Exhibit 10.1
Exhibits to Asset Purchase Agreement
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EXHIBIT A
EARNEST MONEY ESCROW AGREEMENT
EARNEST MONEY ESCROW AGREEMENT (this "Escrow Agreement"), dated as of June
17, 2005, by and between WestPoint Stevens Inc., a Delaware corporation, (the
"Company"), WestPoint Stevens Inc. I, WestPoint Stevens Stores Inc. and J.P.
Stevens Enterprises, Inc., subsidiaries of the Company (collectively with the
Company, "Seller") debtor-in-possession under title 11, of the United States
Code, 11 U.S.C. in the United States Bankruptcy Court for the Southern District
of New York (the "Bankruptcy Court") and Textile Co., Inc., a Delaware
corporation ("Purchaser") and Citibank, N.A. as escrow agent (the "Escrow
Agent").
W I T N E S S E T H
WHEREAS, pursuant to that certain order of the Bankruptcy Court dated April
22, 2005, approving bidding procedures (the "Bidding Procedures") for the sale
of all or substantially all of the Sellers assets (the "Bidding Procedures
Order"), Purchaser has submitted a bid to acquire substantially all of the
Sellers assets;
WHEREAS, in connection with such bid, Purchaser has submitted to the
Company a form of Asset Purchase Agreement (such form, as ultimately entered
into by the parties thereto, the "Asset Purchase Agreement");
WHEREAS, pursuant to the Bidding Procedures, Purchaser is required to
submit a deposit in connection with its bid in an amount equal to ten (10%)
percent of the cash bid amount;
WHEREAS, pursuant to the Bidding Procedures, Purchaser will deliver a
deposit of $12,500,000, which may be increased by a subsequent deposit in
accordance with the Bidding Procedures (such deposit and any subsequent deposit
the "Escrow Deposit", and together with all interest thereon collectively the
"Escrow Funds") into an escrow account;
WHEREAS, the Sellers are authorized to enter into this Escrow Agreement
pursuant to the Bidding Procedures Order; and
WHEREAS, Purchaser and Seller desire to appoint the Escrow Agent to act as
escrow agent hereunder in the manner hereinafter set forth and the Escrow Agent
is willing to act in such capacity.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Purchaser, Seller
and the Escrow Agent hereby agree as follows:
1. Establishment of Escrow Account. The Escrow Agent shall establish and
maintain on behalf of the parties hereto, an interest bearing account (the
"Escrow Account") to which there shall be immediately credited and held all
amounts received by the Escrow Agent from Purchaser in accordance with Section 2
hereof. The funds credited to the Escrow Account shall be applied and disbursed
only as provided herein. The Escrow Agent shall segregate the funds credited to
the Escrow Account from its other funds, or funds of any other parties. The
Escrow Account and the Escrow Funds shall not be property of the Sellers'
bankruptcy estates.
2. Deposits to the Escrow Account; Investment.
(a) Purchaser shall deliver to the Escrow Agent for deposit in the
Escrow Account $12,500,000 as required pursuant to the Bidding Procedures and
the terms set forth herein and shall make a subsequent deposit hereunder as and
when provided by the Bidding Procedures.
(b) All amounts to be deposited with the Escrow Agent shall be
transferred by wire transfer of immediately available funds to the following
account of the Escrow Agent (or to such other account of the Escrow Agent as the
Escrow Agent shall notify the Company and Purchaser in writing prior to the
transfer of funds and which account the Company and Purchaser approve):
Citibank, N.A.
ABA No.: 021000089
Citibank as Escrow Agent for
Textile Co. and WestPoint Stevens
Account No.: 95001224
Attention: Amie Thomas
(c) Purchaser is and shall be deemed the owner of all Escrow Funds in
the Escrow Account and shall be responsible for the preparation of all tax
returns associated therewith and shall pay all costs relating to such returns,
and all taxes, fines and penalties and interest. The Escrow Account shall be
assigned the federal tax identification number of Purchaser. Purchaser shall
provide Escrow Agent, at any time upon request of Escrow Agent with a Form W-8
or W-9 to evidence Purchaser is not subject to any back-up withholding under the
United States Internal Revenue Code. Purchaser shall report all income, if any,
that is earned on, or derived from, the Escrow Funds as its income, in the
taxable year or years in which such income is properly includible and pay any
taxes attributable thereto.
3. Distributions from Escrow Account.(a) The Escrow Funds on deposit in the
Escrow Account shall be withdrawn and disbursed by the Escrow Agent only in
accordance with this Section 3.
(a) If Purchaser is the Successful Bidder (as defined in the Bidding
Procedures), and the Asset Purchase Agreement is not executed and delivered by
the parties thereto by seven (7) days after the Purchaser Selection Hearing,
Purchaser and the Company shall give joint written instructions to the Escrow
Agent, signed by Purchaser and the Company, to deliver the Escrow Funds to the
Purchaser, and the Escrow Agent shall so disburse the Escrow Funds, within two
(2) business days of receipt of such instructions.
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(b) If Purchaser is not the Successful Bidder but its bid constitutes
the second highest or otherwise best bid, Escrow Funds on deposit in the Escrow
Account (including any supplemental amounts deposited pursuant to the Bidding
Procedures) shall be retained in escrow by the Escrow Agent until the earlier to
occur of (i) the time Purchaser's bid is officially rejected by Seller and (ii)
seven (7) days after the Purchaser Selection Hearing (but in no event later than
three weeks after the conclusion of the Auction). Purchaser and the Company
shall give joint written instructions to the Escrow Agent, signed by Purchaser
and the Company, to deliver the Escrow Funds to the Purchaser upon the
occurrence of (i) or (ii) above, and the Escrow Agent shall so disburse the
Escrow Funds, within two (2) business days of receipt of such instructions.
(c) If Purchaser is not the Successful Bidder and its bid does not
constitute the second highest or otherwise best bid, Escrow Funds on deposit in
the Escrow Account shall be returned to Purchaser. Purchaser and the Company
shall give joint written instructions to the Escrow Agent, signed by Purchaser
and the Company, to deliver the Escrow Funds to Purchaser and the Escrow Agent
shall so disburse the Escrow Funds, within two (2) business days of receipt of
such instructions.
(d) If, following the execution of the Asset Purchase Agreement by
the parties thereto, the Escrow Agent receives joint written instructions signed
by Purchaser and the Company to the effect that the Asset Purchase Agreement has
been terminated by Seller pursuant to the terms of the Asset Purchase Agreement
and pursuant to such terms, Seller is entitled to the Escrow Funds, the Escrow
Agent shall disburse the Escrow Funds to Seller within two (2) Business Days of
receipt of notice of such termination.
(e) If, following the execution of the Asset Purchase Agreement by
the parties thereto, the Escrow Agent receives joint written instructions signed
by Purchaser and the Company to the effect that the Asset Purchase Agreement has
been terminated pursuant to the terms of the Asset Purchase Agreement, and
pursuant to such terms Purchaser is entitled to the Escrow Funds, the Escrow
Agent shall return the Escrow Funds to Purchaser within two (2) Business Days of
receipt of notice of such termination.
(f) Either the Company or Purchaser (the "Notifying Party") (without
joint instructions from the other party) may notify the Escrow Agent and the
other party hereto (the "Recipient") in writing that it believes it is entitled
to the Escrow Funds. Any such notice (the "Notice") shall state the reason that
the Notifying Party is entitled to the Escrow Funds. The Notice will be sent
simultaneously to the Escrow Agent and the Recipient. Upon receipt of the
Notice, the Escrow Agent shall promptly deliver a copy thereof to the Recipient.
The Recipient shall have ten calendar days following the date the Notice is
deemed duly given (pursuant to Section 8 hereof) to provide written notice to
the Escrow Agent and the Notifying Party disputing the Notifying Party's
entitlement to the Escrow Funds. Upon receipt of written notice disputing the
Notifying Party's entitlement to the Escrow Funds, the Escrow Agent shall
promptly deliver a copy thereof to the Notifying Party. If the Escrow Agent does
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not receive written notice disputing such entitlement to the Escrow Funds within
ten calendar days following the date the Notice is deemed duly given (pursuant
to Section 8 hereof), the Escrow Agent shall pay the Escrow Funds as directed by
the Notifying Party. If the Escrow Agent receives written notice disputing such
entitlement to the Escrow Funds within ten calendar days following the date the
Notice is deemed duly given, the Escrow Agent shall not pay the Escrow Funds
until the Escrow Agent receives either an order of the Bankruptcy Court, which
order has become final and not subject to appeal and has been certified by the
Clerk of the Bankruptcy Court or other appropriate official of the Bankruptcy
Court, or joint written notice signed by Purchaser and the Company indicating
that the dispute has been resolved, and directing the Escrow Agent to whom to
pay the Escrow Funds and in what amounts (the occurrence of either event, a
"Final Resolution"). The Escrow Agent shall pay the Escrow Funds within five (5)
business days of its receipt of the written evidence of a Final Resolution
required above in this Section 3(f) in accordance with the terms of such Final
Resolution.
(g) The Escrow Agent shall be entitled to rely, exclusively, on any
representation jointly made by Purchaser and the Company in writing in relation
to the release of Escrow Funds from the Escrow Account, including, but not
limited to, any representation that Purchaser or the Seller is entitled to the
Escrow Funds, and shall release the Escrow Funds from the Escrow Account from
time to time as directed in any such joint written instruction from Purchaser
and the Company or pursuant to a Final Resolution.
(h) Upon the Escrow Agent receiving written notice, signed by
Purchaser and the Company, of the closing of the transactions contemplated by
the Asset Purchase Agreement, the Escrow Agent shall promptly disburse (i) the
Escrow Deposit as required by the Asset Purchase Agreement and (ii) all interest
thereon to Purchaser.
(i) All disbursements of the Escrow Funds hereunder shall be made by
Escrow Agent by wire transfer of immediately available funds to such account or
accounts as shall have been designated in writing to the Escrow Agent by
Purchaser if it is to receive such disbursement, or by the Company if Seller or
a party on behalf of Seller is to receive such disbursement. Subject to the
terms hereof, the aforesaid wire transfers shall be executed by Escrow Agent
pursuant to procedures set forth in and subject to the terms of the Funds
Transfer Agreement that has been executed simultaneously with this Agreement.
(j) Subject to the Bidding Procedures Order and Section 6(g) hereof,
Sellers acknowledge that any notice given by Purchaser or Escrow Agent hereunder
may be given without seeking any relief from the automatic stay and that the
Escrow Funds and the Escrow Account do not constitute property of the Sellers'
bankruptcy estates.
4. Termination of Escrow Account and Escrow Agreement. The Escrow Account
shall be deemed dissolved and this Escrow Agreement shall terminate upon the
written agreement of the parties hereto, upon disbursement of all of the Escrow
Funds in the Escrow Account in accordance with the terms hereof, or upon a
transfer of all of the Escrow Funds pursuant to an order of the Bankruptcy
Court.
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5. Escrow Agent.
Each of Purchaser and the Company agrees to pay the Escrow Agent
one-half (1/2) of the reasonable compensation for its services as Escrow Agent
hereunder, as listed on Schedule A annexed hereto, promptly upon request
therefore by Escrow Agent, and each of Purchaser and the Company agree to
reimburse the Escrow Agent for one half (1/2) of all reasonable expenses of or
reasonable disbursements incurred by the Escrow Agent in the performance of its
duties hereunder, including the reasonable fees, expenses and disbursements of
counsel to the Escrow Agent; provided, that if the Closing under the Asset
Purchase Agreement occurs, all such compensation, fees, costs, disbursements and
expenses to the Escrow Agent shall be paid by Purchaser.
