockholders entitled to notice
of or to vote at any meeting of Stockholders or any adjournment thereof, or to
express consent to, or to dissent from, corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
9
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days before the date of such meeting, nor more than 60
days prior to any other such action. A determination of the Stockholders
entitled to notice of or to vote at a meeting of Stockholders shall apply to any
adjournment of such meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
ARTICLE VI
SEAL
SECTION 6.01. Seal. The Board may approve and adopt a corporate seal,
which shall be in the form of a circle and shall bear the full name of the
Corporation, the year of its incorporation and the words "Corporate Seal
Delaware".
ARTICLE VII
FISCAL YEAR
SECTION 7.01. Fiscal Year. The fiscal year of the Corporation shall be
on a "52-53 week" basis. This fiscal year shall end with the Saturday which is
closest to the last day of December of each year and the next fiscal year shall
begin with the Sunday immediately following the Saturday on which the preceding
fiscal year ended.
ARTICLE VIII
AMENDMENTS
SECTION 8.01. Amendments. Any By-law (including these By-laws) may be
adopted, amended or repealed by the vote of the recordholders of a majority of
the Shares then entitled to vote at an election of Directors or by written
consent of Stockholders pursuant to Section 2.09 hereof, or by vote of the Board
or by a written consent of Directors pursuant to Section 3.08 hereof.
10
EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
Dated as of January __, 2003
among
The Warnaco Group, Inc.,
The Former Creditors of
Warnaco Who Have Elected
To Become Parties Hereto
(and are listed on Annex A Hereto)
and
Antonio C. Alvarez II
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
January __, 2003 among The Warnaco Group, Inc., a Delaware corporation (the
"Company"), those creditors of the Company (the "Creditors") who elect to become
parties hereto by checking the box provided on the ballots included in the Plan
solicitation materials, and Antonio C. Alvarez II. All original parties to this
Agreement, with the exception of the Company, are collectively referred to as
the "original Shareholders", and the original Shareholders, together with all
persons who become parties hereto after the date hereof as provided in Article 8
(the "additional Shareholders"), are collectively referred to as the
"Shareholders". For convenience of reference, the Shareholders will be listed on
Annex A hereto, which shall be amended from time to time by the Company as
provided in Section 8.02.
BACKGROUND
A. On June 11, 2001, the Company filed for Chapter 11 protection in order to
facilitate a restructuring of its operations and debt load.
B. On October 1, 2002, the Company filed its plan of reorganization (the
"Plan") with the U.S. Bankruptcy Court for the Southern District of New
York. Upon approval by the court, the Plan will allow the Company to emerge
from Chapter 11 in early 2003 (the "Effective Date").
C. The Plan provides that, on the Effective Date, the Company will issue
shares of common stock (the "New Shares") of the Company, as reorganized
under the Plan, to the Creditors and certain other persons.
D. In order to provide the Creditors with an opportunity to dispose of their
New Shares at the highest possible price, while contributing to the
development of a broad market for the New Shares, the Company will enter
into this Agreement with all Creditors of the Company who elect to become
parties hereto, under which, on the terms and conditions herein stated, the
Company will permit the Eligible Shareholders to effect up to three
underwritten secondary offerings over the next three years.
E. Under the terms of the Plan and as provided in Article 11, this Agreement
shall become fully effective if Creditors holding at least 70% of the New
Shares issued to all Creditors agree to become parties hereto and original
Shareholders hereunder or, alternatively, certain portions of this
Agreement shall become effective as provided in Section 11.02.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants set forth in this Agreement, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
As used herein, the terms below shall have the following meanings. Any
such term, unless the context otherwise requires, may be used in the singular or
plural, depending upon reference.
Addendum: as defined in Section 8.02.
Additional Shareholder: as defined in Section 8.02.
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Board: the Board of Directors of the Company.
Company: as defined in the first paragraph of this Agreement.
Coordinating Committee: as defined in Article 3.
Covered Shares: all of the following:
(i) The New Shares owned by the Shareholders on the Effective
Date.
(ii) In case of a person who becomes a party hereto after the
Effective Date, any New Shares owned by such person on the date it
becomes a party hereto.
(iii) Any New Shares purchased by a Shareholder from another
Shareholder.
(iv) Any New Shares issued or issuable with respect to any of the
foregoing Covered Shares by way of a stock dividend, subdivision or
stock split in connection with a combination or consolidation of
shares, recapitalization, merger, consolidation or other
reorganization or otherwise.
As to any particular Covered Shares, such New Shares shall cease to be
Covered Shares when (a) a Registration Statement with respect to the sale of
such New Shares shall have become effective under the Securities Act and such
shares shall have been disposed of under such Registration Statement in a demand
Offering or a piggyback Offering, (b) such New Shares shall have been sold or
otherwise disposed of to a person who is not a party hereto and who does
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not become a party hereto in connection with such transaction or (c) such New
Shares shall have ceased to be outstanding.
Creditors: as defined in the first paragraph of this Agreement.
Cut-Off Date: as defined in Section 2.02(e).
Demand Registration Request: as defined in Section 2.02(a).
Demand Registration Right: as defined in Section 2.01.
Effective Date: as defined in the Background section of this
Agreement.
Eligible Shareholder: any Shareholder that, as of any date of
determination, has not sold, transferred, pledged, conveyed, monetized or
otherwise disposed of, in the aggregate, more than:
o 10% of its Covered Shares, if the date of determination is on or
prior to December 31, 2003;
o 20% of its Covered Shares if this date is during 2004; and
o 30% of its Covered Shares if this date is during 2005 or later.
Any sale of New Shares to a person (including an affiliate of the
seller) that becomes a party to this Agreement in connection with such
transaction, any sale of New Shares to an existing Shareholder (including any
affiliate of the seller) and any sale of New Shares in a demand or piggyback
Offering will not be taken into account in determining whether a Shareholder is
an Eligible Shareholder.
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Eligible Shareholder Certificate: a certificate required to be
furnished to the Company and the Coordinating Committee by each Selling
Shareholder in an Offering, a form of which is attached hereto as Annex C.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Firm shares: as defined in Section 2.02(a).
Green Shoe Option: the over-allotment option granted to the
underwriters in the underwriting agreement for a demand or piggyback Offering on
customary terms, which will permit the underwriters to purchase additional New
Shares from the Selling Shareholders or the Company and which may not exceed 15%
of the number of firm shares covered by the underwriting agreement.
Lock-up Periods: in connection with each demand or piggyback Offering,
the period beginning on the date of a preliminary prospectus and ending on the
date of the final Prospectus relating to such Offering and, unless the managing
underwriter agrees to a shorter period, the period of 90 days after the date of
such final Prospectus.
Managing underwriter: in connection with each Offering, the
book-running lead underwriter or underwriters selected by the Coordinating
Committee and approved by the Company pursuant to Section 2.05.
Maximum Offering Amount: as defined in Section 7.02.
NASD: National Association of Securities Dealers.
Nasdaq: the Nasdaq National Market.
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New Shares: as defined in the Background section of this Agreement.
Offering, demand Offering and piggyback Offering: each underwritten
secondary offering by the Company of the New Shares owned by Eligible
Shareholders that has been requested pursuant to Article 2 and registered with
the SEC under the Securities Act is referred to as a "demand Offering"; each
offering in which Eligible Shareholders participate pursuant to Article 7 is
referred as a "piggyback Offering"; and the term "Offering" refers to a demand
Offering or piggyback Offering, as applicable.
Plan: as defined in the Background section of this Agreement.
Prospectus: the prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
Register, registered and registration: a registration effected by
preparing and filing a Registration Statement with the SEC in compliance with
the Securities Act, and the declaration or ordering of effectiveness of such
Registration Statement by the SEC.
Registration Expenses: any and all reasonable and documented expenses
incurred in connection with a demand Offering or a piggyback Offering,
including, without limitation:
(i) all SEC and National Association of Securities Dealers, Inc.
registration and filing fees;
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(ii) all fees and expenses incurred in connection with complying with
state securities or blue sky laws (including the reasonable fees and
disbursements of counsel for the underwriters in connection with NASD or
blue sky qualifications of the shares);
(iii) all printing, messenger and delivery expenses;
(iv) all fees and expenses incurred in connection with the listing of
the New Shares on Nasdaq or any securities exchange;
(v) the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any audits and/or
"comfort" letters required by or incident to such performance and
compliance;
(vi) the fee and expenses of a qualified independent underwriter, if
required under the rules of the NASD;
(vii) the reasonable fees and disbursements of one counsel, other than
the Company's counsel, selected by the Coordinating Committee to represent
all the Selling Shareholders in connection with each demand Offering or
piggyback Offering (it being understood that any Shareholder may, at its
own expense, retain separate counsel to represent it in connection with
such Offering); and
(viii) the reasonable fees and expenses of any special experts
retained in connection with any demand Offering or piggyback Offering,
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but excluding all underwriting discounts and selling commissions, and any
transfer taxes applicable to the sale of Covered Shares by a Selling
Shareholder, incurred by a Selling Shareholder.
Registration Statement: a registration statement filed by the Company
with the SEC under the Securities Act pursuant to this Agreement.
SEC: the Securities and Exchange Commission.
Secretary: the Secretary of the Coordinating Committee appointed
pursuant to Section 3.05.
Securities Act: the Securities Act of 1933, as amended.
Selling Shareholder: an Eligible Shareholder who sells Covered Shares
pursuant to the exercise of registration rights granted to such Eligible
Shareholder pursuant to Article 2 or 7 hereof.
Selling Shareholder Payment: the $5,000 payment to be made by each
Selling Shareholder to the Coordinating Committee in connection with each demand
Offering.
Shareholders, additional Shareholders and original Shareholders: as
defined in the first paragraph of this Agreement.
Value: until completion of the first demand Offering hereunder, the
equity value of the New Shares as determined in the Plan and thereafter the
value of the New Shares as quoted on Nasdaq or, if other than Nasdaq, on the
principal securities exchange on which the New Shares are listed on any date of
determination.
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ARTICLE 2
DEMAND OFFERINGS
2.01. Demand Registrations. (a) The Coordinating Committee shall have
the right to require the Company to use its reasonable efforts to effect the
registration of the Covered Shares held by the Eligible Shareholders and the
sale of such shares in an underwritten secondary offering (a "Demand
Registration Right"), subject to the following limitations:
(i) The Company shall not be obligated to effect and pay for more than
three demand registrations pursuant to this Agreement.
(ii) The Company shall not be required to effect a demand registration
pursuant to this Agreement if it receives the request for registration
pursuant to Section 2.02 at any time after the third anniversary of the
Effective Date.
(b) A registration requested pursuant to Article 2 will be deemed to
have been made when the Registration Statement has become effective with the SEC
and the related demand Offering closes or fails to close for any reason, other
than primarily because of an act or omission of the Company or the Company's
failure to satisfy a condition precedent contained in the underwriting
agreement.
2.02. Initiation of Registration Demands. (a) In order to exercise a
Demand Registration Right, the Secretary of the Coordinating Committee, on
behalf of the Coordinating Committee, shall send the Company a written notice (a
"Demand Registration Request") requesting that the Company register a specified
number of Covered Shares for an underwritten secondary offering. The notice
shall request the registration of at least $25 million (exclusive of
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the Green Shoe Option) in Value of Covered Shares and shall contain the
following additional information:
(i) The name of each proposed Selling Shareholder covered by the
notice and the number of Covered Shares proposed to be sold by it
(such proposed selling shareholder's "firm shares").
(ii) A statement that the Coordinating Committee believes that
each proposed Selling Shareholder named in the Request is an Eligible
Shareholder.
(iii) A copy of an Eligible Shareholder Certificate completed by
each proposed Selling Shareholder named in the Demand Registration
Request.
(iv) A statement that each proposed Selling Shareholder
beneficially owns sufficient additional New Shares to provide a 15%
Green Shoe Option in respect of the firm shares proposed to be sold by
it or a statement that the Company or another specified Eligible
Shareholder has agreed to provide such New Shares for the Green Shoe
Option.
(b) The Coordinating Committee may not issue a Demand Registration
Request to the Company prior to the date that is four months after the Effective
Date or May 4, 2003, whichever is later. If the Coordinating Committee issues a
Demand Registration Request and the related Offering closes, the Coordinating
Committee may not give a subsequent Demand Registration Request until at least
six months after such closing.
(c) Upon receipt of a Demand Registration Request, the Company will
give written notice of the proposed Offering to each Shareholder that is not
named in such Demand
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Registration Request, giving each such other Shareholder at least 30 days to
elect to participate in the proposed demand Offering. The Company will give this
notice promptly after it receives the Demand Registration Request and, in any
event, in sufficient time to permit inclusion in the preliminary prospectus for
the Offering of any Covered Shares sought to be sold by each other Eligible
Shareholder that wishes to participate in the Offering.
(d) A Shareholder that receives a notice referred to in 2.02(c) may,
if it is an Eligible Shareholder, elect to participate in the Offering by
returning to the Company and the Coordinating Committee, within the period
specified in the notice, its Eligible Shareholder Certificate.
(e) In connection with each demand Offering, the Company, the
Coordinating Committee and the managing underwriter will agree upon a date (the
"Cut-Off Date"), which shall be a date prior to the printing of the preliminary
prospectus for such Offering and shall be the date after which each proposed
Selling Shareholder may not change the number of Covered Shares it proposes to
sell in such Offering. The Company will give each proposed Selling Shareholder
at least five days' notice of the Cut-Off Date.
(f) In connection with each demand Offering, each Selling Shareholder
may, by notice to the Company and the Coordinating Committee on or prior to the
Cut-Off Date for such Offering, on not more than one occasion without the
consent of the Company and the Coordinating Committee, increase or decrease the
number of Covered Shares it proposes to sell in such Offering, subject to the
following:
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(i) Such Selling Shareholder must retain (or arrange for the
Company or another Eligible Shareholder to hold) a sufficient number
of New Shares to satisfy the Green Shoe Option in respect of its firm
shares.
(ii) If a Selling Shareholder voluntarily reduces the number of
Covered Shares it proposes to sell after the Company has filed a
Registration Statement for such Offering (excluding any reduction in
connection with a cut-back by the managing underwriter pursuant to
Section 2.06) and the effect of such reduction is that a portion of
the SEC filing fee (attributable to the New Shares such Selling
Shareholder no longer proposes to sell) will now be lost, such Selling
Shareholder shall reimburse the Company for such lost SEC filing fees.
(iii) No such reduction shall be effective to the extent it
reduces the Value of the Covered Shares (exclusive of the Green Shoe
Option) to be sold in the Offering below $25 million.
(iv) The number of Covered Shares proposed to be sold by each
Selling Shareholder after the Cut-Off Date, if any, will remain
subject to cut-back by the managing underwriter pursuant to Section
2.06.
(g) The Company will include in the Registration Statement for a
demand Offering all Covered Shares proposed to be sold by the Selling
Shareholders, subject to any cut-back required by the managing underwriter
pursuant to Section 2.06, and will file any amendments to the Registration
Statement necessary to reflect the number of Covered Shares proposed to be sold
by the Selling Shareholders (including changes in such numbers) or to reflect
any cut-back required by the managing underwriter.
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2.03. Company to File Registration Statement. The Company will prepare
and file a Registration Statement with the SEC within 60 days from the receipt
by the Company of the Demand Registration Request with respect to a demand
Offering on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate, and use its reasonable efforts to cause such
Registration Statement to become effective within 150 days after its receipt of
the Demand Registration Request (or 180 days, if it is the first registration
statement filed by the Company with the SEC after the Effective Date).
2.04. Delay in Filing. The Company may delay for a period of up to 30
days the filing of any Registration Statement pursuant to this Article 2 if its
Board determines in good faith that such filing would require disclosure of
material, non-public information that the Company has a valid business purpose
for retaining as confidential. In the case of any such delay, the time periods
referred to in Section 2.03 shall be tolled during the period of time of any
such delay. If the Company delays the filing of any Registration Statement, it
shall immediately notify the Coordinating Committee, indicating the
determination of the Board and the anticipated delay.
If the Company delays the filing of any Registration Statement and
such material information is subsequently publicly disclosed by the Company or
is no longer determined by the Board to be material, the Company shall
immediately notify the Coordinating Committee of such fact, at which time the
delay permitted by this Section 2.04 shall cease.
2.05. Selection of Underwriters. In connection with each demand
Offering:
(a) The Coordinating Committee will be entitled to select the
book-running lead underwriter or underwriters and the Company will be
entitled to select the co-
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manager or co-managers for the Offering, subject in each case to the
other's consent (such consent not to be reasonably withheld).
(b) The managing underwriter, in consultation with the Company and the
Coordinating Committee, will be entitled to select any other underwriters
for the Offering.
2.06. Cut-back in Demand Offering. If the managing underwriter for a
demand Offering advises the Coordinating Committee and the Company that, in its
opinion, the number of Covered Shares that the Selling Shareholders propose to
sell in the Offering exceeds the largest number of Covered Shares that can be
sold in such Offering without having an adverse effect on the Offering, then the
Company will reduce the number of Covered Shares included in such registration
to the number that, in the opinion of the managing underwriter, can be sold
without having the adverse effect referred to above. The reduced number of
Covered Shares that may be sold in the Offering shall be allocated pro rata
among the Selling Shareholders participating in the Offering, based on the
number of Covered Shares beneficially owned by the respective Selling
Shareholders as disclosed in their Eligible Shareholder Certificates.
Notwithstanding Section 2.02(a), the Company shall not be relieved of its
obligations hereunder to complete a demand Offering, even if, as a result of a
cut-back pursuant to this Section 2.06 and/or adverse market conditions, the
Value of the Covered Shares proposed to be sold in the Offering is reduced to
less than $25 million.
2.07. Selling Shareholder Obligations. In addition to the other
requirements contained herein or in its Eligible Shareholder Certificate, no
Eligible Shareholder may participate in a demand Offering unless it:
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(i) agrees to sell its Covered Shares on the basis provided in
the underwriting agreement entered into as contemplated by Section
4.02;
(ii) completes and executes all customary questionnaires, powers
of attorney, custody agreements and other documents reasonably
required under the terms of such underwriting agreement and furnishes
the underwriters with the opinion(s) of counsel referred to in Section
4.02(g); and
(iii) remains an Eligible Shareholder through the effective date
of the Registration Statement relating to such Offering.
(b) If at any time before the effective date of the Registration
Statement pertaining to a demand Offering a Selling Shareholder no longer
qualifies as an Eligible Shareholder, such Selling Shareholder shall:
(i) withdraw from the Offering and immediately notify the Company
and the Coordinating Committee of such withdrawal; and
(ii) reimburse the Company for any SEC filing fees lost as a
result of such Selling Shareholder's withdrawal.
2.08. Shareholder Lock-Up. (a) In connection with each demand
Offering, each Shareholder (whether or not it elects to sell in such Offering)
hereby agrees that it will not sell, assign, transfer, pledge, convey, monetize
or otherwise dispose of any of the New Shares then owned by it, or grant any
options or other rights to acquire such New Shares, without the consent of the
managing underwriter, during the Lock-up Periods applicable to such Offering.
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(b) Notwithstanding Section 2.08(a), each Shareholder may:
(i) sell or transfer any New Shares to a person (including an
affiliate of the seller) that is, or becomes, a party to this
Agreement at the time of the sale or transfer;
(ii) sell any New Shares as part of such Offering; and
(iii) if such Shareholder is an individual:
(A) transfer any New Shares to a trust for the direct or
indirect benefit of such individual Shareholder; provided that
the trustee of the trust agrees to be bound by the terms of this
Agreement; and
(B) sell, gift, assign or transfer any New Shares to members
of the immediate family of the individual Shareholder, provided
that each recipient agrees to be bound by the terms of this
Agreement.
2.09. Collection of $5,000 Payment from Each Selling Shareholder. Each
Shareholder agrees that, if it is a Selling Shareholder in a demand Offering,
the Coordinating Committee may deduct, or cause to be deducted, such Selling
Shareholder's $5,000 Selling Shareholder Payment from the proceeds to be
received by it in the Offering, which amount shall be paid to the Coordinating
Committee for application as provided for in Section 5.01(b).
2.10. Miscellaneous Provisions Applicable to a Demand Offering. (a)
Subject to the other provisions hereof, the Company will cooperate fully with
the Coordinating Committee and the Selling Shareholders in connection with each
demand Offering.
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(b) In connection with each demand Offering, the Company agrees to
make available appropriate senior officers to participate in customary road show
meetings with the underwriters' sales forces, potential investors and securities
analysts, such road show to be of a length, extent and nature as is then
customary for underwritten public offerings of a size and complexity, and for
issuers, reasonably comparable to such Offering by the Company, provided that
the Company and the managing underwriter shall consult in good faith as to the
length, extent and nature of such road show.
(c) The Company shall be entitled to select the financial printer for
each demand Offering.
ARTICLE 3
COORDINATING COMMITTEE
3.01. Members. The Coordinating Committee will initially consist of
the Shareholders listed on Annex B. Any member of the Coordinating Committee may
resign at any time.
3.02. Automatic Cessation of Membership. Any member of the
Coordinating Committee that ceases to be an Eligible Shareholder will cease to
be a member of the Coordinating Committee and Mr. Alvarez may not serve on the
Coordinating Committee if he is a member of the Board.
3.03. Replacement. The Coordinating Committee may replace any
Shareholder who has resigned or ceased to be a member of the Coordinating
Committee with another Eligible
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Shareholder and will replace one or more departed members if the number of
members is less than five.
3.04. Voting. The Coordinating Committee will act by majority vote,
with the majority to be determined by the number of Covered Shares owned by each
member of the Coordinating Committee at the time of the relevant vote. The
Coordinating Committee may, by such majority vote, adopt rules or by-laws to
govern its proceedings. The Company may rely on any document received from the
Coordinating Committee as having been authorized, executed and delivered with
the requisite authority.
3.05. Secretary. The Coordinating Committee will appoint a firm or
individual as its Secretary (the "Secretary") to assist it in discharging its
duties and obligations under the terms of this Agreement, which firm or
individual need not be a member of the Coordinating Committee. Initially,
Shearman & Sterling shall be the Secretary. The Coordinating Committee may, in
its discretion, replace such firm as its Secretary and the Secretary may resign
at any time. Notice of any replacement of the Secretary shall be promptly
delivered to the Company.
3.06. Notification of the Company. Notwithstanding that any member of
the Coordinating Committee shall cease to be a member thereof or that the
Secretary of the Coordinating Committee has resigned or been replaced, the
Company may treat such member or Secretary as such, until it receives written
notice from or on behalf of the Coordinating Committee of such change.
3.07. Determination of Eligible Shareholders. Any joint determination
by the Coordinating Committee and the Company that a particular Shareholder is
or is not an "Eligible
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Shareholder" in connection with an Offering shall, in the absence of manifest
error, be final and binding on such Shareholder and all other persons.
ARTICLE 4
DEMAND REGISTRATION PROCEDURES
4.01. Procedures. If and whenever the Company is required to use its
reasonable efforts to effect a demand Offering of Covered Shares under the
Securities Act as provided in Article 2, the Company covenants with each Selling
Shareholder in connection with such Offering as follows. To the extent provided
in Section 7.04, the provisions of this Section 4.01 shall also apply to
piggyback Offerings:
(a) The Company will notify the Coordinating Committee and the
managing underwriter, immediately, and confirm the notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amended Prospectus shall
have been filed;
(ii) of the receipt of any comments from the SEC;
(iii) of any request by the SEC to amend the Registration
Statement or amend or supplement the Prospectus or for additional
information;
(iv) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or
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suspending the use of any preliminary prospectus, or of the suspension
of the qualification of the Covered Shares for offering or sale in any
jurisdiction, or of the institution or threatening (to the extent
known to the Company) of any proceedings for any of these purposes;
(v) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the Covered
Shares, the representations and warranties of the Company contained in
the underwriting agreement contemplated by Section 4.02 cease to be
true and correct in all material respects; and
(vi) of the existence of any fact that results in the
Registration Statement, the Prospectus or any document incorporated
therein by reference containing an untrue statement of material fact
or omitting to state a material fact required to be stated therein or
necessary to make any statement therein not misleading.
It is expressly understood and agreed that the Company's obligations under this
Section 4.01(a) shall be limited to communicating with the Coordinating
Committee and the managing underwriter, and that the Company shall have no
obligation to communicate directly with any Shareholder.
(b) The Company will use its reasonable efforts to prevent the
issuance of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
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(c) The Company will not initially file a Registration Statement and
Prospectus or at any time thereafter file or make any amendment to a
Registration Statement, or any amendment of or supplement to a Prospectus
(including amendments of any documents incorporated by reference into a
Prospectus), of which the Coordinating Committee and the managing
underwriter shall not have previously been advised and furnished a copy, or
to which the Coordinating Committee, the managing underwriter, counsel for
the Selling Shareholders or counsel for the underwriters shall reasonably
object; provided, that the Company shall be entitled to file or make any
amendment to a Registration Statement, or any amendment of or supplement to
a Prospectus (including amendments of any documents incorporated by
reference into a Prospectus), without regard to whether the Coordinating
Committee, the managing underwriter, counsel for the Selling Shareholders
or counsel for the underwriters shall have objected thereto, if the Company
determines, in its reasonable discretion, that such amendment or supplement
is required in order for the Company to meet its statutory obligations
under any applicable law.
(d) The Company will use its reasonable efforts to comply with the
Securities Act and the rules and regulations of the SEC thereunder and the
Exchange Act and the rules and regulations of the SEC thereunder so as to
permit the completion of the distribution of the Covered Shares in the
Offering. If at any time when a Prospectus is required by the Securities
Act to be delivered in connection with sales of the Covered Shares any
event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the Selling Shareholders, counsel for the
underwriters or counsel for the Company, to amend the Registration
Statement or amend or supplement the
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Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of any of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the Securities Act or the rules
and regulations of the SEC thereunder, the Company will promptly prepare
and file with the SEC, subject to Section 4.01(c), such amendment or
supplement as may be necessary to correct such untrue statement or omission
or to make the Registration Statement or the Prospectus comply with such
requirements.
(e) The Company will furnish to each Selling Shareholder one copy of
the Registration Statement and of each amendment and supplement thereto (in
each case without exhibits), the Prospectus (including each preliminary
prospectus and any amendments or supplements thereto) and such other
documents as such Selling Shareholder may reasonably request (including
exhibits to the Registration Statement and any documents incorporated by
reference in the Prospectus).
(f) The Company will use its reasonable efforts to register or qualify
the Covered Shares covered by each Registration Statement under the state
securities or Blue Sky laws of such jurisdictions within the United States
and its possessions and territories as shall be reasonably requested by the
managing underwriter; provided, however, that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
Section 4.01(f), it would not be obligated to be so qualified, to subject
itself to
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taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction.
(g) The Company will make available for reasonable inspection, during
normal business hours, by representatives of the Coordinating Committee and
the underwriters participating in such registration and counsel or any
accountant retained by the Selling Shareholders or underwriters, all
financial and other records, pertinent corporate documents and properties
of the Company required to enable the underwriters and the Selling
Shareholders to conduct a reasonable due diligence inquiry, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, counsel or
accountant in connection with the preparation of the Registration
Statement; provided, however, that any records, information or documents
that are designated by the Company in writing as confidential shall be kept
confidential by each such person unless such records, information or
documents become part of the public domain through no fault of such person
or unless disclosure thereof is required by court or administrative order.
(h) The Company will make generally available to the Coordinating
Committee and the Shareholders, as soon as practicable, an earnings
statement of the Company (in form complying with the provisions of Rule 158
under the rules and regulations of the SEC under the Securities Act),
covering a period of 12 months beginning after the effective date of the
Registration Statement but not later than the first day of the Company's
fiscal quarter next following such effective date.
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(i) The Company will furnish the Coordinating Committee with copies of
the following documents delivered at the time of the signing of the
underwriting agreement or at the closing thereunder:
(1) Each opinion or letter of counsel for the Company
delivered to the underwriters under the underwriting agreement,
covering such matters (including a so-called "Rule 10b-5" or
disclosure opinion or letter with respect to the contents of the
Registration Statement and Prospectus) as are customarily covered
in opinions and letters of Company counsel in underwritten public
offerings and such other legal matters as the managing
underwriter or the Coordinating Committee may reasonably request.
Each such opinion or letter shall be addressed to the Selling
Shareholders or shall be accompanied by a reliance letter
authorizing the Selling Shareholders to rely on counsel's opinion
or letter to the underwriters as though it had been addressed to
them.
(2) Subject to the compliance by the Selling Shareholders
with any customary requirements imposed by the accountants, each
"comfort letter" from the Company's independent public
accountants delivered to the underwriters upon the signing of the
underwriting agreement and each bring-down "comfort letter"
delivered to the underwriters at the closing under the
underwriting agreement, each in customary form and covering such
matters with respect to the Registration Statement and Prospectus
(and any documents incorporated by reference in the Prospectus)
as are customarily covered in such letters and as the managing
underwriter may
24
reasonably request. Each such comfort letter shall be addressed
to the Selling Shareholders or shall be accompanied by a reliance
letter authorizing the Selling Shareholders to rely on such
letter to the underwriters as though such comfort letter had been
addressed to them.
(3) Each certificate of an officer or officers of the
Company delivered to the underwriters at the closing under the
underwriting agreement, covering such matters as are customarily
covered by Company certificates in underwritten public offerings
and as the managing underwriter may reasonably request.
(j) In connection with each demand Offering, the Company will cause
each of its directors and executive officers (other than any exempted by
the managing underwriter) to execute a customary lock-up agreement for the
Lock-up Periods.
(k) The Company will coordinate with the Coordinating Committee in the
preparation of material regarding each Selling Shareholder to be included
in the Registration Statement, which in the reasonable judgment of such
Selling Shareholder, the Company or the managing underwriter or their
respective counsel should be included in such Registration Statement.
