AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 1, 1996
REGISTRATION NO. 333-04841
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
AMENDMENT NO. 4
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
SIMMONS COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 2515 06-1007444
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification No.)
incorporation or
organization)
</TABLE>
-------------------
ONE CONCOURSE PARKWAY, SUITE 600
ATLANTA, GEORGIA 30328
(770) 512-7700
(Address, including zip code, and telephone number,
including area code, of registrant's and co-registrant's principal executive
offices)
-------------------
JONATHAN C. DAIKER
EXECUTIVE VICE PRESIDENT-FINANCE AND ADMINISTRATION
AND CHIEF FINANCIAL OFFICER
SIMMONS COMPANY
ONE CONCOURSE PARKWAY, SUITE 600
ATLANTA, GEORGIA 30328
(770) 512-7700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------
WITH COPIES TO:
CHARLES K. MARQUIS, ESQ.
J. KEITH MORGAN, ESQ.
GIBSON, DUNN & CRUTCHER
200 PARK AVENUE
NEW YORK, NEW YORK 10166
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
10 3/4% Series A Senior
Subordinated Notes due
2006......................... $100,000,000 100% $100,000,000 $34,485.00
</TABLE>
(1) Estimated pursuant to Rule 457(f) solely for the purposes of calculating the
registration fee.
-------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
SIMMONS COMPANY
CROSS-REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-K
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
--------------------------------- ----------------------
A. INFORMATION ABOUT THE TRANSACTION
<S> <C>
1. Forepart of the Registration Statement and
Outside Front Cover Page of Prospectus.... Forepart of the Registration Statement;
Outside Front Cover Page of the
Prospectus
2. Inside Front and Outside Back Cover Pages
of Prospectus............................. Inside Front Cover Page of Prospectus;
Outside Back Cover Page of Prospectus
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges........ Summary; Risk Factors; Selected Historical
and Pro Forma Financial Data
4. Terms of the Transaction.................. The Exchange Offer; Description of Notes;
Certain Federal Income Tax
Considerations; Plan of Distribution
5. Pro Forma Financial Information........... Selected Historical and Pro Forma
Financial Data; Financial Statements
6. Material Contacts with the Company Being
Acquired.................................. Not Applicable
7. Additional Information Required for
Reoffering by Persons and Parties Deemed
to be Underwriters........................ Not Applicable
8. Interests of Named Experts and Counsel.... Not Applicable
9. Disclosure of Commission Position on
Indemnification For Securities Act
Liabilities............................... Not Applicable
</TABLE>
B. INFORMATION ABOUT THE REGISTRANT
<TABLE>
<S> <C>
10. Information with Respect to S-3
Registrants............................... Not Applicable
11. Incorporation of Certain Information by
Reference................................. Not Applicable
12. Information With Respect to S-2 or S-3
Registrants............................... Not Applicable
13. Incorporation of Certain Information by
Reference................................. Not Applicable
14. Information with Respect to Registrants
Other Than S-2 or S-3 Registrants......... Summary; Risk Factors; The Acquisition;
The Simmons ESOP; Capitalization;
Selected Historical and Pro Forma
Financial Data; Management's Discussion
and Analysis of Financial Condition and
Results of Operations; Business;
Managment; Ownership of Voting
Securities; Certain Transactions;
Capital Structure; Financial Statements
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
------------------------------------------ ------------------------------------------
<C> <S> <C>
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to S-3
Companies................................. Not Applicable
16. Information with Respect to S-2 or S-3
Companies................................. Not Applicable
17. Information with Respect to Companies
Other Than S-2 or S-3 Companies........... Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations Are to be Solicited........ Not Applicable
19. Information if Proxies, Consents or
Authorizations Are Not to be Solicited,
or in an Exchange Offer................. The Exchange Offer; Management; Ownership
of Voting Securities; Certain
Transactions
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") authorizes
a corporation to indemnify and advance reasonable expenses to any person who was
a party, is a party, or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The Company's Amended and Restated Articles of Incorporation and Bylaws each
include indemnification provisions that mirror the language of the statute. In
addition, the Company's Bylaws provide that, subject to any limitation in the
Company's Articles of Incorporation, the Company may indemnify a director or
officer to the fullest extent permitted by law, including, without limitation,
DGCL Sec.145. Consequently, a director or officer of the Company or a person
serving at the request of the Company in the above-named capacities will be
fully indemnified against such judgments, penalties, fines, settlements and
reasonable expenses actually incurred, except if: (1) the person did not conduct
himself in good faith and did not reasonably believe his conduct was in the
corporation's best interests; or (2) in the case of any criminal action or
proceeding, the person had reasonable cause to believe his conduct was unlawful.