6. Rights, Duties and Immunities of Escrow Agent. Acceptance by the Escrow
Agent of its duties under this Escrow Agreement is subject to the following
terms and conditions, which all parties to this Escrow Agreement hereby agree
shall govern and control the rights, duties and immunities of the Escrow Agent:
(a) The duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of this Escrow Agreement and the
Escrow Agent shall not be liable, except for the performance of such duties and
obligations as are specifically set out in this Escrow Agreement. The Escrow
Agent shall not be required to inquire as to the performance or observation of
any obligation, term or condition under any agreement or arrangement by
Purchaser and Seller. The Escrow Agent is not a party to, and is not bound by,
any agreement or other document out of which this Escrow Agreement may arise.
The Escrow Agent shall be under no liability to any party hereto by reason of
any failure on the part of any other party hereto or any maker, guarantor,
endorser or other signatory of any document or any other person to perform such
person's obligations under any such document. The Escrow Agent shall not be
bound by any waiver, modification, termination or rescission of this Escrow
Agreement or any of the terms hereof, unless evidenced by a writing delivered to
the Escrow Agent signed by the proper party or parties and, if the duties or
rights of the Escrow Agent are affected, unless it shall give its prior written
consent thereto.
(b) The Escrow Agent shall not be responsible in any manner for the
validity or sufficiency of this Escrow Agreement or of any property delivered
hereunder, or for the value or collectibility of any note, check or other
instrument, if any, so delivered, or for any representations made or obligations
assumed by any party other than the Escrow Agent. Nothing herein contained shall
be deemed to obligate the Escrow Agent to deliver any cash, instruments,
documents or any other property referred to herein, unless the same shall have
first been received by the Escrow Agent pursuant to this Escrow Agreement.
(c) Purchaser and the Company will each reimburse and indemnify the
Escrow Agent for, and hold it harmless against, one-half (1/2) of any loss,
liability or expense, including but not limited to reasonable counsel fees,
incurred without bad faith, willful misconduct or gross negligence on the part
of the Escrow Agent arising out of or in conjunction with its acceptance of, or
the performance of its duties and obligations under this Escrow Agreement, as
well as the reasonable costs and expenses, including reasonable counsel fees, of
defending against any claim or liability arising out of or relating to this
Escrow Agreement; provided, that if the Closing under the Asset Purchase
Agreement occurs, all such fees, costs, expenses and indemnities shall be borne
by Purchaser.
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(d) The Escrow Agent shall be fully protected in acting on and
relying upon any written notice direction, request, waiver, consent, receipt or
other paper or document which the Escrow Agent in good faith believes to have
been signed and presented by the proper party or parties.
(e) The Escrow Agent shall not be liable for any error of judgment,
or for any act done or step taken or omitted by it in good faith or for any
mistake in fact or law, or for anything which it may do or refrain from doing in
connection herewith, except its own bad faith, gross negligence or willful
misconduct.
(f) The Escrow Agent may seek the advice of legal counsel in the
event of any dispute or question as to the construction of any of the provisions
of this Escrow Agreement or its duties hereunder, and it shall incur no
liability and shall be fully protected in respect of any action taken, omitted
or suffered by it in good faith in accordance with the written advice or opinion
of such counsel.
(g) The parties hereto agree that should any dispute arise with
respect to the payment, ownership or right of possession of the Escrow Funds,
the Escrow Agent is authorized and directed to retain in its possession, without
liability to anyone, except for its bad faith, willful misconduct or gross
negligence, all or any part of the Escrow Funds until such dispute shall have
been settled either by written agreement signed by Purchaser and the Company or
by the final non-appealable order, decree or judgment of the Bankruptcy Court
and a notice executed by Purchaser and the Company or their authorized
representatives shall have been delivered to the Escrow Agent setting forth the
resolution of the dispute and the amount of the Escrow Funds to be paid pursuant
thereto, which notice Purchaser and the Company hereby agree to so execute and
deliver to the Escrow Agent in the event that such an order, decree or judgment
is obtained from or issued by the Bankruptcy Court. The Escrow Agent shall make
the payments of the amounts set forth in such notice within two (2) business
days of its receipt of such notice in accordance with the terms thereof. The
Escrow Agent shall be under no duty whatsoever to institute, defend or partake
in such proceedings. Purchaser and Seller acknowledge and agree that neither
party will seek an order for the release of the Escrow Funds without giving
adequate notice of such action to the other party so that the other party has
sufficient opportunity to appear with respect thereto.
(h) The agreements set forth in this Section 6 shall survive the
resignation or removal of the Escrow Agent, the termination of this Escrow
Agreement and the payment of all amounts hereunder.
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7. Resignation of Escrow Agent. The Escrow Agent shall have the right to
resign upon not less than thirty (30) days written notice to the Company and
Purchaser. In the event of such resignation, the Company and Purchaser shall
mutually agree upon and appoint a successor escrow agent hereunder by delivering
to the Escrow Agent a written notice signed by the Company and Purchaser of such
appointment. Upon receipt of such written notice, the Escrow Agent shall deliver
to the designated successor escrow agent all money held hereunder and shall
thereupon be released and discharged from any and all further responsibilities
whatsoever under this Escrow Agreement; provided, however, that the Escrow Agent
shall not be deprived of its compensation earned prior to such time.
If no successor escrow agent shall have been designated by the date
specified in the Escrow Agent's notice, all obligations of the Escrow Agent
hereunder shall continue until all property held by it hereunder is delivered to
a person designated by the written instructions of the Company and the Purchaser
or in accordance with the direction of a final non-appealable order or judgment
of the Bankruptcy Court.
8. Notices. All claims, notices, consents, objections and other
communications under this Escrow Agreement shall be in writing and shall, except
as otherwise provided herein, be deemed to have been duly given when (i)
delivered by hand, or (ii) when received by the addressee, if sent by Express
Mail, Federal Express or other reputable overnight delivery service, in each
case, with a copy thereof delivered by facsimile (with receipt confirmed) and
email, and in each case, at the appropriate addresses and facsimile numbers as
set forth below:
ESCROW AGENT: Citibank, N.A. #735
785 Fifth Avenue
New York, NY 10022
Attention: Amie A. Thomas, V.P.
Telephone: (646) 840-3010
Facsimile: (212) 223-4584
E-mail: amie.a.thomas@citigroup.com
With a copy to:
Citibank, N.A.
666 Fifth Avenue, 3rd Floor
New York, NY 10103
Attention: Anthony V. Pantina, V.P.
Telephone: (212) 830-4956
Facsimile: (212) 830-4905
E-mail: anthony.v.pantina@citigroup.com
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PURCHASER: Textile Co., Inc.
100 South Bedford Road
Mt. Kisco, New York 10549
Facsimile: (914) 242-9282
Attention: Felicia Buebel, Esq.
E-mail: fpb@areh.net
With a copy to:
Sonnenschein Nath & Rosenthal LLP
1221 Avenue of the Americas
New York, NY 10020-1089
Facsimile: (212) 768-6800
Attention: Peter D. Wolfson, Esq.
E-mail: pwolfson@sonnenschein.com
SELLER: WestPoint Stevens Inc.
507 W. 10th Street
WestPoint, GA 31833
Facsimile: (706) 645-4300
Attention: General Counsel
E-mail: humphries.clay@wpstv.com
With a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Facsimile: (212) 310-8007
Attention: Ted S. Waksman, Esq.
Michael F. Walsh, Esq.
E-mail: ted.waksman@weil.com
michael.walsh@weil.com
(or to such other addresses and facsimile numbers as a party may designate as to
itself by notice to the other parties). Notwithstanding any of the foregoing,
any computation of a time period which is to begin after receipt of a notice by
the Escrow Agent shall run from the date of receipt by it.
9. Successors. This Escrow Agreement shall be binding upon and inure to the
benefit of the Purchaser, the Seller and the Escrow Agent and their respective
successors and assigns, provided that this Escrow Agreement may not be assigned
by any party without the prior written consent of the other parties, which
consent shall not be unreasonably withheld or delayed.
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10. Severability. If any portion or provision of this Escrow Agreement
shall to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the application of such portion or provision in circumstances
other than those as to which it is so declared illegal or unenforceable, shall
not be affected thereby, and each portion and provision of this Escrow Agreement
shall be construed by modifying or limiting it so as to be valid and enforceable
to the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
11. Amendments. This Escrow Agreement may be amended or modified at any
time or from time to time only in writing executed by the parties to this Escrow
Agreement.
12. Governing Law. This Escrow Agreement shall be construed and
interpreted, and the rights of the parties shall be determined, in accordance
with the substantive laws of the State of New York, without regard to the
conflict of laws principles thereof or of any other jurisdiction.
13. JURISDICTION. THE BANKRUPTCY COURT SHALL HAVE EXCLUSIVE JURISDICTION TO
RESOLVE ANY AND ALL DISPUTES ARISING UNDER THIS ESCROW AGREEMENT AND EACH OF THE
PARTIES HERETO HEREBY EXPRESSLY CONSENTS TO SUCH EXCLUSIVE JURISDICTION.
14. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Escrow Agreement, or
the waiver by any party of any breach of this Escrow Agreement, shall not
prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
15. Headings. The headings and captions in this Escrow Agreement are for
convenience of reference only and shall not in any way affect the meaning or
interpretation of this Escrow Agreement.
16. Counterparts. This Escrow Agreement may be executed in any number of
counterparts and by each of the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Escrow
Agreement as of the date first written above.
WESTPOINT STEVENS INC.
By:
--------------------------------
Name:
Title:
WESTPOINT STEVENS INC. I
By:
--------------------------------
Name:
Title:
WESTPOINT STEVENS STORES INC.
By:
--------------------------------
Name:
Title:
J.P. STEVENS ENTERPRISES, INC.
By:
--------------------------------
Name:
Title:
TEXTILE CO., INC
By:
--------------------------------
Name:
Title:
CITIBANK, N.A.,
as Escrow Agent
By:
--------------------------------
Name:
Title:
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SCHEDULE OF FEES
----------------
To act as an
Escrow Agent
Administration Fee $5,000
- ------------------ ------
Covers acceptance of appointment as Escrow Agent including complete study of
drafts of Escrow Agreement and all supporting documents in connection therewith,
conferences until the final Escrow Agreement is agreed upon and execution of
final Agreement.
Wire Transfer of Funds
- ----------------------
Fees to be charged in accordance with Citibank's Standard Schedule of Fees and
Charges.
NOTE:
- -----
Charges for any services not specifically covered in this schedule will be
billed commensurate with the services rendered. This schedule reflects charges
that are now in effect for our normal and regular services and are subject to
modification where unusual conditions or requirements prevail, and does not
include counsel fees or expenses and disbursements, which will be billed at
cost. The fees of our counsel shall be due and payable whether or not the
transaction closes.
[Remainder of Page Intentionally Left Blank]
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of the ____ day
of __________, 2005, by and among WS Textile Co., Inc., a Delaware corporation
(the "Company"), and the undersigned parties listed under Investor on the
signature page hereto (each, an "Investor" and collectively, the "Investors")
that have executed and delivered this Agreement.
WITNESSETH:
WHEREAS, the Investors currently hold all of the issued and outstanding
securities of the Company; and
WHEREAS, the Investors and the Company desire to enter into this Agreement
to provide the Investors with certain rights relating to the registration of
shares of Common Stock (as defined below) held by them and/or issuable upon
exercise of the Subscription Rights (as defined below) held by them, and the
registration of the Subscription Rights held by them, as applicable.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following capitalized terms used herein have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person, and the term
"control" (including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
ownership of voting securities, by contract or otherwise.
"Agreement" means this Agreement, as amended, restated, supplemented,
or otherwise modified from time to time.
"Aretex" means Aretex LLC.
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated
June 23, 2005, among the Company, New Textile One, Inc., New Textile Two, Inc.,
Textile Co., Inc., WestPoint Stevens, Inc., WestPoint Stevens Inc. I, WestPoint
Stevens Stores Inc., and J.P. Stevens Enterprises Inc.