4.02. Underwriting Agreement. In connection with each demand Offering,
the Company and the Selling Shareholders will enter into an underwriting
agreement with the underwriters as follows:
25
(a) Except as provided below, the underwriting agreement will contain
customary representations and warranties, covenants, closing conditions,
indemnification and contribution provisions, and other provisions.
(b) Each Selling Shareholder will give representations and warranties
in the underwriting agreement, on a several basis, limited to:
(i) its title to its Covered Shares and its power and authority
to transfer the same;
(ii) its right, power and authority to enter into, and its due
execution of, the underwriting agreement, the power of attorney for
the transaction and any other agreement entered into pursuant to
Section 2.07(a);
(iii) that it is and will remain an Eligible Shareholder
hereunder;
(iv) its agreement to a customary lock-up arrangement with the
underwriters covering a period not to exceed the Lock-up Periods;
(v) absence of manipulation by it of the market for the New
Shares; and
(vi) the accuracy of the information furnished by it in writing
for inclusion in the Prospectus.
(c) In the underwriting agreement, each Selling Shareholder will
severally indemnify the underwriters and the Company solely as to the
information furnished by it in writing for use in the Prospectus and no
Selling Shareholder shall be required to make
26
indemnification or contribution payments in excess of the net proceeds
received by it in such Offering.
(d) The indemnification and contribution provisions in the
underwriting agreement will provide that the Company will indemnify the
Selling Shareholders to the same extent that it indemnifies the
underwriters.
(e) The closing conditions in the underwriting agreement will provide
for the delivery to the Coordinating Committee of each document referred to
in Section 4.01(i), with the opinions and comfort letters addressed as
required by Section 4.01(i).
(f) The underwriting agreement will contain a customary lock-up
agreement applicable to the Company for a period not to exceed the Lock-up
Periods.
(g) The underwriting agreement will contain a closing condition
requiring each Selling Shareholder to deliver to the underwriters an
opinion or opinions of its counsel, who need not be outside counsel,
covering such corporate matters as are customarily covered in opinions of
selling shareholder counsel in underwritten public offerings and such other
legal matters as the managing underwriter may reasonably request, except
that the underwriting agreement will not require a so-called "Rule 10b-5"
or disclosure opinion with respect to either the contents of the
Registration Statement and Prospectus or the information furnished by such
Selling Shareholder in writing for inclusion in the Prospectus.
27
ARTICLE 5
REGISTRATION EXPENSES
5.01. Expenses. (a) Except as provided in Sections, 2.07(b), 2.09,
5.01(b) and Article 6, the Company shall pay all (and shall promptly reimburse
the Coordinating Committee and the Shareholders to the extent they have borne
any) Registration Expenses in connection with each demand Offering or piggyback
Offering regardless of whether the Registration Statement filed in connection
with such Offering becomes effective or such Offering is completed. Each Selling
Shareholder shall be responsible for all underwriting discounts, selling
commissions and any transfer taxes applicable to the sale of Covered Shares by
it.
(b) The Selling Shareholder Payments received by the Coordinating
Committee shall be applied by it to the following items in the following order
of priority:
(i) first, to pay the out-of-pocket expenses incurred or
reasonably anticipated to be incurred by the Coordinating Committee;
(ii) second, to cover Registration Expenses otherwise payable by
the Company in connection with the second demand Offering;
(iii) third, to cover Registration Expenses otherwise payable by
the Company in connection with the third demand Offering; and
(iv) fourth, the balance, if any, remaining at the time of the
expiration of this Agreement shall be paid over to the Company.
28
ARTICLE 6
INDEMNIFICATION
6.01. Indemnification by the Company. In connection with each demand
Offering or piggyback Offering hereunder, the Company shall indemnify and hold
harmless each Selling Shareholder, each of its directors, officers, employees,
agents, and each person, if any, who controls such Selling Shareholder within
the meaning of the Securities Act (and the directors, officers, employees and
agents of each such controlling person), against any and all losses, claims,
damages or liabilities, joint or several, and expenses to which such indemnified
party may become subject under the Securities Act or the Exchange Act or other
applicable law, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof, whether or not such indemnified party
is a party thereto) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement pertaining to such Offering, any preliminary or final Prospectus
contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading; and the Company will
reimburse such indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided that the Company shall
not be liable to such indemnified party in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
any such preliminary or final Prospectus, or any amendment or supplement thereto
in reliance upon and in
29
conformity with written information with respect to such indemnified party or
any underwriter furnished to the Company by such indemnified party or
underwriter, respectively, expressly for use in the preparation thereof. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any indemnified party and shall survive the transfer of
the Covered Shares by the Selling Shareholders.
6.02. Indemnification by the Selling Shareholders. In connection with
each demand Offering or piggyback Offering, each Selling Shareholder, severally
and not jointly, shall indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 6.01) the Company and each other Selling
Shareholder, and any of their respective directors, officers, employees, agents
and controlling persons (and the directors, officers employees and agents of
each such controlling person), with respect to any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
pertaining to such Offering, or any preliminary or final Prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, if and to the extent, but only to
the extent, that such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
with respect to such Selling Shareholder furnished to the Company by such
Selling Shareholder expressly for use in the preparation of such Registration
Statement, preliminary or final Prospectus or amendment or supplement; provided
that no Selling Shareholder shall be liable pursuant to this Section 6.02 for
any amount in excess of the net proceeds received by it from the sale of Covered
Shares in such Offering. Such indemnity shall remain in full force and effect
regardless of any investigation
30
made by or on behalf of any such indemnified party, and shall survive the
transfer of the Covered Shares by such Selling Shareholder.
6.03. Notices of Claims, etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Article 6, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided that the failure of the
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 6.01 or 6.02, except to the
extent that the indemnifying party is actually materially prejudiced by such
failure to give notice. Except as provided below, in case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof. If the indemnified party has been advised
by counsel that having common counsel would result in a conflict of interest
between the interests of such indemnified and indemnifying parties, then such
indemnified party may employ separate counsel reasonably acceptable to the
indemnifying party to represent or defend such indemnified party in such action,
it being understood, however, that the indemnifying party shall not be liable
for the reasonable fees and expenses of more than one separate firm of attorneys
at any time for all such
31
indemnified parties (and not more than one separate firm of local counsel at any
time for all such indemnified parties) in such action. No indemnifying party
will consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect of such
claim or litigation.
6.04. Contribution. If recovery is not available under the foregoing
indemnification provisions of this Article 6 for any reason, the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution for liabilities and expenses. Such contribution will be in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and such indemnified party, on the other hand, in
connection with the actions, statements or omissions that resulted in such
liabilities and expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party, on the one hand,
and the indemnified party, on the other hand, will be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been taken or made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such action, statement or omission. The amount paid or payable by a
party as a result of any such liabilities and expenses will be deemed to include
any investigation, legal or other fees or expenses incurred by such party in
connection with any investigation or proceeding, to the extent such party would
have been indemnified for such expenses if the indemnification provided for in
Section 6.01 or 6.02 was available to such party. Notwithstanding the provisions
of this Article 6, no Selling Shareholder shall be required to contribute any
amount in excess of the net proceeds received by such Selling Shareholder
32
from the sale of Covered Shares covered by the Registration Statement giving
rise to the claim for contribution. 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.
6.05. Non-Exclusivity. The obligations of the parties under this
Article 6 shall be in addition to any liability that any party may otherwise
have to any other party.
ARTICLE 7
PIGGYBACK OFFERINGS
7.01. Piggyback Registration Rights. (a) If the Company, at any time
prior to the third anniversary of the Effective Date, proposes to register
shares of its common stock or securities that are convertible into or
exchangeable for shares of its common stock under the Securities Act (other than
by a registration on Form S-4, S-8, S-14 or S-15 or any successor or similar
forms), whether or not for sale for its own account, the Company shall give
prompt written notice to the Coordinating Committee and all Shareholders of its
intention to register such securities and of the Shareholders' rights under this
Section 7.01.
(b) A Shareholder that receives a notice referred to in Section
7.01(a) may, if it is an Eligible Shareholder, elect to participate in the
piggyback Offering by returning to the Company and the Coordinating Committee,
within the period specified in the notice, its Eligible Shareholder Certificate.
Thereupon, the Company will, subject to the terms of this Agreement, use its
reasonable efforts to effect the registration under the Securities Act of the
Covered Shares specified in the Eligible Shareholder Certificates received by
it; provided that, if the Company shall determine for any reason not to proceed
with the proposed Offering, the Company may, at
33
its election, give written notice of such determination to the Coordinating
Committee and the Shareholders requesting registration of Covered Shares
pursuant to this Section 7.01 and thereupon shall be relieved of its obligation
to register any securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith).
(c) If the piggyback Offering will be an underwritten offering:
(i) the Company will be entitled to select all of the
underwriters; and
(ii) the Coordinating Committee may not give a Demand
Registration Request during any period (not to exceed 90 days)
following the closing of such piggyback Offering that would cause the
Company to breach a lock-up provision contained in the underwriting
agreement for such Offering.
7.02. Cut-back in Piggyback Offerings. If the managing underwriter of
a piggyback Offering pursuant to this Article 7 advises the Company and the
Coordinating Committee that, in its opinion, the number of Covered Shares and
other securities that the Company, the Selling Shareholders and any other
persons propose to sell in the Offering exceeds the largest number of New Shares
and other securities that can be sold in such Offering without having an adverse
effect on the Offering (including, if applicable, the price at which the Company
proposes to sell New Shares or other securities) (the "Maximum Offering
Amount"), then the Company will include in such registration, in the following
priority up to the Maximum Offering Amount:
34
(a) first, all of the shares of common stock or other securities
proposed to be registered for offer and sale by the Company, if any;
(b) second, all of the Covered Shares requested to be included in such
registration by Eligible Shareholders pursuant to this Article 7; and
(c) third, any other shares of common stock or other securities that
are proposed to be included in such registration by other shareholders of
the Company pursuant to any registration rights that they may have;
provided that the reduced number of Covered Shares that may be sold in such
piggyback Offering by the Selling Shareholders shall be allocated pro rata among
the Selling Shareholders participating in such Offering, based on the number of
Covered Shares beneficially owned by the respective Selling Shareholders as
disclosed in their Eligible Shareholder Certificates.
7.03. Selling Shareholder Obligations. (a) In addition to the other
requirements contained herein or in its Eligible Shareholder Certificate, no
Eligible Shareholder may participate in a Piggyback Offering unless:
(i) if the piggyback Offering is an underwritten offering,
it agrees to sell its Covered Shares on the basis provided in the
underwriting agreement entered into in connection with such Offering;
(ii) it completes and executes all customary questionnaires,
powers of attorney, custody agreements and other documents reasonably
required under the terms of such underwriting agreement; and
35
(iii) it remains an Eligible Shareholder through the
effective date of the Registration Statement relating to such
Offering.
(b) If at any time before the effective date of the Registration
Statement pertaining to a piggyback Offering a Selling Shareholder no longer
qualifies as an Eligible Shareholder, such Selling Shareholder shall:
(i) withdraw from the Offering and immediately notify the
Company and the Coordinating Committee of such withdrawal; and
(ii) reimburse the Company for any SEC filing fees lost as a
result of such Selling Shareholder's withdrawal.
7.04. Piggyback Registration Procedures. In connection with each
piggyback Offering, the following provisions shall apply to such Offering:
Sections 4.01(a), 4.01(c), 4.01(d), 4.01(e), 4.01(f), 4.01(g), 4.01(h), 4.01(i)
and 4.01(k).
7.05. Underwriting Agreement for Piggyback Offering. In connection
with each underwritten piggyback Offering, the underwriting agreement with the
underwriters shall be on such customary terms as are approved by the Company,
subject to the following:
(a) Each Selling Shareholder will give representations and warranties
in the underwriting agreement, on a several basis, limited to:
(i) its title to its Covered Shares and its power and authority
to transfer the same;
36
(ii) its right, power and authority to enter into, and its due
execution of, the underwriting agreement, the power of attorney for
the transaction and any other agreement entered in pursuant to Section
7.03;
(iii) that it is and will remain an Eligible Shareholder
hereunder;
(iv) its agreement to a lock-up arrangement with the underwriters
no more onerous to it than that referred to in Section 7.05(e);
(v) absence of manipulation by it of the market for the New
Shares; and
(vi) the accuracy of the information furnished by it in writing
for inclusion in a Prospectus.
(b) In the underwriting agreement, each Selling Shareholder will
severally indemnify the underwriters solely as to the information furnished
by it in writing for use in the Prospectus and no Selling Shareholder shall
be required to make indemnification or contribution payments in excess of
the net proceeds received by it in such Offering.
(c) The indemnification and contribution provisions in the
underwriting agreement will provide that the Company will indemnify the
Selling Shareholders to the same extent that it indemnifies the
underwriters.
(d) The closing conditions in the underwriting agreement will provide
for the delivery to the Coordinating Committee of each document referred to
in Section 4.01(i) , with the opinions and comfort letters addressed as
required by Section 4.01(i).
37
(e) The underwriting agreement will contain a customary lock-up
agreement applicable to each Selling Shareholder for a period not to exceed
the Lock-up Periods.
ARTICLE 8
ORIGINAL AND ADDITIONAL SHAREHOLDERS
8.01. Original Shareholders. On or prior to the Effective Date, a
Creditor will become a party to this Agreement and an original Shareholder
hereunder upon its checking the box provided in the ballots contained in the
Plan solicitation materials.
8.02. Additional Shareholders. After the Effective Date, a person that
holds or is acquiring New Shares may become a party to this Agreement and an
additional Shareholder hereunder upon its execution and delivery to the Company
and the Coordinating Committee of an Addendum hereto (an "Addendum"), a form of
which is attached hereto as Annex D. The Company shall not be required to treat
a person as an additional Shareholder hereunder unless and until it receives an
Addendum from such person. Upon its receipt of an Addendum from an additional
Shareholder, the Company shall revise Annex A accordingly.
ARTICLE 9
RESTRICTION ON SALE OF SECURITIES BY THE COMPANY
9.01. Company Restriction. The Company agrees that, without the prior
written consent of a majority of the Coordinating Committee (voting as provided
in Section 3.04), it will not issue or sell any shares of its common stock or
securities convertible into such shares (including shares issued in mergers,
acquisitions and other business combinations, but excluding the grant or
exercise of employee stock options and the issuance of Company securities under
38
other employee benefit plans), whether or not the transaction is registered
under the Securities Act, for a period starting on the Effective Date and ending
on the earliest to occur of (i) three years after the Effective Date, (ii) such
time as the Coordinating Committee has exercised its three Demand Registration
Rights, and (iii) such time as no New Shares qualify as Covered Shares;
provided, however, that, after the completion of the first demand Offering, the
Company may issue common stock or securities convertible into shares of its
common stock in mergers, acquisitions or other business combinations.
ARTICLE 10
NASDAQ LISTING
10.01. Listing on Nasdaq. The Company will use its reasonable best
efforts to list the New Shares on Nasdaq within 60 days after the Effective
Date. Until such time as the New Shares are listed on Nasdaq, the Company shall
comply with the NASD rules, as amended from time to time, as if the New Shares
were listed on Nasdaq on and from the Effective Date, except to the extent that,
during the first 60 days after the Effective Date, the Company cannot comply
with such rules because the number of independent directors on the Board is less
than the number of independent directors required by such rules.
39
ARTICLE 11
EFFECTIVENESS AND ALTERNATIVE PROVISIONS
11.01. General Effectiveness. (a) Under the terms of the Plan, this
Agreement shall become effective if on or prior to the Effective Date, the
Company, Antonio C. Alvarez II and Creditors holding at least 70% of the New
Shares issued to all Creditors agree to become parties hereto.
(b) If this Agreement does not become effective pursuant to Section
11.01(a), Articles 2, 4, 5, 6, 7, 8 and 9 and Section 12.09 hereof will not
become effective and will have no force or effect.
11.02. Limited Effectiveness. Under the terms of the Plan, if this
Agreement does not become effective pursuant to Section 11.01(a), but on or
prior to the Effective Date, the Company, Antonio C. Alvarez II and at least
four other members of the Coordinating Committee shall execute and deliver this
Agreement, then Articles 1, 3, 10, 11 and 12 (except Section 12.09) hereof shall
be effective, to the extent applicable.
11.03. Restriction on Sale of Securities by the Company. If portions
of this Agreement become effective pursuant to Section 11.02, the Company agrees
that, without the prior written consent of a majority of the Coordinating
Committee (voting as provided in Section 3.04), it will not issue or sell any
shares of its common stock or its preferred stock or securities convertible into
any such shares (including shares issued in mergers, acquisitions and other
business combinations), whether or not the transaction is registered under the
Securities Act, for a period of three years starting on the Effective Date;
provided, however, that, during such
40
three-year period, the Company may issue or sell an aggregate number of shares
of its common stock not exceeding 10% of the number of New Shares outstanding as
of the date hereof, pursuant to the grant or exercise of employee stock options
and under other employee benefit plans.
11.04. Additional Directors. Within 60 days after the Effective Date,
the Board shall appoint two additional directors to the Board; provided,
however, that such appointments shall be subject to the prior written consent of
a majority of the Coordinating Committee (voting as provided in Section 3.04).
ARTICLE 12
MISCELLANEOUS
12.01. Notices. All notices, requests, demands and other
communications that are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given when received, if
personally delivered; when transmitted, if transmitted by fax, e-mail or other
electronic or digital transmission method; the day after it is sent, if sent for
next day delivery to a domestic address by a recognized overnight delivery
service (e.g., Federal Express); and upon receipt, if sent by registered or
certified mail (or any substantially similar form of mail), postage prepaid and
return receipt requested. In each case, notice shall be sent to:
If to the Company, addressed to:
The Warnaco Group, Inc.
90 Park Avenue, 25th Floor
New York, NY 10016
Attention: General Counsel
With a copy to:
41
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attention: Alan G. Straus
If to the Coordinating Committee, addressed to its Secretary:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10021
Attention: Jonathan Jewett
If to any Shareholder, to such Shareholder at the address indicated in
Annex A hereto or on its relevant Addendum. If the address of any Shareholder
changes, it shall give notice thereof to the Company and the Coordinating
Committee.
12.02. Severability. In the event that any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement.
12.03. Entire Agreement. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
12.04. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, except in a written instrument signed by the Company and the
Secretary of the Coordinating Committee, on behalf of the Coordinating
Committee. Each Shareholder at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
42
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 12.04, whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the New Shares
or is delivered to such Shareholder.
12.05. Successors, Assigns and Transferees. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, heirs, legatees, successors and any party to which any
Shareholder has sold or otherwise transferred its New Shares who becomes an
additional Shareholder pursuant to Section 8.02.
12.06. Choice of Law. This agreement shall be governed by the laws of
the State of New York.
12.07. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.08. No Inconsistent Agreements. Without the prior written consent
of the Coordinating Committee and except as provided in Section 4.02(f), the
Company will not, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights
granted in this Agreement or otherwise conflicts with the provisions hereof.
12.09. No More Favorable Terms. Without the prior written consent of
the Coordinating Committee, the Company will not grant any registration rights
to any person unless the agreement under which they are granted (i) expressly
prohibits the participation by such
43
person in a demand Offering hereunder and (ii) does not permit the registration
of securities thereunder until the expiration of the Lock-up Periods for the
last demand Offering permitted hereunder.
12.10. Cumulative Remedies. All rights and remedies of each party
hereto are cumulative of each other and of every other right or remedy such
party may otherwise have at law or in equity, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
12.11. Headings. The titles, captions or headings of the Articles and
Sections herein are for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
12.12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
44
IN WITNESS WHEREOF, the Company and Antonio C. Alvarez II have
executed this Registration Rights Agreement as of the date first written above,
and the Creditors who have elected to become parties hereto have done so as
provided in Article 8.
THE WARNACO GROUP, INC.
By:
Name and Title:
Antonio C. Alvarez II
45
Annex A
NAME AND ADDRESS OF EACH PERSON THAT HAS BECOME
A PARTY TO THIS AGREEMENT
AND THE NUMBER OF NEW SHARES OWNED ON THE EFFECTIVE DATE
OR DATE IT BECAME A PARTY THERETO
A. Persons Who Became Parties on or Prior to the Effective Date
B. Persons Who Became Parties After Effective Date
Annex B
COORDINATING COMMITTEE
Bank of America, N.A.
The Bank of Nova Scotia
Citibank, N.A.
Commerzbank A.G.
General Electric Capital Corporation
JP Morgan Chase
Societe Generale
Antonio C. Alvarez II
Annex C
ELIGIBLE SHAREHOLDER CERTIFICATE
Reference is made to the Registration Rights Agreement dated as of
January __, 2003, as it may be amended from time to time (the "Registration
Rights Agreement"), among The Warnaco Group, Inc. (the "Company"), the former
creditors of Warnaco and the other Shareholders parties thereto, and Antonio C.
Alvarez II. All capitalized terms used herein, but not otherwise defined herein,
shall have the meanings ascribed thereto in the Registration Rights Agreement.
The undersigned is the beneficial owner of shares of common stock (the "New
Shares") of the Company and is a party to the Registration Rights Agreement and
a "Shareholder" thereunder.
The undersigned understands that the Coordinating Committee has
exercised or will exercise a Demand Registration Request in accordance with the
terms of the Registration Rights Agreement and that the Company has filed or
intends to file with the SEC a Registration Statement for the registration of
Covered Shares under the Securities Act, to be sold in an underwritten secondary
offering, in accordance with the terms of the Registration Rights Agreement.
Alternatively, this Certificate is being furnished by the undersigned
in connection with a piggyback Offering pursuant to Article 7 of the
Registration Rights Agreement.
A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below.
In order to sell New Shares pursuant to the Registration Statement, a
Shareholder will be required to qualify as an Eligible Shareholder, to be named
as a Selling Shareholder in the related Prospectus and be bound by those
provisions of the Registration Rights Agreement applicable to it (including the
requirement that it become party to the underwriting agreement). Shareholders
that wish to participate in the applicable Offering are required to complete
this Eligible Shareholder Certificate and deliver it to the Company and the
Coordinating Committee, within the applicable time frames, so that they may be
named as Selling Shareholders in the related Prospectus.
If this certificate relates to a demand Offering, the undersigned
Shareholder understands that, pursuant to Section 2.09 of the Registration
Rights Agreement, it will be required to make a $5,000 Selling Shareholder
Payment to the Coordinating Committee, which amount will be deducted from the
proceeds to be received by it in the Offering.
If at any time before the effectiveness of the Registration Statement
a Selling Shareholder no longer qualifies as an Eligible Shareholder, such
Selling Shareholder must withdraw from the registration and immediately notify
the Company and the Coordinating Committee of such withdrawal and reimburse the
Company for all lost SEC filing fees, if any, in accordance with the terms of
the Registration Rights Agreement.
Certain legal consequences arise from being named as a Selling
Shareholder in the Registration Statement and the related Prospectus.
Accordingly, Shareholders are advised to consult their own securities law
counsel regarding the consequences of being named or not being named as a
Selling Shareholder in the Registration Statement and the related Prospectus.
2
If this Certificate relates to a demand Offering, all Shareholders
will be subject to the lock-up provided in Section 2.08 of the Registration
Rights Agreement, whether or not they elect to sell shares in such Offering.
The undersigned Shareholder hereby gives notice to the Company and the
Coordinating Committee that it qualifies as an Eligible Shareholder and of its
intention to sell all or a portion of the Covered Shares beneficially owned by
it as indicated below in Item 6 pursuant to the Registration Statement. The
undersigned, by signing and returning this Eligible Shareholder Certificate,
understands that it will be bound by the terms and conditions of this Eligible
Shareholder Certificate and the Registration Rights Agreement.
The Company and the Coordinating Committee reserve the right to
require additional information or documentation from the undersigned, in order
to establish that the undersigned is an Eligible Shareholder.
The undersigned hereby provides the following information to the
Company and the Coordinating Committee and represents and warrants that such
information is accurate and complete:
3
CERTIFICATE
1. Full legal name of Selling Shareholder:
2. Address for notices to Selling Shareholder:
Telephone:
E-mail:
Fax:
Contact Person:
4
3. Beneficial ownership of New Shares:
(a)(1) If the undersigned is an original Shareholder, number of New Shares
beneficially owned at the Effective Date:
(a)(2) If the undersigned is an additional Shareholder, number of New
Shares beneficially owned on date became a party to the Registration
Rights Agreement:
(b) Number of New Shares acquired since the Effective Date (or after
became party to Registration Rights Agreement) from a party to the
Registration Rights Agreement and the identity of such person:
(c) Number of New Shares acquired since the Effective Date in market
transactions or from a person who was not a party to the Registration
Rights Agreement (net of any sales of shares covered by this clause
(c)).
(d) Number of New Shares covered by clause (a) or (b) sold to a
Shareholder or to a person who became a party to the Registration
Rights Agreement or, if applicable, in a prior demand or piggyback
Offering under the Registration Rights Agreement.
(e) Number of New Shares covered by clause (a) or (b) sold in market
transactions or to a person who was not a party to the Registration
Rights Agreement and did not become a party thereto in connection with
such transaction.
(f) Total number of New Shares currently owned (a+b+c) - (d+e) =
Total number of Covered Shares currently owned (a+b) - (d+e) =
5
4. Qualification as an Eligible Shareholder:
If e =
-----------
(a + b)
o Less than 10% if the date of this Certificate is on
or prior to December 31, 2003;
o Less than 20% if the date of this Certificate is
during 2004; and
o Less than 30% if the date of this Certificate is
during 2005 or later,
then you qualify as an Eligible Shareholder.
I hereby certify that as of the date hereof: (check one)
[ ] I qualify as an Eligible Shareholder
[ ] I do not qualify as an Eligible Shareholder
5. Beneficial ownership of other Company securities owned by the Selling
Shareholder:
Except as set forth below in this Item (5), the undersigned is not the
beneficial or registered owner of any securities of the Company other than
the New Shares listed above in Item (3).
(a) Type and amount of other Securities beneficially owned by the Selling
Shareholder:
(b) CUSIP No(s). of such other Securities beneficially owned:
6. Number of Covered Shares to be sold in Offering:
(a) How many Covered Shares do you wish to sell in this offering (these
are your firm shares)? (May not exceed 86.95% of your Covered Shares,
unless the Company or another Eligible Shareholder has agreed to
provide shares for the Green Shoe Option on your firm shares)
6
(b) An additional 15% of the number of the Covered Shares specified in
Item 6(a) will have to be made available to the underwriters to cover
the Green Shoe Option on your firm shares. Indicate whether you will
provide these shares or whether you have arranged for the Company or
another Eligible Shareholder to do so.
(c) Are you willing to provide additional Covered Shares to cover the
Green Shoe Option for another Eligible Shareholder?
Yes ____
No ____
If yes, how many shares? _____
(d) Would you like another Eligible Shareholder to provide Covered Shares
to cover your Green Shoe Option?
Yes ____
No ____
If yes, how many shares? _____
7. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held any
position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
7
8. Please add the information specified above with respect to any other person
who may be deemed to beneficially own your New Shares:
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Exchange Act, and the rules thereunder
relating to stock manipulation, particularly Regulation M thereunder (or any
successor rules or regulations), in connection with any offering of New Shares
pursuant to the Registration Statement. The undersigned agrees that neither it
nor any person acting on its behalf will engage in any transaction in violation
of such provisions.
The undersigned hereby represents and warrants that it is an Eligible
Shareholder and acknowledges its obligations under the Registration Rights
Agreement and under the underwriting agreement to be entered into in connection
with this to indemnify and hold harmless certain persons as set forth therein.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Registration Statement, the undersigned agrees to promptly
notify the Company and the Coordinating Committee of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time until a Prospectus is no longer required to be delivered in
connection with the Offering. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing at the address set forth
below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (8) above and
the inclusion of such information in the Registration Statement and the related
Prospectus. The undersigned understands that such information will be relied
upon by the Company in connection with the preparation or amendment of the
Registration Statement and the related Prospectus.
8
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Certificate to be executed and delivered either in person or by its
duly authorized agent.
Beneficial owner
By:
Name and Title:
Dated:
PLEASE RETURN THE COMPLETED AND EXECUTED CERTIFICATE TO WARNACO AND
THE COORDINATING COMMITTEE AT:
Corporate Secretary
The Warnaco Group, Inc.
90 Park Avenue, 25th Floor
New York, NY 10016
[Address of Coordinating Committee]
9
Annex D
Addendum to
Registration Rights Agreement
[Date]
Reference is made to the Registration Rights Agreement dated as of
January __, 2003, as it may be amended from time to time (the "Registration
Rights Agreement"), among The Warnaco Group, Inc. (the "Company"), the former
creditors of Warnaco and the other Shareholders parties thereto, and Antonio C.
Alvarez II. All capitalized terms used herein, but not otherwise defined herein,
shall have the meanings ascribed thereto in the Registration Rights Agreement.
The undersigned hereby certifies that it is the beneficial of the
number of New Shares of the Company set forth below.
Pursuant to Section 8.02(b) of the Registration Rights Agreement, the
undersigned hereby agrees to become a party to the Registration Rights Agreement
as an additional Shareholder thereunder and acknowledges that it shall be
entitled to all of the benefits, and subject to all of the obligations,
including the lock-up obligations contained in Section 2.08 of the Registration
Rights Agreement, of a Shareholder thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Addendum to be
duly executed by its authorized officer as of the date first written above.