No indemnification may be made in respect of any claim, issue or matter as to
which such person is adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
The Company's Amended and Restated Articles of Incorporation also contain a
provision eliminating liability to the Company or its shareholders for monetary
damages from breach of fiduciary duty as a director. The inclusion of these
indemnification provisions in the Company's Amended and Restated Articles of
Organization and Bylaws is intended to enable the Company to attract qualified
persons to serve as directors and officers who might otherwise be reluctant to
do so.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------------ ---------------------------------------------------------------------------
<S> <C>
2+ Agreement of Merger between Simmons Acquisition Corp. and the Company,
dated March 22, 1996
3(i)+ Amended and Restated Certificate of Incorporation of the Company
3(ii)+ By-laws of the Company adopted by the Company
4.1+ Indenture between the Company and SunTrust Bank, as Trustee, dated as of
April 18, 1996.
4.2+ Exchange and Registration Rights Agreement between the Company and Chase
Securities Inc. dated April 18, 1996.
4.3+ Letter of Transmittal.
5 Opinion of Gibson, Dunn & Crutcher.
8 Opinion of Gibson, Dunn & Crutcher regarding tax matters.
</TABLE>
II-1
<PAGE>
<TABLE>
<S> <C>
10.1+ Stock Purchase Agreement between management stockholders, Merrill Lynch
Capital Appreciation Partnership No. B-XI, L.P., MLCP Associates L.P. No.
II, ML IBK Positions Inc., ML Offshore LBO Partnership No. B-XI, Merrill
Lynch KECALP L.P. 1987, Merrill Lynch KECALP L.P. 1989, Merchant Banking
L.P. No. IV and the Company, Simmons Holdings, Inc., Simmons Acquisition
Corp. and NationsBank N.A. (South), solely as Trustee for the Simmons
Employee Stock Ownership Trust dated as of February 21, 1994.
10.2+ Consolidated ESOP Loan Agreement between the Company and the Employee Stock
Ownership Trust dated March 22, 1996.
10.3+ Consolidated Pledge Agreement between the Company and the Employee Stock
Ownership Trust dated March 22, 1996.
10.4+ Amended Agreement of Trust between the Company and NationsBank N.A. (South)
dated as of March 22, 1996.
10.5+ Second Amendment to the ESOP dated March 22, 1996.
10.6+ 1996 Stockholders' Agreement among the Company, the Simmons Company
Employee Stock Ownership Trust and Simmons Holdings, Inc. dated as of
March 22, 1996.
10.7+ Purchase Agreement between the Company and Chase Securities Inc. dated as
of April 15, 1996.
10.8+ Credit Agreement among the Company, Chemical Bank, as Administrative Agent,
and the lenders party thereto, dated as of March 22, 1996.
10.9+ Security Agreement made by the Company in favor of Chemical Bank, as
Administrative Agent, dated as of March 22, 1996.
10.10+ Services and Expenses Agreement between the Company and Holdings, dated as
of March 22, 1996.
10.11+ Parent Option Agreement between the Company and Holdings, dated as of March
22, 1996.
10.12+ Agreement for Management Advisory and Consulting Services between
Investcorp International, Inc. and the Company, dated as of March 22,
1996.
10.13+ The Management Stock Incentive Plan of Simmons Holdings, Inc. established
as of March 22, 1996.
10.14+ Form of Stock Purchase Agreement
10.15+ Form of Stock Option Agreement
10.16+ Form of Bonus Stock Purchase Agreement
10.17+ Form of Anti-Dilution Stock Option Agreement
10.18+ Form of Bonus Agreement
10.19+ Form of Stock Acquisition Agreement
10.20+ Labor Agreement between the Company and the Miscellaneous Warehousemen,
Drivers and Helpers Union, Local No. 986 affiliated with the
International Brotherhood of Teamsters covering warehouse employees,
truck drivers and shipping and receiving clerks for the period August 1,
1995 to August 1, 1998.
10.21+ Labor Agreement between the Company and United Furniture Workers of
America, Local #262, A.F.L.-C.I.O. covering production and maintenance
employees working at the San Leandro, California plant for the period
August 1, 1995 to August 1, 1998.
10.22+ Labor Agreement between the Company and ILWU Local 142 covering all full-
time production and maintenance employees for the period from January 15,
1994 to January 15, 1999.