"Commission" means the Securities and Exchange Commission, or any
other federal agency then administering the Securities Act or the Exchange Act.
"Common Stock" means the Class A Common Stock, par value $0.01 per
share, of the Company.
"Company" is defined in the preamble to this Agreement.
"Demand Registration" is defined in Section 2.2.1.
"Demanding Holder" is defined in Section 2.2.1.
"Distribution Date" means the date that all of the Common Stock and
Subscription Rights are delivered in accordance with Section 3.3(c) of the Asset
Purchase Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect at the time.
"Governmental Body" means any government or governmental or
regulatory body thereof, or political subdivision thereof, whether foreign,
federal, state, or local, or any agency, instrumentality or authority thereof,
or any court or arbitrator (public or private).
"Initial Holder" is defined in Section 2.1.1.
"Initial Registration" is defined in Section 2.1.1.
"Indemnified Party" is defined in Section 4.3.
"Indemnifying Party" is defined in Section 4.3.
"Investor" is defined in the preamble to this Agreement.
"Investor Indemnified Party" is defined in Section 4.1.
"Maximum Number of Shares" is defined in Section 2.2.4.
"Non-Related Initial Holder" means any Initial Holder that is not a
Related Initial Holder.
"Notices" is defined in Section 5.3.
"Person" means any individual, corporation, limited liability
company, partnership, firm, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Body or other entity.
"Piggy-Back Registration" is defined in Section 2.3.1.
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"Register," "registered" and "registration" mean a registration
effected by preparing and filing a Registration Statement or similar document in
compliance with the requirements of the Securities Act, and the applicable rules
and regulations promulgated thereunder, and such registration statement becoming
effective.
"Registrable Securities" means all of the shares of Common Stock
owned or held by the Investors, all of the Subscription Rights owned or held by
the Investors and all of the shares of Common Stock issuable upon the exercise
of all of the Subscription Rights owned or held by the Investors. Registrable
Securities include any warrants, shares of capital stock or other securities of
the Company issued as a dividend or other distribution with respect to or in
exchange for or in replacement of such shares of Common Stock and/or
Subscription Rights, as applicable. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when: (a) a
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities are no longer owned or held by the Investor; (c)
such securities shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company and subsequent public distribution of them shall not require
registration under the Securities Act; (d) such securities shall have ceased to
be outstanding, or (e) all of the Registrable Securities owned or held by the
Investor are immediately salable under Rule 144.
"Registration Statement" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act and the rules
and regulations promulgated thereunder for a public offering and sale of Common
Stock (other than a registration statement on Form S-4 or Form S-8, or its
successor, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another entity).
"Related Initial Holder" means Textile Holding, LLC and any of its
Affiliates.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
"Subscription Rights" shall have the meaning set forth in the Asset
Purchase Agreement.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
2. REGISTRATION RIGHTS.
2.1 Initial Registration.
2.1.1. Registration. As soon as reasonably practicable after the
Distribution Date, the Company shall prepare a Registration Statement for
registration under the Securities Act of all or part of the Registrable
Securities and all of the shares of Common Stock issuable upon exercise of all
of the Subscription Rights that may be owned or held by persons other than the
Investors (the "Initial Registration"). The Company will notify all holders of
Registrable Securities of the Initial Registration, and each holder of
Registrable Securities who wishes to include all or a portion of such holder's
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Registrable Securities in the Initial Registration (each such holder including
shares of Registrable Securities in such registration, an "Initial Holder")
shall so notify the Company within fifteen (15) days after the receipt by the
holder of the notice from the Company. Each Initial Holder shall specify the
number of Registrable Securities proposed to be sold and the intended method(s)
of distribution thereof. The Company shall not be obligated to effect more than
one (1) Initial Registration under this Section 2.1.1 in respect of Registrable
Securities.
2.1.2. Effective Registration. A registration will not count as
an Initial Registration until the Registration Statement filed with the
Commission with respect to such Initial Registration has been declared effective
and the Company has complied with all of its obligations under this Agreement
with respect thereto; provided, however, that if, after such Registration
Statement has been declared effective, the offering of Registrable Securities
pursuant to an Initial Registration is interfered with by any stop order or
injunction of the Commission or any other governmental agency or court, the
Registration Statement with respect to such Initial Registration will be deemed
not to have been declared effective, unless and until, such stop order or
injunction is removed, rescinded or otherwise terminated.
2.1.3. Underwritten Offering. If a majority-in-interest of the
Non-Related Initial Holders so elect and such holders so advise the Company
within fifteen (15) days after the receipt by the holder of the notice from the
Company, the offering of such Registrable Securities pursuant to such Initial
Registration shall be in the form of an underwritten offering. In such event,
the right of any holder to include its Registrable Securities in such
registration shall be conditioned upon such holder's participation in such
underwriting and the inclusion of such holder's Registrable Securities in the
underwriting to the extent provided herein. All Initial Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the Underwriter or Underwriters
selected for such underwriting by a majority-in-interest of the Non-Related
Initial Holders initiating the Initial Registration, which Underwriter or
Underwriters shall be satisfactory to the Company.
2.2 Demand Registration.
2.2.1. Request for Registration. At any time and from time to
time on or after the Company is eligible to utilize a registration statement on
Form S-3 for transactions involving secondary offerings under the Securities
Act, the holders of a majority-in-interest of the Registrable Securities held by
the Investors, may make a written demand for registration under the Securities
Act of all or part of their Registrable Securities (a "Demand Registration").
Any demand for a Demand Registration shall specify the number of Registrable
Securities proposed to be sold and the intended method(s) of distribution
thereof. The Company will notify all holders of Registrable Securities of the
demand, and each holder of Registrable Securities who wishes to include all or a
portion of such holder's Registrable Securities in the Demand Registration (each
such holder including shares of Registrable Securities in such registration, a
"Demanding Holder") shall so notify the Company within fifteen (15) days after
the receipt by the holder of the notice from the Company. Upon any such request,
the Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 2.2.4 and the provisos
set forth in Section 3.1.1. The Company shall not be obligated to effect more
than one (1) Demand Registration under this Section 2.2.1 in respect of
Registrable Securities.
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2.2.2. Effective Registration. A registration will not count as
a Demand Registration until the Registration Statement filed with the Commission
with respect to such Demand Registration has been declared effective and the
Company has complied with all of its obligations under this Agreement with
respect thereto; provided, however, that if, after such Registration Statement
has been declared effective, the offering of Registrable Securities pursuant to
a Demand Registration is interfered with by any stop order or injunction of the
Commission or any other governmental agency or court, the Registration Statement
with respect to such Demand Registration will be deemed not to have been
declared effective, unless and until, (i) such stop order or injunction is
removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of
the Demanding Holders thereafter elect to continue the offering.
2.2.3. Underwritten Offering. If a majority-in-interest of the
Demanding Holders so elect and such holders so advise the Company as part of
their written demand for a Demand Registration, the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the form of an
underwritten offering. In such event, the right of any holder to include its
Registrable Securities in such registration shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such holder's
Registrable Securities in the underwriting to the extent provided herein. All
Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest of the holders initiating the Demand Registration, which
Underwriter or Underwriters shall be satisfactory to the Company.
2.2.4. Reduction of Offering. If the managing Underwriter or
Underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding Holders in writing that the dollar amount
or number of Registrable Securities which the Demanding Holders desire to sell,
taken together with all other shares of Common Stock or other securities which
the Company desires to sell and the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights held by other shareholders of the Company who desire to
sell, exceeds the maximum dollar amount or maximum number of shares that can be
sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method, or the probability of success of such
offering (such maximum dollar amount or maximum number of shares, as applicable,
the "Maximum Number of Shares"), then the Company shall include in such
registration: (i) first, the Registrable Securities as to which Demand
Registration has been requested by the Demanding Holders (pro rata in accordance
with the number of Registrable Securities which such Demanding Holder has
requested be included in such registration, regardless of the number of
Registrable Securities held by each Demanding Holder) that can be sold without
exceeding the Maximum Number of Shares; (ii) second, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clause (i),
the shares of Common Stock or other securities that the Company desires to sell
that can be sold without exceeding the Maximum Number of Shares; (iii) third, to
the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (i) and (ii), the shares of Common Stock for the account of
other persons that the Company is obligated to register pursuant to written
contractual arrangements with such persons and that can be sold without
exceeding the Maximum Number of Shares; and (v) fourth, to the extent that the
Maximum Number of Shares have not been reached under the foregoing clauses (i),
(ii), and (iii), the shares of Common Stock that other shareholders desire to
sell that can be sold without exceeding the Maximum Number of Shares.
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2.3 Piggy-Back Registration.
2.3.1. Piggy-Back Rights. If within two (2) years after the
Distribution Date, the Company proposes to file a Registration Statement under
the Securities Act with respect to an offering of equity securities, or
securities or other obligations exercisable or exchangeable for, or convertible
into, equity securities, by the Company for its own account or for shareholders
of the Company for their account (or by the Company and by shareholders of the
Company including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for an exchange offer or offering of securities solely
to the Company's existing shareholders, (iii) for an offering of debt that is
convertible into equity securities of the Company, (iv) for a dividend
reinvestment plan or (v) filed in connection with the Company's initial public
offering (other than the Initial Registration) for equity to be issued by the
Company, then the Company shall (x) give written notice of such proposed filing
to the holders of Registrable Securities as soon as practicable but in no event
less than ten (10) days before the anticipated filing date, which notice shall
describe the amount and type of securities to be included in such offering, the
intended method(s) of distribution, and the name of the proposed managing
Underwriter or Underwriters, if any, of the offering, and (y) offer to the
holders of Registrable Securities in such notice the opportunity to register the
sale of such number of Registrable Securities as such holders may request in
writing within five (5) days following receipt of such notice (a "Piggy-Back
Registration"). The Company shall cause such Registrable Securities to be
included in such registration and will request the managing Underwriter or
Underwriters of a proposed underwritten offering to permit the Registrable
Securities requested to be included in a Piggy-Back Registration to be included
on the same terms and conditions as any similar securities of the Company and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method(s) of distribution thereof. All holders of
Registrable Securities proposing to distribute their securities through a
Piggy-Back Registration that involves an Underwriter or Underwriters shall enter
into an underwriting agreement in customary form with the Underwriter or
Underwriters selected for such Piggy-Back Registration.
2.3.2. Reduction of Offering. If the managing Underwriter or
Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in
writing that the dollar amount or number of shares of Common Stock which the
Company desires to sell, taken together with shares of Common Stock, if any, as
to which registration has been demanded pursuant to written contractual
arrangements with persons other than the holders of Registrable Securities
hereunder, the Registrable Securities as to which registration has been
requested under this Section 2.3, and the shares of Common Stock, if any, as to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other shareholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
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(i) If the registration is undertaken for the Company's
account: (A) first, the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of
Shares; (B) second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (A), the shares of Common Stock, if any,
including the Registrable Securities, as to which registration has been
requested pursuant to written contractual piggy-back registration rights of
security holders (pro rata in accordance with the number of shares of Common
Stock which each such person has actually requested to be included in such
registration, regardless of the number of shares of Common Stock with respect to
which such persons have the right to request such inclusion) that can be sold
without exceeding the Maximum Number of Shares; and
(ii) If the registration is a "demand" registration
undertaken at the demand of persons other than the holders of Registrable
Securities pursuant to written contractual arrangements with such persons, (A)
first, the shares of Common Stock for the account of the demanding persons that
can be sold without exceeding the Maximum Number of Shares; (B) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of
Shares; and (C) third, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clauses (A) and (B), the Registrable Securities
as to which registration has been requested under this Section 2.3 (pro rata in
accordance with the number of Registrable Securities held by each such holder);
and (D) fourth, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A), (B) and (C), the shares of Common
Stock, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights which such other shareholders desire
to sell that can be sold without exceeding the Maximum Number of Shares.