[NAME OF ADDITIONAL SHAREHOLDER]
By:
Name and Title:
Print Name of Additional Shareholder:______________________________________
Number of New Shares Beneficially Owned:_________________________
2
EXHIBIT 4
RIGHTS AGREEMENT
THE WARNACO GROUP, INC.
and
[NAME OF RIGHTS AGENT]
Rights Agent
Rights Agreement
Dated as of ____________ __, 2003
TABLE OF CONTENTS
Page
Section 1. Certain Definitions.................................................................1
Section 2. Appointment of Rights Agent.........................................................7
Section 3. Issue of Rights Certificates........................................................7
Section 4. Form of Rights Certificates.........................................................8
Section 5. Countersignature and Registration...................................................9
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates........................10
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights......................10
Section 8. Cancellation and Destruction of Rights Certificates................................12
Section 9. Reservation and Availability of Capital Stock......................................12
Section 10. Preferred Stock Record Date........................................................14
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights........14
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.........................22
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power...............23
Section 14. Fractional Rights and Fractional Shares............................................26
Section 15. Rights of Action...................................................................26
Section 16. Agreement of Rights Holders........................................................27
Section 17. Rights Certificate Holder Not Deemed a Stockholder.................................28
Section 18. Concerning the Rights Agent........................................................28
Section 19. Merger or Consolidation or Change of Name of Rights Agent..........................28
Section 20. Duties of Rights Agent.............................................................29
Section 21. Change of Rights Agent.............................................................31
Section 22. Issuance of New Rights Certificates................................................32
i
Section 23. Redemption and Termination.........................................................32
Section 24. Notice of Certain Events...........................................................33
Section 25. Notices ...........................................................................34
Section 26. Supplements and Amendments.........................................................34
Section 27. Successors.........................................................................35
Section 28. Determinations and Actions by the Board of Directors, Etc..........................35
Section 29. Benefits of this Agreement.........................................................36
Section 30. Severability.......................................................................36
Section 31. Governing Law......................................................................36
Section 32. Counterparts.......................................................................36
Section 33. Descriptive Headings...............................................................36
Section 34. Exchange ..........................................................................37
ii
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of _________ __, 2003 (this "Agreement"),
between The Warnaco Group, Inc., a Delaware corporation (the "Company"), and
_________________________, a _____________________ corporation (the "Rights
Agent").
WHEREAS, effective _________ __, 2003 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company authorized and
declared a distribution of one Right (each, a "Right") for each share of Common
Stock, par value $_____ per share, of the Company (the "Company Common Stock")
outstanding at the Close of Business (as defined below) on _________ __, 2003
(the "Record Date"), and has authorized the issuance of one Right (as such
number may hereinafter be adjusted pursuant hereto) for each share of Company
Common Stock issued between the Record Date (whether originally issued or
delivered from the Company's treasury) and, except as otherwise provided in
Section 22, the Distribution Date, each Right initially representing the right
to purchase upon the terms and subject to the conditions hereinafter set forth
one Unit (as defined below) of Series A Preferred Stock (as defined below);
WHEREAS, the Company desires to set forth certain terms and conditions
governing the Rights; and
WHEREAS, the Company desires to appoint the Rights Agent to act as
rights agent hereunder, in accordance with the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the shares of Company Common Stock then
outstanding, but shall not include (1) (x) any such Person who has become
and is such a Beneficial Owner pursuant to a Qualifying Offer, (y) the
Company, any Subsidiary of the Company, any employee benefit plan
maintained by the Company or any of its Subsidiaries or any trustee or
fiduciary with respect to such plan acting in such capacity or (z) any such
Person who has become and is such a Beneficial Owner solely because (A) of
a change in the aggregate number of shares of the Company Common Stock
since the last date on which such Person acquired Beneficial Ownership of
any shares of the Company Common Stock or (B) it acquired such Beneficial
Ownership in the good faith belief that such acquisition
(1) Consider whether it may be necessary to exempt a stockholder who or which
already beneficially owns in excess of 15% of the outstanding shares of the
Company Common Stock.
would not (1) cause such Beneficial Ownership to be equal to or exceed 15%
of the shares of the Company Common Stock then outstanding and such Person
relied in good faith in computing the percentage of its Beneficial
Ownership on publicly filed reports or documents of the Company that are
inaccurate or out-of-date or (2) otherwise cause a Distribution Date or the
adjustment provided for in Section 11(a)(ii) to occur. Notwithstanding
clause (y)(B) of the prior sentence, if any Person that is not an Acquiring
Person due to such clause (y)(B) does not reduce its percentage of
Beneficial Ownership of the Company Common Stock to less than 15% by the
Close of Business on the fifth Business Day after notice from the Company
(the date on which such notice is first mailed or sent being the first day)
that such person's Beneficial Ownership of the Company Common Stock is
equal to or exceeds 15%, such Person shall, at the end of such five
Business Day period, become an Acquiring Person (and such clause (y)(B)
shall no longer apply to such Person). For purposes of this definition, the
determination whether any Person acted in "good faith" shall be
conclusively determined by the vote of the majority of the Board of
Directors of the Company.
(b) "Adjustment Shares" has the meaning set forth in Section
11(a)(ii).
(c) "Adjustment Spread" has the meaning set forth in Section 34(a).
(d) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the Exchange Act Regulations as in
effect on the date of this Agreement.
(e) "Agreement" has the meaning set forth in the preamble to this
Agreement.
(f) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own", and shall be deemed to have "Beneficial
Ownership" of, any securities:
(i) of which such Person or any of such Person's Affiliates or
Associates is considered to be a "beneficial owner" under Rule 13d-3
of the Exchange Act Regulations as in effect on the date of this
Agreement; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own", or to have
"Beneficial Ownership" of, any securities under this subparagraph (i)
as a result of an agreement, arrangement or understanding to vote such
securities if such agreement, arrangement or understanding (A) arises
solely from a revocable proxy given in response to a proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
provisions of the Exchange Act and the Exchange Act Regulations, and
(B) is not reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report);
(ii) that are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate of such other Person) with
which such Person (or any of such Person's Affiliates or Associates)
has any agreement, arrangement or understanding (whether or not in
writing), for the purpose of
2
acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (i) of this paragraph (g)) or
disposing of such securities; or
(iii) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or only after the passage of
time or upon the satisfaction of conditions) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or
upon the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise;
provided, however, that under this paragraph (g) a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own", or to have
"Beneficial Ownership" of, (A) securities tendered pursuant to a tender or
exchange offer made in accordance with Exchange Act Regulations by such
Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, (B) securities that may
be issued upon exercise of Rights at any time prior to the occurrence of a
Triggering Event or (C) securities that may be issued upon exercise of
Rights from and after the occurrence of a Triggering Event, which Rights
were acquired by such Person or any of such Person's Affiliates or
Associates prior to the Distribution Date or pursuant to Section 3(c) or
Section 22 or pursuant to Section 11(i) in connection with an adjustment
made with respect to any such Rights.
(g) "Business Day" shall mean any day other than a Saturday, Sunday or
a day on which banking institutions in The City of New York are authorized
or obligated by law or executive order to close.
(h) "Close of Business" on any given date shall mean 5:00 p.m., New
York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 p.m., New York City time, on the next
succeeding Business Day.
(i) "Common Stock" of any Person other than the Company shall mean the
capital stock of such Person with the greatest voting power, or, if such
Person shall have no capital stock, the equity securities or other equity
interest having power to control or direct the management of such Person.
(j) "Company" has the meaning set forth in the preamble to this
Agreement.
(k) "Company Common Stock" has the meaning set forth in the recitals
to this Agreement.
(l) "Current Value" has the meaning set forth in Section 11(a)(iii).
(m) "Depositary Agent" has the meaning set forth in Section 7(c).
(n) "Distribution Date" has the meaning set forth in Section 3(a).
(o) "Equivalent Preferred Stock" has the meaning set forth in Section
11(b).
3
(p) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(q) "Exchange Act Regulations" shall mean the General Rules and
Regulations under the Exchange Act.
(r) "Expiration Date" has the meaning set forth in Section 7(a).
(s) "Final Expiration Date" has the meaning set forth in Section 7(a).
(t) "Person" shall mean any individual, partnership, limited liability
company, firm, corporation, joint venture, association, trust,
unincorporated organization or other entity, as well as any syndicate or
group deemed to be a person under Section 14(d)(2) of the Exchange Act.
(u) "Preferred Stock" shall mean the Series A Preferred Stock, par
value $_____ per share, of the Company having the voting powers,
designation, preferences and relative, participating, optional or other
special rights and qualifications, limitations and restrictions described
in the Certificate of Designation set forth as Exhibit C hereto.
(v) "preferred stock equivalents" has the meaning specified in Section
11(a)(iii).
(w) "Principal Party" has the meaning set forth in Section 13(b).
(x) "Purchase Price" has the meaning set forth in Section 7(b).
(y) "Qualifying Offer" shall mean a tender or exchange offer for all
outstanding shares of Company Common Stock which meets all of the following
requirements:
(i) if the per share consideration includes cash, that on or
prior to the date such offer is commenced within the meaning of Rule
14d-2(a) of the General Rules and Regulations under the Exchange Act,
the offeror has, and has provided to the Company, firm written
commitments from responsible financial institutions, which have been
accepted by such offeror (or one of its Affiliates), to provide,
subject only to customary terms and conditions, funds for such offer
which, when added to the cash and cash equivalents which such offeror
then has available and has irrevocably committed in writing to the
Company to utilize for purposes of such offer, will be sufficient to
pay the per share cash consideration if all shares of Company Common
Stock outstanding on a fully diluted basis are tendered and all
related expenses;
(ii) after the consummation of such offer, the offeror, alone or
together with any of its Affiliates and Associates, owns shares of
Company Common Stock representing at least 55% of the then outstanding
Company Common Stock, excluding for purposes of determining the then
outstanding shares of Company Common Stock under this Section 1(y)(ii)
those shares of Company Common Stock owned by (A) Persons who are
directors and also officers of the Company and (B) employee stock
plans of the Company in which employee participants do
4
not have the right to determine confidentially whether shares of
Company Common Stock held subject to the plan will be tendered in a
tender or exchange offer;
(iii) such offer remains open for at least 30 Business Days;
provided, however, that (A) if there is any increase in the
consideration of such offer, such offer must remain open for at least
an additional 20 Business Days after the last such increase, (B) such
offer must remain open for at least 20 Business Days after the date
that any bone fide alternative offer is made which, in the opinion of
one or more investment banking firms designated by the Company,
provides for consideration per share in excess of that provided for in
such offer, and (C) such offer must remain open for at least 20
Business Days after the date on which such Person reduces the per
share price offered in accordance with Section 1(y)(iv) below;
provided further, however, that such offer need not remain open, as a
result of this Section 1(y)(iii), beyond (1) the time which any other
offer satisfying the criteria for a Qualifying Offer is then required
to be kept open under this Section 1(y)(iii), or (2) the scheduled
expiration date, as such date may be extended by public announcement
on or prior to the then scheduled expiration date, of any other tender
or exchange offer for shares of Company Common Stock with respect to
which the holders of at least 55% of shares of Company Common Stock
have agreed to redeem the Rights pursuant to Section 23 immediately
prior to acceptance for payment of the shares of Company Common Stock
thereunder (unless such other offer is terminated prior to its
expiration without any shares of Company Common Stock having being
purchased thereunder); and
(iv) prior to or on the date that such offer is commenced within
the meaning of Rule 14d-2(a) of the general Rules and Regulations
under the Exchange Act, the offeror makes an irrevocable written
commitment to the Company (A) to consummate a transaction or series of
transactions, promptly upon completion of such offer, whereby all
shares of Company Common Stock not purchased in such offer will be
acquired at the same per share consideration paid in such offer, (B)
that such offeror will not make any amendment to such offer which
reduces the per share consideration offered (other than a reduction to
reflect any dividend declared by the Company after the commencement of
such offer or any material change in the capital structure of the
Company initiated by the Company after the commencement of such offer,
whether by way of recapitalization, reorganization, repurchase or
otherwise), changes the form of consideration offered, reduces the
number of shares being sought or which is in any other respect
materially adverse to the Company's stockholders (other than such
offeror) and (C) that neither such offeror nor any of its Affiliates
or Associates will make any offer for any equity securities of the
Company for a period of six months after the commencement of the
original offer if such original offer does not result in the tender of
the requisite percentage of the voting power of the then outstanding
shares of the Company's voting stock referred to in Section 1(y)(ii)
above, unless another tender or exchange offer by another party for
all outstanding shares of Company Common Stock is commenced (1) at a
per share consideration in excess of that provided for in such
original offer or (2) that
5
is approved by the holders of at least 55% of shares of Company Common
Stock (in which event, any new offer by such offeror or any of its
Affiliates or Associates must be at least at a per share consideration
no less than that provided for in such approved offer).
(z) "Record Date" has the meaning set forth in the recitals to this
Agreement.
(aa) "Redemption Price" has the meaning set forth in Section 23(a).
(bb) "Registered Common Stock" has the meaning set forth in Section
13(b)(ii).
(cc) "Registration Date" has the meaning set forth in Section 9(c).
(dd) "Registration Statement" has the meaning set forth in Section
9(c).
(ee) "Right" has the meaning set forth in the recitals to this
Agreement.
(ff) "Rights Agent" has the meaning set forth in the preamble to this
Agreement.
(gg) "Rights Certificates" has the meaning set forth in Section 3(a).
(hh) "Rights Dividend Declaration Date" has the meaning set forth in
the recitals to this Agreement.
(ii) "Section 11(a)(ii) Event" has the meaning set forth in Section
11(a)(ii).
(jj) "Section 11(a)(iii) Trigger Date" has the meaning set forth in
Section 11(a)(iii).
(kk) "Section 13 Event" has the meaning set forth in Section 13(a).
(ll) "Section 34(a) Exchange Ratio" has the meaning set forth in
Section 34(a).
(mm) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(nn) "Spread" has the meaning set forth in Section 11(a)(iii).
(oo) "Stock Acquisition Date" shall mean the first date of public
announcement (including, without limitation, the filing of any report
pursuant to Section 13(d) of the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such.
(pp) "Subsidiary" of any Person shall mean any other Person of which a
majority of the voting securities or equity interests is beneficially
owned, directly or indirectly, by such Person, or which is otherwise
controlled by such Person.
(qq) "Summary of Rights" has the meaning set forth in Section 3(b).
(rr) "Trading Day" has the meaning set forth in Section 11(d)(i).
6
(ss) "Triggering Event" shall mean any Section 11(a)(ii) Event or any
Section 13 Event.
(tt) "Unit" has the meaning set forth in Section 7(b).
SECTION 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment.
With the consent of the Rights Agent, the Company may from time to time appoint
such Co-Rights Agents as it may deem necessary or desirable.
SECTION 3. Issue of Rights Certificates. (a) Until the earlier of (i)
the Close of Business on the tenth day after the Stock Acquisition Date and (ii)
the Close of Business on the tenth Business Day after the date that a tender or
exchange offer by any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan maintained by the Company or any of its
Subsidiaries or any trustee or fiduciary with respect to such plan acting in
such capacity) is commenced within the meaning of Rule 14d-2 of the Exchange Act
Regulations or any successor rule, if upon consummation thereof such Person
would be the Beneficial Owner of 15% or more of the shares of Company Common
Stock then outstanding (the earlier of (i) and (ii) above being the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for shares of
Company Common Stock registered in the names of the holders of shares of Company
Common Stock as of and subsequent to the Record Date (which certificates for
shares of Company Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares of
Company Common Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Rights Agent will send by
first-class, insured, postage prepaid mail, to each record holder of shares of
Company Common Stock as of the Close of Business on the Distribution Date, at
the address of such holder shown on the records of the Company, one or more
rights certificates, in substantially the form of Exhibit A hereto (the "Rights
Certificates"), evidencing one Right for each share of Company Common Stock so
held, subject to adjustment as provided herein. In the event that an adjustment
in the number of Rights per share of Company Common Stock has been made pursuant
to Section 11(p), at the time of distribution of the Rights Certificates, the
Company may make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a)) so that Rights Certificates evidencing only whole
numbers of Rights are distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights will be evidenced
solely by such Rights Certificates.
(b) As promptly as practicable following the Record Date, the Company
will send a copy of a Summary of Rights to Purchase Preferred Stock, in a form
that may be appended to certificates that evidence shares of Company Common
Stock, in substantially the form attached hereto as Exhibit B (the "Summary of
Rights"), by first-class, postage prepaid mail, to each record holder of shares
of Company Common Stock as of the Close of Business on the Record Date, at the
address of such holder shown on the records of the Company.
(c) Rights shall, without any further action, be issued in respect of
all shares of Company Common Stock that are issued (including any shares of
Company Common Stock held
7
in treasury) after the Record Date but prior to the earlier of the Distribution
Date and the Expiration Date. Certificates evidencing such shares of Company
Common Stock issued after the Record Date shall bear the following legend:
"This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement, dated as of _________
__, 2003 (the "Rights Agreement"), between The Warnaco Group, Inc. (the
"Company") and ____________________ (the "Rights Agent"), the terms of
which are hereby incorporated herein by reference and a copy of which is on
file at the office of the Rights Agent designated for such purpose. Under
certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect on the date of
mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances set forth in the Rights Agreement,
Rights issued to, or held by, any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement), whether currently held by or on behalf of
such Person or by any subsequent holder, may become null and void."
With respect to certificates evidencing shares of Company Common Stock
(whether or not such certificates include the foregoing legend or have appended
to them the Summary of Rights), until the earlier of the Distribution Date and
the Expiration Date, the Rights associated with the shares of Company Common
Stock evidenced by such certificates shall be evidenced by such certificates
alone and registered holders of the shares of Company Common Stock shall also be
the registered holders of the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights associated with
the shares of Company Common Stock evidenced by such certificates.
SECTION 4. Form of Rights Certificates. (a) The Rights Certificates
(and the forms of election to purchase, assignment and certificate to be printed
on the reverse thereof) shall each be substantially in the form set forth in
Exhibit A hereto and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or any rule or
regulation thereunder or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed or to conform to usage. Subject
to the provisions of Section 11 and Section 22, the Rights Certificates,
whenever distributed, shall be dated as of the Record Date and on their face
shall entitle the holders thereof to purchase such number of Units of Preferred
Stock as shall be set forth therein at the price set forth therein, but the
amount and type of securities, cash or other assets that may be acquired upon
the exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued pursuant hereto that evidences
Rights beneficially owned by: (i) an Acquiring Person or any Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) that becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
8
Acquiring Person (or of any such Associate or Affiliate) that becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and
that receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person (or any such Associate or Affiliate) to
holders of equity interests in such Acquiring Person (or such Associate or
Affiliate) or to any Person with whom such Acquiring Person (or such Associate
or Affiliate) has any continuing agreement, arrangement or understanding
regarding either the transferred Rights, shares of Company Common Stock or the
Company or (B) a transfer that the vote of the majority of the Company's Board
of Directors has determined to be part of a plan, arrangement or understanding
that has as a primary purpose or effect the avoidance of Section 7(e), shall
contain (to the extent feasible) the following legend:
"The Rights evidenced by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms are defined in
the Rights Agreement). Accordingly, this Rights Certificate and the Rights
evidenced hereby may become null and void in the circumstances specified in
Section 7(e) of such Agreement."
SECTION 5. Countersignature and Registration. (a) Rights Certificates
shall be executed on behalf of the Company by its Chairman of the Board, the
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any one or more of these officers on the Rights Certificates may be
manual or facsimile. Rights Certificates bearing the manual or facsimile
signatures of the individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the countersignature of such
Rights Certificates or did not hold such offices at the date of such Rights
Certificates. No Rights Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose unless there appears on such Rights
Certificate a countersignature duly executed by the Rights Agent by manual
signature of an authorized signatory, and such countersignature upon any Rights
Certificate shall be conclusive evidence, and the only evidence, that such
Rights Certificate has been duly countersigned as required hereunder.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its office designated for surrender of Rights Certificates
upon exercise or transfer, books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the name and address of
each holder of the Rights Certificates, the number of Rights evidenced on its
face by each Rights Certificate and the date of each Rights Certificate.
SECTION 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates. (a)
Subject to the provisions of Sections 4(b), 7(e) and 14, at any time after the
Close of Business on the Distribution Date, and at or prior to the Close of
Business on the Expiration Date, any Rights Certificate or Certificates may be
transferred, split up, combined or exchanged for another Rights Certificate or
Certificates, entitling the registered holder to purchase a like number of Units
of Preferred Stock (or, following a Triggering Event, other securities, cash or
other assets, as the case may be) as the Rights Certificate or Certificates
surrendered then entitled such holder to
9
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Rights
Certificate or Certificates to be transferred, split up, combined or exchanged
at the office of the Rights Agent designated for such purpose. Neither the
Rights Agent nor the Company shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Rights Certificate until
the registered holder shall have completed and executed the certificate set
forth in the form of assignment on the reverse side of such Rights Certificate
and shall have provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) of the Rights evidenced by such
Rights Certificate or Affiliates or Associates thereof as the Company shall
reasonably request; whereupon the Rights Agent shall, subject to the provisions
of Sections 4(b), 7(e) and 14, countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer,
split up, combination or exchange of Rights Certificates.
(b) If a Rights Certificate shall be mutilated, destroyed, lost or
stolen, upon request by the registered holder of the Rights evidenced thereby
and upon payment to the Company and the Rights Agent of all reasonable expenses
incident thereto, there shall be issued, in exchange for and upon cancellation
of the mutilated Rights Certificate, or in substitution for the lost, stolen or
destroyed Rights Certificate, a new Rights Certificate, in substantially the
form of the prior Rights Certificate, of like tenor and evidencing the
equivalent number of Rights, but, in the case of loss, theft or destruction,
only upon receipt of evidence satisfactory to the Company and the Rights Agent
of such loss, theft or destruction of such Rights Certificate and, if requested
by the Company or the Rights Agent, indemnity also satisfactory to it.
SECTION 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a)Prior to the earlier of (i) the Close of Business on the third
anniversary hereof (the "Final Expiration Date") and (ii) the time at which the
Rights are redeemed as provided in Section 23 (the earlier of (i) and (ii) being
the "Expiration Date"), the registered holder of any Rights Certificate may,
subject to the provisions of Sections 7(e) and 9(c), exercise the Rights
evidenced thereby in whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly executed, to the Rights
Agent at the office of the Rights Agent designated for such purpose, together
with payment of the aggregate Purchase Price (as hereinafter defined) for the
number of Units of Preferred Stock (or, following a Triggering Event, other
securities, cash or other assets, as the case may be) for which such surrendered
Rights are then exercisable.
(b) The purchase price for each one one-thousandth of a share (each
such one one-thousandth of a share being a "Unit") of Preferred Stock upon
exercise of Rights shall be $_____ (2), subject to adjustment from time to time
as provided in Sections 11 and 13(a) (such purchase price, as so adjusted, being
the "Purchase Price"), and shall be payable in accordance with paragraph (c)
below.
(2) The initial Purchase Price should be a price that the Company can support
as representing the potential value of the Company Common Stock at the
Final Expiration Date.
10
(c) As promptly as practicable following the occurrence of the
Distribution Date, the Company shall deposit with a corporation in good standing
organized under the laws of the United States or any state of the United States,
that is authorized under such laws to exercise corporate trust or stock transfer
powers and is subject to supervision or examination by federal or state
authority (such institution being the "Depositary Agent"), certificates
evidencing the shares of Preferred Stock that may be acquired upon exercise of
the Rights and shall cause such Depositary Agent to enter into an agreement
pursuant to which the Depositary Agent shall issue receipts evidencing interests
in the shares of Preferred Stock so deposited. Upon receipt of a Rights
Certificate evidencing exercisable Rights, with the form of election to purchase
and the certificate duly executed, accompanied by payment, with respect to each
Right so exercised, of the Purchase Price for the Units of Preferred Stock (or,
following a Triggering Event, other securities, cash or other assets, as the
case may be) to be purchased thereby as set forth below and an amount equal to
any applicable transfer tax or evidence satisfactory to the Company of payment
of such tax, the Rights Agent shall, subject to Section 20(k), thereupon
promptly (i) requisition from the Depositary Agent depositary receipts or
certificates evidencing such number of Units of Preferred Stock as are to be
purchased and the Company will direct the Depositary Agent to comply with such
request, (ii) requisition from the Company the amount of cash, if any, to be
paid in lieu of fractional shares in accordance with Section 14, (iii) after
receipt of such depositary receipts or certificates, cause the same to be
delivered to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights Certificate. In the event that
the Company is obligated to issue Company Common Stock, other securities of the
Company, pay cash and/or distribute other property pursuant to Section 11(a),
the Company will make all arrangements necessary so that such Company Common
Stock, other securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate. Subject to Section
34, the payment of the Purchase Price (as such amount may be reduced pursuant to
Section 11(a)(iii)) may be made in cash or by certified or bank check payable to
the order of the Company, or by wire transfer of immediately available funds to
the account of the Company (provided that notice of such wire transfer shall be
given by the holder of the related Right to the Rights Agent).
(d) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing the Rights remaining unexercised shall be issued by the Rights Agent
and delivered to, or upon the order of, the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, subject to the provisions of Section 14.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of any Section 11(a)(ii) Event or Section 13
Event, any Rights beneficially owned by (i) an Acquiring Person or an Associate
or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) that becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) that becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and that receives such
Rights pursuant to either (A) a transfer (whether or not for consideration) from
the Acquiring Person (or any such Associate or Affiliate) to holders of equity
interests in such Acquiring Person (or such Associate or Affiliate) or to any
11
Person with whom such Acquiring Person (or such Associate or Affiliate) has any
continuing agreement, arrangement or understanding regarding the transferred
Rights, shares of Company Common Stock or the Company or (B) a transfer that the
vote of the majority of the Company's Board of Directors has determined to be
part of a plan, arrangement or understanding that has as a primary purpose or
effect the avoidance of this Section 7(e), shall be null and void without any
further action, and no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) are complied with, but shall
have no liability to any holder of Rights or any other Person as a result of the
Company's failure to make any determination under this Section 7(e) or Section
4(b) with respect to an Acquiring Person or its Affiliates, Associates or
transferees.
(f) Notwithstanding anything in this Agreement or any Rights
Certificate to the contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered holder upon the
occurrence of any purported exercise by such registered holder unless such
registered holder shall have (i) completed and executed the certificate
following the form of election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of the Rights evidenced by such Rights Certificate or
Affiliates or Associates thereof as the Company shall reasonably request.
SECTION 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
this Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire, any Rights
Certificates acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Rights Certificates to the Company,
or shall, at the written request of the Company, destroy such cancelled Rights
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.
SECTION 9. Reservation and Availability of Capital Stock. (a) The
Company shall at all times prior to the Expiration Date cause to be reserved and
kept available, out of its authorized and unissued shares of Preferred Stock,
the number of shares of Preferred Stock that, as provided in this Agreement,
will be sufficient to permit the exercise in full of all outstanding Rights.
Upon the occurrence of any events resulting in an increase in the aggregate
number of shares of Preferred Stock (or other equity securities of the Company)
issuable upon exercise of all outstanding Rights above the number then reserved,
the Company shall make appropriate increases in the number of shares so
reserved.
(b) If the shares of Preferred Stock to be issued and delivered upon
the exercise of the Rights may be listed on any national securities exchange,
the Company shall during the period from the Distribution Date through the
Expiration Date use its best efforts to cause all securities reserved for such
issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
12
(c) The Company shall use its best efforts (i) as soon as practicable
following the occurrence of a Section 11(a)(ii) Event and a determination by the
Company in accordance with Section 11(a)(iii) of the consideration to be
delivered by the Company upon exercise of the Rights or, if so required by law,
as soon as practicable following the Distribution Date (such date being the
"Registration Date"), to file a registration statement on an appropriate form
under the Securities Act with respect to the securities that may be acquired
upon exercise of the Rights (the "Registration Statement"), (ii) to cause the
Registration Statement to become effective as soon as practicable after such
filing, (iii) to cause the Registration Statement to continue to be effective
(and to include a prospectus complying with the requirements of the Securities
Act) until the earlier of (A) the date as of which the Rights are no longer
exercisable for the securities covered by the Registration Statement and (B) the
Expiration Date and (iv) to take as soon as practicable following the
Registration Date such action as may be required to ensure that any acquisition
of securities upon exercise of the Rights complies with any applicable state
securities or "blue sky" laws. [The Company may temporarily suspend, for a
period of time not to exceed [__] Business Days after the event referred to in
clause (i) of the first sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration statement and permit it to
become effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension has
been rescinded. In addition, if the Company shall determine that a registration
statement is required following the Distribution Date, the Company may
temporarily suspend the exercisability of the Rights until such time as a
registration has been declared effective. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such jurisdiction shall not have
been obtained, the exercise thereof shall not be permitted under applicable law,
or a registration statement shall not have been declared effective. If the
Registration Statement does not become effective prior to the Close of Business
on the [__] Business Day following the occurrence of a Section 11(a)(ii) Event,
the Company shall, on the [__] Business Day following the occurrence of such
Section 11(a)(ii) Event, exercise the option described in Section 34.]
(d) The Company shall take such action as may be necessary to ensure
that all shares of Preferred Stock (and, following the occurrence of a
Triggering Event, any other securities that may be delivered upon exercise of
Rights) shall be, at the time of delivery of the certificates or depositary
receipts for such securities, duly and validly authorized and issued and fully
paid and non-assessable.