10.23+ Labor Agreement between the Company and Buckeye Lodge Lodge #55 of the
International Association of Machinists and Aerospace Workers, Columbus,
Ohio covering maintenance technicians for the period from December 31,
1995 to December 31, 1997.
10.24+ Labor Agreement between the Company and The International Association of
Machinists and Aerospace Workers, Local No. 315 of District No. 15,
A.F.L.-C.I.O. covering all mechanics at the Piscataway, New Jersey plant
of the Company for the period from December 10, 1995 to December 10,
1998.
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
10.25+ Master Multi-Plan Working Ageement between the Company and The United Steel
Workers of America, A.F.L., C.I.O., C.L.C. (Upholstery Industries
Division) through its Locals 63, 424, 422, 420, ,425, 173 and 515
covering various employees in the Atlanta, Georgia; Columbus, Ohio;
Dallas, Texas; Piscataway, New Jersey; Jacksonville, Florida; Kansas
City; Missouri; and Los Angeles, California plants of the Company for the
period from October 15, 1994 to October 15, 1997.
10.26+ Loan Finance and Advisory Services Agreement dated as of March 22, 1996
between Investcorp International Inc. and the Company.
10.27+ Mergers and Acquisitions Advisory Agreement dated as of March 22, 1996
between Investcorp International Inc. and the Company.
10.28+ Lease between the Company, as tenant, and Leadership Group, Inc. as
landlord, dated November 4, 1987, for premises in Grove City, Ohio. (i)
Amendment dated April 1, 1988.
10.29+ Lease between the Company, as tenant, and Security Capital Industrial
Trust, as landlord, dated December 16, 1988, for premises in Aurora,
Colorado.
10.30+ Lease between the Company, as tenant, and 365 South Randolphville, L.P., as
assignee of 287 Industrial park, as landlord, dated September 16, 1988,
for premises in Piscataway, New Jersey.
10.31+ Lease between the Company, as tenant, and The Prudential Insurance Company
of America, as landlord, dated June 19, 1973, for premises in
Jacksonville, Florida, as amended August 17,1992 and June 1, 1994.
10.32+ Lease between the Company, as tenant, and Hunter Industrial Venture, as
landlord, dated September 22, 1986, for premises in Kansas City,
Missouri. (i) Amendment dated July 31, 1989 (ii) Amendment dated February
27, 1990 (iii) Second Amendment to Lease
10.33+ Lease between the Company, as tenant, and 20100 S. Alameda Property Co.
(assignee of Overton, Moore & Associates), as landlord, dated March 12,
1974, for premises in Compton, California. (i) First Amendment dated
October 2, 1974 (ii) Second Amendment dated as of September 17, 1984
(iii) Third Amendment dated as of September 18, 1984 (iv) Fourth
Amendment dated as of June 28, 1993
10.34+ Lease between the Company, as tenant, and Glenn Rudel (d/b/a Rudel
Development), as landlord, dated June 18, 1987, for premises in Phoenix,
Arizona. (i) Addendum dated June 18, 1987 (ii) Second Addendum dated
March 28, 1989
10.35+ Lease between the Company, as tenant, and Bluefin Associates, as landlord,
dated December 4, 1987, for premises in Agawam, Massachusetts. (i) First
Amendment dated October 5, 1993
10.36+ Lease between the Company, as tenant, and Concourse I, Ltd., as landlord,
dated August 1, 1992, for premises in Atlanta, Georgia.
10.37+ Lease between the Company, as tenant, and John W. Rooker, as landlord,
dated October 23, 1991, for premises in Mableton, Georgia. (i) First
Amendment dated as of December 10, 1991 (ii) Second Amendment dated as of
July 14, 1992
10.38+ Lease between the Company, as tenant, and CK-Childress Klein #8 Limited
Partnership, as landlord, dated May 5, 1993, for premises in Charlotte,
North Carolina. (i) First Amendment dated February 6, 1994
10.39+ Lease between the Company, as tenant, and St. Paul Properties, Inc., as
landlord, dated February 5, 1993, for premises in Carrollton, Texas.
10.40+ Lease between the Company, as tenant, and Moon & Hart, as landlord, dated
November 30, 1992, for premises in Ewa Beach, Hawaii.
10.41+ Lease between the Company, as tenant, and 1700 Fairway Drive Associates, as
landlord, dated September 30, 1992, for premises in San Leandro,
California. (i) Amendment to Lease dated July 1, 1993
10.42+ Lease between the Company, as tenant, and Hill-Raaum Investment Company, as
landlord, dated December 19, 1991, for premises in Bellevue, Washington.