2.3.3. Withdrawal. Any holder of Registrable Securities may
elect to withdraw such holder's request for inclusion of Registrable Securities
in any Piggy-Back Registration by giving written notice to the Company of such
request to withdraw prior to the effectiveness of the Registration Statement.
The Company may also elect to withdraw a registration statement at any time
prior to the effectiveness of the Registration Statement. Notwithstanding any
such withdrawal, the Company shall pay all expenses incurred by the holders of
Registrable Securities in connection with such Piggy-Back Registration as
provided in Section 3.3.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect
the registration of any Registrable Securities pursuant to Section 2, the
Company shall seek to effect the registration and sale of such Registrable
Securities in accordance with the intended method(s) of distribution thereof as
expeditiously as practicable, and in connection with any such request:
3.1.1. Filing Registration Statement. The Company shall in an
expeditious manner prepare and file with the Commission a Registration Statement
on any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the sale of
all Registrable Securities to be registered thereunder in accordance with the
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intended method(s) of distribution thereof, and shall seek to cause such
Registration Statement to become and remain effective for the period required by
Section 3.1.3; provided, however, that the Company shall only be obligated to
file the Demand Registration on a Form S-3 in accordance with the provisions of
Rule 415 of the Securities Act, and provided further, however, that the Company
shall have the right to defer the Demand Registration for up to ninety (90)
days, and any Piggy-Back Registration for such period as may be applicable to
deferment of any demand registration to which such Piggy-Back Registration
relates, in each case if the Company shall furnish to the holders a certificate
signed by the Chief Executive Officer of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be materially
detrimental to the Company and its shareholders for such Registration Statement
to be effected at such time.
3.1.2. Copies. The Company shall, prior to filing a Registration
Statement or prospectus, or any amendment or supplement thereto, furnish without
charge to the holders of Registrable Securities included in such registration
copies of such Registration Statement as proposed to be filed, each amendment
and supplement to such Registration Statement (in each case including all
exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such registration may request in order to facilitate the disposition
of the Registrable Securities owned by such holders.
3.1.3. Amendments and Supplements. As to the Initial
Registration, the Company shall prepare and file with the Commission such
amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and in compliance with
the provisions of the Securities Act for a period of ninety (90) days from the
date the Registration Statement is first declared effective by the Commission
(the "90-Day Period") or such shorter period that will terminate when all
Registrable Securities covered by the Registration Statement (a) have been (i)
sold pursuant thereto in accordance with the intended method(s) of distribution
set forth in the Registration Statement, (ii) transferred pursuant to Rule 144
under the Securities Act or (iii) otherwise transferred in a manner that results
in the delivery of new securities not subject to the transfer restrictions under
the Securities Act or (b) become salable under Rule 144. Immediately after the
90-Day Period, the Company will file a post-effective amendment to the Initial
Registration for the deregistration of any unsold Registrable Shares. As to the
Demand Registration, the Company shall prepare and file with the Commission such
amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and in compliance with
the provisions of the Securities Act for a period of two (2) years from the date
the Registration Statement is first declared effective by the Commission or such
shorter period (a) that is determined by the holders of a majority-in-interest
of the Registrable Securities held by the Investors or (b) that will terminate
when all Registrable Securities covered by the Registration Statement have been
(i) sold pursuant thereto in accordance with the intended method(s) of
distribution set forth in the Registration Statement or (ii) transferred
pursuant to Rule 144 under the Securities Act. As to a Piggy-Back Registration,
the Company shall prepare and file with the Commission such amendments,
including post-effective amendments, and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to
keep such Registration Statement effective and in compliance with the provisions
of the Securities Act for a period that will be determined by the Company.
8
3.1.4. Notification. After the filing of a Registration
Statement, the Company shall promptly, and in no event more than two (2)
business days after such filing, notify the holders of Registrable Securities
included in such Registration Statement of such filing, and shall further notify
such holders promptly and confirm such advice in writing in all events within
two (2) business days of the occurrence of any of the following: (i) when such
Registration Statement becomes effective; (ii) when any post-effective amendment
to such Registration Statement becomes effective; (iii) the issuance or
threatened issuance by the Commission of any stop order (and the Company shall
take all actions required to prevent the entry of such stop order or to remove
it if entered); and (iv) any request by the Commission for any amendment or
supplement to such Registration Statement or any prospectus relating thereto or
for additional information or of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the securities covered by such
Registration Statement, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and promptly make
available to the holders of Registrable Securities included in such Registration
Statement any such supplement or amendment; except that before filing with the
Commission a Registration Statement or prospectus or any amendment or supplement
thereto, including documents incorporated by reference, the Company shall
furnish to the holders of Registrable Securities included in such Registration
Statement copies of all such documents proposed to be filed sufficiently in
advance of filing to provide such holders with a reasonable opportunity to
review such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders shall
object.
3.1.5. State Securities Laws Compliance. The Company shall seek
to (i) register or qualify the Registrable Securities covered by the
Registration Statement under such securities or "blue sky" laws of such
jurisdictions in the United States as the holders of Registrable Securities
included in such Registration Statement (in light of their intended plan of
distribution) may reasonably request and (ii) take such action necessary to
cause such Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental authorities as may be
necessary by virtue of the business and operations of the Company and do any and
all other acts and things that may be necessary or advisable to enable the
holders of Registrable Securities included in such Registration Statement to
consummate the disposition of such Registrable Securities in such jurisdictions;
provided, however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (e) or subject itself to taxation in any such
jurisdiction.
3.1.6. Records. The Company shall make available for inspection
by the holders of Registrable Securities included in such Registration
Statement, any Underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other professional
retained by any holder of Registrable Securities included in such Registration
9
Statement or any Underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, as shall be necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information requested
by any of them in connection with such Registration Statement.
3.1.7. Earnings Statement. The Company shall comply with all
applicable rules and regulations of the Commission and the Securities Act, and
make available to its shareholders, as soon as practicable, an earnings
statement covering a period of twelve (12) months, beginning within three (3)
months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
3.1.4(iv), each holder of Registrable Securities included in any registration
shall immediately discontinue disposition of such Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such holder receives the supplemented or amended prospectus contemplated
by Section 3.1.4(iv) and, if so directed by the Company, each such holder will
deliver to the Company all copies, other than permanent file copies then in such
holder's possession, of the most recent prospectus covering such Registrable
Securities at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall bear all of its costs
and expenses incurred in connection with the Initial Registration pursuant to
Section 2.1, the Demand Registration pursuant to Section 2.2 and any Piggy-Back
Registration pursuant to Section 2.3, and all expenses incurred in performing or
complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or "blue sky" laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities); (iii)
printing expenses; (iv) the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees); and (v)
fees and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company. The Company
shall have no obligation to pay any costs and expenses of the holders of the
Registrable Securities, including, without limitation, fees for counsel and
other parties representing such holders and any underwriting discounts or
selling commissions attributable to the Registrable Securities being sold by the
holders thereof, which fees and underwriting discounts or selling commissions
shall be borne by such holders. Additionally, in an underwritten offering, all
selling shareholders and the Company shall bear the expenses of the underwriter
pro rata in proportion to the respective amount of shares each is selling in
such offering.
3.4 Information. The holders of Registrable Securities shall provide
such information as may reasonably be requested by the Company, or the managing
Underwriter, if any, in connection with the preparation of any Registration
Statement, including amendments and supplements thereto, in order to effect the
registration of any Registrable Securities under the Securities Act pursuant to
Section 2 and in connection with the Company's obligation to comply with federal
and applicable state securities laws.
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4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Investor identified in the Registration Statement as a
selling security holder of Registrable Securities and each person, if any, who
controls such Investor (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act), from and against any expenses, losses,
judgments, claims, damages or liabilities, whether joint or several, arising out
of or based upon any untrue statement (or allegedly untrue statement) of a
material fact contained in any Registration Statement under which the sale of
such Registrable Securities was registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arising out of or based upon any omission (or alleged omission) to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company will not
be liable in any such case to the extent that any such expense, loss, claim,
damage or liability arises out of or is based upon any untrue statement or
allegedly untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus, or summary
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such
Investor expressly for use therein.
4.2 Indemnification by the Investors. Each Investor agrees, as a
consequence of the inclusion of any of its Registrable Securities in a
Registration Statement to indemnify and hold harmless the Company, its directors
and officers and each person, if any, who controls the Company (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act), against any losses, claims, judgments, damages or liabilities, whether
joint or several, insofar as such losses, claims, judgments, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or allegedly untrue statement of a material fact contained in
any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or the alleged omission to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by such Investor
expressly for use therein, and shall reimburse the Company, its directors and
officers, and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigation or defending
any such loss, claim, damage, liability or action. Each Investor's
indemnification obligations hereunder shall be several and not joint and shall
be limited to the amount of any net proceeds actually received by such Investor.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by
any person of any notice of any loss, claim, damage or liability or any action
in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such
person (the "Indemnified Party") shall, if a claim in respect thereof is to be
made against any other person for indemnification hereunder, notify such other
person (the "Indemnifying Party") in writing of the loss, claim, judgment,
damage, liability or action; provided, however, that the failure by the
Indemnified Party to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which the Indemnifying Party may have to
11
such Indemnified Party hereunder, except and solely to the extent the
Indemnifying Party is actually prejudiced by such failure. If the Indemnified
Party is seeking indemnification with respect to any claim or action brought
against the Indemnified Party, then the Indemnifying Party shall be entitled to
participate in such claim or action, and, to the extent that it wishes, jointly
with all other Indemnifying Parties, to assume control of the defense thereof
with counsel satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume control of
the defense of such claim or action, the Indemnifying Party shall not be liable
to the Indemnified Party for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect any
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such judgment or
settlement includes an unconditional release of such Indemnified Party from all
liability arising out of such claim or proceeding.
4.4 Contribution.
4.4.1. If the indemnification provided for in the foregoing
Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of
any loss, claim, damage, liability or action referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted
in such loss, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding Section
4.4.1. The amount paid or payable by an Indemnified Party as a result of any
loss, claim, damage, liability or action referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
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Notwithstanding the provisions of this Section 4.4, no holder of Registrable
Securities shall be required to contribute any amount in excess of the dollar
amount of the net proceeds (after payment of any underwriting fees, discounts,
commissions or taxes) actually received by such holder from the sale of
Registrable Securities which gave rise to such contribution obligation. 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.
5. MISCELLANEOUS.
5.1 Other Registration Rights. The Company represents and warrants
that no person, other than a holder of the Registrable Securities, has any right
to require the Company to register any shares of the Company's capital stock for
sale or to include shares of the Company's capital stock in any registration
filed by the Company for the sale of shares of capital stock for its own account
or for the account of any other person (a "Registration Right"). Notwithstanding
anything to the contrary, the Company may grant anytime after the date hereof
one or more Registration Rights.
5.2 Assignment; No Third Party Beneficiaries. This Agreement and the
rights, duties and obligations of the Company hereunder may not be assigned or
delegated by the Company in whole or in part. This Agreement and the rights,
duties and obligations of the holders of Registrable Securities hereunder may
not be assigned or delegated by such holder of Registrable Securities in whole
or in part without the consent of the Company which consent may be withheld in
the Company's sole discretion. Any such permitted assignee shall be deemed an
Investor for purposes of the rights, duties and obligations set forth in this
Agreement. In the event Aretex transfers any Registrable Securities to any of
its Affiliates, such Affiliate shall be deemed to be an Investor for all
purposes under this Agreement and any shares of Common Stock acquired by such
Affiliate upon exercise of Subscription Rights shall be deemed to be Registrable
Securities. This Agreement is not intended to confer any rights or benefits on
any persons that are not party hereto other than as expressly set forth in
Article 4.