(e) The Company shall pay any documentary, stamp or transfer tax
imposed in connection with the issuance or delivery of the Rights Certificates
or upon the exercise of Rights; provided, however, that the Company shall not be
required to pay any such tax imposed in connection with the issuance or delivery
of Units of Preferred Stock, or any certificates or depositary receipts for such
Units of Preferred Stock (or, following the occurrence of a Triggering Event,
any other securities, cash or assets, as the case may be) to any Person other
than the registered holder of the Rights Certificates evidencing the Rights
surrendered for exercise. The Company shall not be required to issue or deliver
any certificates or depositary receipts for Units of Preferred Stock (or,
following the occurrence of a Triggering Event, any other securities, cash or
assets, as the case may be) to, or in a name other than that of, the registered
holder of the Rights Certificate upon the exercise of any Rights evidenced
thereby
13
until any such tax shall have been paid (any such tax being payable by the
holder of such Rights Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
SECTION 10. Preferred Stock Record Date. Each Person in whose name any
certificate or depositary receipt for Units of Preferred Stock (or, following
the occurrence of a Triggering Event, other securities) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of
record of the Units of Preferred Stock (or, following the occurrence of a
Triggering Event, other securities) evidenced thereby on, and such certificate
or depositary receipt shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Preferred Stock (or,
following the occurrence of a Triggering Event, other securities) transfer books
of the Company are closed, such Person shall be deemed to have become the record
holder of such securities on, and such certificate or depositary receipt shall
be dated, the next succeeding Business Day on which the Preferred Stock (or,
following the occurrence of a Triggering Event, other securities) transfer books
of the Company are open; and further provided, however, that if delivery of
Units of Preferred Stock is delayed as a result of a failure to register such
Units of Preferred Stock pursuant to Section 9(c), such Persons shall be deemed
to have become the record holders of such Units of Preferred Stock only when
such Units first become deliverable. Prior to the exercise of the Rights
evidenced thereby, the holder of a Rights Certificate shall not be entitled to
any rights of a stockholder of the Company with respect to securities for which
the Rights shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
SECTION 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights. (a) The Purchase Price, the number and kind of securities
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(i) In the event the Company shall at any time after the date of this
Agreement (A) declare a dividend on the Preferred Stock payable in shares
of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C)
combine the outstanding Preferred Stock into a smaller number of shares or
(D) issue any shares of its capital stock in a reclassification of the
Preferred Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a), the
Purchase Price in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of Preferred Stock or
capital stock, as the case may be, issuable on such date upon exercise of
the Rights, shall be proportionately adjusted so that the holder of any
Right exercised after such time shall be entitled to receive, upon payment
of the Purchase Price then in effect, the aggregate number and kind of
shares of Preferred Stock or capital stock, as the case may be, which, if
such Right had been exercised immediately prior to such date, such holder
would have owned upon such exercise and been entitled to receive by virtue
14
of such dividend, subdivision, combination or reclassification. If an event
occurs that would require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii).
(ii) In the event:
(A) any Acquiring Person or any Associate or Affiliate of any
Acquiring Person, at any time after the date of this Agreement,
directly or indirectly, shall (1) merge into the Company or otherwise
combine with the Company and the Company shall be the continuing or
surviving corporation of such merger or combination and Company Common
Stock shall remain outstanding and unchanged, (2) in one transaction
or a series of transactions, transfer any assets to the Company or to
any of its Subsidiaries in exchange (in whole or in part) for shares
of Company Common Stock, for other equity securities of the Company or
any such Subsidiary, or for securities exercisable for or convertible
into shares of equity securities of the Company or any of its
Subsidiaries (whether Company Common Stock or otherwise) or otherwise
obtain from the Company or any of its Subsidiaries, with or without
consideration, any additional shares of such equity securities or
securities exercisable for or convertible into such equity securities
(other than pursuant to a pro rata distribution to all holders of
Company Common Stock), (3) sell, purchase, lease, exchange, mortgage,
pledge, transfer or otherwise acquire or dispose of, in one
transaction or a series of transactions, to, from or with the Company
or any of its Subsidiaries or any employee benefit plan maintained by
the Company or any of its Subsidiaries or any trustee or fiduciary
with respect to such plan acting in such capacity, assets (including
securities) on terms and conditions less favorable to the Company or
such Subsidiary or plan than those that could have been obtained in
arm's-length negotiations with an unaffiliated third party, other than
pursuant to a transaction set forth in Section 13(a), (4) sell,
purchase, lease, exchange, mortgage, pledge, transfer or otherwise
acquire or dispose of, in one transaction or a series of transactions,
to, from or with the Company or any of the Company's Subsidiaries or
any employee benefit plan maintained by the Company or any of its
Subsidiaries or any trustee or fiduciary with respect to such plan
acting in such capacity (other than transactions, if any, consistent
with those engaged in, as of the date hereof, by the Company and such
Acquiring Person or such Associate or Affiliate), assets (including
securities) having an aggregate fair market value of more than
$[5,000,000], other than pursuant to a transaction set forth in
Section 13(a), (5) sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise acquire or dispose of, in one transaction or a
series of transactions, to, from or with the Company or any of its
Subsidiaries or any employee benefit plan maintained by the Company or
any of its Subsidiaries or any trustee or fiduciary with respect to
such plan acting in such capacity, any material trademark or material
service mark, other than pursuant to a transaction set forth in
Section 13(a), (6) receive, or any designee, agent or representative
of such Acquiring Person or any Affiliate or Associate of such
Acquiring Person shall receive, any compensation from the Company or
any of its Subsidiaries other than
15
compensation for full-time employment as a regular employee at rates
in accordance with the Company's (or its Subsidiaries') past
practices, or (7) receive the benefit, directly or indirectly (except
proportionately as a holder of Company Common Stock or as required by
law or governmental regulation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantage provided by the Company or any of its Subsidiaries or any
employee benefit plan maintained by the Company or any of its
Subsidiaries or any trustee or fiduciary with respect to such plan
acting in such capacity; or
(B) any Person shall become an Acquiring Person, unless the event
causing such Person to become an Acquiring Person is a transaction set
forth in Section 13(a); or
(C) during such time as there is an Acquiring Person, there shall
be any reclassification of securities (including any reverse stock
split), or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries or any other
transaction or series of transactions involving the Company or any of
its Subsidiaries, other than a transaction or transactions to which
the provisions of Section 13(a) apply (whether or not with or into or
otherwise involving an Acquiring Person), which has the effect,
directly or indirectly, of increasing by more than 1% the
proportionate share of the outstanding shares of any class of equity
securities of the Company or any of its Subsidiaries that is directly
or indirectly beneficially owned by any Acquiring Person or any
Associate or Affiliate of any Acquiring Person;
then, immediately upon the date of the occurrence of an event described in
Section 11(a)(ii)(A), (B) or (C) (a "Section 11(a)(ii) Event"), proper
provision shall be made so that each holder of a Right (except as provided
below and in Section 7(e)) shall thereafter have the right to receive, upon
exercise thereof at the then-current Purchase Price in accordance with the
terms of this Agreement, in lieu of the number of Units of Preferred Stock
for which a Right was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event, such number of Units of Preferred Stock as
shall equal the result obtained by (x) multiplying the then-current
Purchase Price by the then number of Units of Preferred Stock for which a
Right was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event (such product thereafter being, for all purposes of
this Agreement other than Section 13, the "Purchase Price"), and (y)
dividing that product by 50% of the then-current market price (determined
pursuant to Section 11(d)) per Unit of Preferred Stock on the date of such
first occurrence (such Units of Preferred Stock being the "Adjustment
Shares").
(iii) In the event that the number of shares of Preferred Stock that
are authorized by the Company's Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon exercise
of the Rights is not sufficient to permit the exercise in full of the
Rights in accordance with the foregoing subparagraph (ii) of this Section
11(a), the Company shall: (A) determine the excess of (1) the value of the
Adjustment Shares issuable upon the exercise of a Right (the "Current
Value") over (2) the Purchase Price (such excess being the "Spread"), and
(B) with respect to each
16
Right, make adequate provision to substitute for such Adjustment Shares,
upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in
the Purchase Price, (3) Company Common Stock or other equity securities of
the Company (including, without limitation, shares, or units of shares, of
preferred stock (such other shares being "preferred stock equivalents")),
(4) debt securities of the Company, (5) other assets or (6) any combination
of the foregoing, having an aggregate value equal to the Current Value,
where such aggregate value has been determined by the vote of the majority
of the Company's Board of Directors, after receiving advice from a
nationally recognized investment banking firm; provided, however, that if
the Company shall not have made adequate provision to deliver value
pursuant to clause (B) above within thirty days following the later of (x)
the first occurrence of a Section 11(a)(ii) Event and (y) the date on which
the Company's right of redemption pursuant to Section 23(a) expires (the
later of (x) and (y) being referred to herein as the "Section 11(a)(iii)
Trigger Date"), then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of the
Purchase Price, Units of Preferred Stock (to the extent available) and
then, if necessary, cash, which Units of Preferred Stock and/or cash shall
have an aggregate value equal to the Spread. To the extent that the Company
determines that some action need be taken pursuant to the first sentence of
this Section 11(a)(iii), the Company shall provide, subject to Section
7(e), that such action shall apply uniformly to all outstanding Rights. For
purposes of this Section 11(a)(iii), the value of a Unit of Preferred Stock
shall be the current market price (as determined pursuant to Section 11(d))
per Unit of Preferred Stock on the Section 11(a)(iii) Trigger Date and the
value of any preferred stock equivalent shall be deemed to have the same
value as the Preferred Stock on such date.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Stock entitling them to
subscribe for or purchase (for a period expiring within forty-five calendar days
after such record date) shares of Preferred Stock (or shares having
substantially the same rights, privileges and preferences as shares of Preferred
Stock ("Equivalent Preferred Stock")) or securities convertible into Preferred
Stock or Equivalent Preferred Stock at a price per share of Preferred Stock or
per share of Equivalent Preferred Stock (or having a conversion price per share,
if a security convertible into Preferred Stock or Equivalent Preferred Stock)
less than the current market price (as determined pursuant to Section 11(d)) per
share of Preferred Stock on such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the sum of the number of shares of Preferred Stock outstanding on
such record date plus the number of shares of Preferred Stock which the
aggregate offering price of the total number of shares of Preferred Stock and/or
Equivalent Preferred Stock so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current market price, and the denominator of which shall be the number
of shares of Preferred Stock outstanding on such record date plus the number of
additional shares of Preferred Stock and/or Equivalent Preferred Stock to be
offered for subscription or purchase (or into which the convertible securities
so to be offered are initially convertible). In case such subscription price may
be paid by delivery of consideration part or all of which may be in a form other
than cash, the value of such consideration shall be as determined in good faith
by a the vote of the majority of the Company's Board of Directors, whose
determination shall be described in a statement
17
filed with the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Shares of Preferred Stock owned by or held for the
account of the Company or any Subsidiary shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price that would then be in effect if such record date had not been
fixed.
(c) In case the Company shall fix a record date for a distribution to
all holders of shares of Preferred Stock (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash (other than a regular
quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in shares of Preferred Stock,
but including any dividend payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred to in Section 11(b)),
the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the current market price (as
determined pursuant to Section 11(d)) per share of Preferred Stock on such
record date less the fair market value (as determined in good faith by a vote of
the majority of the Company's Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall be binding on the
Rights Agent and the holder of the Rights) of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
distributable in respect of a share of Preferred Stock and the denominator of
which shall be such current market price (as determined pursuant to Section
11(d)) per share of Preferred Stock. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event that such distribution is
not so made, the Purchase Price shall be adjusted to be the Purchase Price that
would have been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current
market price" per share of Company Common Stock or Common Stock on any date
shall be deemed to be the average of the daily closing prices per share of such
shares for the ten consecutive Trading Days immediately prior to such date;
provided, however, that if prior to the expiration of such requisite ten Trading
Day period the issuer announces either (A) a dividend or distribution on such
shares payable in such shares or securities convertible into such shares (other
than the Rights) or (B) any subdivision, combination or reclassification of such
shares, then, following the ex-dividend date for such dividend or the record
date for such subdivision, as the case may be, the "current market price" shall
be properly adjusted to take into account such event. The closing price for each
day shall be, if the shares are listed and admitted to trading on a national
securities exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such shares are listed or admitted to trading or,
if such shares are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by The
Nasdaq Stock Market Consolidated Quotations Service or such other system then in
use, or, if on any such date such shares are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in such shares selected by the vote of
the majority of the Company's Board of Directors. If, on any such date no market
maker is making a market in such shares, the fair value of such shares on such
date as determined in good
18
faith by the vote of the majority of the Company's Board of Directors shall be
used. If such shares are not publicly held or not so listed or traded, "current
market price" per share shall mean the fair value per share as determined in
good faith by the vote of the majority of the Company's Board of Directors,
whose determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes. The term "Trading Day" shall
mean, if such shares are listed or admitted to trading on any national
securities exchange, a day on which the principal national securities exchange
on which such shares are listed or admitted to trading is open for the
transaction of business or, if such shares are not so listed or admitted, a
Business Day.
(ii) For the purpose of any computation hereunder, the "current market
price" per share of Preferred Stock shall be determined in the same manner
as set forth above for Company Common Stock in clause (i) of this Section
11(d) (other than the fourth sentence thereof). If the current market price
per share of Preferred Stock cannot be determined in the manner provided
above or if the Preferred Stock is not publicly held or listed or traded in
a manner described in clause (i) of this Section 11(d), the "current market
price" per share of Preferred Stock shall be conclusively deemed to be an
amount equal to 1,000 (as such amount may be appropriately adjusted for
such events as stock splits, stock dividends and recapitalizations with
respect to Company Common Stock occurring after the Rights Dividend
Declaration Date) multiplied by the current market price per share of
Company Common Stock. If neither Company Common Stock nor Preferred Stock
is publicly held or so listed or traded, "current market price" per share
of the Preferred Stock shall mean the fair value per share as determined in
good faith by the vote of the majority of the Company's Board of Directors,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and the holders of the
Rights. For all purposes of this Agreement, the "current market price" of a
Unit of Preferred Stock shall be equal to the "current market price" of one
share of Preferred Stock divided by 1000.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest
cent or to the nearest one-hundredth of a share of Company Common Stock or
Common Stock or other share or hundred-thousandth of a share of Preferred Stock,
as the case may be. Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction that mandates such
adjustment and (ii) the Expiration Date.
(f) If, as a result of an adjustment made pursuant to Section
11(a)(ii) or 13(a), the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Preferred Stock,
thereafter the number of such other shares so receivable upon exercise of any
Right and the Purchase Price thereof shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock contained in Sections 11(a), (b),
(c), (d), (e), (g), (h), (i), (j), (k), (l) and
19
(m), and the provisions of Sections 7, 9, 10, 13 and 14 with respect to the
Preferred Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of Units of Preferred Stock
(or other securities or amount of cash or combination thereof) that may be
acquired from time to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of Units of Preferred
Stock (calculated to the nearest one hundred-thousandth of a Unit) obtained by
(i) multiplying (x) the number of Units of Preferred Stock covered by a Right
immediately prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in lieu of any adjustment in
the number of Units of Preferred Stock that may be acquired upon the exercise of
a Right. Each of the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of Units of Preferred Stock for which
a Right was exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest hundred-thousandth) obtained by dividing
the Purchase Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the adjustment, and,
if known at the time, the amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be at least ten days
later than the date of such public announcement. If Rights Certificates have
been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14, the additional Rights to
which such holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates to be so
distributed shall be issued, executed and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
20
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of Units of Preferred Stock issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued may continue to
express the Purchase Price per Unit and the number of Units of Preferred Stock
that were expressed in the Initial Rights Certificates issued hereunder without
prejudice to any such adjustment or change.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then-par value of the number of Units of Preferred
Stock issuable upon exercise of the Rights, the Company shall take any corporate
action that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue such fully paid and non-assessable number
of Units of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
of that number of Units of Preferred Stock and shares of other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of Units of Preferred Stock and shares of other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment the vote of the majority of the
Company's Board of Directors shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Stock, (ii) issuance wholly
for cash of any shares of Preferred Stock at less than the current market price,
(iii) issuance wholly for cash of shares of Preferred Stock or securities that
by their terms are convertible into or exchangeable for shares of Preferred
Stock, (iv) stock dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the Company to holders of its
Preferred Stock, shall not be taxable to such holders or shall reduce the taxes
payable by such holders.
(n) The Company shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a Subsidiary of the Company in
a transaction that complies with Section 11(o)), (ii) merge with or into any
other Person (other than a Subsidiary of the Company in a transaction that
complies with Section 11(o)), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series of
transactions, assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or any of its Subsidiaries
in one or more transactions each of which complies with Section 11(o)), if (x)
at the time of or immediately after such consolidation, merger or sale there are
any rights, warrants or other instruments or securities outstanding or
agreements in effect that would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or sale, the
21
Person that constitutes, or would constitute, the "Principal Party" for purposes
of Section 13(a) shall have distributed or otherwise transferred to its
stockholders or other Persons holding an equity interest in such Person Rights
previously owned by such Person or any of its Affiliates and Associates;
provided, however, that this Section 11(n) shall not affect the ability of any
Subsidiary of the Company to consolidate with, merge with or into, or sell or
transfer assets or earning power to, any other Subsidiary of the Company.
(o) After the Distribution Date, the Company shall not, except as
permitted by Section 23 or Section 26, take (or permit any Subsidiary to take)
any action if at the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, in the
event that the Company shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a dividend on the
outstanding shares of Company Common Stock payable in shares of Company Common
Stock, (ii) subdivide the outstanding shares of Company Common Stock, (iii)
combine the outstanding shares of Company Common Stock into a smaller number of
shares, or (iv) issue any shares of its capital stock in a reclassification of
Company Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), the number of Rights associated with each share of Company Common
Stock then outstanding, or issued or delivered thereafter but prior to the
Distribution Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Company Common Stock following
any such event shall equal the result obtained by multiplying the number of
Rights associated with each share of Company Common Stock immediately prior to
such event by a fraction the numerator of which shall be the total number of
shares of Company Common Stock outstanding immediately prior to the occurrence
of the event and the denominator of which shall be the total number of shares of
Company Common Stock outstanding immediately following the occurrence of such
event.
SECTION 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 or Section 13,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer agent for the
Preferred Stock and the Company Common Stock, a copy of such certificate, and
(c) mail a brief summary thereof to each holder of a Rights Certificate (or, if
prior to the Distribution Date, to each holder of a certificate evidencing
shares of Company Common Stock) in accordance with Section 25. The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have knowledge of any
such adjustment unless and until it shall have received such certificate.
SECTION 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. (a) In the event that, following the Stock Acquisition Date,
directly or indirectly, either (x) the Company shall consolidate with, or merge
with and into, any other Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o)), and the Company shall not be the
continuing or surviving corporation of such consolidation or merger, (y) any
Person (other than a Subsidiary of the Company in a transaction that
complies with
22
Section 11(o)) shall consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such consolidation or merger,
all or part of the outstanding shares of Company Common Stock shall be
converted into or exchanged for stock or other securities of any other
Person or cash or any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer) to any Person or Persons (other than the Company or any of its
Subsidiaries in one or more transactions each of which complies with
Section 11(o)), in one or more transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company
and its Subsidiaries, taken as a whole (any such event described in
clause (x), (y) or (z) being a "Section 13 Event"), then, and in each such case,
proper provision shall be made so that: (i) each holder of a Right, except as
provided in Section 7(e), shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price, such number of validly
authorized and issued, fully paid and non-assessable shares of Common Stock of
the Principal Party, which shares shall not be subject to any liens,
encumbrances, rights of first refusal, transfer restrictions or other adverse
claims, as shall be equal to the result obtained by (1) multiplying the then
current Purchase Price by the number of Units of Preferred Stock for which a
Right is exercisable immediately prior to the first occurrence of a Section 13
Event (or, if a Section 11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number of such Units for which
a Right would be exercisable hereunder but for the occurrence of such Section
11(a)(ii) Event by the Purchase Price that would be in effect hereunder but for
such first occurrence) and (2) dividing that product (which, following the first
occurrence of a Section 13 Event, shall be the "Purchase Price" for all purposes
of this Agreement) by 50% of the current market price (determined pursuant to
Section 11(d)) per share of the Common Stock of such Principal Party on the date
of consummation of such Section 13 Event; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such Section 13 Event,
all the obligations and duties of the Company pursuant to this Agreement; (iii)
the term "Company" shall, for all purposes of this Agreement, thereafter be
deemed to refer to such Principal Party, it being specifically intended that the
provisions of Section 11 shall apply only to such Principal Party following the
first occurrence of a Section 13 Event; (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with the consummation of any
such transaction as may be necessary to ensure that the provisions of this
Agreement shall thereafter be applicable to its shares of Common Stock
thereafter deliverable upon the exercise of the Rights; and (v) the provisions
of Section 11(a)(ii) shall be of no further effect following the first
occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x) or (y) of
the first sentence of Section 13(a), (A) the Person that is the issuer of
any securities into which shares of Company Common Stock are converted in
such merger or consolidation, or, if there is more than one such issuer,
the issuer of Common Stock that has the highest aggregate current market
price (determined pursuant to Section 11(d)) and (B) if no securities are
so issued, the Person that is the other party to such merger or
consolidation, or, if there is more than one such Person, the Person the
Common Stock of which has the highest aggregate current market price
(determined pursuant to Section 11(d)); and
23
(ii) in the case of any transaction described in clause (z) of the
first sentence of Section 13(a), the Person that is the party receiving the
largest portion of the assets or earning power transferred pursuant to such
transaction or transactions, or, if each Person that is a party to such
transaction or transactions receives the same portion of the assets or
earning power transferred pursuant to such transaction or transactions or
if the Person receiving the largest portion of the assets or earning power
cannot be determined, whichever Person the Common Stock of which has the
highest aggregate current market price (determined pursuant to Section
11(d)); provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously over the
preceding twelve-month period registered under Section 12 of the Exchange
Act ("Registered Common Stock"), or such Person is not a corporation, and
such Person is a direct or indirect Subsidiary of another Person that has
Registered Common Stock outstanding, "Principal Party" shall refer to such
other Person; (2) if the Common Stock of such Person is not Registered
Common Stock or such Person is not a corporation, and such Person is a
direct or indirect Subsidiary of another Person but is not a direct or
indirect Subsidiary of another Person that has Registered Common Stock
outstanding, "Principal Party" shall refer to the ultimate parent entity of
such first-mentioned Person; (3) if the Common Stock of such Person is not
Registered Common Stock or such Person is not a corporation, and such
Person is directly or indirectly controlled by more than one Person, and
one or more of such other Persons has Registered Common Stock outstanding,
"Principal Party" shall refer to whichever of such other Persons is the
issuer of the Registered Common Stock having the highest aggregate current
market price (determined pursuant to Section 11(d)); and (4) if the Common
Stock of such Person is not Registered Common Stock or such Person is not a
corporation, and such Person is directly or indirectly controlled by more
than one Person, and none of such other Persons have Registered Common
Stock outstanding, "Principal Party" shall refer to whichever ultimate
parent entity is the corporation having the greatest stockholders' equity
or, if no such ultimate parent entity is a corporation, shall refer to
whichever ultimate parent entity is the entity having the greatest net
assets.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock that have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance with this
Section 13, and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13
and further providing that the Principal Party will:
(i) (A) file on an appropriate form, as soon as practicable following
the execution of such agreement, a registration statement under the
Securities Act with respect to the Common Stock that may be acquired upon
exercise of the Rights, (B) cause such registration statement to remain
effective (and to include a prospectus complying with the requirements of
the Securities Act) until the Expiration Date, and (C) as soon as
practicable following the execution of such agreement take such action as
may be required to ensure that any acquisition of such Common Stock upon
the exercise of the Rights complies with any applicable state securities or
"blue sky" laws; and
24
(ii) deliver to holders of the Rights historical financial statements
for the Principal Party and each of its Affiliates that comply in all
respects with the requirements for registration on Form 10 under the
Exchange Act.
(d) In case the Principal Party that is to be a party to a transaction
referred to in this Section 13 has a provision in any of its authorized
securities or in its Certificate of Incorporation or By-laws or other instrument
governing its corporate affairs, which provision would have the effect of (i)
causing such Principal Party to issue, in connection with, or as a consequence
of, the consummation of a transaction referred to in this Section 13, shares of
Common Stock of such Principal Party at less than the then current market price
per share (determined pursuant to Section 11(d)) or securities exercisable for,
or convertible into, Common Stock of such Principal Party at less than such then
current market price (other than to holders of Rights pursuant to this Section
13) or (ii) providing for any special payment, tax or similar provisions in
connection with the issuance of the Common Stock of such Principal Party
pursuant to the provisions of this Section 13, then, in such event, the Company
shall not consummate any such transaction unless prior thereto the Company and
such Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such
Principal Party shall have been cancelled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of
the proposed transaction.
(e) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. In the event
that a Section 13 Event shall occur at any time after the occurrence of a
Section 11(a)(ii) Event, the Rights that have not theretofore been exercised
shall thereafter become exercisable in the manner described in Section 13(a).
(f) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to any event described in clause (x) or (y)
of Section 13(a) if (i) the transaction is consummated with a Person or Persons
who or which, alone or together with all Affiliates and Associates of such
Person or Persons, acquired shares of Company Common Stock pursuant to a
Qualifying Offer, (ii) the consideration per share of Company Common Stock
offered in such transaction is not less than the consideration per share of
Company Common Stock given to all holders of shares of Company Common Stock
whose shares were acquired pursuant to such Qualifying Offer and (iii) the form
of consideration being offered to the remaining holders of shares of Company
Common Stock pursuant to such transaction is the same as the form of
consideration paid pursuant to such Qualifying Offer. Upon consummation of any
such transaction contemplated by this Section 13(f), all Rights hereunder shall
expire.
SECTION 14. Fractional Rights and Fractional Shares. (a) The Company
shall not be required to issue fractions of Rights or to distribute Rights
Certificates that evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the Persons to which such fractional Rights would
otherwise be issuable, an amount in cash equal to such fraction of the market
value of a whole Right. For purposes of this Section 14(a), the market value of
a whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price of the Rights for any day shall be, if the
Rights are listed or admitted to trading on a national securities exchange, as
reported in the principal consolidated transaction reporting system with
25
respect to securities listed on the principal national securities exchange on
which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by The Nasdaq Stock Market
Consolidated Quotations Service or such other system then in use or, if on any
such date the Rights are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in the Rights selected by the vote of the majority of the Company's
Board of Directors. If on any such date no such market maker is making a market
in the Rights, the fair value of the Rights on such date as determined in good
faith by the vote of the majority of the Company's Board of Directors shall be
used and such determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.
(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (other than fractions that are integral multiples of one
one-thousandth of a share of Preferred Stock) upon exercise of the Rights or to
distribute certificates that evidence such fractional shares of Preferred Stock
(other than fractions that are integral multiples of one one-thousandth of a
share of Preferred Stock). In lieu of such fractional shares of Preferred Stock
that are not integral multiples of one one-thousandth of a share, the Company
may pay to the registered holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the same fraction of
the then current market price of a share of Preferred Stock on the day of
exercise, determined in accordance with Section 11(d).
(c) The holder of a Right by the acceptance of such Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right, except as permitted by this Section 14.
SECTION 15. Rights of Action. All rights of action in respect of this
Agreement, other than rights of action vested in the Rights Agent pursuant to
Section 18, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
certificates evidencing shares of Company Common Stock); and any registered
holder of a Rights Certificate (or, prior to the Distribution Date, of a
certificate evidencing shares of Company Common Stock), without the consent of
the Rights Agent or of the holder of any other Rights Certificate (or, prior to
the Distribution Date, of a certificate evidencing shares of Company Common
Stock), may, on such registered holder's own behalf and for such registered
holder's own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company or any other Person to enforce, or otherwise
act in respect of, such registered holder's right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this Agreement.
26
SECTION 16. Agreement of Rights Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Company Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the office of the Rights Agent designated for such purposes, duly
endorsed or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates duly executed;
(c) subject to Section 6(a) and Section 7(f), the Company and the
Rights Agent may deem and treat the Person in whose name a Rights
Certificate (or, prior to the Distribution Date, the associated Company
Common Stock certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Rights Certificates or the associated Company Common
Stock certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to the last sentence of Section 7(e), shall be affected by
any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or any other Person as a result of its inability to
perform any of its obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree, judgment or
ruling issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, that the Company must use its best efforts
to have any such order, decree, judgment or ruling lifted or otherwise
overturned as promptly as practicable.
SECTION 17. Rights Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the number of shares of
Preferred Stock or any other securities of the Company that may at any time be
issuable on the exercise of the Rights evidenced thereby, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the
holder of any Rights Certificate, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, except as provided in Section 24, to
receive notice of meetings or other actions affecting stockholders, or to
receive dividends or subscription rights, or otherwise.
SECTION 18. Concerning the Rights Agent. (a) The Company agrees to pay
to the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses, including reasonable fees and disbursements of its counsel, incurred
in connection with the execution and administration of
27
this Agreement and the exercise and performance of its duties hereunder. The
Company shall indemnify the Rights Agent for, and hold it harmless against, any
loss, liability, or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability hereunder.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Rights
Certificate or certificate or depositary receipt for Preferred Stock or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it to be genuine
and to have been signed, executed and, where necessary, verified or acknowledged
by the proper Person or Persons.
SECTION 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor Rights Agent
may be merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding to the corporate
trust or shareholder services business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any document or any further act on the part
of any of the parties hereto; provided that such corporation would be eligible
for appointment as a successor Rights Agent under the provisions of Section 21.
In case at the time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
SECTION 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
28
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and
the determination of "current market price") be proved or established by
the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be specified herein) may
be deemed to be conclusively proved and established by a certificate signed
by the Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; provided,
however, that so long as any Person is an Acquiring Person hereunder, such
certificate shall only be signed and delivered by any such individual
following approval of at least 55% of shares of the Company Common Stock;
and such certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Rights Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any responsibility for the
validity of this Agreement or the execution and delivery hereof (except the
due execution and delivery hereof by the Rights Agent) or for the validity
or execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or failure by the Company to satisfy conditions contained in this
Agreement or in any Rights Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or Section 13 or for
the manner, method or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Rights Certificates after
receipt by the Rights Agent of the certificate describing any such
adjustment contemplated by Section 12); nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of any shares of Preferred Stock or any other securities to be
issued pursuant to this Agreement or any Rights Certificate or as to
whether any shares of Preferred Stock or any other securities will, when so
issued, be validly authorized and issued, fully paid and non-assessable.