10.43+ Lease between Simmons Caribbean Bedding, Inc., as tenant, and ALFA Casting
Corporation, as landlord, dated May 25, 1989, for premises in Toa Baja,
Puerto Rico. (i) Modification of Lease Agreement dated April 7, 1994
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
10.44+ Lease between the Company, as tenant, and St. Paul Properties, Inc., as
landlord, dated October 19, 1994 for premises in Gwinnett County,
Georgia.
10.45+ Lease between the Company, as tenant, and Liberty Property Limited
Partnership (assignee of Simmons Associates, L.P.), as landlord, dated as
of October 7, 1994 for premises in Spotsylvania County, Virginia. (i)
First Amendment dated as of October 28, 1994
10.46+ Lease between the Company and Eagle Warren Properties, successors to B.F.
Saul Real Estate Investment Trust, dated July 15, 1977 for premises in
Norcross, Georgia. (i) Amendment
10.47+ Loan Agreement, dated as of November 1, 1982, between the City of
Janesville, Wisconsin and the Company, as successor by merger to Simmons
Manufacturing Company, Inc., relating to $9,700,000 City of Janesville,
Wisconsin Industrial Development Revenue Bond (Simmons Manufacturing
Company, Inc. Project) Series 1982.
10.48+ Down Products Trademark License Agreement, dated January 4, 1991 between
Simmons, as Licensor, and Louisville Bedding Co., as Licensee.
10.49+ Down Products Trademark License Agreement, dated January 1, 1995 between
Simmons, as Licensor, and Louisville Bedding Co., as Licensee.
10.50+ Amended and Restated Trademark License Agreement dated as of April 14, 1986
(as restated November 28, 1990) between Simmons, as Licensor, and
Louisville Bedding Co., as Licensee.
10.51+ Trademark License Agreement, dated as of July 13, 1990 between Simmons, as
Licensor, and Simmons Upholstered Furniture Inc., as Licensee
10.52+ Patent and Technology License Agreement, dated as of July 13, 1990 between
Simmons Company as Licensor and Simmons Upholstered Furniture Inc. as
Licensee
10.53+ Agreement dated as of October 30, 1986 between Simmons, as Licensor, and
Simmons Universal Corporation, as Licensee.
10.54+ Woolmark License Agreement, dated as of October 21, 1988 between the Wool
Bureau Incorporated and Simmons.
10.55+ License Agreement, dated as of June 29, 1990 between Simmons, Simmons I.P.
Inc., as Licensor, and Simmons Canada Inc., as Licensee.
10.56+ Industrial Property License Agreement, Areas 1-5, dated as of April 9, 1987
as between Simmons, and INFO Establishment, as Licensor and
Christie-Tyler PLC, as Licensee.
10.57+ Existing Territory License Agreement, dated as of June 30, 1987 between
Simmons and SJL Investments Limited.
10.58+ Trademark License Agreement, dated as of May 21, 1990 as between Simmons,
as Licensor, and Compania Simmons S.A. de C.V. as Licensee.
10.59+ Master Agreement, dated as of December 7, 1993 between Simmons and N.V. B
Linea.
10.60+ Assignment, dated as of December 7, 1993 between Simmons and N.V. B Linea.
10.61+ Security Agreement, dated as of December 7, 1993 between Simmons and N.V. B
Linea.
10.62+ Software License Agreement, undated, between Simmons and J.D. Edwards &
Company.
10.63+ Employment Agreement dated November 5, 1993 between the Company and Zenon
S. Nie as amended September 12, 1995.
12+ Statement re: Computation of Ratio of Earnings to Fixed Charges.
21+ Subsidiaries of the Company.
23.1+ Consent of Coopers & Lybrand L.L.P.
23.2+ Consent of Arthur Andersen LLP
23.3 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibits 5 and 8)
25+ Statement of Eligibility of Trustee.
27+ Financial Data Schedule
</TABLE>
- ------------
+ previously filed
(b) Financial Statement Schedules:
II-4
<PAGE>
1. Financial Statement Schedules filed herewith:
None applicable
ITEM 22. UNDERTAKINGS
(a) The Company undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended; (ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time will deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company undertakes to respond to requests for information that is
incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or
13 of this form, within one business day of receipt of such request, and to send
the incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding to
the request.