5.3 Notices. All notices, demands, requests, consents, approvals or
other communications (collectively, "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the
date of service or transmission if personally served or transmitted by telegram,
telex or facsimile; provided, that if such service or transmission is not on a
business day or is after normal business hours, then such notice shall be deemed
given on the next business day. Notice otherwise sent as provided herein shall
be deemed given on the next business day following timely delivery of such
notice to a reputable air courier service with an order for next-day delivery.
13
To the Company:
WS Textile Co., Inc.
Attention:
with a copy to:
Sonnenschein Nath & Rosenthal LLP
1221 Avenue of the Americas
New York, New York 10020
Attn:
To an Investor, to:
with a copy to:
Attention:
5.4 Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
5.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
5.6 Entire Agreement. This Agreement (including all agreements
entered into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
14
5.7 Modifications and Amendments. No amendment, modification or
termination of this Agreement shall be binding upon any party unless executed in
writing by such party and the Company. No amendment, modification or termination
of this Agreement shall be binding on all the parties unless executed in writing
by the Company, the Related Initial Holders and a majority-in-interested of the
Non-Related Initial Holders that beneficially own Registrable Securities at the
time of such agreement.
5.8 Titles and Headings. Titles and headings of sections of this
Agreement are for convenience only and shall not affect the construction of any
provision of this Agreement.
5.9 Waivers and Extensions. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, provided that
such waiver will not be effective against the waiving party unless it is in
writing, is signed by such party, and specifically refers to this Agreement.
Waivers may be made in advance or after the right waived has arisen or the
breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof nor of any other agreement
or provision herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
5.10 Remedies Cumulative. In the event that the Company fails to
observe or perform any covenant or agreement to be observed or performed under
this Agreement, the Investor or any other holder of Registrable Securities may
proceed to protect and enforce its rights by suit in equity or action at law
upon the posting of a sufficient bond, whether for specific performance of any
term contained in this Agreement or for an injunction against the breach of any
such term or in aid of the exercise of any power granted in this Agreement or to
enforce any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers or
remedies conferred under this Agreement shall be mutually exclusive, and each
such right, power or remedy shall be cumulative and in addition to any other
right, power or remedy, whether conferred by this Agreement or now or hereafter
available at law, in equity, by statute or otherwise.
5.11 Governing Law. This Agreement shall be governed by, interpreted
under, and construed in accordance with the internal laws of the State of New
York applicable to agreements made and to be performed within the State of New
York, without giving effect to any choice-of-law provisions thereof that would
compel the application of the substantive laws of any other jurisdiction.
5.12 Waiver of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the Investor in the negotiation,
administration, performance or enforcement hereof.
15
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
WS Textile Co., Inc.
a Delaware corporation
By:_______________________________________
Name:
Title:
INVESTORS:
[ ]
By:_______________________________________
Name:
Title:
[ ]
By:_______________________________________
Name:
Title:
[ ]
By:_______________________________________
Name:
Title:
16
Exhibit C
Terms and Conditions of Subscription Rights
Any term used in this Exhibit C that is not defined herein shall have the
meaning ascribed to such term in the Asset Purchase Agreement, dated as of June
23, 2005, by and among Parent, Holdco One, Holdco Two, Purchaser, the Company
and each of the Subsidiaries (the "Agreement").
Pursuant to Section 3.3(c) of the Agreement, the Purchaser shall deliver to the
recipients contemplated thereby (the "Recipients") the Subscription Rights.
Each Subscription Right shall entitle the holder thereof (a "Holder") to
subscribe for one (1) share of Parent Common Stock at an exercise price of
$8.772 per share (the "Exercise Price"). If a stock dividend or other
distribution, recapitalization, forward or reverse stock split, subdivision,
consolidation or reduction of capital, reorganization, merger, consolidation,
scheme or arrangement, split-up, spin-off or combination, or similar transaction
or event affects the number of shares of Parent Common Stock issuable upon
exercise of the Subscription Rights, the Parent will make an equitable change or
adjustment as it deems appropriate in the number and kind of securities subject
to or to be issued in connection with the exercise of the Subscription Rights
and the exercise price of the Subscription Rights. No fractional shares of
Parent Common Stock will be issued upon the exercise of Subscription Rights.
When any exercise of Subscription Rights would result in the issuance of a
number of shares of Parent Common Stock that is not a whole number, the actual
number of shares will be rounded down to the next lower whole number with no
further payment or other distribution therefor.
The Subscription Rights shall become exercisable and transferable on the
effective date of the registration statement for the Initial Registration of
Registrable Shares as described in Exhibit B to the Agreement (the "Commencement
Date") and shall expire at 5:00 p.m. New York City time on the later of one
hundred twenty (120) calendar days after the Closing and thirty (30) calendar
days after (and not including) the Commencement Date (the "Expiration Date").
During such period, a Holder may exercise all or any portion of its Subscription
Rights. At the Expiration Date, unexercised Subscription Rights shall terminate
and be null and void and the Parent shall not be obligated to honor any such
purported exercise received by the Parent or its designee after the Expiration
Date, regardless of when the documents relating to such exercise were sent.
Prior to the Commencement Date, the Subscription Rights of any such Recipient
shall not be exercisable or transferable. Any such exercise or attempted
exercise or transfer or attempted transfer by a Recipient shall be null and void
and the Parent shall not treat any purported transferee as the holder of any
Subscription Rights. Notwithstanding the foregoing, the Subscription Rights that
are delivered to Aretex shall be exercisable on or after the date of delivery
and transferable on or after the date of delivery to its Affiliates and shall be
likewise exercisable and transferable by such Affiliates.
In order to exercise Subscription Rights, each Holder must: (a) return a duly
completed subscription form (the "Subscription Form") to the Parent or its
designee so that such form is actually received by the Parent or its designee on
or before the Expiration Date; and (b) pay to the Parent or its designee on or
before the Expiration Date the aggregate Exercise Price for all of the Parent
Common Stock purchased pursuant to the Holder's exercise of the Subscription
Rights in accordance with the wire instructions set forth on the Subscription
Form or by bank or cashier's check delivered to the Parent or its designee along
with the Subscription Form. If, on or prior to the Expiration Date, the Parent
or its designee for any reason does not receive a duly completed Subscription
Form and immediately available funds in an amount equal to the aggregate
Exercise Price, the Subscription Rights shall be deemed to have been unexercised
and to terminate and be null and void.
The Parent shall adopt such detailed procedures as is necessary to efficiently
administer the exercise of the Subscription Rights and shall prepare documents
that reflect the terms herein and such other terms as the Parent shall determine
to be appropriate in the implementation hereof.
The Subscription Rights shall have no rights, powers or privileges other than as
expressly set forth herein, and in particular the Subscription Rights shall have
no voting rights, dividend rights, conversion rights, preemption rights,
liquidation rights or other rights of a shareholder.
The Subscription Rights will be exercisable for an aggregate exercise price of
$125 million. Upon the exercise of Subscription Rights (other than the
Subscription Rights delivered to Aretex), the proceeds thereof shall be applied
to the repayment of the Loan made to Parent as described in the Equity
Commitment Agreement. Assuming all of the Subscription Rights are exercised,
Parent will issue 14,250,000 shares of Parent Common Stock to the holders
thereof.
All questions concerning the timeliness, viability, form and eligibility of any
exercise of Subscription Rights shall be determined by the Parent whose
determination shall be final and binding. The Parent may waive in its sole
discretion any defect or irregularity, or permit a defect or irregularity to be
corrected within such times as it may determine, or reject the purported
exercise of any Subscription Rights that the Parent has determined to have
failed to comply with the applicable requirements.
2
Exhibit D
WS TEXTILE CO., INC.
SUBSCRIPTION AGREEMENT
----------------------
The undersigned ("Subscriber") hereby tenders this subscription to WS
Textile Co., Inc. (the "Company") for the acquisition of the number of Parent
Shares and/or Subscription Rights (the "Securities") set forth below on the
Subscriber Signature Page. Terms used herein and not otherwise defined herein
shall have the meanings prescribed to them in the Asset Purchase Agreement by
and among the Company, New Textile One, Inc., New Textile Two, Inc., Textile
Co., Inc., WestPoint Stevens Inc., WestPoint Stevens Inc. I, WestPoint Stevens
Stores Inc. and J.P. Stevens Enterprises, Inc., dated as of June 23, 2005 (the
"Asset Purchase Agreement").
1. The Subscriber acknowledges and understands that this Subscription
Agreement (the "Agreement") shall not be binding on the Company until the terms
and conditions set forth in the Asset Purchase Agreement are satisfied and the
Company executes a counterpart hereof.
2. The Subscriber hereby represents, warrants, covenants and agrees as
follows:
(a) The Subscriber is an accredited investor, as defined in Regulation
D promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), as established by the Subscriber's responses to the Accredited
Investor Certification attached to this Agreement as Annex A.
(b) The Securities are being acquired by the Subscriber for the
account of the Subscriber for investment purposes only, within the meaning
of the Securities Act, with no intention of offering, selling or assigning
any participation or interest therein directly or indirectly, and not with
a view to the distribution thereof other than as permitted by the
Registration Rights Agreement. No one other than the Subscriber has any
right to acquire the Securities.
(c) The Subscriber's financial condition is such that the Subscriber
has no need for any liquidity in its investment in the Company and is able
to bear the risk of holding the Securities for an indefinite period of time
and the risk of loss of its entire investment in the Company. The
Subscriber (i) is a financial institution or other organization and its
representatives are capable of evaluating the merits and risks of acquiring
the Securities, or (ii) has knowledge and experience (or the Subscriber has
utilized the services of a representative and together they have knowledge
and experience) in financial and business matters to be capable of
evaluating the merits and risks of holding the Securities and to make an
informed decision relating thereto.
(d) The Subscriber acknowledges and understands that:
(i) An investment in the Company is speculative and involves
significant risks.
(ii) There are substantial restrictions on the transferability of
the Securities, which restrictions are set forth in the Asset Purchase
Agreement, including Exhibit C thereto. There is currently no public
market for the Securities and none may develop. Accordingly, the
Subscriber may not be able to liquidate his investment in the Company,
which investment the Subscriber may have to hold until the Company is
liquidated.
(iii) Each Subscriber acknowledges that the Securities have not
been registered under the Securities Act or under the securities or
"blue sky" laws of any jurisdiction, by reason of specific exemptions
thereunder relating to the limited availability of the offering. The
Securities cannot be sold, transferred or otherwise disposed of to any
person or entity unless registered under the Securities Act and any
other applicable securities or "blue sky" laws, if such registration
is required, or pursuant to an exemption therefrom applicable to such
transaction.
(e) If the Subscriber is a corporation, partnership, trust or other
entity, (i) the Subscriber has full right and power to make the investment
applied for pursuant to this Agreement, (ii) all necessary actions of the
entity have been taken to authorize the purchase of the Shares hereunder,
and (iii) the person executing this Agreement on behalf of the entity is
duly authorized and empowered to bind the entity to all of the terms
hereof.
3. The Subscriber agrees to the imprinting, so long as is required under
applicable law, of a legend on each of the certificates representing the
Securities and on each of the certificates representing the shares of Common
Stock that are issued upon exercise of the Subscription Rights in the following
form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS (I) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT COVERING SUCH
SECURITIES, (II) THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE
SECURITIES ACT, OR (III) THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY STATING
THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT.
4. The Subscriber hereby agrees to provide such information and to
execute and deliver such documents as may reasonably be necessary to comply with
any and all laws, rules and regulations to which the Company is subject.
2
5. The representations, warranties covenants and agreements of the
Subscriber contained in this Agreement will survive the execution hereof and the
distribution of the Securities to the Subscriber.
6. Neither this Agreement nor any provision hereof shall be waived,
modified, discharged, or terminated except by an instrument in writing signed by
the party against whom any such waiver, modification, discharge, or termination
is sought.
7. References herein to a person or entity in either gender include the
other gender or no gender, as appropriate.
8. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which taken together shall be
deemed to constitute one and the same agreement.