(f) The Company shall perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such
further acts, instruments and
29
assurances as may reasonably be required by the Rights Agent for the
performance by the Rights Agent of its duties under this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for
any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer; provided, however, that so long as
any Person is an Acquiring Person hereunder, the Rights Agent shall accept
such instructions and advice only from any such officers following approval
of at least 55% of shares of the Company Common Stock and shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with such instructions and advice. Any application by the Rights
Agent for written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken or
omitted by the Rights Agent under this Rights Agreement and the date on
and/or after which such action shall be taken or such omission shall be
effective. The Rights Agent shall not be liable for any action taken by, or
omission of, the Rights Agent in accordance with a proposal included in any
such application on or after the date specified in such application (which
date shall not be less than five Business Days after the date any such
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless, prior
to taking any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written instructions in
response to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for
any other Person.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties or in the exercise of its rights
hereunder if the Rights Agent shall have reasonable grounds for believing
that repayment of such funds or adequate indemnification against such risk
or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has
either not been completed, not signed or indicates an
30
affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall
not take any further action with respect to such requested exercise or
transfer without first consulting with the Company. If such certificate has
been completed and signed and shows a negative response to clauses 1 and 2
of such certificate, unless previously instructed otherwise in writing by
the Company (which instructions may impose on the Rights Agent additional
ministerial responsibilities, but no discretionary responsibilities), the
Rights Agent may assume without further inquiry that the Rights Certificate
is not owned by a person described in Section 4(b) or Section 7(e) and
shall not be charged with any knowledge to the contrary.
SECTION 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty days' prior notice in writing mailed to the Company, and to each
transfer agent of the Preferred Stock and the Company Common Stock, by
registered or certified mail, and to the holders of the Rights Certificates (or
certificates for the Company Common Stock prior to the Distribution Date) by
first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon thirty days' prior notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to each transfer agent
of the Preferred Stock and the Company Common Stock, by registered or certified
mail, and to the holders of the Rights Certificates (or certificates for the
Company Common Stock prior to the Distribution Date) by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of thirty days after
giving notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Rights Certificate or, prior to the Distribution Date, the
holder of a certificate for the Company Common Stock (who shall, with such
notice, submit such holder's Rights Certificate or certificate for Company
Common Stock, as the case may be, for inspection by the Company), then any
registered holder of any Rights Certificate or, prior to the Distribution Date,
the holder of a certificate for the Company Common Stock may apply to any court
of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be (a) a corporation organized and doing business under the laws of the
United States or any state of the United States in good standing, shall be
authorized to do business as a banking institution in the State of Delaware,
shall be authorized under such laws to exercise corporate trust or stock
transfer powers, shall be subject to supervision or examination by federal or
state authorities and shall have at the time of its appointment as Rights Agent
a combined capital and surplus of at least $100,000,000 or (b) an Affiliate of a
corporation described in clause (a). After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Rights Agent without further act or deed;
but the predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Preferred Stock and the Company Common Stock, and mail a
notice thereof in writing to the registered holders of the Rights Certificates
(or certificates for the Company Common Stock prior to the Distribution Date).
Failure to give any notice provided for in this
31
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent.
SECTION 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or the Rights to the contrary, the Company
may, at its option, issue new Rights Certificates evidencing Rights in such form
as may be approved by the vote of the majority of the Company's Board of
Directors to reflect any adjustment or change made in accordance with the
provisions of this Agreement in the Purchase Price or the number or kind or
class of shares or other securities or property that may be acquired upon
exercise of the Rights. In addition, in connection with the issuance or sale of
shares of Company Common Stock following the Distribution Date and prior to the
Expiration Date, the Company (a) shall, with respect to shares of Company Common
Stock so issued or sold pursuant to the exercise of stock options or under any
employee plan or arrangement, or upon the exercise, conversion or exchange of
securities hereinafter issued by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by the vote of the majority of the Company's
Board of Directors, issue Rights Certificates evidencing the appropriate number
of Rights in connection with such issuance or sale; provided, however, that (i)
no such Rights Certificate shall be issued if, and to the extent that, the
Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
Person to whom such Rights Certificate would be issued and (ii) no such Rights
Certificate shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
SECTION 23. Redemption and Termination. (a) The Company shall upon
approval of holders of at least 55% of shares of Company Common Stock, at any
time prior to the earlier of (i) the Close of Business on the Stock Acquisition
Date or (ii) the Final Expiration Date, redeem all but not less than all of the
then outstanding Rights at a redemption price of $.01 per Right, as such amount
may be appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the Rights Dividend Declaration Date (such
redemption price being the "Redemption Price"), and the Company may, at its
option, by action of the vote of the majority of the Company's Board of
Directors, pay the Redemption Price either in shares of Company Common Stock
(based on the current market price, determined in accordance with Section 11(d),
of the shares of Company Common Stock at the time of redemption) or cash. The
redemption of the Rights shall be made effective at such time, on such basis and
with such conditions as approved at the meeting of holders of shares of Company
Common Stock.
(b) Immediately upon the approval by shareholders of the redemption of
the Rights in accordance with Section 23(a), evidence of which shall be filed
with the Rights Agent, and without any further action and without any notice,
the right to exercise the Rights will terminate and the only right thereafter of
the holders of Rights shall be to receive the Redemption Price for each Right so
held. Promptly after the redemption of the Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of the then outstanding
Rights by mailing such notice to all such holders at each holder's last address
as it appears upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for Company
Common Stock. Any notice that is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice
32
of redemption will state the method by which the payment of the Redemption Price
will be made.
SECTION 24. Notice of Certain Events. (a) In case the Company shall
propose, at any time after the Distribution Date, (i) to pay any dividend
payable in stock of any class to the holders of Preferred Stock or to make any
other distribution to the holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of the Company),
(ii) to offer to the holders of Preferred Stock rights or warrants to subscribe
for or to purchase any additional shares of Preferred Stock or shares of stock
of any class or any other securities, rights or options, (iii) to effect any
reclassification of the Preferred Stock (other than a reclassification involving
only the subdivision of outstanding shares of Preferred Stock), (iv) to effect
any consolidation or merger into or with any other Person (other than a
Subsidiary of the Company in a transaction that complies with Section 11(o)), or
to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more transactions,
of more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o)) or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall give to
each holder of a Rights Certificate (or, prior to the Distribution Date, to each
holder of certificates for Company Common Stock), to the extent feasible and in
accordance with Section 25, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend, distribution of
rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution or winding up is to take place
and the date of participation therein by the holders of the shares of Preferred
Stock, if any such date is to be fixed, and such notice shall be so given in the
case of any action covered by clause (i) or (ii) above at least 20 days prior to
the record date for determining holders of the shares of Preferred Stock for
purposes of such action, and in the case of any such other action, at least 20
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred Stock, whichever
shall be the earlier; provided, however, that no such notice shall be required
pursuant to this Section 24 if any Subsidiary of the Company effects a
consolidation or merger with or into, or effects a sale or other transfer of
assets or earning power to, any other Subsidiary of the Company.
(b) In case any of the events set forth in Section 11(a)(ii) shall
occur, then, in any such case, the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate, to the extent feasible
and in accordance with Section 25, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event to holders of
Rights under Section 11(a)(ii).
SECTION 25. Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing and mailed or
sent or delivered (including by facsimile transmission), if to the Company, at
its address at:
33
Attention:_______________________________
Telecopy No.:____________________________
and if to the Rights Agent, at its address at:
Attention:_______________________________
Telecopy No.:____________________________
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to the holder of any Rights Certificate (or,
if prior to the Distribution Date, to the holder of certificates evidencing
shares of Company Common Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the Company
Common Stock.
SECTION 26. Supplements and Amendments. (a) Subject to the penultimate
sentence of this Section 26(a), the Company and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this Agreement without
the approval of any holders of certificates evidencing shares of Company Common
Stock; provided, however, that no supplement or amendment would have the effect
of terminating, revoking or otherwise rendering ineffective this Agreement or
any material provision of this Agreement; provided further, however, that any
supplement or amendment that (i) supplements or amends Section 1(y) being the
definition of "Qualifying Offer", (ii) has the effect of shortening the Final
Expiration Date, (iii) supplements or amends any provision of Section 23 or this
Section 26, or (iv) otherwise adversely affects the interests of the holders of
Rights Certificates (other than an Acquiring Person), shall only be effective
with the approval of holders of at least 55% of shares of Company Common Stock
(other than shares of Company Common Stock held by (x) an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or (y) any Person or Person or an
Affiliate or Associate of any such Person or Persons, who has or which have
commenced a tender or exchange offer for shares of Company Common Stock);
provided further, however, that, from and after the Distribution Date, the
Company and the Rights Agent shall, if the Company so directs, only supplement
or amend this Agreement without the approval of any holders of Rights
Certificates in order to cure any ambiguity or to correct or supplement any
provision contained herein that may be defective or inconsistent with any other
provisions herein. Upon the delivery of a certificate from an appropriate
officer of the Company that states that the proposed supplement or amendment is
in compliance with the terms of this Section 26(a), the Rights Agent shall
execute such supplement or amendment. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of Company Common Stock.
34
(b) Prior to the Expiration Date, the Company shall not terminate or
revoke this Agreement or any material provision of this Agreement or enter into
any other shareholder rights agreement or similar agreement, or take any action,
that would have the effect of replacing or overriding this Agreement or
otherwise rendering this Agreement ineffective prior to the Expiration Date,
other than upon approval of holders of at least 55% of shares of Company Common
Stock.
SECTION 27. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 28. Determinations and Actions by the Board of Directors, Etc.
For all purposes of this Agreement, any calculation of the number of shares of
Company Common Stock outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding shares of Company
Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the Exchange Act
Regulations as in effect on the date hereof. Except as otherwise specifically
provided herein, the Board of Directors of the Company shall have the exclusive
power and authority to administer this Agreement and to exercise all rights and
powers specifically granted to the Board of Directors of the Company or to the
Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power (i) to interpret
the provisions of this Agreement and (ii) to make all determinations deemed
necessary or advisable for the administration of this Agreement. All such
actions, calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the foregoing) that
are done or made by the Board in good faith shall (x) be final, conclusive and
binding on the Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Board of Directors of the Company or any
member thereof to any liability to the holders of the Rights.
SECTION 29. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of shares of Company Common Stock) any
legal or equitable right, remedy or claim under this Agreement. This Agreement
shall be for the sole and exclusive benefit of the Company, the Rights Agent and
the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of shares of Company Common Stock).
SECTION 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the vote of the
majority of the Company's Board of Directors determines in its good faith
judgment that severing the invalid language from this Agreement would adversely
affect the purpose or effect of this Agreement and the Rights shall not then be
redeemable, the right of redemption set forth in Section 23 shall be reinstated
and shall not
35
expire until the Close of Business on the tenth Business Day following the date
of such determination by the vote of the majority of the Company's Board of
Directors.
SECTION 31. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be governed by, and construed in accordance
with, the laws of the State of Delaware.
SECTION 32. Counterparts. This Agreement may be executed (including by
facsimile) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
instrument.
SECTION 33. Descriptive Headings. The headings contained in this
Agreement are for descriptive purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 34. Exchange. (a) The Company may, within ten Business Days
after any Person becomes an Acquiring Person, exchange all or part of the then
outstanding and exercisable Rights (which shall not include Rights that have
become null and void pursuant to Section 7(e)) for Units of Preferred Stock or
each holder of Rights may, at any time after any Person becomes an Acquiring
Person, exchange all or part of such holder's then outstanding and exercisable
Rights (which shall not include Rights that have become null and void pursuant
to Section 7(e)) for Units of Preferred Stock, in either case, at an exchange
ratio specified in the following sentence, as appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the
Rights Dividend Declaration Date. Subject to such adjustment, each Right may be
exchanged for that number of Units of Preferred Stock obtained by dividing the
Adjustment Spread (as defined below) by the then-current market price
(determined pursuant to Section 11(d)) per Unit of Preferred Stock on the
earlier of (i) the date on which any Person becomes an Acquiring Person and (ii)
the date on which a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan maintained by
the Company or any of its Subsidiaries or any trustee or fiduciary with respect
to such plan acting in such capacity) is commenced within the meaning of Rule
14d-2 of the Exchange Act Regulations or any successor rule, if upon
consummation thereof such Person would be the Beneficial Owner of 15% or more of
the shares of Company Common Stock then outstanding (such exchange ratio being
the "Section 34(a) Exchange Ratio"). The "Adjustment Spread" shall equal (x) the
aggregate market price on the date of such event of the number of Adjustment
Shares determined pursuant to Section 11(a)(ii), minus (y) the Purchase Price.
(b) Immediately upon the exchange of any Rights pursuant to Section
34(a) and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of Units of Preferred Stock equal
to the number of such Rights held by such holder multiplied by the Section 34(a)
Exchange Ratio. The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any defect in, such
notice shall not affect the validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all of the holders of such Rights at
their last addresses as they appear upon the registry books of the Rights Agent.
Any notice that is mailed in the manner herein provided
36
shall be deemed given, whether or not the holder receives the notice. Each such
notice of exchange shall state the method by which the exchange of Units of
Preferred Stock for Rights will be effected and, in the event of any partial
exchange, the number of Rights that will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights that
have become null and void pursuant to Section 7(e)) held by each holder of
Rights.
(c) In the event that the number of shares of Preferred Stock that are
authorized by the Company's Certificate of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights are
not sufficient to permit any exchange of Rights as contemplated in accordance
with this Section 34, the Company shall take all such action as may be necessary
to authorize additional shares of Preferred Stock for issuance upon exchange of
the Rights or make adequate provision to substitute (1) cash, (2) Company Common
Stock or other equity securities of the Company, (3) debt securities of the
Company, (4) other assets or (5) any combination of the foregoing, having an
aggregate value equal to the Adjustment Spread, where such aggregate value has
been determined by the vote of the majority of the Company's Board of Directors.
(d) The Company shall not be required to issue fractions of Units of
Preferred Stock or to distribute certificates that evidence fractional Units. In
lieu of fractional Units, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exchanged as herein provided an
amount in cash equal to the same fraction of the current market price
(determined pursuant to Section 11(d)) of one Unit of Preferred Stock.
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on their behalf as of the date first above written.
THE WARNACO GROUP, INC.
By:
Name:
Title:
[NAME OF RIGHTS AGENT]
By:
Name:
Title:
EXHIBIT A
[Form of Rights Certificate]
EXHIBIT B
[Form of Summary of Rights]
EXHIBIT C
[Certificate of Designation for Preferred Stock]
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
SIDLEY AUSTIN BROWN & WOOD LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Counsel for Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - -x
: Chapter 11
In re: :
: Case Nos. 01-41643 (RLB)
THE WARNACO GROUP, INC., et al., : through 01-41680 (RLB)
:
Debtors. : (Jointly Administered)
- - - - - - - - - - - - - - - - - - - - - - -x
NOTICE OF TECHNICAL MODIFICATIONS TO THE
FIRST AMENDED JOINT PLAN OF REORGANIZATION
OF THE WARNACO GROUP, INC. AND ITS AFFILIATED DEBTORS
AND DEBTORS-IN-POSSESSION UNDER CHAPTER 11
OF THE BANKRUPTCY CODE DATED NOVEMBER 8, 2002
WHEREAS, on November 9, 2002, the above-captioned debtors and
debtors-in-possession (the "Debtors") filed the First Amended Joint Plan of
Reorganization of The Warnaco Group, Inc. and its Affiliated Debtors and
Debtors-in-Possession under Chapter 11 of the Bankruptcy Code dated November 8,
2002 (the "Plan") with the Bankruptcy Court for the Southern District of New
York (the "Bankruptcy Court");
WHEREAS, by order dated November 14, 2002, the Bankruptcy Court
approved the Debtors' Disclosure Statement to the First Amended Joint Plan of
Reorganization of The
Warnaco Group, Inc. and its Affiliated Debtors and Debtors-in-Possession under
Chapter 11 of the Bankruptcy Code dated November 8, 2002;
WHEREAS, a hearing to consider confirmation of the Plan is scheduled
for January 16, 2003 at 9:45 a.m.;
PLEASE TAKE NOTICE that the Plan is amended to reflect the technical
modifications set forth on Exhibit A attached hereto.
Dated: New York, New York SIDLEY AUSTIN BROWN & WOOD LLP
January 14, 2003
By: /s/ Kelley A. Cornish
---------------------------
(A Member of the Firm)
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Telecopier: (212) 839-5599
Counsel for Debtors and Debtors-in-Possession
2
Exhibit A
TECHNICAL MODIFICATIONS TO THE
FIRST AMENDED JOINT PLAN OF REORGANIZATION OF
THE WARNACO GROUP, INC. AND ITS AFFILIATED
DEBTORS AND DEBTORS-IN-POSSESSION UNDER CHAPTER 11
OF THE BANKRUPTCY CODE DATED NOVEMBER 8, 2002
1. The definition of "Effective Date" in the Plan is hereby amended by
deleting such section in its entirety and replacing it with the following:
"Effective Date" means the Business Day that is the later of the date
on which (a) all conditions precedent set forth in Section 4.1. of
this Plan have been satisfied or waived as provided in Section 4.2. of
this Plan and (b) February 4, 2003."
2. The definition of "Initial Distribution Date" in the Plan is hereby
amended by deleting such section in its entirety and replacing it with the
following:
"Initial Distribution Date" means the first Business Day that is ten
(10) days (or such longer period as may be reasonably determined by
the Reorganized Debtors in consultation with the Post-Effective Date
Committee) after the Effective Date, provided however, that the
Initial Distribution Date for the purposes of distributions to Class 5
Creditors under this Plan means the first Business Day that is
forty-five (45) days (or such longer period as may be reasonably
determined by the Reorganized Debtors in consultation with the
Post-Effective Date Committee consistent with their obligations under
Section 5.13 of this Plan) after the Effective Date."
3. Section 5.4. of the Plan is hereby amended by deleting the words
"Warnaco Men's Sportswear Inc.".
4. Section 6.2. of the Plan is hereby amended by deleting such section
in its entirety and replacing it with the following:
"6.2. Distributions to Holders of Senior Secured Bank Claims. On
the Effective Date, Reorganized Warnaco, as applicable, shall issue or
deliver to the Administrative Agent or its designee for distribution
on behalf of the Debtors to holders of Senior Secured Bank Claims in
Class 2: (a) Cash equal to the amount of the balance due on the
Original Foreign Facilities Guaranty Claims, which shall be applied to
repay in full satisfaction of any outstanding amounts owing by the
Debtors under the Original Foreign Facilities as of the Petition Date;
(b) New Warnaco Second Lien Notes in the aggregate principal amount of
$200 million; and (c) share certificate(s) for the aggregate amount of
either (i) 96.263% of the New Warnaco Common Shares, subject to
Dilution, if the holders of Class 6 Claims receive a distribution as
provided in Section 2.9.(C) of this Plan or (ii) 96.844% of the New
Warnaco Common Shares, subject to Dilution, if the holders of Class 6
Claims are not entitled to receive a distribution as provided in
Section 2.9.(C) of this Plan. Notwithstanding any other provision of
this Plan, all distributions and issuances of such Cash, New Warnaco
Second Lien Notes and New Warnaco Common Shares to holders of Class 2
Claims shall be made, (i) based on the amount of Class 2 Claims held
by such holders as set forth in the books and records of the
Administrative Agent as of the close of business on the Confirmation
Date, and (ii) in accordance with the Pre-Petition Facility and
Intercreditor Agreements. Such Cash shall be distributed to the
holders of Class 2 Claims by the Administrative Agent, and the New
Warnaco Second Lien Notes and New Warnaco Common Shares shall be
issued by Reorganized Warnaco as directed by the Administrative Agent
in the names of the respective holders of Class 2 Claims, in each case
in accordance with the foregoing."
5. Section 6.3. of the Plan is hereby amended by deleting such section
in its entirety and replacing it with the following:
"6.3. Distributions to Holders of Allowed Unsecured Claims. On
the Initial Distribution Date, Reorganized Warnaco shall deliver to
the Disbursing Agent for distribution on behalf of the Debtors to
holders of Allowed Class 5 Claims share certificate(s) for the
aggregate amount of either (i) 2.549% of the New Warnaco Common
Shares, subject to Dilution, if the holders of Class 6 Claims receive
a distribution as provided in Section 2.9.(C) of this Plan or (ii)
2.564% of the New Warnaco Common Shares, subject to Dilution, if the
holders of Class 6 Claims are not entitled to receive a distribution
as provided in Section 2.9.(C) of this Plan. The Disbursing Agent
shall make distributions of New Warnaco Common Shares to holders of
Allowed Class 5 Claims as follows:
(A) On or as soon as practicable after the Initial
Distribution Date, the Disbursing Agent shall distribute the New
Warnaco Common Shares allocable to Allowed Claims held by holders of
Class 5 Claims as of the Distribution Record Date. For the purpose of
calculating the amount of New
2
Warnaco Common Shares to be distributed to holders of Allowed Class 5
Claims on or as soon as practicable after the Initial Distribution
Date, all Disputed Claims in Class 5 will be treated as though such
Claims will be Allowed Claims in the Face Amount of such Claims.
(B) On any Interim Distribution Date, the Disbursing Agent
shall make interim distributions of New Warnaco Common Shares to
holders of Allowed Class 5 Claims pursuant to and consistent with
resolutions of Disputed Claims since the Initial Distribution Date.
(C) On the Final Distribution Date, the Disbursing Agent
shall make the balance of all distributions to holders of Allowed
Class 5 Claims as required under this Plan."
6. Section 6.6.(A) of the Plan is hereby amended by deleting such
section in its entirety and replacing it with the following:
"(A) Bar Date For Certain Administrative Claims. All
applications for final compensation of professional persons employed
by the Debtors or the Creditors' Committee pursuant to orders entered
by the Bankruptcy Court and on account of services rendered prior to
the Effective Date, and all other requests for payment of
Administrative Claims (except for the Alvarez Incentive Bonus, the
Designated Post-Petition Loans, claims of the Debt Coordinators and
the Pre-Petition Collateral Trustee payable under paragraph 22 of the
DIP Approval Orders, claims for taxes pursuant to Section 507(a)(8) of
the Code, ordinary course trade debt and customer deposits and credits
incurred in the ordinary course of business after the Petition Date)
shall be served on the Reorganized Debtors in accordance with Section
8.10. of this Plan and filed with the Bankruptcy Court, no later than
25 days after the Effective Date. Any such claim that is not served
and filed within this time period shall be discharged and forever
barred. Objections to any such application must be filed within 20
days after filing thereof."
7. A new Section 7.7. is hereby added to the Plan as follows:
"7.7. Limitation on Exculpations and Releases. Nothing contained
in Sections 7.4. and 7.5. shall (i) be construed as a release of any
Exculpated Person's and Pre-Petition Releasee's fraud or willful
misconduct with respect to the matters set forth in those sections, or
(ii) limit the liability of the Debtors' or Creditors' Committee's
professionals to their respective clients pursuant to DR 6-102 of the
Code of Professional Responsibility."
3
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
SIDLEY AUSTIN BROWN & WOOD LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Counsel for Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
: Chapter 11
:
In re : Case Nos. 01-41643 (RLB)
: through 01-41680 (RLB)
THE WARNACO GROUP, INC., et al., :
-- ---
: (Jointly Administered)
Debtors. :
x
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: ORDER
AND JUDGMENT CONFIRMING THE FIRST AMENDED JOINT PLAN OF REORGANIZATION OF
THE WARNACO GROUP, INC. AND ITS AFFILIATED DEBTORS AND
DEBTORS-IN-POSSESSION UNDER CHAPTER 11 OF TITLE
11 OF THE UNITED STATES CODE DATED NOVEMBER 8, 2002
The Warnaco Group, Inc. ("Group"), together with certain of its direct
and indirect subsidiaries, 184 Benton Street Inc., A.B.S. Clothing Collection,
Inc., Abbeville Manufacturing Company, AEI Management Corporation, Authentic
Fitness Corporation, Authentic Fitness On-Line, Inc., Authentic Fitness Products
Inc., Authentic Fitness Retail Inc., Blanche, Inc., CCC Acquisition Corp., CCC
Acquisition Realty Corp., C.F. Hathaway Company, Calvin Klein Jeanswear Company,
CKJ Holdings, Inc., CKJ Sourcing, Inc., Designer Holdings Ltd., Gregory Street,
Inc., Jeanswear Holdings, Inc., Kai Jay Manufacturing Company, Myrtle Avenue,
Inc., Outlet Holdings, Inc., Outlet Stores, Inc., Penhaligon's by Request, Inc.,
Rio
Sportswear, Inc., Ubertech Products, Inc., Ventures Ltd., Warmana Limited,
Warnaco Inc., Warnaco International, Inc., Warnaco International, LLC, Warnaco
Men's Sportswear Inc., Warnaco of Canada Company, Warnaco Puerto Rico, Inc.,
Warnaco Sourcing Inc., Warnaco U.S. Inc., Warnaco Ventures Ltd. and Warner's De
Costa Rica Inc., each a debtor and debtor-in-possession herein (collectively,
the "Debtors"), having filed voluntary petitions for relief under the provisions
of chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") on
June 11, 2001 (the "Petition Date"); and the Debtors having filed their First
Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code
with this Court on November 9, 2002 (as amended in certain technical respects,
the "Plan"); and the Debtors having filed the Disclosure Statement to Debtors'
First Amended Joint Plan of Reorganization with this Court on November 9, 2002
(the "Disclosure Statement"); and the Court having approved the Disclosure
Statement by Order dated November 14, 2002 (the "Disclosure Statement Approval
Order"); and the Court having approved certain Solicitation and Voting
Procedures on the Plan by Order dated November 14, 2002 (the "Voting Procedures
Order"); and the Court having fixed December 27, 2002 as the last date for
voting on the Plan (the "Voting Deadline") and for filing objections to the Plan
(the "Objection Deadline"); and the Court having scheduled a hearing to consider
confirmation of the Plan pursuant to section 1129 of the Bankruptcy Code (the
"Confirmation Hearing") for January 16, 2003; and due notice of the Voting
Deadline, the Objection Deadline and the Confirmation Hearing having been given
to the Debtors' creditors, equity security holders and other parties in interest
in accordance with the Bankruptcy Code and the Federal Rules of Bankruptcy
Procedure (the "Bankruptcy Rules"); and the Court having found that the
Disclosure Statement and the Plan were transmitted to all or substantially all
of the Debtors' impaired creditors entitled to vote on the Plan; and upon the
Affidavits of Mailing of Bridget
2
Gallerie of Bankruptcy Services, LLC dated November 26, 2002 (Docket No. 1591)
and November 27, 2002 (Docket No. 1594) (together, the "Gallerie Declarations");
and upon the Declaration of Antonio C. Alvarez, II, President and Chief
Executive Officer of the Debtors, in Support of Confirmation of the Debtors'
First Amended Joint Plan of Reorganization (the "Alvarez Declaration"); and upon
the Declaration of Bruce B. Bingham in Support of Confirmation of the First
Amended Joint Plan of Reorganization of The Warnaco Group, Inc. and Its
Affiliated Debtors and Debtors-in-Possession Under Chapter 11 of the Bankruptcy
Code dated November 8, 2002 (the "Bingham Declaration"); and upon the
Declaration of Cassandra Murray Certifying the Ballots Accepting or Rejecting
the Debtors' First Amended Joint Plan of Reorganization Dated November 8, 2002
(the "Murray Declaration"); and upon the Affidavit of Publication in Women's
Wear Daily of Notice of Hearing to Consider Confirmation of Debtors' First
Amended Joint Plan of Reorganization of Iman Mohammed (Docket No. 1617) (the
"Mohammed Declaration"); and upon the Affidavit of Publication in The Globe and
Mail of Notice of Hearing to Consider Confirmation of Debtors' First Amended
Plan of Reorganization of Charlotte Young (Docket No. 1619) (the "Young
Declaration"); and upon the Certification of Publication in The New York Times
of Notice of Hearing to Consider Confirmation of Debtors' First Amended Plan of
Reorganization of J. Swiderski (Docket 1618) (the "Swiderski Declaration"); and
upon the Affidavit of Publication in The Wall Street Journal of Notice of
Hearing to Consider Confirmation of Debtors' First Amended Joint Plan of
Reorganization of Gregg Palmer (Docket 1620) (the "Palmer Declaration"); and the
following objections having been filed: (i) the Objection of County of Hays to
Confirmation of Debtors' First Amended Plan of Reorganization, filed on December
13, 2002; (ii) the Limited Objection of Millenium Partners to Debtors' Plan of
Reorganization and Assumption of Lease Based on Insufficient Cure Amount
3
set forth in Plan Schedule 3.2 of Debtors' First Amended Joint Plan of
Reorganization, filed on December 24, 2002, (iii) Objections of Pacific
Employers Insurance Company, ACE INA Insurance and ESIS, Inc. to Confirmation of
the Debtors' First Amended Joint Plan of Reorganization, filed on December 26,
2002, (iv) the Objection of General Growth Management, Inc., New Plan Excel
Realty Trust, Inc., Wilmorite Property Management, LCC and The Rouse Company
Affiliates to Debtors' Schedule of Cure Amounts, filed on December 20, 2002 and
(v) the Objection of The Macerich Company and The Forbes Company to Debtors'
Proposed Cure Amounts, filed on December 26, 2002; and all of the foregoing
objections having been resolved by agreement and withdrawn; and the Confirmation
Hearing having been held on January 16, 2003; and upon the record of the
proceedings throughout the Cases, the Confirmation Hearing and the arguments of
counsel made at the Confirmation Hearing; and after due deliberation and
sufficient cause appearing therefor, the Court hereby FINDS and DETERMINES that:
1. These findings and conclusions set forth herein constitute the
Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule
7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To
the extent that any finding of fact shall later be determined to be a conclusion
of law it shall be so deemed, and vice versa.
2. These Findings of Fact and Conclusions of Law are being entered
contemporaneously with the Order and Judgment Confirming the First Amended Joint
Plan of Reorganization of The Warnaco Group, Inc. and its Affiliated Debtors and
Debtors-in-Possession Under Chapter 11 of Title 11 of the United States Code
Dated November 8, 2002 and Granting Related Relief (the "Confirmation Order").