(c) The Company undertakes to supply by means of a post-effective amendment
all information concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in the Registration
Statement when it became effective.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Atlanta, Georgia, on August 1, 1996.
SIMMONS COMPANY
By:
*
..................................
Zenon S. Nie
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 1, 1996.
<TABLE>
<CAPTION>
NAME TITLE
- --------------------------------------------- ---------------------------------------------
<S> <C>
* Chairman of the Board of Directors,
............................................. Chief Executive Officer and Director
Zenon S. Nie (Principal Executive Officer)
* Senior Executive Vice President and Director
.............................................
Martin R. Passaglia
* Executive Vice President--Finance and
............................................. Administration, Chief Financial Officer and
Jonathan C. Daiker Director (Principal Financial and
Accounting Officer)
* Director
.............................................
Savio W. Tung
* Director
.............................................
Christopher J. O'Brien
* Director
.............................................
Charles J. Philippin
* Director
.............................................
Jon P. Hedley
</TABLE>
*By /s/ ROGER W. FRANKLIN
..................................
Roger W. Franklin
Attorney-in-Fact
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------------ ---------------------------------------------------------------------------
<S> <C>
2+ Agreement of Merger between Simmons Acquisition Corp. and the Company,
dated March 22, 1996
3(i)+ Amended and Restated Certificate of Incorporation of the Company
3(ii)+ By-laws of the Company adopted by the Company
4.1+ Indenture between the Company and SunTrust Bank, as Trustee, dated as of
April 18, 1996.
4.2+ Exchange and Registration Rights Agreement between the Company and Chase
Securities Inc. dated April 18, 1996.
4.3+ Letter of Transmittal.
5 Opinion of Gibson, Dunn & Crutcher.
8 Opinion of Gibson, Dunn & Crutcher regarding tax matters.
10.1+ Stock Purchase Agreement between management stockholders, Merrill Lynch
Capital Appreciation Partnership No. B-XI, L.P., MLCP Associates L.P. No.
II, ML IBK Positions Inc., ML Offshore LBO Partnership No. B-XI, Merrill
Lynch KECALP L.P. 1987, Merrill Lynch KECALP L.P. 1989, Merchant Banking
L.P. No. IV and the Company, Simmons Holdings, Inc., Simmons Acquisition
Corp. and NationsBank N.A. (South), solely as Trustee for the Simmons
Employee Stock Ownership Trust dated as of February 21, 1994.
10.2+ Consolidated ESOP Loan Agreement between the Company and the Employee Stock
Ownership Trust dated March 22, 1996.
10.3+ Consolidated Pledge Agreement between the Company and the Employee Stock
Ownership Trust dated March 22, 1996.
10.4+ Amended Agreement of Trust between the Company and NationsBank N.A. (South)
dated as of March 22, 1996.
10.5+ Second Amendment to the ESOP dated March 22, 1996.
10.6+ 1996 Stockholders' Agreement among the Company, the Simmons Company
Employee Stock Ownership Trust and Simmons Holdings, Inc. dated as of
March 22, 1996.
10.7+ Purchase Agreement between the Company and Chase Securities Inc. dated as
of April 15, 1996.
10.8+ Credit Agreement among the Company, Chemical Bank, as Administrative Agent,
and the lenders party thereto, dated as of March 22, 1996.
10.9+ Security Agreement made by the Company in favor of Chemical Bank, as
Administrative Agent, dated as of March 22, 1996.
10.10+ Services and Expenses Agreement between the Company and Holdings, dated as
of March 22, 1996.
10.11+ Parent Option Agreement between the Company and Holdings, dated as of March
22, 1996.
10.12+ Agreement for Management Advisory and Consulting Services between
Investcorp International, Inc. and the Company, dated as of March 22,
1996.
10.13+ The Management Stock Incentive Plan of Simmons Holdings, Inc. established
as of March 22, 1996.
10.14+ Form of Stock Purchase Agreement
10.15+ Form of Stock Option Agreement
10.16+ Form of Bonus Stock Purchase Agreement
10.17+ Form of Anti-Dilution Stock Option Agreement
10.18+ Form of Bonus Agreement
10.19+ Form of Stock Acquisition Agreement
10.20+ Labor Agreement between the Company and the Miscellaneous Warehousemen,
Drivers and Helpers Union, Local No. 986 affiliated with the
International Brotherhood of Teamsters covering warehouse employees,
truck drivers and shipping and receiving clerks for the period August 1,
1995 to August 1, 1998.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
10.21+ Labor Agreement between the Company and United Furniture Workers of
America, Local #262, A.F.L.-C.I.O. covering production and maintenance
employees working at the San Leandro, California plant for the period
August 1, 1995 to August 1, 1998.