9. This Agreement and its validity, construction and performance shall be
governed in all respects by the laws of the State of New York.
3
SUBSCRIBER SIGNATURE PAGE
Date:
-----------------------
- -----------------------------
Number of Parent Shares
- -----------------------------
Number of Subscription Rights
FOR INDIVIDUAL SUBSCRIBERS
--------------------------
- ----------------------------------- --------------------------------------
Signature of subscriber Address of subscriber
- ----------------------------------- --------------------------------------
Name of Subscriber Social Security Number
[please print]
FOR PARTNERSHIP, CORPORATION OR TRUST SUBSCRIBERS
-------------------------------------------------
- ---------------------------------------------- ------------------------------
Print exact name of Corporation, Partnership Address of Subscriber
or Trust
By:
------------------------------------------- ------------------------------
Authorized Signatory Tax Identification Number
- ----------------------------------------------
Print Name and Title
4
COMPANY SIGNATURE PAGE
The foregoing Subscription Agreement is hereby accepted as of ____________, 2005
WS TEXTILE CO., INC.
By:
------------------------------
Name:
Title
5
SCHEDULE A
ACCREDITED INVESTOR CERTIFICATION
_____________________
Please indicate the basis on which you would be deemed
an "accredited investor" by initialing the appropriate line provided below:
"Accredited investor" shall mean any person who comes within any of the
following categories, or who the issuer reasonably believes comes within any of
the following categories, at the time of the sale of the securities to that
person:
(1) Any bank as defined in section 3(a)(2) of the Securities Act, or any
savings and loan association or other institution as defined in section
3(a)(5)(A) of the Securities Act whether in its individual or fiduciary
capacity; any broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934; any insurance company as defined in
section 2(13) of the Securities Act; any investment company registered
under the Investment Company Act of 1940 or a business development company
as defined in section 2(a)(48) of that Act; any Small Business Investment
Company licensed by the U.S. Small Business Administration under section
301(c) or (d) of the Small Business Investment Act of 1958; any plan
established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess of
$5,000,000; any employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 if the investment decision is made
by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has total
assets in excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited investors;
________
(2) Any private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
________
(3) Any organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the securities offered,
with total assets in excess of $5,000,000;
________
(4) Any director, executive officer, or general partner of the issuer of
the securities being offered or sold, or any director, executive officer,
or general partner of a general partner of that issuer;
________
(5) Any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his purchase exceeds $1,000,000;
________
(6) Any natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
________
(7) Any trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in ss.230.506(b)(2)(ii);
and
________
(8) Any entity in which all of the equity owners are accredited investors.
________
The undersigned Subscriber represents and agrees that this Accredited
Investor Certification is complete and accurate and may be relied upon by the
Company and agrees to notify the Company immediately of any change in the
information provided herein.
IN WITNESS WHEREOF, the undersigned or has executed this Accredited
Investor Certification on this ___ day of _________, 2005.
SUBSCRIBER
--------------------------------
Name (please type or print)
By:
----------------------------
Title:
-------------------------
EXHIBIT E
o If the equity value of the Parent is $800 million ($26.67/share), then
o the value of the 5,250,000 shares of Parent Common Stock owned by AREH
will be $140 million (17.5% of $800 million, or
(800,000,000/30,000,000) x 5,250,000),
o the value of the 10,500,000 Parent Shares, all of which will be issued
to the First Lien Lenders, will be $280 million (35% of $800 million,
or (800,000,000/30,000,000) x 10,500,000), and 4,198,845 of such
Parent Shares will be issued to Aretex; and
o the value of the Subscription Rights will be $255 million (47.5% of
$800 million less $125 million, or ((800,000,000/30,000,000) x
14,250,000) - 125,000,000), of which $200 million, or subscription
rights to purchase 11,176,471 shares of Parent Common Stock, will be
issued to the First Lien Lenders (and 4,469,359 of such Subscription
Rights will be issued to Aretex) and of which $55 million, or
subscription rights to purchase 3,073,529 shares of Parent Common
Stock, will be issued to the Second Lien Lenders (and 1,574,016 of
such Subscription Rights will be issued to Aretex).
The above calculations assume that the debt owed to the First Lien
Lenders is $480 million. The actual debt owed to the First Lien Lenders is
approximately $483 million and appropriate adjustments will be necessary to the
final calculations. The above calculations also would be adjusted as necessary
to reflect the actual amount of debt held by the First Lien Lenders and the
Second Lien Lenders.
EXHIBIT F
---------
Bill of Sale
------------
Reference is made to that certain Asset Purchase Agreement, dated as of
June 23, 2005, (the "APA") by and among WestPoint Stevens Inc. (the "Company")
and WestPoint Stevens Inc. I, and WestPoint Stevens Stores Inc., (the Company
and such entities collectively the "Assignors"), J.P. Stevens Enterprises Inc.,
WS Textile Co., Inc., New Textile One, Inc., New Textile Two, Inc., and Textile
Co., Inc. Defined terms used but not otherwise defined in this Bill of Sale
shall have the meaning ascribed to them in the APA
In consideration of the items being provided to Assignors or their
creditors under the APA, the Assignors hereby absolutely assign, transfer and
convey to Textile Co., Inc. ("Assignee") all of Assignors' right, title and
interest, free and clear of claims, interests, liens and encumbrances to the
extent provided in the [USE EXACT FINAL TITLE Sale Order], dated June __, 2005,
in and to all of the Purchased Assets, other than Excluded Assets.
Executed and Delivered this ______ day of ________, 2005.
WESTPOINT STEVENS INC.
By:
-----------------------------
Name:
Title:
WESTPOINT STEVENS INC. I
By:
-----------------------------
Name:
Title:
WESTPOINT STEVENS STORES, INC.
By:
------------------------------
Name:
Title:
EXHIBIT G
Assumption and Assignment Agreement
-----------------------------------
(Assumed Liabilities)
Reference is made to that certain Asset Purchase Agreement, dated as of
June 23, 2005 (the "APA") by and among WestPoint Stevens Inc. (the "Company")
and WestPoint Stevens Inc. I, and WestPoint Stevens Stores Inc. (the Company and
such entities collectively the "Assignors"), J.P. Stevens Enterprises Inc., WS
Textile Co., Inc., New Textile One, Inc., New Textile Two, Inc. and Textile Co.,
Inc. Defined terms used but not otherwise defined herein shall have the meaning
ascribed to them in the APA.
In consideration of the items being provided to Assignors or their
creditors under the APA and pursuant to that certain [USE EXACT FINAL TITLE OF
SALE ORDER AND ANY SEPARATE ORDER FIXING CURE COST AMOUNTS], dated _________,
2005 (collectively, the "Order"), Assignors hereby absolutely assign, transfer
and convey to Textile Co., Inc. ("Assignee") and Assignee hereby assumes the
Assumed Liabilities, subject to the provisions of the APA and the Order;
provided, however, that (i) nothing is this Assumption and Assignment Agreement
shall prohibit Assignee from asserting or pursuing any claims or offsets it may
have against any Person related to any Assumed Liability or contesting any
Assumed Liability, whether pursuant to any agreement or contract, under Law or
in equity, and (ii) nothing herein shall be deemed to deprive Assignee of any
defenses, setoffs or counterclaims which Assignors may have had or which
Assignee shall have with respect to any Assumed Liabilities.
Executed and Delivered this __th day of _____, 2005.
WESTPOINT STEVENS INC.
By:
-------------------------------
Name:
Title:
WESTPOINT STEVENS INC. I
By:
-------------------------------
Name:
Title:
WESTPOINT STEVENS STORES, INC.
By:
-------------------------------
Name:
Title:
TEXTILE CO., INC.
By:
-------------------------------
Name:
Title:
EXHIBIT H
---------
TRADEMARK ASSIGNMENT
--------------------
Reference is made to that certain Asset Purchase Agreement dated as of
_____, 2005 (the "APA") by and among Westpoint Stevens Inc., Westpoint Stevens
Inc. I, Westpoint Stevens Stores Inc., J.P. Stevens Enterprises Inc., WS Textile
Co., Inc., New Textile One, Inc., New Textile Two, Inc. and Textile Co., Inc.
WHEREAS, _______________ ("Assignor"), a _____________________ located
at________________________________, is the owner of the trademarks (including
any registrations and applications therefor) listed on Schedule A attached
hereto (collectively, the "Marks");
WHEREAS, ______________ ("Assignee"), a ___________________ located at
_______________________________________, is desirous of acquiring said Marks,
and the registrations and applications therefor, and the goodwill associated
therewith; and
WHEREAS, Assignee is desirous of acquiring the Marks, and the
registrations and applications therefor, and the goodwill associated therewith.
NOW, THEREFORE, in consideration of the payment of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Assignor does hereby assign to Assignee all right,
title and interest, pursuant and subject to the provisions of the APA, in, to
and under said Marks and the registrations and applications therefor, together
with the goodwill of the business connected with the use of and symbolized by
the Marks; and together with all causes of action for the infringement of such
Marks.
ASSIGNOR____________________________
By: _______________________________
Name:______________________
Title:_____________________
ACKNOWLEDGEMENT
STATE OF _______________)
) SS
COUNTY OF _____________)
Be it remembered on this day of ___________, 2005, before me, the
subscriber, a Notary Public authorized to take acknowledgements and proofs in
said county and state, personally appeared _________________________________, to
me known, who being by me duly sworn according to law, on his/her oath does
depose and make proof of my satisfaction that he was at the time of the
execution thereof _______________________________________ of
___________________________, the ASSIGNOR in the foregoing instrument; and that
he/she signed, sealed and delivered the instrument as the voluntary act and deed
of said corporation, by virtue of his/her authority.
---------------------------
Notary Public
SCHEDULE A
----------
MARK REGISTRATION/SERIAL NO.
- ---- -----------------------
EXHIBIT I
PATENT ASSIGNMENT
Reference is made to that certain Asset Purchase Agreement dated as of
June 23, 2005 (the "APA") by and among Westpoint Stevens Inc., Westpoint Stevens
Inc. I, Westpoint Stevens Stores Inc., J.P. Stevens Enterprises Inc., WS Textile
Co., Inc., New Textile One, Inc., New Textile Two, Inc. and Textile Co., Inc.
WHEREAS, __________________ ("Assignor"), a _____________________ located
at _________________________________________________, is the owner of the
patents listed on Schedule A attached hereto (collectively, the "Patents");
WHEREAS, ____________________("Assignee"), a _______________________
located at ____________________________________________, is desirous of
acquiring the entire interest in, to and under said Patents and the United
States Letters Patents to be obtained therefor:
NOW, THEREFORE, TO ALL WHOM IT MAY CONCERN:
Be it known that in consideration of the payment by Assignor to Assignee
of the sum of Ten Dollars ($10.00), the receipt of which is hereby acknowledged,
and for other good and valuable consideration, Assignor hereby sells, assigns
and transfers to Assignee the full and exclusive right, title and interest,
pursuant and subject to the provisions of the APA, to the Patents and all
Letters Patent of the United States to be obtained therefor on said applications
and registrations and/or any continuations, divisions, renewals, substitutes or
reissues thereof for the full term or terms for which the same may be granted.
Assignor also assigns all of its right, title and interest, pursuant and
subject to the provisions of the APA, in and to the Patents in all foreign
countries, and all applications for Letters Patent which may evolve therefrom,
including the right to claim International Convention priority.
Assignor hereby covenants that no assignment, sale, agreement or
encumbrance has been or will be made or entered into which would conflict with
this assignment and sale.
Assignor further covenants that Assignee will, upon its request, be
provided promptly with all pertinent facts and documents relating to the
Patents, and the Letters Patent as may be known and accessible to Assignor and
Assignor will testify as to the same in any interference or litigation related
thereto and will promptly execute and deliver to Assignee or its legal
representative any and all papers, instruments or affidavits required to apply
for, obtain, maintain and enforce the Patents and the Letters Patent which may
be necessary or desirable to carry out the purposes hereof.