Capitalized terms used but not otherwise
4
defined herein shall have the meaning ascribed to them in the Confirmation Order
or the Plan, as applicable.
3. This Court has jurisdiction over the Plan and Confirmation of the
Plan pursuant to 28 U.S.C. 'SS''SS'157 and 1334. Confirmation of the Plan is a
core proceeding pursuant to 28 U.S.C. 'SS'157(b)(2)(C). Venue of the Debtors'
chapter 11 cases is proper pursuant to 28 U.S.C. 'SS'1408 and 1409.
4. This Court takes judicial notice of the docket of the Cases
maintained by the Clerk of the Court and/or its duly appointed agent, including,
without limitation, all pleadings and other documents filed, all orders entered,
and all evidence and arguments made, proffered or adduced at, the hearings held
before the Court during the pendency of the Cases, including, without
limitation, the hearing to consider the adequacy of the Disclosure Statement.
5. In accordance with applicable sections of the Bankruptcy Code and
the Bankruptcy Rules, including, but not limited to, Bankruptcy Rules 2002, 3017
and 3020, due notice of the Confirmation Hearing and the opportunity to object
to confirmation of the Plan was given to the Debtors' creditors, equity security
holders and other parties-in-interest.
6. In accordance with Bankruptcy Rule 3017(d) and the Disclosure
Statement Approval Order, and as set forth in the Murray Declaration, copies of
the Plan, the Disclosure Statement, the Disclosure Statement Approval Order, the
Voting Procedures Order, a Ballot or Ballots for voting on the Plan and a Notice
of Hearing to Consider Confirmation of the Plan (the "Confirmation Hearing
Notice" and, together with the Plan, the Disclosure Statement, the Disclosure
Statement Approval Order and the applicable Ballot(s), the "Solicitation
Packages") were transmitted to holders of Claims in Classes 2, 5 and 6 under the
Plan (collectively, the "Voting Classes").
5
7. In accordance with Bankruptcy Rule 3017(d) and the Disclosure
Statement Approval Order, and as set forth in the Gallerie Declarations, a copy
of the Confirmation Hearing Notice was transmitted to holders of Claims and
Interests in Classes 1, 2, 3, 4, 5, 6, 7 and 8 under the Plan and to all other
parties-in-interest.
8. In accordance with Bankruptcy Rule 3017(d) and the Disclosure
Statement Approval Order, and as set forth in the respective Young Declaration,
Mohammed Declaration, Swiderski Declaration and Palmer Declaration, the Debtors
published a form of notice concerning the Confirmation Hearing, the Voting
Deadline and the Objection Deadline in The Wall Street Journal (global edition),
The Globe and Mail (Canada-National Edition), Women's Wear Daily and The New
York Times (National Edition) in each case on November 25, 2002.
9. Votes for acceptance or rejection of the Plan were solicited in good
faith and in compliance with sections 1125 and 1126 of the Bankruptcy Code,
Bankruptcy Rules 3017 and 3018, the applicable provisions of the Disclosure
Statement, the Disclosure Statement Approval Order, the Voting Procedures Order,
all other applicable provisions of the Bankruptcy Code and all other applicable
rules, laws and regulations.
10. All procedures used to distribute to the applicable holders of
Claims, and to tabulate, the Ballots, as set forth in the Murray Declaration,
were fair and appropriate and conducted in accordance with the Bankruptcy Code,
the Bankruptcy Rules, the local rules of this Court, the Disclosure Statement
Approval Order, the Voting Procedures Order and all other applicable rules, laws
and regulations.
11. The Debtors, as proponents of the Plan, have met their burden of
proving the elements of sections 1129(a) and (b) of the Bankruptcy Code as more
fully set forth below,
6
by a preponderance of the evidence, which is the applicable evidentiary standard
in this Court for Confirmation of the Plan.
12. The Plan complies with the applicable provisions of the Bankruptcy
Code, as required by section 1129(a)(1) of the Bankruptcy Code.
13. Pursuant to sections 1122(a) and 1123(a)(1) of the Bankruptcy Code,
Article II of the Plan designates separate classes of Claims and Interests, each
of which contains only Claims and Interests that are substantially similar to
the other Claims or Interests within that Class. Valid business, factual and
legal reasons exist for separately classifying the various classes of Claims and
Interests contained in the Plan, and such Classes do not unfairly discriminate
among holders of Claims or Interests. Pursuant to sections 1123(a)(2) and
1123(a)(3) of the Bankruptcy Code, Article II of the Plan identifies each Class
that is impaired and each Class that is unimpaired under the Plan, and specifies
the treatment provided to each Class. Pursuant to section 1123(a)(4) of the
Bankruptcy Code, Article II of the Plan provides for the same treatment of each
Claim or Interest in a particular class.
14. Pursuant to section 1123(a)(5) of the Bankruptcy Code, Article V
and other provisions of the Plan and the Confirmation Order provide adequate
means for the Plan's implementation.
15. In accordance with section 1123(a)(6) of the Bankruptcy Code,
Section 5.5. of the Plan provides that on the Effective Date, each of the
Reorganized Debtors will have adopted its respective Amended Certificate of
Incorporation, which will comply in all respects with section 1123(a)(6) of the
Bankruptcy Code including, without limitation, the prohibition of the issuance
of non-voting securities to the extent required by section 1123(a)(6).
7
16. In accordance with section 1123(a)(7) of the Bankruptcy Code, the
Plan's provisions with respect to the selection of post-Effective Date officers
and directors of the Reorganized Debtors set forth on Schedule 5.6. to the Plan,
as amended on January 14, 2003 ("Plan Schedule 5.6"), are consistent with the
interests of the holders of Claims against and Interests in the Debtors, and
with public policy.
17. The Plan is dated and identifies the entities submitting it,
thereby satisfying Bankruptcy Rule 3016(a).
18. In accordance with section 1123(b)(6) of the Bankruptcy Code, the
Plan does not include any provision inconsistent with the applicable provisions
of the Bankruptcy Code. The provisions of the Plan are appropriate and
consistent with the applicable provisions of the Bankruptcy Code including,
without limitation, provisions for (a) distributions to Creditors, (b) the
rejection or assumption of certain executory contracts and unexpired leases,
including, without limitation, those listed on Plan Schedules 3.1 and 3.2 as of
the Confirmation Hearing, (c) the retention of, and right to enforce, sue on,
settle or compromise (or to refuse to do any of the foregoing with respect to)
certain claims or causes of action against third parties, to the extent not
waived or released under the Plan, including, without limitation, those listed
on Plan Schedule 7.6, (d) the creation of a Post-Effective Date Committee
pursuant to Section 5.2. of the Plan, and (e) the transactions contemplated
pursuant to Section 5.4. of the Plan.
19. Claims in Classes 1, 3 and 4 are unimpaired under the Plan and,
pursuant to section 1126(f) of the Bankruptcy Code, the votes of such holders
have not been solicited as such Classes are conclusively presumed to have
accepted the Plan.
8
20. Claims in Classes 2, 5 and 6 are impaired under, and entitled to
vote on, the Plan.
21. In accordance with section 1126(c) of the Bankruptcy Code and as
set forth in the Murray Declaration, Class 2 has voted to accept the Plan, in
that 100% in amount and 100% in number of the Claims in such Class that actually
voted on the Plan have voted to accept the Plan.
22. In accordance with section 1126(c) of the Bankruptcy Code and as
set forth in the Murray Declaration, Class 5 has voted to accept the Plan, in
that 98.41% in amount and 88.22% in number of the Claims in such Class that
actually voted on the Plan have voted to accept the Plan.
23. In accordance with section 1126(c) of the Bankruptcy Code and as
set forth in the Murray Declaration, Class 6 has voted to accept the Plan, in
that 99.87% in amount and 98.84% in number of the Claims in such Class that
actually voted on the Plan have voted to accept the Plan.
24. Claims in Class 7 are impaired under the Plan, are not receiving or
retaining any property under the Plan and, pursuant to section 1126(g) of the
Bankruptcy Code, the votes of such Class were not solicited as such Class is
deemed not to have accepted the Plan.
25. Claims in Class 8 are impaired under the Plan, are not receiving or
retaining any property under the Plan and, pursuant to section 1126(g) of the
Bankruptcy Code, the votes of such Class were not solicited as such Class is
deemed not to have accepted the Plan.
9
26. The Debtors, as proponents of the Plan, have complied with the
applicable provisions of title 11 of the Bankruptcy Code, as required by section
1129(a)(2) of the Bankruptcy Code. Specifically, the Debtors are proper debtors
under section 109 of the Bankruptcy Code and proper proponents of the Plan under
section 1121(a) of the Bankruptcy Code. Throughout the Cases and, specifically,
in transmitting the Solicitation Packages and the Confirmation Hearing Notice,
and in soliciting and tabulating votes on the Plan, the Debtors have complied
with the applicable provisions of the Bankruptcy Code and the Bankruptcy Rules,
including as provided or permitted by Orders of this Court.
27. The Plan has been proposed in good faith and not by any means
forbidden by law, in compliance with section 1129(a)(3) of the Bankruptcy Code.
In determining that the Plan has been proposed in good faith, this Court has
examined the totality of the circumstances surrounding the filing of the Cases.
The Cases were filed, and the Plan was proposed, with the legitimate and honest
purposes of reorganizing the Debtors' ongoing business, maximizing the value of
the Debtors' estates to provide the maximum recovery to Claim holders under the
circumstances, and preserving jobs of the Reorganized Debtors' employees in
connection with the Debtors' post-reorganization operations.
28. The Debtors, the Debt Coordinators for the Pre-Petition Secured
Lenders, the Steering Committee for the Pre-Petition Secured Lenders, the
Creditors' Committee, each of the members of each such committee in its capacity
as an individual creditor of the Debtors and its capacity as a member of each
such committee, and each of the respective present or former members, officers,
directors, employees, affiliates, attorneys, investment bankers, restructuring
consultants and financial advisors of the foregoing, has acted in good faith, as
applicable, in connection with the management and operation of the Debtors and
the formulation, negotiation,
10
proposal and implementation of the Plan and every contract, instrument, document
or other agreement related thereto.
29. In compliance with section 1129(a)(4) of the Bankruptcy Code, all
payments made or to be made by the Debtors or by any person issuing securities
or acquiring property under the Plan for services or for costs and expenses in
or in connection with the Cases, or in connection with the Plan and incident to
the Cases prior to the Confirmation Date, have been approved by an order of the
Court or are subject to the approval of the Court as reasonable.
30. In compliance with sections 1129(a)(5)(A)(i) and (ii) of the
Bankruptcy Code, the identity, affiliations and compensation of the persons
proposed to serve as directors or officers of the Reorganized Debtors on the
Effective Date have been fully disclosed on Plan Schedule 5.6 and the
appointment to, or continuance in, such offices by such persons is consistent
with the interests of the Debtors' creditors and equity security holders and
with public policy.
31. In accordance with section 1129(a)(5)(B) of the Bankruptcy Code,
the Debtors have disclosed the identities of any insiders to be retained by the
Reorganized Debtors and the nature of compensation for such insiders on Plan
Schedule 5.6.
32. The Plan does not provide for any change in rates over which a
governmental regulatory commission has jurisdiction. Accordingly, section
1129(a)(6) of the Bankruptcy Code is inapplicable to the Plan.
33. The Plan complies with section 1129(a)(7) of the Bankruptcy Code,
in that each holder of a Claim against or Interest in the Debtors that is
impaired under the Plan has
11
accepted or is deemed to have accepted the Plan, or will receive or retain under
the Plan property of a value, as of the Effective Date, that is not less than
the amount that such holder would receive or retain if the Debtors were
liquidated under chapter 7 of the Bankruptcy Code on such date. The liquidation
analysis attached as Exhibit A to the Alvarez Declaration, the relevant
discussion in the Alvarez Declaration and the evidence adduced at the
Confirmation Hearing (a) are persuasive and credible as of the dates such
evidence was prepared, presented or proffered, (b) either have not been
controverted by other persuasive evidence or have not been challenged, (c) are
based upon reasonable and sound assumptions and (d) provide a reasonable
estimate of the liquidation value of the Debtors upon conversion to a chapter 7
proceeding.
34. The Plan complies with section 1129(a)(9)(A) of the Bankruptcy
Code. Except to the extent that the Plan expressly provides for a different
treatment or holder of an Allowed Administrative Claim has agreed to a different
treatment of such Claim, the Plan provides that each holder of an Allowed
Administrative Claim shall be paid in full in Cash (a) at the sole option of the
Debtors (before the Effective Date) or the Reorganized Debtors (on or after the
Effective Date) (i) in the ordinary course of business as the Claim becomes due
and owing, or (ii) on the Initial Distribution Date, or (b) on such other date
as the Bankruptcy Court may order.
35. The Plan complies with section 1129(a)(9)(B) of the Bankruptcy
Code. Except to the extent that the holder of any Allowed Priority Non-Tax Claim
entitled to priority pursuant to sections 507(a)(3), (a)(4) or (a)(6) of the
Bankruptcy Code has agreed to a different treatment of such Claim, the Plan
provides that the holder of such Claim will be paid in full in Cash on the later
of the Initial Distribution Date and a date as soon as practicable after a the
date upon which such Claim becomes an Allowed Priority Non-Tax Claim.
12
36. The Plan complies with section 1129(a)(9)(C) of the Bankruptcy
Code. Except to the extent that the holder of an Allowed Priority Tax Claim has
agreed to a different treatment of such Claim, the Plan provides that each
holder of an Allowed Priority Tax Claim will receive, on the Initial
Distribution Date, at the Reorganized Debtors' option, either (a) Cash equal to
the amount of such Allowed Priority Tax Claim or (b) Cash in six equal annual
installments, together with interest thereon at the legal rate required for such
Claims in chapter 11 cases, which interest shall be paid annually in arrears
pursuant to section 1129(a)(9)(C) of the Code.
37. The Plan has been accepted by impaired Classes 2, 5 and 6, and,
therefore, the Plan has been accepted by at least one class of Impaired Claims
entitled to vote on the Plan, determined without including any acceptance of the
Plan by any insider, in compliance with section 1129(a)(10) of the Bankruptcy
Code.
38. The Plan complies with section 1129(a)(11) of the Bankruptcy Code,
in that confirmation of the Plan is not likely to be followed by the
liquidation, or the need for further financial reorganization, of the Debtors or
the Reorganized Debtors. The projections attached as Exhibit B to the Alvarez
Declaration, together with the relevant discussion in the Alvarez Declaration
and the evidence adduced at the Confirmation Hearing, show that after the
Effective Date, the Reorganized Debtors should have adequate capital to meet
their ongoing obligations and will be under the control of competent management.
39. The Plan provides for the payment of all fees payable pursuant to
section 1930 of title 28 of the United States Code on or before the Effective
Date, in compliance with
13
section 1129(a)(12) of the Bankruptcy Code. The Plan further provides that all
such fees payable after the Effective Date will be assumed and paid by the
Reorganized Debtors.
40. The Reorganized Debtors are not obligated to pay any retiree
benefits as defined in section 1114 of the Bankruptcy Code. Section 1129(a)(13)
of the Bankruptcy Code is therefore inapplicable to the Plan.
41. The Plan complies with section 1129(b)(1) of the Bankruptcy Code,
in that the Plan does not discriminate unfairly and is fair and equitable with
respect to each Class of Claims and Interests that is impaired under, and has
not accepted, the Plan. In particular, the Plan is fair and equitable with
respect to Class 8. Class 8 will receive no distribution under the Plan, and
there are no holders of Claims or Interests junior to Class 8. Moreover, each of
Classes 2, 5 and 6, which are senior to Class 8, are receiving distributions
less than the full amount of their Claims, and no Class senior to Class 8 is
receiving more than full payment on account of their Claims.
42. The Plan satisfies section 1129(d) of the Bankruptcy Code, in that
the principal purpose of the Plan is not the avoidance of taxes or the avoidance
of application of Section 5 of the Securities Act of 1933 (15 U.S.C. 'SS'77e).
43. In connection with the assumption of the executory contracts and
unexpired leases pursuant to Section 3.2. of the Plan, including, without
limitation, those listed on Plan Schedule 3.2 (the "Assumed Contracts and
Leases") as of the Confirmation Hearing, the Plan completely satisfies all
requirements for the assumption of the Assumed Contracts and Leases contained in
the Bankruptcy Code, including, without limitation, the requirement to cure
14
all outstanding defaults, if any, and to provide adequate assurance of future
performance under the Assumed Contracts and Leases.
44. All releases and limitations of liability as to claims and causes
of action that are embodied in the Plan, including those third-party releases in
favor of non-Debtor persons and entities set forth in Section 7.5.(C) of the
Plan that voluntarily were granted by creditors pursuant to the Ballots
distributed in connection with soliciting votes to accept or reject the Plan,
are appropriate under the circumstances and in the best interests of the Debtors
and their estates.
45. As contemplated by the Plan, the Ballots provided to each impaired
Creditor voting on the Plan the opportunity not to release their claims and
causes of action against non-Debtor persons.
46. The Plan satisfies section 1125(e) of the Bankruptcy Code, in that
the Debtors and their agents, representatives, attorneys and advisors have
solicited votes on the Plan in good faith and in compliance with the applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules and the Voting
Procedures Order. The Debtors and their agents, representatives, attorneys and
advisors therefore are entitled to the protections of section 1125(e) of the
Bankruptcy Code and the limitations of liability set forth in Section 7.4. of
the Plan.
47. The facts set forth in paragraphs 27-29 of the Alvarez Declaration
supporting the substantive consolidation of all of the Debtors for purposes of
voting on, and of receiving distributions pursuant to, the Plan are persuasive
and credible, have not been controverted by other persuasive evidence and have
not been challenged, and provide an adequate basis for the substantive
consolidation of all of the Debtors as provided in the Plan.
15
48. The technical modifications to the Plan set forth in decretal
paragraph B of the Confirmation Order and the amendments to the Schedules and
Exhibits to the Plan filed after the Voting Deadline do not materially or
adversely affect or change the treatment of any Claim or Interest. Accordingly,
pursuant to Rule 3019 of the Bankruptcy Rules, these modifications and
amendments do not require additional disclosure under section 1125 of the
Bankruptcy Code or the resolicitation of acceptances or rejections under section
1126 of the Bankruptcy Code (except as have been obtained in writing), nor do
they require that holders of Claims or Interests be afforded an opportunity to
change previously cast acceptances or rejections of the Plan as filed with the
Court.
49. The record of the Confirmation Hearing and the Cases is sufficient
to support the releases, exculpations and injunctions provided for in Article
VII of the Plan.
50. The Court may properly retain jurisdiction over the matters set
forth in Article VIII of the Plan.
51. Pursuant to Bankruptcy Rule 9019 and in consideration for the
distributions and other benefits provided under the Plan, the provisions of the
Plan constitute a good faith compromise and settlement of all claims or
controversies relating to the enforcement or termination of all contractual,
legal and equitable subordination and turnover rights that a holder of a Claim
or Interest or the Debtors may have with respect to any Allowed Claim or
Interest, or any distribution to be made pursuant to the Plan on account of such
Claim.
16
52. No further action of this Court or the respective directors or
shareholders of the Debtors or the Reorganized Debtors will be required to
authorize the Reorganized Debtors to enter into, execute and deliver, or adopt,
as the case may be, the documents necessary to implement the provisions of the
Plan.
Dated: New York, New York
January 16, 2003
/s/ Richard L. Bohanon
---------------------------------------
The Honorable Richard L. Bohanon
United States Bankruptcy Judge
17
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
SIDLEY AUSTIN BROWN & WOOD LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Counsel for Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
: Chapter 11
:
In re : Case Nos. 01-41643 (RLB)
: through 01-41680 (RLB)
THE WARNACO GROUP, INC., et al., :
-- ---
: (Jointly Administered)
Debtors. :
:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
ORDER AND JUDGMENT CONFIRMING THE FIRST AMENDED
JOINT PLAN OF REORGANIZATION OF THE WARNACO GROUP, INC.
AND ITS AFFILIATED DEBTORS AND DEBTORS-IN-POSSESSION UNDER
CHAPTER 11 OF TITLE 11 OF THE UNITED STATES CODE
DATED NOVEMBER 8, 2002 AND GRANTING RELATED RELIEF
This matter having come on for a hearing on January 16, 2003 (the
"Confirmation Hearing") on confirmation of the First Amended Joint Plan of
Reorganization of The Warnaco Group, Inc. and its Affiliated Debtors and
Debtors-in-Possession Under Chapter 11 of Title 11 of the United States Code
dated November 8, 2002 (as amended pursuant to certain technical modifications
filed on January 13, 2003, the "Plan"),(1) The Warnaco Group, Inc. ("Group"),
together with certain of its direct and indirect subsidiaries, 184 Benton Street
Inc., A.B.S. Clothing Collection, Inc., Abbeville Manufacturing Company, AEI
Management Corporation,
(1) Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Plan.
Authentic Fitness Corporation, Authentic Fitness On-Line, Inc., Authentic
Fitness Products Inc., Authentic Fitness Retail Inc., Blanche, Inc., CCC
Acquisition Corp., CCC Acquisition Realty Corp., C.F. Hathaway Company, Calvin
Klein Jeanswear Company, CKJ Holdings, Inc., CKJ Sourcing, Inc., Designer
Holdings Ltd., Gregory Street, Inc., Jeanswear Holdings, Inc., Kai Jay
Manufacturing Company, Myrtle Avenue, Inc., Outlet Holdings, Inc., Outlet
Stores, Inc., Penhaligon's by Request, Inc., Rio Sportswear, Inc., Ubertech
Products, Inc., Ventures Ltd., Warmana Limited, Warnaco Inc., Warnaco
International, Inc., Warnaco International, LLC, Warnaco Men's Sportswear Inc.,
Warnaco of Canada Company, Warnaco Puerto Rico, Inc., Warnaco Sourcing Inc.,
Warnaco U.S. Inc., Warnaco Ventures Ltd. and Warner's De Costa Rica Inc., each a
debtor and debtor-in-possession herein (collectively, the "Debtors") under
chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"); and
On the basis of the record of these Cases, including the evidence
presented and the arguments of counsel made at the Confirmation Hearing; and on
the basis of the Findings of Fact and Conclusions of Law entered
contemporaneously herewith (whose definitions and the definitions contained in
the Plan are incorporated herein by reference);
Now, after due deliberation, the Court hereby ORDERS, ADJUDGES AND
DECREES THAT:
A. The Plan (as amended by the technical modifications set forth in
decretal paragraph B hereunder) complies with all applicable provisions of the
Bankruptcy Code and applicable Federal Rules of Bankruptcy Procedure (the
"Bankruptcy Rules") relating to Confirmation. The Plan, all provisions thereof,
and the exhibits and schedules thereto, hereby are confirmed. All objections to
the Plan not heretofore withdrawn are overruled in their entirety.
2
B. The following technical modifications to the Plan are hereby
approved:
1. The definition of "Effective Date" in the Plan is hereby amended by
deleting such section in its entirety and replacing it with the
following:
"Effective Date" means the Business Day that is the later of
the date on which (a) all conditions precedent set forth in
Section 4.1. of this Plan have been satisfied or waived as
provided in Section 4.2. of this Plan and (b) February 4,
2003."
2. The definition of "Initial Distribution Date" in the Plan is hereby
amended by deleting such section in its entirety and replacing it with
the following:
"Initial Distribution Date" means the first Business Day
that is ten (10) days (or such longer period as may be
reasonably determined by the Reorganized Debtors in
consultation with the Post-Effective Date Committee) after
the Effective Date, provided however, that the Initial
Distribution Date for the purposes of distributions to Class
5 Creditors under this Plan means the first Business Day
that is forty-five (45) days (or such longer period as may
be reasonably determined by the Reorganized Debtors in
consultation with the Post-Effective Date Committee
consistent with their obligations under Section 5.13. of
this Plan) after the Effective Date."
3. Section 5.4. of the Plan is hereby amended by deleting the words
"Warnaco Men's Sportswear Inc.".
4. Section 6.2. of the Plan is hereby amended by deleting such section
in its entirety and replacing it with the following:
"6.2. Distributions to Holders of Senior Secured Bank
Claims. On the Effective Date, Reorganized Warnaco, as
applicable, shall issue or deliver to the Administrative
Agent or its designee for distribution on behalf of the
Debtors to holders of Senior Secured Bank Claims in Class 2:
(a) Cash equal to the amount of the balance due on the
Original Foreign Facilities Guaranty Claims, which shall be
applied to repay in full satisfaction of any outstanding
amounts owing by the Debtors under the Original Foreign
Facilities as of the Petition Date; (b) New Warnaco Second
Lien Notes in the aggregate principal amount of $200
million; and (c) share certificate(s) for the aggregate
amount of either (i) 96.263% of the New Warnaco Common
Shares, subject to Dilution, if the holders of Class 6
Claims receive a distribution as provided in Section 2.9.(C)
of this Plan or (ii) 96.844% of the New Warnaco Common
Shares, subject to Dilution, if the holders of Class 6
Claims are not entitled to
3
receive a distribution as provided in Section 2.9.(C) of
this Plan. Notwithstanding any other provision of this Plan,
all distributions and issuances of such Cash, New Warnaco
Second Lien Notes and New Warnaco Common Shares to holders
of Class 2 Claims shall be made, (i) based on the amount of
Class 2 Claims held by such holders as set forth in the
books and records of the Administrative Agent as of the
close of business on the Confirmation Date, and (ii) in
accordance with the Pre-Petition Facility and Intercreditor
Agreements. Such Cash shall be distributed to the holders of
Class 2 Claims by the Administrative Agent, and the New
Warnaco Second Lien Notes and New Warnaco Common Shares
shall be issued by Reorganized Warnaco as directed by the
Administrative Agent in the names of the respective holders
of Class 2 Claims, in each case in accordance with the
foregoing."
5. Section 6.3. of the Plan is hereby amended by deleting such section
in its entirety and replacing it with the following:
"6.3. Distributions to Holders of Allowed Unsecured
Claims. On the Initial Distribution Date, Reorganized
Warnaco shall deliver to the Disbursing Agent for
distribution on behalf of the Debtors to holders of Allowed
Class 5 Claims share certificate(s) for the aggregate amount
of either (i) 2.549% of the New Warnaco Common Shares,
subject to Dilution, if the holders of Class 6 Claims
receive a distribution as provided in Section 2.9.(C) of
this Plan or (ii) 2.564% of the New Warnaco Common Shares,
subject to Dilution, if the holders of Class 6 Claims are
not entitled to receive a distribution as provided in
Section 2.9.(C) of this Plan. The Disbursing Agent shall
make distributions of New Warnaco Common Shares to holders
of Allowed Class 5 Claims as follows:
(A) On or as soon as practicable after the Initial
Distribution Date, the Disbursing Agent shall distribute the
New Warnaco Common Shares allocable to Allowed Claims held
by holders of Class 5 Claims as of the Distribution Record
Date. For the purpose of calculating the amount of New
Warnaco Common Shares to be distributed to holders of
Allowed Class 5 Claims on or as soon as practicable after
the Initial Distribution Date, all Disputed Claims in Class
5 will be treated as though such Claims will be Allowed
Claims in the Face Amount of such Claims.
(B) On any Interim Distribution Date, the Disbursing
Agent shall make interim distributions of New Warnaco Common
Shares to holders of Allowed Class 5 Claims pursuant to and
consistent with resolutions of Disputed Claims since the
Initial Distribution Date.
4
(C) On the Final Distribution Date, the Disbursing
Agent shall make the balance of all distributions to holders
of Allowed Class 5 Claims as required under this Plan."
6. Section 6.6.(A) of the Plan is hereby amended by deleting such
section in its entirety and replacing it with the following:
"(A) Bar Date For Certain Administrative Claims. All
applications for final compensation of professional persons
employed by the Debtors or the Creditors' Committee pursuant
to orders entered by the Bankruptcy Court and on account of
services rendered prior to the Effective Date, and all other
requests for payment of Administrative Claims (except for
the Alvarez Incentive Bonus, the Designated Post-Petition
Loans, claims of the Debt Coordinators and the Pre-Petition
Collateral Trustee payable under paragraph 22 of the DIP
Approval Orders, claims for taxes pursuant to Section
507(a)(8) of the Code, ordinary course trade debt and
customer deposits and credits incurred in the ordinary
course of business after the Petition Date) shall be served
on the Reorganized Debtors in accordance with Section 8.10.
of this Plan and filed with the Bankruptcy Court, no later
than 25 days after the Effective Date. Any such claim that
is not served and filed within this time period shall be
discharged and forever barred. Objections to any such
application must be filed within 20 days after filing
thereof."
7. A new Section 7.7. is hereby added to the Plan as follows:
"7.7. Limitation on Exculpations and Releases. Nothing
contained in Sections 7.4. and 7.5. shall (i) be construed
as a release of any Exculpated Person's and Pre-Petition
Releasee's fraud or willful misconduct with respect to the
matters set forth in those sections, or (ii) limit the
liability of the Debtors' or Creditors' Committee's
professionals to their respective clients pursuant to DR
6-102 of the Code of Professional Responsibility."
C. The Debtors, the Reorganized Debtors and their respective
affiliates, subsidiaries, directors, officers, agents and attorneys are hereby
authorized, empowered and directed to issue, execute, deliver, file or record
any document, and to take all other actions necessary or appropriate, in their
sole discretion, to implement, effectuate and consummate the Plan in accordance
with its terms, all without further corporate action or action of the directors,
stockholders of the Debtors or Reorganized Debtors and further order of this
Court, and on and
5
after the Effective Date, any such document will be legal, valid and binding in
accordance with its terms.
D. The classification of Claims and Interests for purposes of the
distributions to be made under the Plan shall be governed solely by the terms of
the Plan. The classifications and amounts of Claims and Interests, if any, set
forth on the Ballots tendered to or returned by the Debtors' creditors and
equity security holders in connection with voting on the Plan (i) were set forth
on the Ballots solely for purposes of voting to accept or reject the Plan and
(ii) do not necessarily represent, and in no event shall be deemed to modify or
otherwise affect, the actual amount or classification of such Claims or
Interests under the Plan for distribution purposes.