10.22+ Labor Agreement between the Company and ILWU Local 142 covering all full-
time production and maintenance employees for the period from January 15,
1994 to January 15, 1999.
10.23+ Labor Agreement between the Company and Buckeye Lodge Lodge #55 of the
International Association of Machinists and Aerospace Workers, Columbus,
Ohio covering maintenance technicians for the period from December 31,
1995 to December 31, 1997.
10.24+ Labor Agreement between the Company and The International Association of
Machinists and Aerospace Workers, Local No. 315 of District No. 15,
A.F.L.-C.I.O. covering all mechanics at the Piscataway, New Jersey plant
of the Company for the period from December 10, 1995 to December 10,
1998.
10.25+ Master Multi-Plan Working Ageement between the Company and The United Steel
Workers of America, A.F.L., C.I.O., C.L.C. (Upholstery Industries
Division) through its Locals 63, 424, 422, 420, ,425, 173 and 515
covering various employees in the Atlanta, Georgia; Columbus, Ohio;
Dallas, Texas; Piscataway, New Jersey; Jacksonville, Florida; Kansas
City; Missouri; and Los Angeles, California plants of the Company for the
period from October 15, 1994 to October 15, 1997.
10.26+ Loan Finance and Advisory Services Agreement dated as of March 22, 1996
between Investcorp International Inc. and the Company.
10.27+ Mergers and Acquisitions Advisory Agreement dated as of March 22, 1996
between Investcorp International Inc. and the Company.
10.28+ Lease between the Company, as tenant, and Leadership Group, Inc. as
landlord, dated November 4, 1987, for premises in Grove City, Ohio. (i)
Amendment dated April 1, 1988.
10.29+ Lease between the Company, as tenant, and Security Capital Industrial
Trust, as landlord, dated December 16, 1988, for premises in Aurora,
Colorado.
10.30+ Lease between the Company, as tenant, and 365 South Randolphville, L.P., as
assignee of 287 Industrial park, as landlord, dated September 16, 1988,
for premises in Piscataway, New Jersey.
10.31+ Lease between the Company, as tenant, and The Prudential Insurance Company
of America, as landlord, dated June 19, 1973, for premises in
Jacksonville, Florida as amended August 17, 1992 and June 1, 1994.
10.32+ Lease between the Company, as tenant, and Hunter Industrial Venture, as
landlord, dated September 22, 1986, for premises in Kansas City,
Missouri. (i) Amendment dated July 31, 1989 (ii) Amendment dated February
27, 1990 (iii) Second Amendment to Lease
10.33+ Lease between the Company, as tenant, and 20100 S. Alameda Property Co.
(assignee of Overton, Moore & Associates), as landlord, dated March 12,
1974, for premises in Compton, California. (i) First Amendment dated
October 2, 1974 (ii) Second Amendment dated as of September 17, 1984
(iii) Third Amendment dated as of September 18, 1984 (iv) Fourth
Amendment dated as of June 28, 1993
10.34+ Lease between the Company, as tenant, and Glenn Rudel (d/b/a Rudel
Development), as landlord, dated June 18, 1987, for premises in Phoenix,
Arizona. (i) Addendum dated June 18, 1987 (ii) Second Addendum dated
March 28, 1989
10.35+ Lease between the Company, as tenant, and Bluefin Associates, as landlord,
dated December 4, 1987, for premises in Agawam, Massachusetts. (i) First
Amendment dated October 5, 1993
10.36+ Lease between the Company, as tenant, and Concourse I, Ltd., as landlord,
dated August 1, 1992, for premises in Atlanta, Georgia.
10.37+ Lease between the Company, as tenant, and John W. Rooker, as landlord,
dated October 23, 1991, for premises in Mableton, Georgia. (i) First
Amendment dated as of December 10, 1991 (ii) Second Amendment dated as of
July 14, 1992
</TABLE>
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<TABLE>
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10.38+ Lease between the Company, as tenant, and CK-Childress Klein #8 Limited
Partnership, as landlord, dated May 5, 1993, for premises in Charlotte,
North Carolina. (i) First Amendment dated February 6, 1994
10.39+ Lease between the Company, as tenant, and St. Paul Properties, Inc., as
landlord, dated February 5, 1993, for premises in Carrollton, Texas.
10.40+ Lease between the Company, as tenant, and Moon & Hart, as landlord, dated
November 30, 1992, for premises in Ewa Beach, Hawaii.
10.41+ Lease between the Company, as tenant, and 1700 Fairway Drive Associates, as
landlord, dated September 30, 1992, for premises in San Leandro,
California. (i) Amendment to Lease dated July 1, 1993
10.42+ Lease between the Company, as tenant, and Hill-Raaum Investment Company, as
landlord, dated December 19, 1991, for premises in Bellevue, Washington.
10.43+ Lease between Simmons Caribbean Bedding, Inc., as tenant, and ALFA Casting
Corporation, as landlord, dated May 25, 1989, for premises in Toa Baja,
Puerto Rico. (i) Modification of Lease Agreement dated April 7, 1994
10.44+ Lease between the Company, as tenant, and St. Paul Properties, Inc., as
landlord, dated October 19, 1994 for premises in Gwinnett County,
Georgia.
10.45+ Lease between the Company, as tenant, and Liberty Property Limited
Partnership (assignee of Simmons Associates, L.P.), as landlord, dated as
of October 7, 1994 for premises in Spotsylvania County, Virginia. (i)
First Amendment dated as of October 28, 1994
10.46+ Lease between the Company and Eagle Warren Properties, successors to B.F.
Saul Real Estate Investment Trust, dated July 15, 1977 for premises in
Norcross, Georgia. (i) Amendment
10.47+ Loan Agreement, dated as of November 1, 1982, between the City of
Janesville, Wisconsin and the Company, as successor by merger to Simmons
Manufacturing Company, Inc., relating to $9,700,000 City of Janesville,
Wisconsin Industrial Development Revenue Bond (Simmons Manufacturing
Company, Inc. Project) Series 1982.
10.48+ Down Products Trademark License Agreement, dated January 4, 1991 between
Simmons, as Licensor, and Louisville Bedding Co., as Licensee.
10.49+ Down Products Trademark License Agreement, dated January 1, 1995 between
Simmons, as Licensor, and Louisville Bedding Co., as Licensee.
10.50+ Amended and Restated Trademark License Agreement dated as of April 14, 1986
(as restated November 28, 1990) between Simmons, as Licensor, and
Louisville Bedding Co., as Licensee.
10.51+ Trademark License Agreement, dated as of July 13, 1990 between Simmons, as
Licensor, and Simmons Upholstered Furniture Inc., as Licensee
10.52+ Patent and Technology License Agreement, dated as of July 13, 1990 between
Simmons Company as Licensor and Simmons Upholstered Furniture Inc. as
Licensee
10.53+ Agreement dated as of October 30, 1986 between Simmons, as Licensor, and
Simmons Universal Corporation, as Licensee.
10.54+ Woolmark License Agreement, dated as of October 21, 1988 between the Wool
Bureau Incorporated and Simmons.
10.55+ License Agreement, dated as of June 29, 1990 between Simmons, Simmons I.P.
Inc., as Licensor, and Simmons Canada Inc., as Licensee.
10.56+ Industrial Property License Agreement, Areas 1-5, dated as of April 9, 1987
as between Simmons, and INFO Establishment, as Licensor and
Christie-Tyler PLC, as Licensee.
10.57+ Existing Territory License Agreement, dated as of June 30, 1987 between
Simmons and SJL Investments Limited.
10.58+ Trademark License Agreement, dated as of May 21, 1990 as between Simmons,
as Licensor, and Compania Simmons S.A. de C.V. as Licensee.
10.59+ Master Agreement, dated as of December 7, 1993 between Simmons and N.V. B
Linea.
10.60+ Assignment, dated as of December 7, 1993 between Simmons and N.V. B Linea.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
10.61+ Security Agreement, dated as of December 7, 1993 between Simmons and N.V. B
Linea.
10.62+ Software License Agreement, undated, between Simmons and J.D. Edwards &
Company.
10.63+ Employment Agreement dated November 5, 1993 between the Company and Zenon
S. Nie as amended October 5, 1995.
12+ Statement re: Computation of Ratio of Earnings to Fixed Charges.
21+ Subsidiaries of the Company.
23.1+ Consent of Coopers & Lybrand L.L.P.
23.2+ Consent of Arthur Andersen LLP
23.3 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibits 5 and 8)
25+ Statement of Eligibility of Trustee.
27+ Financial Data Schedule
</TABLE>
- ------------
+ previously filed
EXHIBIT 5
July 31, 1996
C 88618-00003
(212) 351-4000
Simmons Company
One Concourse Parkway
Suite 600
Atlanta, GA 30328
Re: 10-3/4% Series A Senior Subordinated Notes Due 2006
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-4 (the "Registration Statement") of Simmons Company, a Delaware
corporation (the "Company"), which the Company has filed with the Securities and
Exchange Commission (the "Commission") in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of up to
$100,000,000 aggregate principal amount of the Company's 10-3/4% Series A Senior
Subordinated Notes due 2006 (the "Exchange Notes"). The Exchange Notes are to be
issued in exchange for an equal aggregate principal amount of the Company's
outstanding 10-3/4% Senior Subordinated Notes due 2006 (the "Original Notes")
pursuant to the Exchange and Registration Rights Agreement dated as of April 18,
1996 between the Company and Chase Securities Inc. The Exchange Notes are to be
issued by the Company pursuant to the terms of an Indenture (the "Indenture")
dated as of April 18, 1996 between the Company and SunTrust Bank, Atlanta, as
Trustee (the "Trustee").
We have examined the proceedings taken or proposed to be taken
by the Company in connection with the issuance of the Exchange Notes. In
arriving at the following opinion, we have relied, among other things, upon our
examination of such corporate records of the Company and such certificates of
<PAGE>
Simmons Company
July 31, 1996
Page 2
public officials and of officers of the Company as we have deemed appropriate
for purposes of rendering this opinion. We have assumed with your permission
that the terms of the Original Notes and the Exchange Notes have been
established in accordance with the terms of the Indenture, and that their
issuance and sale (i) did not and will not violate any applicable law or result
in a default under or breach of any agreement or instrument binding upon the
Company and (ii) complied and will comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company.
In addition, we have assumed that the Indenture has been duly authorized,
executed and delivered by the Trustee and constitutes the legal, valid and
binding agreement of the Trustee.
Based upon the foregoing examination and assumptions and in
reliance thereon, and subject to the completion prior to the issuance of the
Exchange Notes of such proceedings now contemplated by the Company, and subject
to the issuance by the Commission of an order declaring the Registration
Statement effective, it is our opinion that the Exchange Notes, when issued in
accordance with the terms of the Indenture, duly executed by the Company, duly
authenticated by the Trustee, and issued and delivered against exchange of the
Original Notes in accordance with the terms set forth in the prospectus that
forms a part of the Registration Statement, will constitute valid and binding
obligations of the Company.
Our opinion is subject to: (i) the effect of applicable
bankruptcy, reorganization, insolvency, moratorium, arrangement and other laws
affecting creditors' rights, including, without limitation, the effect of
statutory or other laws regarding fraudulent conveyances, fraudulent transfers
and preferential transfers; and (ii) the limitations imposed by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity).
This opinion is limited to the effect of the present state of
the laws of the United States of America and the State of New York. The opinions
expressed herein are based upon the law and circumstances as they are in effect
or exist on the date hereof, and we assume no obligation to revise or supplement
this letter in the event of future changes in the law or interpretation thereof
with respect to circumstances or events that may occur subsequent to the date
hereof. We are expressing no opinion as to the effect of the laws of any other
jurisdiction.
<PAGE>
Simmons Company
July 31, 1996
Page 3
We consent to the filing of this opinion as an exhibit to the
Registration Statement, and we further consent to the use of our name under the
caption "Legal Matters" in the Registration Statement and the prospectus which
forms a part thereof. In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ Gibson Dunn & Crutcher LLP
EXHIBIT 8
July 31, 1996
(212) 351-4000 C 88618-00003
Simmons Company
One Concourse Parkway
Suite 600
Atlanta, GA 30328
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-4, (the "Registration Statement") of Simmons Company, a Delaware
corporation ("Simmons") to be filed in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of up to
$100,000,000 aggregate principal amount of Simmons' 10-3/4% Series A Senior
Subordinated Notes due 2006 (the "New Notes") and the exchange (the "Exchange")
of the New Notes for a like principal amount of Simmons' 10-3/4% Senior
Subordinated Notes due 2006.
We hereby confirm our opinions set forth in the Registration
Statement under the caption "Certain Federal Income Tax Consequences."
We hereby consent to the filing of this opinion as an
Exhibit to the Registration Statement, and we further consent to the use of
our name under the captions "Legal Matters" and "Certain Federal Income Tax
Consequences". In
<PAGE>
Simmons Company
July 31, 1996
Page 2
giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations promulgated thereunder.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
GIBSON, DUNN & CRUTCHER LLP