ASSIGNOR
---------------------------
By:
--------------------------------
Name:
---------------------------
Title:
---------------------------
ACKNOWLEDGEMENT
STATE OF _______________)
) SS
COUNTY OF _____________)
Be it remembered on this day of ___________, 2005, before me, the
subscriber, a Notary Public authorized to take acknowledgements and proofs in
said county and state, personally appeared _________________________________, to
me known, who being by me duly sworn according to law, on his/her oath does
depose and make proof of my satisfaction that he was at the time of the
execution thereof _______________________________________ of
___________________________, the ASSIGNOR in the foregoing instrument; and that
he/she signed, sealed and delivered the instrument as the voluntary act and deed
of said corporation, by virtue of his/her authority.
------------------------
Notary Public
SCHEDULE A
----------
TITLE PATENT/APPLICATION NO.
- ----- ----------------------
EXHIBIT J
---------
COPYRIGHT ASSIGNMENT
--------------------
Reference is made to that certain Asset Purchase Agreement dated as of
________, 2005 (the "APA") by and among WestPoint Stevens Inc., WestPoint
Stevens Inc. I, WestPoint Stevens Stores Inc., J.P.. Stevens Enterprises., WS
Textile Co., Inc., New Textile One, Inc. New Textile Two, Inc. and Textile Co.
Inc. In consideration of the payment of Ten Dollars ($10.00) and other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
_____________________________________, a ___________________________ located at
__________________________________________________________ ("Assignor"), hereby
sells, grants, assigns and sets over unto _____________________________________,
a __________________________ located at
___________________________________________ ("Assignee"), and its
representatives, successors and assigns forever, all right, title and interest
in and to all copyrights (including moral rights and rights in all Internet web
sites), and mask work rights owned by Assignor and all registrations thereof and
applications therefor, including the United States copyright registrations set
forth on Schedule A (collectively, the "Copyrights") and all renewals and
extensions of such Copyrights, and any translations, versions and other
adaptations or revisions of the Work, in accordance with the terms of the APA.
IN WITNESS WHEREOF, the undersigned has executed this Assignment on the
______ day of ______________________________, 2005.
ASSIGNOR_______________________________
By: __________________________________
Name:_________________________
Title:________________________
ACKNOWLEDGEMENT
STATE OF _______________)
) SS
COUNTY OF _____________)
Be it remembered on this day of ___________, 2005, before me, the
subscriber, a Notary Public authorized to take acknowledgements and proofs in
said county and state, personally appeared _________________________________, to
me known, who being by me duly sworn according to law, on his/her oath does
depose and make proof of my satisfaction that he was at the time of the
execution thereof _______________________________________ of
___________________________, the ASSIGNOR in the foregoing instrument; and that
he/she signed, sealed and delivered the instrument as the voluntary act and deed
of said corporation, by virtue of his/her authority.
--------------------------
Notary Public
SCHEDULE A
----------
EXHIBIT K
---------
DOMAIN NAME ASSIGNMENT
----------------------
This domain names assignment (the "Assignment") is made and entered into
as of this ___ day of ___________, 2005 ("Effective Date") by and between
______________________, a __________________ located at
___________________________________________________ (the "Assignor") and
___________________________, an _____________________ located at
______________________________________________ (the "Assignee").
Reference is made to that certain Asset Purchase Agreement dated as of
June 23, 2005 (the "APA") by and among Westpoint Stevens Inc., Westpoint Stevens
Inc. I, Westpoint Stevens Stores Inc., J.P. Stevens Enterprises Inc., WS Textile
Co., Inc., New Textile One, Inc., New Textile Two, Inc. and Textile Co., Inc.
WHEREAS, Assignor is the registered owner of the domain names listed on
Schedule A (collectively, the "Domain Names"); and
WHEREAS, Assignor wishes to assign to Assignee, and Assignee wishes to
acquire from Assignor, all rights in the Domain Names, and all goodwill
associated therewith.
NOW, THEREFORE, in consideration of the payment of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Assignor and Assignee agree as follows:
1. Assignment. Assignor hereby irrevocably assigns and transfers to Assignee all
right, title, and interest, pursuant and subject to the provisions of the APA,
in and to the Domain Names, as of the Effective Date.
2. Further Assurances. Assignor agrees to take all steps and execute all
documents necessary to effectuate the transfer of the Domain Names to Assignee,
including but not limited to any documents required by the registrars of the
Domain Names.
3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of New York, without giving effect to any
choice of law or conflict of laws rules or provisions that would cause the
application of the laws of any jurisdiction other than the state of New York.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Domain Names
Assignment to be executed by their duly authorized representatives.
ASSIGNOR _____________________________
By: _________________________________
Name:________________________
Title:_______________________
ACKNOWLEDGEMENT
---------------
STATE OF _______________)
) SS
COUNTY OF _____________)
Be it remembered on this day of ___________, 2005, before me, the
subscriber, a Notary Public authorized to take acknowledgements and proofs in
said county and state, personally appeared _________________________________, to
me known, who being by me duly sworn according to law, on his/her oath does
depose and make proof of my satisfaction that he was at the time of the
execution thereof _______________________________________ of
_____________________, the ASSIGNOR in the foregoing instrument; and that he/she
signed, sealed and delivered the instrument as the voluntary act and deed of
said corporation, by virtue of his/her authority.
--------------------------
Notary Public
ASSIGNEE _______________________
By: _______________________________
Name:______________________
Title:_____________________
EXHIBIT L
---------
This instrument was [subject to modification to conform to individual
prepared by and after state requirements]
recording return to:
-----------------------------------------------------
The above space reserved for Recorder's use only.
SPECIAL WARRANTY DEED
---------------------
THIS SPECIAL WARRANTY DEED is made as of the ____ day of ________, 2005
by and between WESTPOINT STEVENS INC., a Delaware corporation, party of the
first part, and __________________________________, a ____________________,
party of the second part. WITNESSETH, that the party of the first part, for and
in consideration of the sum of Ten and No/100 Dollars in hand paid by the party
of the second part, the receipt whereof is hereby acknowledged, by these
presents does GRANT, BARGAIN, SELL, REMISE, RELEASE AND CONVEY unto the party of
the second part, and to its successors and assigns, FOREVER, the following
described real estate, situated in the County of _________ and State of
_________ known and described as follows, to wit:
See Exhibit "A" attached hereto and made a part hereof.
Together with all of the party of the first part's right, title and
interest in the improvements, hereditaments, easements and appurtenances
thereunto belonging, or in anyway appertaining, and the reversion and
reversions, remainder and remainders, rents, issues and profits thereof, and all
the estate, right, title, interest, claim or demand whatsoever, either in law or
equity, of, in and to the above described premises, with the improvements,
hereditaments, easements and appurtenances (collectively, the "Property"): TO
HAVE AND TO HOLD the Property, unto the party of the second part, its successors
and assigns forever.
And the party of the first part, for itself, and its successors, does
covenant, promise and agree, to and with the party of the second part, its
successors and assigns, that it has not done or suffered to be done, anything
whereby the said premises hereby granted are, or may be, in any manner
encumbered or charged, except as provided on Exhibit "B", and WILL WARRANT AND
DEFEND against all persons lawfully claiming or to claim the same, by through or
under it, subject to the matters described on Exhibit "B", and not otherwise.
IN WITNESS WHEREOF, said party of the first part has executed this
Special Warranty Deed as of the date first above written.
ATTEST: WESTPOINT STEVENS INC.,
a Delaware corporation
By: By:
---------------------- ----------------------
Name: Name:
----------------------- ----------------------
Its: Its:
---------------------- ----------------------
Send subsequent tax bills to:
2
STATE OF )
) SS.
COUNTY OF _________________ )
I, the undersigned, a Notary Public in and for the County and State
aforesaid, DO HEREBY CERTIFY, that ____________________, the
____________________ and __________________, the ______________________ of
WESTPOINT STEVENS INC., a Delaware corporation, personally known to me to be the
same persons whose names are subscribed to the foregoing instrument as such
officers, appeared before me this day in person and acknowledged that they
signed and delivered the said instrument as their free and voluntary act and as
the free and voluntary act of said corporation for the uses and purposes therein
set forth.
Given under my hand and Notary Seal, this ______ day of ___________,
2005.
-----------------------------
Notary Public
EXHIBIT A
LEGAL DESCRIPTION
-----------------
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
EXHIBIT M
---------
This instrument was [subject to modification to conform to individual
prepared by and after state requirements]
recording return to:
---------------------------------------------------
The above space reserved for Recorder's use only.
QUIT CLAIM DEED
---------------
THE GRANTOR, WESTPOINT STEVENS INC., a Delaware corporation, for and in
consideration of Ten and 00/100 Dollars ($10.00), and other good and valuable
consideration in hand paid, CONVEYS and QUIT CLAIMS to
________________________________, a _____________________, the following
described real estate situated in the County of __________ in the State of
___________, as more fully described on Exhibit A attached hereto and made a
part hereof, together with all buildings and improvements located thereon and
all rights, privileges and appurtenances thereunto belonging.
PIN: __________________________
Common Address: __________________________
DATED this _______ day of _________, 2005.
ATTEST: WESTPOINT STEVENS INC.,
a Delaware corporation
By: By:
----------------------- ------------------------
Name: Name:
----------------------- ------------------------
Its: Its:
------------------------ ------------------------
STATE OF ________ )
) ss.
COUNTY OF _______ )
I, the undersigned, a Notary Public in and for the County, in the State
aforesaid, DO HEREBY CERTIFY, that ___________________, the ________________ and
____________________, the ________________ of WESTPOINT STEVENS INC., a Delaware
corporation, personally known to me to be the same persons whose names are
subscribed to the foregoing instrument as such officers, appeared before me this
day in person and acknowledged that they signed, sealed and delivered the said
instrument as their free and voluntary act of said corporation for the uses and
purposes therein set forth.
Given under my hand and official seal, this ____ day of __________, 2005.
---------------------------------------
Notary Public
My Commission Expires:
Send subsequent tax bills to:
EXHIBIT A
LEGAL DESCRIPTION
-----------------
EXHIBIT N
Assumption and Assignment Agreement
-----------------------------------
(Contracts and Real Property Leases)
Reference is made to that certain Asset Purchase Agreement, dated as of
June 23, 2005 (the "APA") by and among WestPoint Stevens Inc. (the "Company")
WestPoint Stevens Inc. I, and WestPoint Stevens Stores Inc., (the Company and
such entities collectively the "Assignors") J.P. Stevens Enterprises Inc., WS
Textile Co., Inc., New Textile One, Inc., New Textile Two, Inc. and Textile Co.,
Inc. Defined terms used but not otherwise defined herein shall have the meaning
ascribed to them in the APA.
In consideration of the items being provided to Assignors or their
creditors under the APA and pursuant to that certain [USE EXACT FINAL TITLE OF
SALE ORDER AND ANY SEPARATE ORDER FIXING CURE COST AMOUNTS], dated _________,
2005 (collectively, the "Order"), Assignors hereby absolutely assign, transfer
and convey to Textile Co., Inc. ("Assignee") all of Assignors' right, title and
interest (i) under or relating to the Contracts included in the Purchased Assets
to the extent assignable under the terms of the respective Contract, pursuant to
applicable Law or order of the Bankruptcy Court or as a result of any consents
obtained from other parties to such Contract pursuant to Section 8.3 of the APA,
and (ii) under the Real Property Leases included in the Purchased Assets
together with all right, title and interest of Assignors, if any, in and to all
improvements, fixtures and other appurtenances thereto and rights in respect
thereof, in the case of each of clause (i) and (ii), as set forth on Exhibit A
hereto, free and clear of claims, interests, Liens and encumbrances to the
extent provided in the Order. Assignee assumes the Assumed Obligations accruing
from and after the date hereof under the Contracts or Real Property Leases set
forth on Exhibit A hereto, pursuant to and subject to the provisions of the APA
and the Order, provided, however, that (i) Assignee is only agreeing to pay cure
costs for the Contracts and Real Property Leases included in the Purchased
Assets to the extent determined by an Order in the Bankruptcy Case; (ii) nothing
in this Assumption and Assignment Agreement shall prohibit Assignee from
asserting or pursuing any claims or offsets it may have against any Person
relating to any such Contract or Real Property Lease or contesting any liability
thereunder, whether pursuant to any agreement or contract, under Law or in
equity, and (iii) nothing herein shall be deemed to deprive Assignee of any
defenses, setoffs or court claims which Assignors may have had or which Assignee
shall have with respect to any such Contract or Real Property Lease.