E. Pursuant to section 1141 of the Bankruptcy Code, effective upon
entry of this Order, but subject to the occurrence of the Effective Date, the
Plan (including the exhibits and schedules to, and all documents and agreements
created pursuant to, the Plan) and its provisions, together with the provisions
of this Order, shall be binding upon the Debtors, the Reorganized Debtors, any
entity acquiring or receiving property or a distribution under the Plan, any
lessor or lessee of property to or from the Debtors, any party to a contract
with the Debtors, any person who granted or is a beneficiary of the exculpations
and releases contained in or provided for under the Plan, any Creditor or equity
security holder of the Debtors, including all governmental entities, whether or
not the Claim or Interest of such Creditor or equity security holder is impaired
under the Plan and whether or not such Creditor, equity security holder or
entity has accepted the Plan, any and all nondebtor parties to executory
contracts and unexpired leases with any of the Debtors, any and all entities
that are parties to or are subject to the settlements, compromises, releases,
discharges and injunctions described herein or in the Plan,
6
any other party in interest, and the respective heirs, executors,
administrators, successors or assigns, if any, of all of the foregoing.
F. All injunctions or stays, whether imposed by operation of law or by
Order of this Court, provided for in the Cases pursuant to sections 105 or 362
of the Bankruptcy Code or otherwise that are in effect on the Confirmation Date,
shall remain in full force and effect until the Effective Date. As of the
Effective Date, the stay imposed pursuant to section 362(a) of the Bankruptcy
Code shall be dissolved and of no further force and effect, subject to the
injunction set forth in paragraph J below and/or sections 524 and 1141 of the
Bankruptcy Code, except that nothing herein shall bar the filing of documents in
connection with the Exit Financing Facility, the New Warnaco Second Lien Notes
or the New Warnaco Common Shares, or the taking of such other actions as are
necessary to effectuate the transactions specifically contemplated by the Plan,
the Exhibits and Schedules to the Plan or this Order.
G. The appointment or continuation in office as officers and directors
of the Reorganized Debtors of each of the individuals previously identified by
the Debtors in Plan Schedule 5.6, as amended on January 14, 2003 ("Plan Schedule
5.6"), hereby is approved and ratified as being in the best interests of the
Debtors, their Creditors and equity security holders and consistent with public
policy, and such officers and directors hereby are deemed elected and appointed
as of the Effective Date.
H. Except as provided for in this Order or in the Plan, the rights
afforded under the Plan and the treatment of Claims and Interests under the Plan
will be in exchange for, and in complete satisfaction, discharge and release of,
all Claims and will effect the cancellation of all Interests (including rights
to obtain or purchase Interests), including any interest accrued on Claims from
the Petition Date. Except as provided for in the Plan or this Order, as of the
7
Effective Date: (i) the Debtors will be discharged from all Claims or other
debts that arose before the Effective Date and all debts of the kind specified
in sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or not (x)
a proof of claim based on such debt is filed or deemed filed pursuant to section
501 of the Bankruptcy Code, (y) a Claim based on such debt is allowed pursuant
to section 502 of the Bankruptcy Code, or (z) the holder of a Claim based on
such debt has accepted the Plan; and (ii) all Interests and other rights of
equity security holders in the Debtors will be terminated and of no further
force and effect without any further action on the part of the Court or any
other person; provided, however, that the foregoing shall not release and
discharge the Debtors from their obligations under the Plan.
I. As of the Effective Date, except as provided in the Plan or this
Order, all entities will be precluded from asserting against the Debtors, the
Reorganized Debtors or their respective affiliates, successors or property, any
other or further Claims, demands, debts, rights, causes of action, liabilities
or equity interests against the Debtors based upon any act, omission,
transaction or other activity of any kind or nature that occurred prior to the
Effective Date. In accordance with the foregoing, except as provided in the Plan
or this Order, as of the Effective Date, all such Claims and other debts and
liabilities against the Debtors shall be discharged and all Interests and other
rights of equity security holders in the Debtors shall be satisfied, terminated
or cancelled pursuant to sections 524 and 1141 of the Bankruptcy Code. Such
discharge and termination will void any judgment obtained against the Debtors or
the Reorganized Debtors to the extent that such judgment relates to a discharged
Claim or terminated Interest.
J. Except as provided in the Plan or this Order, as of the Effective
Date, all entities that have held, currently hold or may hold a Claim or other
demand, debt, right, cause of
8
action or liability that is discharged or an Interest or other right of an
equity security holder that is terminated pursuant to the terms of the Plan are
permanently enjoined from taking any of the following actions on account of any
such discharged Claims, debts or liabilities or terminated Interests or rights:
(i) commencing or continuing in any manner any action or other proceeding
against the Debtors, the Reorganized Debtors or their respective property; (ii)
enforcing, attaching, collecting or recovering in any manner any judgment,
award, decree or order against the Debtors, the Reorganized Debtors or their
respective property; (iii) creating, perfecting or enforcing any lien or
encumbrance against the Debtors, the Reorganized Debtors or their respective
property or any released entity; (iv) asserting a setoff, right of subrogation
or recoupment of any kind against any debt, liability or obligation due to the
Debtors, the Reorganized Debtors or their respective property; and (v)
commencing or continuing any action, in any manner, in any place that does not
comply with or is inconsistent with the provisions of the Plan.
K. The substantive consolidation of all of the Debtors for purposes of
voting on, and of receiving distributions pursuant to, the Plan is approved.
L. Except as otherwise provided in this Order or in the Plan (and
subject to the mergers and dissolutions contemplated by Section 5.4. of the
Plan), each Debtor shall continue to exist as a Reorganized Debtor and as a
separate corporate entity (and the substantive consolidation of all of the
Debtors pursuant to the Plan shall not affect the separate corporate existence
of the Reorganized Debtors), with all of the powers of a corporation under
applicable law and without prejudice to any right to alter or to terminate such
existence (whether by merger, dissolution or otherwise) under applicable state
or foreign law.
9
M. Except as otherwise provided in this Order, or in the Plan, all
property of the Debtors' estates, to the full extent of section 541 of the
Bankruptcy Code, and any and all other rights and assets of the Debtors of every
kind and nature shall, on the Effective Date of the Plan, revest in the
Reorganized Debtors free and clear of all Liens, Claims and Interests and other
encumbrances other than (i) those Liens, Claims and Interests and encumbrances
retained, preserved or created pursuant to the Plan or any document entered into
in connection with the transactions described in the Plan and this Order and
(ii) Liens that have arisen subsequent to the Petition Date on account of taxes
that arose subsequent to the Petition Date. To the extent that the succession to
assets of the Debtors by the Reorganized Debtors pursuant to the Plan is deemed
to constitute "transfers" of property, such transfers of property to the
Reorganized Debtors (a) shall be legal, valid and effective transfers of
property, (b) vest or shall vest the Reorganized Debtors with good title to such
property, free and clear of all Liens, Claims and Interests and encumbrances
except as set forth herein, and (c) do not and shall not subject any of the
Reorganized Debtors to any liability by reason of such transfer under the
Bankruptcy Code or applicable nonbankruptcy law including, but not limited to,
any laws affecting successor or transferee liability, other than the Liens,
Claims and Interests and encumbrances retained, preserved, or created pursuant
hereto.
N. On and after the Effective Date, each Reorganized Debtor is
authorized to (a) operate its business, (b) use, acquire and dispose of
property, and (c) compromise or settle any Claims or Interests, in each case
without supervision or approval of the Bankruptcy Court and free of any
restrictions of the Bankruptcy Code or the Bankruptcy Rules, other than those
restrictions expressly imposed by the Plan or by this Order.
10
O. Effective as of the Effective Date but immediately prior to the
discharge of the Debtors, each of the following transactions shall occur and
shall be deemed to have occurred in the order listed: (i) each of Warnaco
Ventures Ltd., Ventures Ltd. and Blanche Inc. shall be merged with and into
Warnaco Inc. and Warnaco Inc. shall be the surviving corporation in such merger;
(ii) AEI Management Corporation shall be merged with and into Rio Sportswear
Inc. and Rio Sportswear Inc. shall be the surviving corporation in such merger;
(iii) CCC Acquisition Realty Corp. shall be merged with and into Authentic
Fitness Products Inc. and Authentic Fitness Products Inc. shall be the surviving
corporation in such merger; (iv) CKJ Sourcing Inc. shall be merged with and into
Calvin Klein Jeanswear Company and Calvin Klein Jeanswear Company shall be the
surviving entity in such merger; and (v) Group shall transfer 100% of the shares
held by Group in each of Myrtle Avenue, Inc., Authentic Fitness Corporation and
Designer Holdings Ltd. to Warnaco Inc. The corporate transactions described in
and contemplated by this paragraph O hereby are approved.
P. Notwithstanding anything to the contrary contained in the Plan or in
this Order, the DIP Facility and the DIP Approval Orders shall extend and
continue in full force and effect until the later to occur of (i) the Effective
Date and (ii) payment in full of all obligations under the DIP Facility. On the
Effective Date, the Reorganized Debtors shall enter into the Exit Financing
Facility and all Financing Agreements (as such term is defined in the Exit
Financing Credit Agreement) with the respective Lenders thereunder. The Exit
Financing Facility hereby is approved. Pursuant to section 1142(b) of the
Bankruptcy Code and without further action by this Court or by the shareholders
and directors of any of the Reorganized Debtors, the Reorganized Debtors are
authorized to enter into the Exit Financing Facility, to perform all of their
obligations thereunder and to execute and deliver all documents, agreements and
instruments necessary or
11
appropriate to enter into and perform all obligations under the Exit Financing
Facility and to take all other actions and execute, deliver, record and file all
other such agreements, documents, instruments, financing statements, releases,
applications, registration statements, reports and any changes, additions and
modifications thereto in connection with the consummation of the transactions
contemplated by the Exit Financing Facility, including, without limitation, the
making of such filings, or the recording of any security interests, as may be
required by such Exit Financing Facility.
Q. On the Effective Date, the Reorganized Debtors will enter into the
definitive documentation with respect to the New Warnaco Second Lien Notes.
Pursuant to section 1142(b) of the Bankruptcy Code and without further action by
this Court or by the shareholders and directors of any of the Reorganized
Debtors, the Reorganized Debtors are authorized to perform all of their
obligations thereunder and to execute and deliver all documents, agreements and
instruments necessary or appropriate to enter into and perform all obligations
under the New Warnaco Second Lien Notes and to take all other actions and
execute, deliver, record and file all other such agreements, documents,
instruments, financing statements, releases, applications, registration
statements, reports and any changes, additions and modifications thereto in
connection with the consummation of the transactions contemplated by the New
Warnaco Second Lien Notes, including, without limitation, the making of such
filings, or the recording of any security interests, as may be required.
R. On the Effective Date, the Reorganized Debtors will issue the New
Warnaco Common Shares. Pursuant to section 1142(b) of the Bankruptcy Code and
without further action by this Court or by the shareholders and directors of any
of the Reorganized Debtors, the Reorganized Debtors are authorized to perform
all tasks necessary and to execute
12
and deliver all documents, agreements and instruments necessary or appropriate
to issue the New Warnaco Common Shares.
S. None of the Debtors, the Reorganized Debtors, the Creditors'
Committee, the Pre-Petition Lenders, the Post-Effective Date Committee, the DIP
Lenders, the Pre-Petition Secured Lenders, the TOPrS Trustee, the Collateral
Trustee nor any of their respective directors, employees employed by the Debtors
as of the Effective Date, members, attorneys, investment bankers, restructuring
consultants and financial advisors nor any other professional Persons employed
by any of them (collectively, the "Exculpated Persons"), shall have or incur any
liability to any Person for any act taken or omission from and after the
Petition Date in connection with, relating to or arising out of the Cases, the
management and operation of the Debtors, the formulation, negotiation,
implementation, confirmation or consummation of the Plan, the Disclosure
Statement or any contract, instrument, release or other agreement or document
created in connection with the Plan. The Exculpated Persons shall have no
liability to any Debtor, holder of a Claim, holder of an Interest, other party
in interest in the Cases or any other Person for actions taken or not taken in
connection with, relating to or arising out of the Cases, the management and
operation of the Debtors, the Plan or the property to be distributed under the
Plan, including, without limitation, failure to obtain Confirmation of the Plan
or to satisfy any condition or conditions, or refusal to waive any condition or
conditions, to the occurrence of the Effective Date, and in all respects such
Exculpated Persons shall be entitled to rely upon the advice of counsel with
respect to their duties and responsibilities in the Cases, the management and
operation of the Debtors and under the Plan.
T. Except as provided herein or in the Plan, all releases of claims and
causes of action against persons and entities that are embodied in Section 7.5.
of the Plan or in this
13
Order, including, without limitation, those third-party releases set forth in
Section 7.5.(C) of the Plan that voluntarily were granted by holders of Claims
entitled to vote on the Plan (whether or not such holder submitted a timely
Ballot to accept or reject the Plan), are effective and binding on all persons
and entities that may have had standing to assert such claims or causes of
action or that granted the releases unless the holder of a Claim entitled to
vote on the Plan submitted a timely Ballot indicating an election not to grant
such releases. The terms of such releases are deemed included herein as if
expressly stated. As of the Effective Date, all entities that have held,
currently hold or may hold a claim, obligation, demand, debt, right, cause of
action and liability that has been released pursuant to the Plan permanently are
enjoined from taking any of the following actions on account of such released
claims, obligations, demands, debts, rights, causes of action or liabilities:
(i) commencing or continuing in any manner any action or other proceeding; (ii)
enforcing, attaching, collecting or recovering in any manner any judgment,
award, decree or order; (iii) creating, perfecting or enforcing any lien or
encumbrance; (iv) asserting a setoff, right of subrogation or recoupment of any
kind against any debt, liability or obligation due to any released entity; and
(v) commencing or continuing any action, in any manner, in any place that does
not comply with or is inconsistent with the provisions of the Plan.
U. Nothing contained herein or in Sections 7.4. and 7.5. of the Plan
shall (i) be construed as a release of any Exculpated Person's and Pre-Petition
Releasee's fraud or willful misconduct with respect to the matters set forth in
those sections, or (ii) limit the liability of the Debtors' or Creditors'
Committee's professionals to their respective clients pursuant to DR 6-102 of
the Code of Professional Responsibility.
V. Nothing contained in Sections 7.3., 7.4. or 7.5. of the Plan shall
release, waive, discharge or affect any claim or right of the United States of
America, including but not
14
limited to the Internal Revenue Service and the United States Customs Service
("Customs"), to collect any claim or assert any rights against any non-debtors.
Moreover, nothing in the Plan shall affect any right or claim by the United
States of America, including but not limited to the Internal Revenue Service, to
set off or to recoup any amounts due any of the Debtors and/or Reorganized
Debtors against any amounts owed by the Debtors and/or Reorganized Debtors (to
the extent such setoff or recoupment rights exist under applicable
non-bankruptcy law), and the Debtors and/or the Reorganized Debtors expressly
reserve all legal and equitable defenses with respect to such set off or
recoupment rights, including, without limitation, that any such rights are
barred as the result of the failure of the United States of America to timely
file a proof of claim in the Cases, lack of mutuality or any other legal or
equitable defense; provided, however, that the foregoing provision is
inapplicable to claims or rights of Customs, which claims or rights shall be
governed by the final order approving that certain Stipulation Between the
Debtors and the United States Customs Service Regarding Claims and Setoff Rights
dated January 10, 2003 (the "Customs Stipulation"). If the Court declines to
enter the Customs Stipulation, or subsequently vacates it, the provisions of the
previous sentence shall also apply to Customs.
W. Nothing contained in the Plan or this Order shall release or enjoin,
or be deemed to release or enjoin, the claims asserted or to be asserted in the
case pending in the United States District Court for the Southern District of
New York captioned In Re The Warnaco Group, Inc. Securities Litigation, No.
00-Civ-6266 (LMM) (the "Shareholder I Class Action") against the non-Debtor
defendants named therein or any non-Debtor, and neither the Plan nor this Order
shall affect the rights of the claimants in the Shareholder I Class Action to
obtain this relief.
15
X. Notwithstanding anything to the contrary in the Plan, the Plan shall
not (i) release or discharge any Claims held by the SEC against any non-debtors,
or enjoin or restrain the SEC from instituting or enforcing any such Claims
against any non-debtors, or (ii) release or discharge any cause of action that
the SEC may have against any of the Debtors or Reorganized Debtors that does not
seek monetary relief, or enjoin or restrain the SEC from instituting or
enforcing any such cause of action against any of the Debtors or Reorganized
Debtors.
Y. Except as otherwise provided in the Plan and in this Order, subject
to the occurrence of the Effective Date and other than for purposes of receiving
distributions under the Plan, upon entry of this Order on the docket of the
Clerk of this Court, all evidences of Claims against and Interests in the
Debtors that are impaired under the Plan, shall be and are deemed to be canceled
and terminated, and the obligations of the applicable Debtors thereunder or in
connection therewith shall be discharged.
Z. On and as of the Effective Date pursuant to the compromises and
settlements in the Plan, all contractual, legal or equitable subordination and
turnover rights with respect to the TOPrS that a holder of a Claim against or
Interest in the Debtors may have with respect to any distribution to be made
pursuant to the Plan will be discharged and terminated, and all such actions
related to the enforcement of any such subordination rights will be permanently
enjoined. Distributions made pursuant to the Plan to holders of Allowed Claims
will not be subject to payment to any beneficiary of such terminated
subordination rights, or to levy, garnishment, attachment or other legal process
by a beneficiary of such terminated subordination rights. Notwithstanding
anything contained in this paragraph Z to the contrary, the Intercreditor
Agreement, dated as of October 6, 2000, among Warnaco and certain of its
16
subsidiaries, certain financial institutions and State Street Bank and trust
Company as Collateral Trustee shall remain in full force and effect.
AA. The provisions of the Plan constitute a good faith compromise and
settlement of all claims or controversies relating to the enforcement or
termination of all contractual, legal and equitable subordination and turnover
rights that a holder of a Claim against or Interest in the Debtors may have with
respect to any Allowed Claim or Interest, or any distribution to be made
pursuant to the Plan on account of such Claim. The compromise or settlement of
all such claims or controversies is approved under Rule 9019 of the Bankruptcy
Rules as being fair, equitable and reasonable and in the best interests of the
Debtors, the Reorganized Debtors and the holders of Claims and Interests.
BB. Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, and
notwithstanding the entry of this Order or the occurrence of the Effective Date,
this Court shall retain exclusive jurisdiction over all matters arising out of,
and related to, the Cases and the Plan to the fullest extent permitted by law
including, inter alia, all of the matters and for all of the purposes described
in this Order or in Section 8.1. or otherwise in the Plan.
CC. Nothing contained in Section 8.1. of the Plan shall bind the United
States of America, its agencies, officials and/or employees, from challenging
the Bankruptcy Court's jurisdiction over claims, cases, proceedings or actions
brought by or against the United States of America, its agencies, officials
and/or employees. The United States of America expressly reserves any and all of
its rights and/or defenses to challenge the Bankruptcy Court's jurisdiction over
any claims, cases, proceedings, or actions that may be brought by or against the
United States of America, its agencies, officials and/or employees arising from
or relating to the Plan and the Cases.
17
DD. Except as otherwise provided in the Plan, this Order or any other
order of the Court entered in these Cases, no payment provided for in the Plan
shall be made prior to the Effective Date.
EE. Except as otherwise provided in the Plan, any distribution under
the Plan that is unclaimed by the holder of the Allowed Claim entitled to such
distribution for ninety (90) days after the distribution date applicable to such
distribution, shall be distributed in the manner provided for in Section 6.5.(G)
of the Plan.
FF. Pursuant to Section 3.1. of the Plan, as of the Effective Date,
each executory contract and unexpired lease to which any of the Debtors is a
party shall be deemed automatically rejected as of the Effective Date, except
with respect to Intellectual Property Contracts which shall be deemed
automatically assumed, unless such executory contract or unexpired lease (a)
shall have been previously rejected or assumed by order of the Bankruptcy Court,
(b) is the subject of a motion to assume or reject filed on or before the
Confirmation Date, or (c) is listed on the schedule of assumed contracts and
leases annexed as Plan Schedule 3.2, as amended as of the Confirmation Hearing.
The executory contracts and unexpired leases to be rejected shall include, but
shall not be limited to, the executory contracts and unexpired leases set forth
on Plan Schedule 3.1, as amended as of the Confirmation Hearing, and all such
rejections hereby are approved pursuant to section 365(b)(1) of the Bankruptcy
Code and, to the extent applicable, section 365(b)(3) of the Bankruptcy Code, as
of the Effective Date. Listing a contract or lease on Plan Schedule 3.1 shall
not constitute an admission by a Debtor or Reorganized Debtor that such contract
or lease is an executory contract or unexpired lease or that a Debtor or
Reorganized Debtor has any liability with respect thereto.
18
GG. Pursuant to Section 3.2. of the Plan, except with respect to
executory contracts and unexpired leases that previously have been assumed or
are the subject of a motion to assume which was filed on or before the
Confirmation Date, all executory contracts and unexpired leases specifically
listed on the schedule of assumed executory contracts and unexpired leases
annexed as Plan Schedule 3.2, as amended as of the Confirmation Hearing, shall
be deemed automatically assumed by the applicable Debtor as of the Effective
Date. Any executory contracts and unexpired leases assumed by any of the Debtors
pursuant to Section 3.2. of the Plan or pursuant to any order of this Court
during the Cases shall be deemed assigned to the Reorganized Debtors on the
Effective Date, and all such assumptions and assignments hereby are approved.
Listing a contract or lease on Plan Schedule 3.2 shall not constitute an
admission by a Debtor or Reorganized Debtor that such contract or lease is an
executory contract or unexpired lease that a Debtor or Reorganized Debtor has
any liability with respect thereto. Each executory contract and unexpired lease
that is assumed and relates to the use, ability to acquire or occupancy of real
property shall include (a) all modifications, amendments, supplements,
restatements or other agreements made directly or indirectly by any agreement,
instrument or other document that in any manner affect such executory contract
or unexpired lease and (b) all executory contracts or unexpired leases
appurtenant to the premises, including all easements, licenses, permits, rights,
privileges, immunities, options, rights of first refusal, powers, uses,
reciprocal easement agreements and any other interests in real estate or rights
in rem related to such premises, unless any of the foregoing agreements has been
rejected pursuant to a Final Order of this Court or is otherwise rejected as
part of the Plan.
HH. Pursuant to Section 5.17. of the Plan, except as otherwise set
forth in the Plan and subject to the provisions of paragraph KK below, to the
extent that any of the Debtors
19
have in place as of the Effective Date, retirement income plans, welfare benefit
plans, and other employee-related plans and programs, such agreements, programs
and plans shall be deemed terminated as of the Effective Date; provided, that on
and after the Effective Date, the plans and programs set forth in Plan Schedule
5.17 shall be deemed in effect in accordance with their existing terms and
conditions, including any termination or modification provisions.
II. Any monetary amounts by which each executory contract and unexpired
lease to be assumed under the Plan may be in default shall be satisfied, under
section 365(b)(1) of the Bankruptcy Code, by Cure in the amount set forth on
Plan Schedule 3.2, as amended as of the Confirmation Hearing, or, in the event
of an objection to such Cure amount, in the amount agreed between the parties or
as ordered by the Bankruptcy Court. To the extent the non-Debtor party to the
unexpired lease or executory contract has not objected to the amount of Cure set
forth in Plan Schedule 3.2 on or before the Voting Deadline, such non-Debtor
party shall be deemed to accept such Cure amount. To the extent that no Cure
amount is listed on Plan Schedule 3.2 for an executory contract or unexpired
lease, and no objection has been filed by the non-Debtor party to such executory
contract or unexpired lease prior to the Confirmation Date, then the Cure amount
shall be deemed to be $0.00. To the extent the Debtor who is a party to the
unexpired lease or executory contract is to be merged pursuant to the Plan, the
non-Debtor parties to such unexpired lease or executory contract shall, upon
assumption as contemplated herein, be deemed to have consented to the assignment
of such unexpired lease or executory contract to the Reorganized Debtor that is
the surviving entity after such merger.
JJ. If the rejection by a Debtor, pursuant to the Plan or otherwise, of
an executory contract or unexpired lease results in a Claim, then such Claim
shall be forever barred and shall not be enforceable against any Debtor or
Reorganized Debtor or the properties of any
20
of them, and such Claim shall only be entitled to treatment as a Class 5 Claim
under the Plan in the event that a proof of claim is filed with the clerk of the
Bankruptcy Court and served upon counsel to the Debtors within thirty (30) days
after service of the earlier of (a) notice of the Confirmation Date, or (b)
other notice that the executory contract or unexpired lease has been rejected
pursuant to an order of the Bankruptcy Court.
KK. Upon the occurrence of the Effective Date, Reorganized Warnaco
shall continue the Pension Plan, including meeting the minimum funding standards
under ERISA and the Internal Revenue Code, paying all PBGC insurance premiums,
and administering and operating the Pension Plan in accordance with its terms
and ERISA. Nothing in the Plan or in this Order shall be deemed to discharge,
release, or relieve the Debtors, the Reorganized Debtors, any member of the
Debtors' controlled groups (as defined in 29 U.S.C. 'SS' 1301(a)(14)) or any
other party, in any capacity, from any current or future liability with respect
to the Pension Plan, and PBGC and the Pension Plan shall not be enjoined or
precluded from enforcing such liability as a result of the Plan's provisions or
confirmation of the Plan. Upon the Effective Date, PBGC shall be deemed to have
withdrawn the Single-Employer Pension Plan Claims with prejudice. After the
Effective Date, the Reorganized Debtors shall have the authority to terminate,
amend or freeze the Pension Plan in accordance with the terms of the Pension
Plan, ERISA and the Internal Revenue Code.
LL. Pursuant to section 1142(b) of the Bankruptcy Code, without further
action by this Court or the shareholders or boards of directors of any of the
Reorganized Debtors, and without limiting the power or authority of the
Reorganized Debtors following the Effective Date to take any and all such
actions as may be permitted or required by applicable nonbankruptcy law, the
Reorganized Debtors are authorized, as of the Effective Date, to: (a)
21
maintain, amend or revise existing employment, retirement, welfare, incentive,
severance, indemnification and other agreements with their active directors,
officers and employees, subject to the terms and conditions of any such
agreement; (b) enter into new employment, retirement, welfare, incentive,
severance, indemnification and other agreements for active and retired
employees; and (c) implement the provisions of the Management Stock Incentive
Program, and all agreements and documents related thereto.
MM. Pursuant to section 1146(c) of the Bankruptcy Code, (a) the
creation of any lien, mortgage, deed of trust or other security interest, (b)
the making of any agreement, document or instrument in furtherance of, or in
connection with, the Plan, including any other agreements of consolidation,
restructuring, disposition, liquidation or dissolution, deeds, bills of sale, or
assignments executed in connection with the Plan, and (c) the issuance, transfer
or exchange of any securities, will not be subject to any stamp or other similar
tax or tax held to be a stamp tax or other similar tax pursuant to section
1146(c) of the Bankruptcy Code. This Court retains specific jurisdiction with
respect to this matter. Each federal, state and local governmental or regulatory
agency or department is hereby authorized and directed to comply with section
1146(c) and to accept the filing of all documents and instruments necessary and
appropriate to consummate the Plan without the requirement to pay any otherwise
applicable stamp tax or other similar tax or tax held to be a stamp tax or other
similar tax.
NN. Pursuant to sections 1123(a) and 1142(a) of the Bankruptcy Code,
the provisions of this Order, the Plan and all Plan-related documents shall
apply and be enforceable notwithstanding any otherwise applicable non-bankruptcy
law.
OO. Within ten (10) business days after the Confirmation Date, or as
soon as practicable thereafter, the Debtors shall mail the notice (the
"Confirmation Notice"), in
22
substantially the form annexed hereto as Exhibit A, by first class mail, postage
prepaid, to (i) the Office of the United States Trustee for the Southern
District of New York, (ii) all known holders of Claims against, and Interests
in, the Debtors, and (iii) all parties that have requested notice in these
Cases. The form of Confirmation Notice hereby is approved. Service of the
Confirmation Notice as provided herein shall constitute good and sufficient
notice pursuant to Bankruptcy Rules 2002(f)(7), 2002(k) and 3020(c) of entry of
this Order and of the relief granted herein and, except as otherwise set forth
in this Order, no other or further notice need be given.
PP. Notwithstanding the foregoing, pursuant to Bankruptcy Rule 2002(l),
the Debtors may, but are not required to, publish a notice of the occurrence of
the Effective Date of the Plan substantially in the form attached hereto as
Exhibit B (the "Effective Date Notice") in The Wall Street Journal (global
edition), The New York Times (national edition) and Women's Wear Daily, within
ten (10) business days after the occurrence of the Effective Date.
QQ. Except as set forth in paragraph RR hereof, all requests for
payment of administrative costs and expenses incurred prior to the Effective
Date pursuant to sections 507(a)(1) or 503(b) of the Bankruptcy Code (except for
the Alvarez Incentive Bonus, the Designated Post-Petition Loans, claims of the
Debt Coordinators and the Pre-Petition Collateral Trustee payable under
paragraph 22 of the DIP Approval Orders, ordinary course trade debt and customer
deposits and credits incurred in the ordinary course of business after the
Petition Date) shall be shall be filed with the Bankruptcy Court, 1 Bowling
Green, Alexander Hamilton Custom House, New York, New York 10004 and served on
(i) The Warnaco Group, Inc., 90 Park Avenue, New York, New York 10016,
Attention: Stanley P. Silverstein, Esq., (ii) Sidley Austin Brown & Wood LLP,
787 Seventh Avenue, New York, New York 10019, Attention: Kelley A. Cornish,
Esq., (iii) Counsel to the Debt Coordinators for the Pre-Petition
23
Lenders, Shearman & Sterling, 599 Lexington Avenue, New York, New York,
Attention: James L. Garrity, Esq. (iv) counsel to the Creditors' Committee,
Otterbourg, Steindler, Houston, & Rosen, P.C., 230 Park Avenue, New York, New
York 10169, Attention: Scott L. Hazan, Esq., (v) the Office of the United States
Trustee, 33 Whitehall Street, New York, New York 10004, Attention: Mary E. Tom,
Esq., so as to be received no later than the date that is twenty-five (25) days
after the Effective Date at 4:00 p.m. Any such request that is not filed and
served within this time shall be forever barred. Notice of the deadline for
filing such requests and the persons upon whom service must be made, as provided
for in the Confirmation Notice, constitutes good and sufficient notice and no
further notice need be given.
RR. All final applications for compensation of professional persons
employed by the Debtors or the Creditors' Committee pursuant to orders entered
by this Court and on account of services rendered prior to the Effective Date
not subject to an application already pending before the Bankruptcy Court
(including the reimbursement of the expenses of the members of the Creditors'
Committee) pursuant to sections 507(a)(1) or 503(b) of the Bankruptcy Code shall
be filed with the Bankruptcy Court, so as to be received no later than the date
that is twenty-five (25) days after the Effective Date at 4:00 p.m. Any such
application that is not filed and served within this time shall be forever
barred. Objections to any such application must be filed with the Bankruptcy
Court and served on the parties previously identified in this paragraph RR so as
to be received no later than twenty (20) days after the filing of such
application. Notice of the deadline for filing such applications, the deadline
for filing objections to such applications and the persons upon whom service
must be made, as provided for in the Confirmation Notice, constitutes good and
sufficient notice and no further notice need be given.
24
SS. No applications need be filed for compensation and reimbursement by
professional persons for services rendered or expenses incurred on and after the
Effective Date, and such compensation and reimbursement may be paid by the
Reorganized Debtors directly in accordance with ordinary business practices and
without further authorization of this Court.
TT. The Creditors' Committee in its present form shall continue to
exist after the Confirmation Date until the Effective Date with the same power
and authority, and the same ability to retain and compensate professionals, as
it had prior to the Confirmation Date.
UU. Pursuant to Section 5.2. of the Plan, on and as of the Effective
Date, the Creditors' Committee shall be reconstituted and shall be comprised of
no more than seven (7) members of the Creditors' Committee prior to the
Effective Date (the "Post-Effective Date Committee"). The members of the
Creditors' Committee who are not members of the Post-Effective Date Committee
shall be released and discharged of and from all further authority, duties,
responsibilities, and obligations related to and arising from and in connection
with the Cases. In the event of the death or resignation of any member of the
Post-Effective Date Committee after the Effective Date, the remaining members of
the Post-Effective Date Committee shall have the right to designate a successor
from among the holders of Allowed Class 5 Claims. If a Post-Effective Date
Committee member assigns its Claim or releases the Debtors from payment of all
or the balance of its Claim, such act shall constitute a resignation from the
Post-Effective Date Committee. Until a vacancy on the Post-Effective Date
Committee is filled, the Post-Effective Date Committee shall function in its
reduced number. The Reorganized Debtors shall consult with the Post-Effective
Date Committee on a regular basis concerning the Reorganized Debtors'
investigation, prosecution and proposed settlement of Class 5 Claims and shall
provide written reports to the Post-Effective Date Committee on a
25
monthly basis regarding the status of the Claims resolution process. The
Reorganized Debtors shall not settle or compromise any Class 5 Claim in excess
of the Allowed amount of $25,000 without either the approval of the
Post-Effective Date Committee (which shall act by majority vote) or an order of
the Bankruptcy Court. Subject to the approval of the Post-Effective Date
Committee, the Reorganized Debtors may settle or compromise any Class 5 Claim in
excess of the Allowed amount of $25,000 without an order of the Bankruptcy
Court. The Reorganized Debtors may settle or compromise any Class 5 Claim for
less than the Allowed amount of $25,000 without an order of the Bankruptcy Court
and without the approval of the Post-Effective Date Committee. The duties of the
Post-Effective Date Committee shall also include services related to any
applications for allowance of compensation or reimbursement of expenses pending
on the Effective Date or filed after the Effective Date (collectively, the
"Filed Fee Applications"). The Reorganized Debtors shall pay (a) the reasonable
expenses of the members of the Creditors' Committee between the Confirmation
Date and the Effective Date, and the Post-Effective Date Committee (the
"Post-Effective Date Committee Expenses") and (b) the reasonable fees of the
professional persons employed by the Post-Effective Date Committee in connection
with its duties and responsibilities as set forth in the Plan (the
"Post-Effective Date Committee Fees"); provided, however, that the total
aggregate amount of the Post-Effective Date Committee Expenses and the
Post-Effective Date Committee Fees shall not exceed $100,000.00 (exclusive of
services related to Filed Fee Applications). The Post-Effective Date Committee
Fees and the Post-Effective Date Committee Expenses shall be paid within fifteen
(15) Business Days after submission of a detailed invoice therefor to the
Reorganized Debtors. If the Reorganized Debtors dispute the reasonableness of
any such invoice, the Reorganized Debtors, the Post-Effective Date Committee or
the affected professional may submit such dispute to the
26
Bankruptcy Court for a determination of the reasonableness of such invoice, and
the disputed portion of such invoice shall not be paid until the dispute is
resolved. The undisputed portion of such reasonable fees and expenses shall be
paid as provided herein. The Post-Effective Date Committee shall be dissolved
and the members thereof shall be released and discharged of and from further
authority, duties, responsibilities and obligations relating to and arising from
and in connection with the Cases on the later of (i) the Final Distribution Date
and (ii) the date all services related to Filed Fee Applications are completed,
and the retention or employment of the Post-Effective Date Committee's
professionals shall terminate.
VV. This Order shall be effective according to its terms upon its
entry.
WW. The Reorganized Debtors shall have the right, to the full extent
permitted by section 1142 of the Bankruptcy Code, to apply to this Court for an
order, notwithstanding any otherwise applicable nonbankruptcy law, directing any
entity to execute and deliver any instrument or to perform any other act;
provided, that without the consent of the affected party, or a determination by
this Court that such relief is necessary to ensure the cooperation or compliance
of any party or to compensate the Reorganized Debtors for damages associated
with a lack of such cooperation or compliance with the terms and conditions of
this Order, the Plan, and any documents related thereto, no such order shall
modify or impair any right, title, interest, privilege, or remedy expressly
provided or reserved to such party under this Order, the Plan or any document
related thereto.
XX. This Order shall constitute the approval of the Plan and the
transactions contemplated thereby, including, without limitation, those
corporate transactions contemplated under Section 5.4. of the Plan or this Order
pursuant to the Delaware General Corporation Law.
27
YY. The provisions of section 1145 of the Bankruptcy Code shall be
applicable to the offer, issuance and distribution, transfer or exchange of New
Warnaco Common Shares and the New Warnaco Second Lien Notes pursuant to the
Plan, (including, without limitation, the making or delivery of any document or
instrument of offer or transfer of such securities) and shall be exempt from
registration under applicable securities laws (including without limitation,
Section 5 of the Securities Act or any similar state or local law requiring the
registration for offer or sale of a security or registration or licensing of an
issuer or a security) pursuant to Section 1145(a) of the Code, and may be sold
without registration to the extent permitted under Section 1145 of the Code.
ZZ. Wells Fargo Bank, Minnesota, N.A., hereby is authorized and
empowered to act as Disbursing Agent under the Plan.
AAA. "Substantial consummation" of the Plan, as defined in section
1101(2) of the Bankruptcy Code, shall be deemed to occur upon completion of all
actions and transactions required by the Plan to be effected prior to or upon
the Effective Date.
BBB. The failure specifically to include or reference any particular
provision of the Plan in this Order shall not diminish or impair the
effectiveness of such provision, it being the intent of the Court that the Plan
be confirmed in its entirety.
CCC. Upon the entry of this Order, all provisions of the Plan,
including all agreements, instruments and other documents filed in connection
with the Plan and executed by the Debtors or the Reorganized Debtors in
connection with the Plan shall be binding upon the Debtors and the Reorganized
Debtors, all Claim and Interest holders and all other entities that are affected
in any manner by the Plan. All agreements, instruments and other documents filed
in connection with the Plan shall have full force and effect as of the entry of
this Order, and shall
28
bind all parties thereto as of the Effective Date, whether or not issued,
delivered or recorded on the Effective Date or thereafter, and the provisions of
the Plan and of this Order shall be construed in a manner consistent with each
other so as to effect the purposes of each; provided, however, that in the event
of any inconsistency between the terms of the Plan or such other documents, on
the one hand, and the terms of this Order, on the other, the terms of this Order
shall govern.
DDD. This Order is and shall be deemed a separate Order with respect to
each of the Debtors in each Debtor's separate Case for all purposes. The Clerk
of the Court is directed to file and docket this Order in the Case of each of
the Debtors.
EEE. The Debtors shall have the right, in accordance with section 1127
of the Bankruptcy Code, to modify or amend the Plan after the Confirmation Date
to the full extent permitted by law, provided, that any such modification is
consented to by the Debt Coordinators for the Pre-Petition Secured Lenders and
the Creditors' Committee in writing prior to the effectiveness of any such
modification or amendment.
FFF. If there is any direct conflict between the Plan and this Order,
the terms of this Order shall control.
GGG. If any or all of the provisions of this Order are hereafter
reversed, modified or vacated by subsequent order of this Court or any other
court, such reversal, modification or vacatur shall not affect the validity of
the acts or obligations incurred or undertaken under or in connection with the
Plan prior to the Debtors' receipt of written notice of any such order.
Notwithstanding any such reversal, modification or vacatur of this Order, any
such act or obligation incurred or undertaken pursuant to, and in reliance on,
this Order prior to
29
the effective date of such reversal, modification or vacatur shall be governed
in all respects by the provisions of this Order and the Plan and all documents
executed pursuant thereto or any amendments or modifications thereto.
Dated: New York, New York
January 16, 2003
/s/ Richard L. Bohanon
--------------------------------
The Honorable Richard L. Bohanon
United States Bankruptcy Judge
30
Exhibit A
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
SIDLEY AUSTIN BROWN & WOOD LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Counsel for Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x:
:
In re :
THE WARNACO GROUP, INC., :
Federal Tax I.D. No. 95-4032739 :
:
184 BENTON STREET INC. :
Federal Tax I.D. No. 06-1045343 :
:
A.B.S. CLOTHING COLLECTION, INC. :
Federal Tax I.D. No. 95-3799247 :
:
ABBEVILLE MANUFACTURING COMPANY, :
Federal Tax I.D. No. 13-3779229 : Chapter 11
:
AEI MANAGEMENT CORPORATION, : Case Nos. 01-41643 (RLB)
Federal Tax I.D. No. 95-4355518 : through 01-41680 (RLB)
:
AUTHENTIC FITNESS CORPORATION, : (Jointly Administered)
Federal Tax I.D. No. 95-4268251 :
:
AUTHENTIC FITNESS ON-LINE, INC. :
Federal Tax I.D. No. 95-4741962 :
:
AUTHENTIC FITNESS PRODUCTS INC. :
Federal Tax I.D. No. 95-4267322 :
:
AUTHENTIC FITNESS RETAIL INC. :
Federal Tax I.D. No. 95-4442062 :
:
BLANCHE INC. :
Federal Tax I.D. No. 06-1290226 :
:
CCC ACQUISITION CORP. :
Federal Tax I.D. No. 95-4456443 :
:
CCC ACQUISITION REALTY CORP. :
Federal Tax I.D. No. 95-4456445 :
:
C.F. HATHAWAY COMPANY :
Federal Tax I.D. No. 01-0263592 :
:
CALVIN KLEIN JEANSWEAR COMPANY, :
Federal Tax I.D. No. 13-3779381 :
:
CKJ HOLDINGS, INC. :
Federal Tax I.D. No. 13-3928129 :
:
CKJ SOURCING, INC. :
Federal Tax I.D. No. 13-3928016 :
:
DESIGNER HOLDINGS LTD. :
Federal Tax I.D. No. 13-3818542 :
:
GREGORY STREET, INC. :
Federal Tax I.D. No. 06-1469376 :
:
JEANSWEAR HOLDINGS, INC. :
Federal Tax I.D. No. 13-3779227 :
:
KAI JAY MANUFACTURING COMPANY, :
Federal Tax I.D. No. 13-3779231 :
:
MYRTLE AVENUE, INC. :
Federal Tax I.D. No. 06-1469379 :
:
OUTLET HOLDINGS, INC. :
Federal Tax I.D. No. 13-3907558 :
:
OUTLET STORES, INC. :
Federal Tax I.D. No. 13-3907560 :
:
PENHALIGON'S BY REQUEST, INC. :
Federal Tax I.D. No. 13-4076879 :
:
RIO SPORTSWEAR, INC. :
Federal Tax I.D. No. 13-3779228 :
:
:
UBERTECH PRODUCTS, INC. :
Federal Tax I.D. No. 06-1577619 :
:
2
VENTURES LTD. :
Federal Tax I.D. No. 06-1559945 :
:
WARMANA LIMITED, :
Federal Tax I.D. No. 06-0902642 :
:
WARNACO INC. :
Federal Tax I.D. No. 22-1897478 :
:
WARNACO INTERNATIONAL, INC. :
Federal Tax I.D. No. 06-0967709 :
:
WARNACO INTERNATIONAL LLC :
Federal Tax I.D. No. 06-1442942 :
:
WARNACO MEN'S SPORTSWEAR INC. :
Federal Tax I.D. No. 25-1141063 :
:
WARNACO OF CANADA COMPANY :
Federal Tax I.D. No. 98-0201311 :
Canada Business No. 105586911 :
:
WARNACO PUERTO RICO, INC. :
Federal Tax I.D. No. 66-0585156 :
:
WARNACO SOURCING INC. :
Federal Tax I.D. No. 06-1172666 :
:
WARNACO U.S., INC. :
Federal Tax I.D. No. 06-1519997 :
:
WARNACO VENTURES LTD. :
Federal Tax I.D. No. 06-1559941 :
:
WARNER'S DE COSTA RICA INC. :
Federal Tax I.D. No. 06-0937741 :
:
NOTICE OF CONFIRMATION OF FIRST AMENDED JOINT PLAN OF REORGANIZATION,
DEADLINE FOR FILING REQUESTS FOR PAYMENT OF CERTAIN
ADMINISTRATIVE CLAIMS AND REJECTION CLAIMS AND RELATED MATTERS
PLEASE TAKE NOTICE that on January __, 2003 (the "Confirmation Date"),
the United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court") entered an order (the "Confirmation Order") confirming the
First Amended Joint Plan of Reorganization dated November 8, 2002 (as modified
pursuant to certain technical amendments filed on January 14, 2003, the "Plan"),
of The Warnaco Group, Inc. ("Group"), together with certain of its direct and
indirect subsidiaries, 184 Benton Street Inc., A.B.S. Clothing Collection, Inc.,
Abbeville Manufacturing Company, AEI Management Corporation, Authentic Fitness
Corporation, Authentic Fitness On-Line, Inc., Authentic Fitness Products Inc.,
Authentic Fitness Retail Inc., Blanche, Inc., CCC Acquisition Corp., CCC
Acquisition Realty Corp., C.F. Hathaway Company, Calvin Klein Jeanswear Company,
CKJ Holdings, Inc., CKJ Sourcing, Inc., Designer Holdings Ltd., Gregory Street,
Inc., Jeanswear Holdings, Inc., Kai Jay Manufacturing Company, Myrtle Avenue,
Inc., Outlet Holdings, Inc., Outlet Stores, Inc., Penhaligon's by Request, Inc.,
Rio Sportswear, Inc., Ubertech Products, Inc., Ventures Ltd., Warmana Limited,
Warnaco Inc., Warnaco International, Inc., Warnaco International, LLC, Warnaco
Men's Sportswear Inc., Warnaco of Canada Company, Warnaco Puerto Rico, Inc.,
Warnaco Sourcing Inc., Warnaco U.S. Inc., Warnaco Ventures Ltd., Warner's De
Costa Rica Inc., each a debtor and debtor-in-possession herein (collectively,
the "Debtors") under chapter 11 of title 11 of the United States Code (the
"Bankruptcy Code"). Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Plan.
PLEASE TAKE FURTHER NOTICE that unless another order of the Bankruptcy
Court provides for another date (in which case such other date would apply), all
requests for payment of administrative costs and expenses incurred prior to the
Effective Date pursuant to sections 507(a)(1) and 503(b) of the Bankruptcy Code
(except for the Alvarez Incentive Bonus, the Designated Post-Petition Loans,
claims of the Debt Coordinators and the Pre-Petition Collateral Trustee payable
under paragraph 22 of the DIP Approval Orders, claims for taxes pursuant to
Section 507(a)(8) of the Code, ordinary course trade debt and customer deposits
and credits incurred in the ordinary course of business after the Petition Date)
shall be filed with the Bankruptcy Court, 1 Bowling Green, Alexander Hamilton
Custom House, New York, New York 10004 and served on (i) The Warnaco Group,
Inc., 90 Park Avenue, New York, New York 10016, Attention: Stanley P.
Silverstein, Esq., (ii) Sidley Austin Brown & Wood LLP, 787 Seventh Avenue, New
York, New York 10019, Attention: Kelley A. Cornish, Esq., (iii) Counsel to the
Debt Coordinators for the Pre-Petition Lenders, Shearman & Sterling, 599
Lexington Avenue, New York, New York, Attention: James L. Garrity, Esq. (iv)
counsel to the Creditors' Committee, Otterbourg, Steindler, Houston & Rosen,
P.C., 230 Park Avenue, New York, New York 10169, Attention: Scott L. Hazan,
Esq., (v) the Office of the United States Trustee, 33 Whitehall Street, New
York, New York 10004, Attention: Mary E. Tom, Esq., so as to be received no
later than the date that is twenty-five (25) days after the Effective Date of
the Plan at 4:00 p.m. Any such request that is not filed and served within this
time shall be forever barred. The Debtors currently anticipate that the
Effective Date will be February 4, 2003.
PLEASE TAKE FURTHER NOTICE that pursuant to the Plan and Confirmation
Order, each executory contract and unexpired lease entered into by any of the
Debtors prior to the Petition Date, except with respect to Intellectual Property
Contracts which shall be deemed automatically assumed, shall be deemed rejected
pursuant to section 365 of the Bankruptcy Code, except for any executory
contract or unexpired lease that (i) previously has been rejected or assumed by
order of the Bankruptcy Court, (ii) is the subject of a motion to assume filed
on or before the Confirmation Date, or (iii) is listed on the schedules of
contracts and leases to be rejected or assumed pursuant to the Plan, annexed as
Plan
4
Schedules 3.1 and 3.2, respectively.
PLEASE TAKE FURTHER NOTICE that all proofs of claim with respect to
claims arising from the rejection of any executory contract or unexpired lease,
as set forth in the paragraph above, must be filed with the clerk of the
Bankruptcy Court, 1 Bowling Green, Alexander Hamilton Custom House, New York,
New York 10004 and served on counsel to the Debtors, Sidley Austin Brown & Wood
LLP, 787 Seventh Avenue, New York, New York 10019, Attention: Kelley A. Cornish,
Esq., so as to be received no later than thirty (30) days after service of the
earlier of (a) this notice of entry of the Confirmation Order, or (b) such other
notice that the executory contract or unexpired lease has been rejected pursuant
to an order of the Bankruptcy Court.
PLEASE TAKE FURTHER NOTICE that pursuant to the Plan and Confirmation
Order, each party to an executory contract or unexpired lease that is rejected,
as set forth in the paragraph above, who does not file a proof of claim on
account of such rejection as provided in the immediately preceding paragraph is
forever barred from doing so and such claims and requests shall not be
enforceable against any of the Debtors, the Reorganized Debtors, their
successors, their assigns or their property.
PLEASE TAKE FURTHER NOTICE that all final applications for compensation
of professional persons employed by the Debtors or the Committee pursuant to
orders entered by this Court and on account of services rendered prior to the
Confirmation Date and not subject to an application already pending before the
Bankruptcy Court (including the reimbursement of the expenses of the members of
the Committee) pursuant to sections 507(a)(1) or 503(b) of the Bankruptcy Code
shall be filed with the Bankruptcy Court, 1 Bowling Green, Alexander Hamilton
Custom House, New York, New York 10004 and served on (i) The Warnaco Group,
Inc., 90 Park Avenue, New York, New York 10016, Attention: Stanley P.
Silverstein, Esq., (ii) Sidley Austin Brown & Wood LLP, 787 Seventh Avenue, New
York, New York 10019, Attention: Kelley A. Cornish, Esq., (iii) Counsel to the
Debt Coordinators for the Pre-Petition Lenders, Shearman & Sterling, 599
Lexington Avenue, New York, New York, Attention: James L. Garrity, Esq. (iv)
counsel to the Creditors Committee, Otterbourg, Houston, Steindler & Rosen,
P.C., 230 Park Avenue, New York, New York 10169, Attention: Scott L. Hazan,
Esq., (v) the Office of the United States Trustee, 33 Whitehall Street, New
York, New York 10004, Attention: Mary E. Tom, Esq., so as to be received no
later than the date that is twenty-five (25) days after the Effective Date at
4:00 p.m. Any such application that is not filed and served within this time
shall be forever barred. Objections to any such application must be filed with
the Bankruptcy Court and served on the parties previously identified in this
paragraph within 20 days after the filing thereof.
PLEASE TAKE FURTHER NOTICE that service of this Confirmation Notice
constitutes good and sufficient notice pursuant to Bankruptcy Rules 2002 and
3020 of entry of the Confirmation Order confirming the Plan and of the other
relief granted in the Confirmation Order, and no other or further notice need be
given.
Dated: New York, New York SIDLEY AUSTIN BROWN & WOOD LLP
January 16, 2003
By:
----------------------------------
(A Member of the Firm)
5
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Telecopier: (212) 839-5599
Counsel for Debtors and Debtors-in-Possession
6
Exhibit B
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
SIDLEY AUSTIN BROWN & WOOD LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Counsel for Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
: Chapter 11
:
In re : Case Nos. 01-41643 (RLB)
: through 01-41680 (RLB)
THE WARNACO GROUP, INC., et al., :
-- ---
: (Jointly Administered)
Debtors. :
x
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
NOTICE OF OCCURRENCE OF EFFECTIVE DATE
PLEASE TAKE NOTICE that on January __, 2003, an Order (the
"Confirmation Order") confirming the First Amended Joint Plan of Reorganization
dated November 8, 2002 (as modified pursuant to certain technical amendments
filed on January 14, 2003, the "Plan") filed by The Warnaco Group, Inc., a
Delaware corporation ("Warnaco"), together with certain of its direct and
indirect subsidiaries, 184 Benton Street Inc., A.B.S. Clothing Collection, Inc.,
Abbeville Manufacturing Company, AEI Management Corporation, Authentic Fitness
Corporation, Authentic Fitness On-Line, Inc., Authentic Fitness Products Inc.,
Authentic Fitness Retail Inc., Blanche, Inc., CCC Acquisition Corp., CCC
Acquisition Realty Corp., C.F. Hathaway Company, Calvin Klein Jeanswear Company,
CKJ Holdings, Inc., CKJ Sourcing, Inc., Designer Holdings Ltd., Gregory Street,
Inc., Jeanswear Holdings, Inc., Kai Jay Manufacturing Company, Myrtle Avenue,
Inc., Outlet Holdings, Inc., Outlet Stores, Inc., Penhaligon's by Request, Inc.,
Rio Sportswear, Inc., Ubertech Products, Inc., Ventures Ltd., Warmana Limited,
Warnaco Inc., Warnaco International, Inc., Warnaco International, LLC, Warnaco
Men's Sportswear Inc., Warnaco of Canada Company, Warnaco Puerto Rico, Inc.,
Warnaco Sourcing Inc., Warnaco U.S. Inc., Warnaco Ventures Ltd., Warner's De
Costa Rica Inc., each a debtor and debtor-in-possession herein (collectively,
the "Debtors"), was entered by the Honorable Richard L. Bohanon, United States
Bankruptcy Judge, and duly docketed and filed in the Office of the Clerk of the
United States Bankruptcy Court for the Southern District of New York.
Capitalized terms used but not defined herein shall have the meaning ascribed to
such terms in the Plan.
PLEASE TAKE FURTHER NOTICE that the Effective Date of the Plan occurred
on February 4, 2003.
PLEASE TAKE FURTHER NOTICE that unless another order of the Bankruptcy
Court provides for another date (in which case such other date would apply), all
requests for payment of administrative costs and expenses incurred prior to the
Effective Date pursuant to sections 507(a)(1) and 503(b) of the Bankruptcy Code
shall be filed with the Bankruptcy Court, 1 Bowling Green, Alexander Hamilton
Custom House, New York, New York 10004 and served on (i) The Warnaco Group,
Inc., 90 Park Avenue, New York, New York 10016, Attention: Stanley P.
Silverstein, Esq., (ii) Sidley Austin Brown & Wood LLP, 787 Seventh Avenue, New
York, New York 10019, Attention: Kelley A. Cornish, Esq., (iii) Counsel to the
Debt Coordinators for the Pre-Petition Lenders, Shearman & Sterling, 599
Lexington Avenue, New York, New York, Attention: James L. Garrity, Esq. (iv)
counsel to the Creditors' Committee, Otterbourg, Steindler, Houston & Rosen,
P.C., 230 Park Avenue, New York, New York 10169, Attention: Scott L. Hazan,
Esq., (v) the Office of the United States Trustee, 33 Whitehall Street, New
York, New York 10004, Attention: Mary E. Tom, Esq., so as to be received no
later than the date that is twenty-five (25) days after the Effective Date of
the Plan at 4:00 p.m. Any such request that is not filed and served within this
time shall be forever barred. The Debtors currently anticipate that the
Effective Date will be February 4, 2003.
PLEASE TAKE FURTHER NOTICE that pursuant to the Plan and Confirmation
Order, each executory contract and unexpired lease entered into by any of the
Debtors prior to the Petition Date, except with respect to Intellectual Property
Contracts which shall be deemed automatically assumed, shall be deemed rejected
pursuant to section 365 of the Bankruptcy Code, except for any executory
contract or unexpired lease that (i) previously has been rejected or assumed by
order of the Bankruptcy Court, (ii) is the subject of a motion to assume filed
on or before the Confirmation Date, or (iii) is listed on the schedules of
contracts and leases to be rejected or assumed pursuant to the Plan, annexed as
Plan Schedules 3.1 and 3.2, respectively.
PLEASE TAKE FURTHER NOTICE that all proofs of claim with respect to
claims arising from the rejection of any executory contract or unexpired lease,
as set forth in the paragraph above, must be filed with the clerk of the
Bankruptcy Court, 1 Bowling Green, Alexander Hamilton Custom House, New York,
New York 10004 and served on counsel to the Debtors, Sidley Austin Brown & Wood
LLP, 787 Seventh Avenue, New York, New York 10019, Attention: Kelley A. Cornish,
Esq., so as to be received no later than thirty (30) days after service of the
earlier of (a) this notice of entry of the Confirmation Order, or (b) such other
notice that the executory contract or unexpired lease has been rejected pursuant
to an order of the Bankruptcy Court.
PLEASE TAKE FURTHER NOTICE that pursuant to the Plan and Confirmation
Order, each party to an executory contract or unexpired lease that is rejected,
as set forth in the paragraph above, who does not file a proof of claim on
account of such rejection as provided in the immediately preceding paragraph is
forever barred from doing so and such claims and requests shall not be
enforceable against any of the Debtors, the Reorganized Debtors, their
successors, their assigns or their property.
PLEASE TAKE FURTHER NOTICE that all final applications for compensation
of professional persons employed by the Debtors or the Committee pursuant to
orders entered by this Court and on account of services rendered prior to the
Confirmation Date and not subject to an application already pending before the
Bankruptcy Court (including the reimbursement of the expenses of the members of
the Committee) pursuant to sections 507(a)(1) or 503(b) of the Bankruptcy Code
shall be filed with the Bankruptcy Court, 1 Bowling Green, Alexander Hamilton
Custom House, New York, New York 10004 and served on (i) The Warnaco Group,
Inc., 90 Park Avenue, New York, New York 10016, Attention: Stanley P.
Silverstein, Esq., (ii) Sidley Austin Brown & Wood LLP, 787 Seventh Avenue, New
York, New York 10019, Attention: Kelley A. Cornish, Esq., (iii) Counsel to the
Debt Coordinators for the Pre-Petition Lenders, Shearman & Sterling, 599
Lexington Avenue, New York, New York, Attention: James L. Garrity, Esq. (iv)
counsel to the Creditors Committee,
2
Otterbourg, Houston, Steindler & Rosen, P.C., 230 Park Avenue, New York, New
York 10169, Attention: Scott L. Hazan, Esq., (v) the Office of the United States
Trustee, 33 Whitehall Street, New York, New York 10004, Attention: Mary E. Tom,
Esq., so as to be received no later than the date that is twenty-five (25) days
after the Effective Date at 4:00 p.m. Any such application that is not filed and
served within this time shall be forever barred. Objections to any such
application must be filed with the Bankruptcy Court and served on the parties
previously identified in this paragraph within 20 days after the filing thereof.
PLEASE TAKE FURTHER NOTICE that copies of the Plan and Confirmation
Order may be obtained from the Clerk of the Bankruptcy Court or from counsel to
the Debtors listed below.
Dated: New York, New York SIDLEY AUSTIN BROWN & WOOD LLP
February __, 2003
By:
---------------------------------
(A Member of the Firm)
J. Ronald Trost (JT-4745)
Kelley A. Cornish (KC-0754)
Shalom L. Kohn (SK-2626)
Elizabeth R. McColm (EM-8532)
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Telecopier: (212) 839-5599
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