Executed and Delivered this __th day of _____, 2005.
WESTPOINT STEVENS INC.
By:
----------------------------
Name:
Title:
WESTPOINT STEVENS INC. I
By:
----------------------------
Name:
Title:
WESTPOINT STEVENS STORES, INC.
By:
----------------------------
Name:
Title:
TEXTILE CO., INC.
By:
----------------------------
Name:
Title:
EXHIBIT O
Officer's Certificate of the Company Pursuant to Section 10.1(c)
----------------------------------------------------------------
Reference is made to that certain Asset Purchase Agreement, dated June
23, 2005 (the "APA) by and among WS Textile Co., Inc., New Textile One, Inc.,
New Textile Two, Inc., Textile Co., Inc, WestPoint Stevens Inc. (the "Company"),
WestPoint Stevens Inc. I, WestPoint Stevens Stores Inc., and J.P. Stevens
Enterprises Inc. All capitalized terms used but not otherwise defined herein
shall have the meaning ascribed to them in the APA.
I hereby certify that:
1. I am the __________________ of the Company.
2. All representations and warranties of the Sellers in the APA or in any
exhibit, schedule or document delivered by any one of them pursuant to the APA
are true, complete and correct in all respects (with respect to representations
and warranties qualified or limited by materiality or Seller Material Adverse
Effect) or in all material respects (with respect to representations and
warranties not so qualified or limited), in each case when made (unless cured as
provided in Section 4.4(e) of the APA) and on and as of the date hereof as if
made on the date hereof, other than any such representations or warranties that
expressly speak only as of an earlier date, which are true, complete and correct
in all respects (with respect to representations and warranties qualified or
limited by materiality or Seller Material Adverse Effect) or in all material
respects (with respect to representations and warranties not so qualified or
limited) as of such earlier date.
3. All of the terms, covenants and conditions to be complied with and
performed by the Sellers on or prior to the Closing Date (other than the
covenants contained in Section 8.2 (a)(i), Sections 8.2(b)(iii) through (xi),
Section 8.2(b)(xii) (to the extent it relates to commitments to do items covered
in Sections 8.2(b)(iii) through (xi)) , Section 8,2(c), and Section 8.9(d), as
to which Section 10.1(l) applies) have been complied with or performed in all
material respects and all breaches of any such covenants in the aggregate do not
result in a Seller Material Adverse Effect.
4. Sellers have fully complied with and performed their obligations set
forth in Sections 8.2(a)(i), Sections 8.2(b)(iii) through (xi), Section
8.2(b)(xii) (to the extent it relates to commitments to do items covered in
Sections 8.2(b)(iii) through (xi)), Section 8.2(c) and Section 8.9(d) hereof.
5. To my knowledge, none of the Sellers is subject to any Order or Law of
any Governmental Body of competent jurisdiction restraining, enjoining or
otherwise preventing consummation of the transactions contemplated by this
Agreement.
6. No Material Property Loss has occurred.
WestPoint Stevens Inc.
Dated: _____________________, 2005 By: ________________________
Name: _____________________
Title: _____________________
Incumbency Certificate
----------------------
The undersigned, as [assistant] secretary of the Company, does hereby
certify that _______________, who signed and delivered the Officer's Certificate
Pursuant to Section 10.1(c) of the APA, currently holds the title set forth in
that certificate and that the signature of such person is genuine.
Dated: ________________ , 2005
----------------------------
Name:
----------------------
Title:
---------------------
EXHIBIT P
Officer's Certificate of the Purchaser Pursuant to Section 10.2(e)
------------------------------------------------------------------
Reference is made to that certain Asset Purchase Agreement, dated June
23, 2005 (the "APA) by and among WS Textile Co., Inc., New Textile One, Inc.,
New Textile Two, Inc., Textile Co., Inc, WestPoint Stevens Inc., WestPoint
Stevens Inc. I, WestPoint Stevens Stores Inc., and J.P. Stevens Enterprises Inc.
All capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to them in the APA.
I hereby certify that:
1. I am the __________________ of the Purchaser.
2. All representations and warranties of Parent and Purchaser in the APA
or in any exhibit, schedule or document delivered by any of them pursuant to the
APA are true, complete and correct in all respects (with respect to
representations and warranties qualified or limited by materiality or Purchaser
Material Adverse Effect) or in all material respects (with respect to
representations and warranties not so qualified or limited), in each case when
made (unless cured as provided in Section 4.4(f) of the APA) and on and as of
the date hereof as if made on the date hereof, other than representations or
warranties that expressly speak only as of an earlier date, which are true,
complete and correct in all respects (with respect to representations and
warranties qualified or limited by materiality or Purchaser Material Adverse
Effect) or in all material respects (with respect to representations and
warranties not so qualified or limited) as of such earlier date.
3. All of the terms, covenants and conditions to be complied with and
performed by the Purchaser and Parent on or prior to the Closing Date have been
complied with and performed in all material respects and all breaches of any
such covenants in the aggregate do not result in a Purchaser Material Adverse
Effect.
4. To my knowledge, neither Purchaser nor Parent is subject to any Order
or Law of any Governmental Body of competent jurisdiction restraining, enjoining
or otherwise preventing consummation of the transaction contemplated by this
Agreement.
Textile Co., Inc.
Dated: ___________________ , 2005 By:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
Incumbency Certificate
The undersigned, as [assistant] secretary of the Purchaser, does hereby
certify that _______________, who signed and delivered the Officer's Certificate
Pursuant to Section 10.2(e) of the APA, currently holds the title set forth in
that certificate and that the signature of such person is genuine.
Dated: ____________________, 2005
---------------------------
Name:
---------------------
Title:
--------------------
EXHIBIT S
---------
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into
to be effective as of June __, 2005, by J.P. Stevens & Co. ("J.P. Stevens") in
favor of each of WS Textile Co., Inc., a Delaware corporation ("Parent"), New
Textile One, Inc., a Delaware corporation ("Holdco One"), New Textile Two, Inc.,
a Delaware corporation ("Holdco Two") and Textile Co., Inc., a Delaware
corporation ("Subsidiary") (Parent, Holdco One, Holdco Two and Subsidiary, as
their names may be changed from time to time, are hereby collectively referred
to as "Indemnitees" herein).
W I T N E S S E T H:
A. Subsidiary is acquiring certain assets from current corporate
affiliates of J.P. Stevens on a free and clear basis pursuant to Section 363 of
the Bankruptcy Code. None of the Indemnitees is acquiring any assets from J.P.
Stevens.
B. J.P. Stevens has been subject to certain asbestos related claims and
suits relating to a limited quantity of asbestos containing cloth. J.P. Stevens
has generally denied any and all liability with respect to such asserted claims
and suits.
C. J.P. Stevens became a corporate affiliate of WestPoint Stevens, Inc.
in 1988 but has always remained as a separate subsidiary throughout its
affiliation period.
D. Subsidiary and the other Indemnitees are providing millions of dollars
of consideration which will be used to satisfy, among other things, the Debtor
in Possession financing and certain secured debt for which J.P. Stevens is a
co-obligor or guarantor.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, J.P. Stevens hereby agree as follows:
1. Indemnification. J.P. Stevens agrees unconditionally to indemnify and
to defend and to hold each of the Indemnitees and their affiliates and their
respective officers, directors, equity owners, employees and agents harmless
from and against any and all claims, defense costs, damages or other costs or
expenses related in any way to or arising out of any claims made or suits or
proceedings brought against any of the Indemnitees and their affiliates and
their respective officers, directors, equity owners, employees and agents
related to or arising out of any products manufactured or distributed, or
operations engaged in, by J.P. Stevens or their predecessors, including, without
limitation, claims for personal injury, property damage, or any other tort
related claim of any nature (the "Indemnified Claims"). Notwithstanding anything
in this Agreement to the contrary, the parties agree that this Agreement does
not restrict JP Stevens from being liquidated and dissolved, if it so desires,
following the closing of the transaction contemplated by the Asset Purchase
Agreement dated June __, 2005 by and among Indemnitees, WestPoint Stevens Inc.,
WestPoint Stevens Inc. I, WestPoint Stevens Stores Inc. and J.P. Stevens
Enterprises, Inc.
2. Defense Costs. In the event that any of the Indemnitees is the subject
of a claim or suit or proceeding related to or arising out of any Indemnified
Claim, J.P. Stevens shall pay all costs and fees incurred by defense counsel
retained by any of the Indemnitees and their affiliates and their respective
officers, directors, equity owners, employees and agents.
3. Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of the State of New York, without giving effect to
choice of law principles.
4. Binding Effect. This Agreement and the indemnities contained herein
shall be continuing, irrevocable and binding upon J.P. Stevens, and its heirs,
successors and assigns, and shall inure to the benefit of the Indemnitees and
their successors and assigns.
5. Survival. The provisions of this Agreement shall survive the closing
of the acquisition or any resale by any of the Indemnities of all or any portion
of the assets being acquired from affiliates of J.P. Stevens.
6. Notices. Any notice which any party hereto may desire or be required
to give to the other shall be deemed to be adequate and sufficient notice if
given in writing and service is made by either (i) registered or certified mail,
postage prepaid, in which case notice shall be deemed to have been received
three (3) business days following deposit to the mail; or (ii) nationally
recognized overnight air courier, next day delivery, prepaid, in which case such
notice shall be deemed to have been received one (1) business day following
delivery to such courier. All notices shall be addressed to
J.P. Stevens & Co., Inc.
_____________________
_____________________
Attention: _____________
Indemnitees
c/o WS Textile Co, Inc.
100 South Bedford Road
Mt. Kisco, NY 10549
Attention: Felicia Buebel, Esq.
or to such other place as either party may by written notice to the other party
hereafter designate as a place for service of notice. Any notice so mailed shall
be conclusive be assumed to be received by the address thereof.
7. WAIVER OF JURY TRIAL. AFTER CONSULTING WITH COUNSEL AND CAREFUL
CONSIDERATION, J.P. STEVENS AND THE INDEMNITEES (BY THEIR ACCEPTANCE HEREOF)
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF THIS AGREEMENT, OR
OUT OF ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN),
OR ACTIONS OF J.P. STEVENS OR INDEMNITEES. THIS WAIVER IS A MATERIAL INDUCEMENT
TO THE INDEMNITEES OF THIS AGREEMENT.
8. Injunctive Relief. Damages at law may be an inadequate remedy for the
breach of any covenants, promises and agreements contained in this Agreement,
and, accordingly, the Indemnitees and their affiliates and their respective
officers, directors, equity owners and employees shall be entitled to injunctive
relief, without the requirement to post any bond, with respect to any such
breach, including specific performance of such covenants, promises or agreements
or an order enjoining J.P. Stevens from any threatened, or from the continuation
of any actual, breach of the covenants, promises or agreements contained in this
Agreement.
IN WITNESS WHEREOF, J.P. Stevens has executed this Agreement to be
effective as of the date and year first above written.
Witness: J.P. STEVENS & CO.
By
- ---------------------------- ---------------------------
Print Name: Name:
---------------- Title: