SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10/A
Amendment No. 1
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DH Apparel Company, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-2510086
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(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
1020 Barrow Industrial Pkwy, Winder, GA 30680
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(Address of Principal Executive Offices) (Zip Code)
(770) 867-3111
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(Registrant's Telephone Number, Including Area Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
To Be So Registered Each Class Is To Be Registered
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Common Stock, par value $0.01 American Stock Exchange
Common Stock Purchase Rights American Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
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Except as otherwise indicated below, the information required to be
contained in this Registration Statement on Form 10/A of DH Apparel Company,
Inc., a Georgia corporation ("Duck Head" or "the Company"), is contained in the
Information Statement included as Exhibit 99.1 hereto (the "Information
Statement") and is incorporated herein by reference from that document as
specified below. Below is a list of the items of information required by the
instructions to Form 10 and the locations in the Information Statement where
such information can be found if not otherwise included below.
ITEM 1. BUSINESS.
See "Business of Duck Head"
"Note (13) - Operating Segments" contained in the Audited Combined
Financial Statements
"Management's Discussion and Analysis of Financial Condition and
Results of Operations - First Six Months of Fiscal Year 2000 versus
First Six Months of Fiscal Year 1999 - Order Backlog"
ITEM 2. FINANCIAL INFORMATION.
See "Summary -- Selected Historical Financial Data"
"Management's Discussion and Analysis of Financial Conditions
and Results of Operations" ("MD&A")
"MD&A -- Quantitative and Qualitative Disclosures About Market Risk"
ITEM 3. PROPERTIES.
See "Business of Duck Head -- Properties"
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
See "Security Ownership of Significant Beneficial Owners and Management"
ITEM 5. DIRECTORS AND OFFICERS.
See "Management of Duck Head -- Directors"
"Management of Duck Head -- Executive Officers"
ITEM 6. EXECUTIVE COMPENSATION.
See "Management of Duck Head -- Management Compensation"
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ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
See "Relationships Among Duck Head, Delta Woodside and Delta Apparel"
"Interests of Directors and Executive Officers in the Duck Head
Distribution"
ITEM 8. LEGAL PROCEEDINGS.
See "Business of Duck Head -- Legal Proceedings"
ITEM 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS.
See "Trading Market"
"MD&A -- Dividends and Purchases by Duck Head of its Own Shares"
ITEM 10. RECENT SALES OF UNREGISTERED SECURITIES.
See "Description of Duck Head Capital Stock - Recent Sales of Unregistered
Securities"
ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
See "Description of Duck Head Capital Stock"
ITEM 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
See "Description of Duck Head Capital Stock -- Limitation on Liability of
Directors" and "-- Indemnification of Directors"
ITEM 13. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
See Unaudited Pro Forma Combined Financial Statements
Audited Combined Financial Statements
Unaudited Condensed Combined Financial Statements
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not applicable.
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ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements
See Index to Financial Statements
Exhibit 99.2*
(b) Exhibits.
2.1 Distribution Agreement by and among Delta Woodside
Industries, Inc, the Company and Delta Apparel, Inc.
3.1 Articles of Incorporation of the Company. *
3.2.1 Bylaws of the Company. *
3.2.2Amendment to Bylaws of the Company adopted January 20,
2000.
3.2.3Amendment to Bylaws of the Company adopted February
17, 2000.
4.1 See Exhibits 3.1, 3.2.1, 3.2.2 and 3.2.3.
4.2 Specimen certificate for common stock, par value $0.01
per share, of the Company, will be included in next
filing.
4.3 Shareholder Rights Agreement dated January 27, 2000, by
and among the Company and First Union National Bank.
10.1 See Exhibits 2.1 and 4.3.
10.2 Tax Sharing Agreement by and among Delta Woodside
Industries, Inc., the Company and Delta Apparel, Inc.
10.3.1 Letter dated March 15, 1999, from Delta Woodside
Industries, Inc. to Robert D. Rockey, Jr. *
10.3.2 Letter dated October 19, 1999, from Delta Woodside
Industries, Inc. to Robert D. Rockey, Jr. *
10.4 DH Apparel Company, Inc. 2000 Stock Option Plan,
Effective as of February 15, 2000, Amended & Restated
March 15, 2000.
10.5 DH Apparel Company, Inc. Incentive Stock Award Plan,
Effective February 15, 2000, Amended & Restated March
15, 2000.
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10.6 Duck Head Apparel Company, Inc. Deferred Compensation
Plan for Key Managers.
10.7 Form of Amendment of Certain Rights and Benefits
Relating to Stock Options and Deferred Compensation by
and between Delta Woodside Industries, Inc., the
Company and certain pre-spin-off Delta Woodside
Industries, Inc, plan participants. (Several persons
will sign substantially identical documents. A schedule
listing director and officer signatories will be filed
by amendment.)
21.1 Subsidiaries of the Company.
27.1 Financial Data Schedule (electronic filing only).
99.1 Information Statement of DH Apparel Company, Inc.
99.2 Valuation and Qualifying Accounts *
* Previously filed with initial filing.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
DH APPAREL COMPANY, INC.
Date: March 28, 2000 By: /s/ Robert D. Rockey, Jr.
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Robert D. Rockey, Jr., Chairman,
President & Chief Executive Officer
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EXHIBITS
2.1 Distribution Agreement by and among Delta Woodside Industries, Inc, the
Company and Delta Apparel, Inc.
3.1 Articles of Incorporation of the Company. *
3.2.1 Bylaws of the Company. *
3.2.2 Amendment to Bylaws of the Company adopted January 20, 2000.
3.2.3 Amendment to Bylaws of the Company adopted February 17, 2000.
4.1 See Exhibits 3.1, 3.2.1, 3.2.2 and 3.2.3.
4.2 Specimen certificate for common stock, par value $0.01 per share, of the
Company.
4.3 Shareholder Rights Agreement dated January 27, 2000, by and among the
Company and First Union National Bank.
10.1 See Exhibits 2.1 and 4.3.
10.2 Tax Sharing Agreement by and among Delta Woodside Industries, Inc., the
Company and Delta Apparel, Inc.
10.3.1 Letter dated March 15, 1999, from Delta Woodside Industries, Inc. to
Robert D. Rockey, Jr. *
10.3.2 Letter dated October 19, 1999, from Delta Woodside Industries, Inc. to
Robert D. Rockey, Jr. *
10.4 DH Apparel Company, Inc. 2000 Stock Option Plan, Effective as of February
15, 2000, Amended & Restated March 15, 2000.
10.5 DH Apparel Company, Inc. Incentive Stock Award Plan, Effective February 15,
2000, Amended & Restated March 15, 2000.
10.6 Duck Head Apparel Company, Inc. Deferred Compensation Plan for Key
Managers.
10.7 Form of Amendment of Certain Rights and Benefits Relating to Stock Options
and Deferred Compensation by and between Delta Woodside Industries, Inc.,
the Company and certain pre-spin-off Delta Woodside Industries, Inc, plan
participants. (Several persons will sign substantially identical documents.
A schedule listing director and officer signatories will be filed by
amendment.)
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21.1 Subsidiaries of the Company.
27.1 Financial Data Schedule (electronic filing only).
99.1 Information Statement of DH Apparel Company, Inc.
99.2 Valuation and Qualifying Accounts *
* Previously filed with initial filing.
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT (this "Distribution Agreement"), dated as of
March 15, 2000, is entered into by and among DELTA WOODSIDE INDUSTRIES, INC., a
South Carolina corporation ("Delta Woodside"), DH APPAREL COMPANY, INC., a
Georgia corporation to be renamed Duck Head Apparel Company, Inc. ("Duck Head"),
and DELTA APPAREL, INC., a Georgia corporation ("Delta Apparel").
WHEREAS, the respective Boards of Directors of Delta Woodside, Duck Head
and Delta Apparel have approved the transactions contemplated by this
Distribution Agreement, upon the terms and subject to the conditions set forth
herein, as being in the best interests of Delta Woodside, Duck Head and Delta
Apparel, respectively;
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein the parties hereto
agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 Definitions. (a) As used herein, the following terms have the following
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meanings:
"Action" means any claim, suit, action, arbitration, inquiry, investigation
or other proceeding of any nature (whether criminal, civil, legislative,
administrative, regulatory, prosecutorial or otherwise) by or before any
arbitrator or Governmental Entity.
"Affiliate" means, with respect to any Person, any other Person, directly
or indirectly, controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, the term "control" (including the
correlative terms "controlling", "controlled by" and "under common control
with") means the direct or indirect possession of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise. For purposes of this
Distribution Agreement, no member of one Group shall be treated as an Affiliate
of any member of another Group.
"Business" means the Delta Woodside Business, the Duck Head Business or the
Delta Apparel Business, as the context may indicate.
"Business Day" means any day other than a Saturday, Sunday or one on which
banks are authorized or required by law to close in Greenville, South Carolina.
"Contract" shall mean any note, bond, mortgage, indenture, lease, contract,
agreement, obligation, understanding, commitment or other similar arrangement,
whether written or oral.
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"Defense Materials" means, with respect to any Group, any and all written
or oral information (including, without limitation, any and all (A) written or
electronic communications, (B) documents (including electronic versions
thereof), (C) factual and legal analyses and memoranda, (D) interview reports
and reports of experts, consultants or investigators, (E) meetings in person or
by telephone and e-mail or other forms of electronic communication, and (F)
records, reports or testimony regarding those communications, documents,
memoranda or meetings) (i) within the custody or control, within the meaning of
Rule 34 of the Federal Rules of Civil Procedure, of or reasonably accessible by
that Group or its Representatives and (ii) directly or indirectly arising out of
or relating to, the preparation or litigation of any Action in which Delta
Woodside, Duck Head and/or Delta Apparel have a common interest.
"Delta Apparel Board" means the Board of Directors of Delta Apparel.
"Delta Apparel Business" means the businesses and operations of the Delta
Apparel Group, whether conducted prior to, at or after the Effective Time, which
include the manufacturing, marketing and sale of knit apparel.
"Delta Apparel Common Stock" means the common stock, par value $0.01 per
share, of Delta Apparel.
"Delta Apparel Disclosure Documents" means the Delta Apparel Information
Statement, the Delta Apparel Form 10 and each other report or filing made by
Delta Apparel under the Securities Act or the Exchange Act [or with the American
Stock Exchange] in connection with the matters contemplated by any of the
Distribution Documents, in each case as amended or supplemented.
"Delta Apparel Employees" means those individuals listed on the payroll
records of any member of the Delta Apparel Group after the Effective Time, or
who are identified as a Delta Apparel Employee on the Delta Apparel Disclosure
Schedule, and shall not include individuals who are Delta Woodside Employees or
Duck Head Employees.
"Delta Apparel Employee Group" means all Delta Apparel Employees and Delta
Apparel Retirees and their respective beneficiaries.
"Delta Apparel Form 10" means the registration statement on Form 10 that
Delta Apparel has filed with the SEC to register the Delta Apparel Common Stock
under the Exchange Act in connection with the Distribution, as that registration
statement may be amended from time to time.
"Delta Apparel Group" means, on and after the Effective Time, Delta Apparel
and the Subsidiaries of Delta Apparel, including all predecessors (other than
any member of the Delta Woodside Group or any member of the Duck Head Group) and
successors to each of those Persons.
"Delta Apparel Group Liabilities" means, except as otherwise specifically
provided in any Distribution Document, all Liabilities, whether arising before,
at or after the Effective Time, (i) of
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or in any way relating, in whole or in part, to any member of the Delta Apparel
Group (other than any Liabilities arising primarily from the conduct of or in
connection with, in whole or in part, the Delta Woodside Business or the Duck
Head Business) or (ii) arising from the conduct of, in connection with or in any
way relating to, in whole or in part, the Delta Apparel Business, or the
ownership or use of assets or property in connection with the Delta Apparel
Business or (iii) arising under Contracts included in the Delta Apparel Assets
(including any Liabilities under such Contracts resulting from the consummation
of the transactions contemplated by this Distribution Agreement) or (iv) of
Delta Apparel arising under any of the Distribution Documents. Notwithstanding
the foregoing, "Delta Apparel Group Liabilities" shall exclude (i) all
Liabilities for Taxes of any member of the Delta Apparel Group (because the Tax
Sharing Agreement will govern those Liabilities) and (ii) all Liabilities for
the fees, costs, expenses and transfer taxes (and other similar fees and
expenses), or portion thereof, that a specific provision of this Distribution
Agreement imposes on Delta Woodside or Duck Head. Without limiting the
generality of the foregoing, Delta Apparel Group Liabilities include all
liabilities that may arise under or in connection with that certain litigation
captioned Scelza et al. v. Caldor, Inc. et al. that is pending in the Supreme
Court of the State of New York in New York County, New York.
"Delta Apparel Information Statement" means the information statement,
substantially complying with the disclosure items of Schedule 14C of the
Exchange Act, that Delta Apparel will file as an exhibit to the Delta Apparel
Form 10 and send to each Delta Woodside Stockholder of record as of the Record
Date in connection with the Distribution.
"Delta Apparel Material Adverse Effect" shall be deemed to occur if the
aggregate consequences of all breaches and inaccuracies of covenants and
representations of Delta Apparel, when read without any exception or
qualification for a Delta Apparel Material Adverse Effect, are reasonably likely
to have a material adverse effect on Delta Apparel's ability to consummate the
transactions contemplated by this Distribution Agreement or on the business,
operations or financial condition of Delta Apparel and its Subsidiaries, Delta
Woodside and its Subsidiaries (excluding the Duck Head Group and the Delta
Apparel Group) or Duck Head and its Subsidiaries taken as a whole.
"Delta Apparel Retirees" means those individuals who were employed in the
Delta Apparel Business immediately before those individuals' retirement or other
termination of employment or who are identified as Delta Apparel Retirees on the
Delta Apparel Disclosure Schedule.
"Delta Apparel Share" means a share of the Delta Apparel Common Stock.
"Delta Woodside Board" means the Board of Directors of Delta Woodside.
"Delta Woodside Business" means the businesses and operations of the Delta
Woodside Group (but excluding the Delta Apparel Business and the Duck Head
Business), whether conducted prior to, at or after the Effective Time, which
include the manufacturing, marketing and sale of woven textile products.
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"Delta Woodside Common Stock" means the common stock, par value $0.01 per
share, of Delta Woodside.
"Delta Woodside Disclosure Documents" means each report or filing made by
Delta Woodside under the Exchange Act in connection with the matters
contemplated by any of the Distribution Documents, any information in the Duck
Head Information Statement, the Duck Head Form 10, the Delta Apparel Information
Statement or the Delta Apparel Form 10 that is provided by Delta Woodside or its
Representatives (other than a matter relating to the Duck Head Group or the
Delta Apparel Group) and each other report or filing made by Delta Woodside
under the Securities Act or the Exchange Act in connection with the matters
contemplated by any of the Distribution Documents, in each case as amended or
supplemented.
"Delta Woodside Employees" means those individuals listed on the payroll
records of any member of the Delta Woodside Group after the Effective Time, or
who are identified as a Delta Woodside Employee on the Delta Woodside Disclosure
Schedule, and shall not include individuals who are Delta Apparel Employees or
Duck Head Employees.
"Delta Woodside Employee Group" means all Delta Woodside Employees and
Delta Woodside Retirees and their respective beneficiaries.
"Delta Woodside Group" means, on and after the Effective Time, Delta
Woodside and the Subsidiaries of Delta Woodside, including all predecessors and
successors to each of those Persons (other than any member of the Delta Apparel
Group or the Duck Head Group).
"Delta Woodside Group Liabilities" means, except as otherwise specifically
provided in any Distribution Document, all Liabilities, whether arising before,
at or after the Effective Time, (i) of or in any way relating, in whole or in
part, to any member of the Delta Woodside Group (other than any Liabilities
arising primarily from the conduct of or in connection with, in whole or in
part, the Duck Head Business or the Delta Apparel Business) or (ii) arising from
the conduct of, in connection with or in any way relating to, in whole or in
part, the Delta Woodside Business, or the ownership or use of assets or property
in connection with the Delta Woodside Business or (iii) arising under Contracts
under which any of Delta Woodside or any of its Subsidiaries has any Liability
and that are not included in the Delta Apparel Assets or the Duck Head Assets
(including any Liabilities under such Contracts resulting from the consummation
of the transactions contemplated by this Distribution Agreement) or (iv) of
Delta Woodside arising under any of the Distribution Documents. Notwithstanding
the foregoing, "Delta Woodside Group Liabilities" shall exclude (i) all
Liabilities for Taxes of any member of the Delta Woodside Group (because the Tax
Sharing Agreement will govern those Liabilities) and (ii) all Liabilities for
the fees, costs, expenses and transfer taxes (and other similar fees and
expenses), or portion thereof, that a specific provision of this Distribution
Agreement imposes on Duck Head or Delta Apparel.
"Delta Woodside Material Adverse Effect" shall be deemed to occur if the
aggregate consequences of all breaches and inaccuracies of covenants and
representations of Delta Woodside,
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when read without any exception or qualification for a Delta Woodside Material
Adverse Effect, are reasonably likely to have a material adverse effect on Delta
Woodside's ability to consummate the transactions contemplated by this
Distribution Agreement or on the business, operations or financial condition of
Delta Woodside and its Subsidiaries (excluding the Duck Head Group and the Delta
Apparel Group), Duck Head and its Subsidiaries or Delta Apparel and its
Subsidiaries, taken as a whole.
"Delta Woodside Retirees" means those individuals who were employed in the
Delta Woodside Business immediately before those individuals' retirement or
other termination of employment or who are identified as Delta Woodside Retirees
on the Delta Woodside Disclosure Schedule.
"Delta Woodside Share" means a share of the Delta Woodside Common Stock.
"Delta Woodside Stockholders" means the holders of the Delta Woodside
Common Stock.
"Distribution" means the distribution by Delta Woodside, pursuant to the
terms and subject to the conditions of this Distribution Agreement, of all of
the outstanding Duck Head Shares and all of the outstanding Delta Apparel Shares
to the Delta Woodside Stockholders of record as of the Record Date.
"Distribution Agent" means First Union National Bank or its successor.
"Distribution Agent Agreement" means an agreement to be entered into prior
to the Effective Time by the Distribution Agent with respect to the
Distribution.
"Distribution Date" means the Business Day on which the Distribution is
effected.
"Distribution Documents" means this Distribution Agreement, the Tax Sharing
Agreement, and the exhibits and schedules to those agreements.
"Duck Head Board" means the Board of Directors of Duck Head.
"Duck Head Business" means the businesses and operations of the Duck Head
Group, whether conducted prior to, at or after the Effective Time, which include
the manufacturing, marketing and sale of apparel bearing the Duck Head
trademark.
"Duck Head Common Stock" means the common stock, par value $0.01 per share,
of Duck Head.
"Duck Head Disclosure Documents" means the Duck Head Information Statement,
the Duck Head Form 10 and each other report or filing made by Duck Head under
the Securities Act or the Exchange Act [or with the American Stock Exchange] in
connection with the matters contemplated
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by any of the Distribution Documents, in each case as amended or supplemented.
"Duck Head Employees" means those individuals listed on the payroll records
of any member of the Duck Head Group after the Effective Time, or who are
identified as a Duck Head Employee on the Duck Head Disclosure Schedule, and
shall not include individuals who are Delta Woodside Employees or Delta Apparel
Employees.
"Duck Head Employee Group" means all Duck Head Employees and Duck Head
Retirees and their respective beneficiaries.
"Duck Head Form 10" means the registration statement on Form 10 that Duck
Head has filed with the SEC to register the Duck Head Common Stock under the
Exchange Act in connection with the Distribution, as that registration statement
may be amended from time to time.
"Duck Head Group" means, on and after the Effective Time, Duck Head and the
Subsidiaries of Duck Head, including all predecessors (other than any member of
the Delta Woodside Group or any member of the Delta Apparel Group) and
successors to each of those Persons.
"Duck Head Group Liabilities" means, except as otherwise specifically
provided in any Distribution Document, all Liabilities, whether arising before,
at or after the Effective Time, (i) of or in any way relating, in whole or in
part, to any member of the Duck Head Group (other than any Liabilities arising
primarily from the conduct of or in connection with, in whole or in part, the
Delta Woodside Business or the Delta Apparel Business) or (ii) arising from the
conduct of, in connection with or in any way relating to, in whole or in part,
the Duck Head Business, or the ownership or use of assets or property in
connection with the Duck Head Business or (iii) arising under Contracts included
in the Duck Head Assets (including any Liabilities under such Contracts
resulting from the consummation of the transactions contemplated by this
Distribution Agreement) or (iv) of Duck Head arising under any of the
Distribution Documents. Notwithstanding the foregoing, "Duck Head Group
Liabilities" shall exclude (i) all Liabilities for Taxes of any member of the
Duck Head Group (because the Tax Sharing Agreement will govern those
Liabilities) and (ii) all Liabilities for the fees, costs, expenses and transfer
taxes (and other similar fees and expenses), or portion thereof, that a specific
provision of this Distribution Agreement imposes on Delta Woodside or Delta
Apparel.
"Duck Head Information Statement" means the information statement,
substantially complying with the disclosure items of Schedule 14C of the
Exchange Act, that Duck Head will file as an exhibit to the Duck Head Form 10
and send to each Delta Woodside Stockholder of record as of the Record Date in
connection with the Distribution.
"Duck Head Material Adverse Effect" shall be deemed to occur if the
aggregate consequences of all breaches and inaccuracies of covenants and
representations of Duck Head, when read without any exception or qualification
for a Duck Head Material Adverse Effect, are reasonably likely to have a
material adverse effect on Duck Head's ability to consummate the transactions
contemplated by this Distribution Agreement or on the business, operations or
financial condition
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of Duck Head and its Subsidiaries, Delta Woodside and its Subsidiaries
(excluding the Duck Head Group and the Delta Apparel Group) or Delta Apparel and
its Subsidiaries taken as a whole.
"Duck Head Retirees" means those individuals who were employed in the Duck
Head Business immediately before those individuals' retirement or other
termination of employment or who are identified as Duck Head Retirees on the
Duck Head Disclosure Schedule.
"Duck Head Share" means a share of the Duck Head Common Stock.
"Effective Time" means the time immediately before the close of business on
the Distribution Date.
"Governmental Entity" means any government or any state, department or
other political subdivision thereof, or any governmental body, agency, authority
(including, but not limited to, any central bank or taxing authority) or
instrumentality (including, but not limited to, any court, tribunal or grand
jury) exercising executive, prosecutorial, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Group" means, as the context requires, the Delta Woodside Group, the Duck
Head Group or the Delta Apparel Group.
"Knowledge," "best knowledge" or any similar formulation of "knowledge"
shall mean the knowledge of Delta Woodside's, Duck Head's or Delta Apparel's
respective executive officers with respect to Delta Woodside, Duck Head and
Delta Apparel, respectively.
"Liabilities" means any and all claims, debts, liabilities, assessments,
fines, penalties, damages, losses, disgorgements and obligations, of any kind,
character or description (whether fixed, absolute, contingent, matured, not
matured, liquidated, unliquidated, accrued, not accrued, known, unknown, direct,
indirect, derivative or otherwise), whenever and however arising, whether or not
the same would be required by generally accepted accounting principles to be
reflected in financial statements or disclosed in the notes thereto, including,
but not limited to, all costs and expenses relating thereto (including, but not
limited to, all expenses of investigation, all attorneys' fees and all
out-of-pocket expenses in connection with any Action or threatened Action).
"Person" means an individual, corporation, limited liability company,
limited liability partnership, partnership, association, trust or other entity
or organization, including a Governmental Entity.
"Record Date" means the date determined by the Delta Woodside Board (or by
a committee of that board or any other Person acting under authority duly
delegated to that committee or Person by the Delta Woodside Board or a committee
of that board) as the record date for determining the Delta Woodside
Stockholders of record entitled to receive the Distribution.
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"Representatives" means, with respect to any party hereto, such party's
directors, officers, employees, agents, consultants, attorneys and advisors.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other Persons performing
similar functions are at the time directly or indirectly owned by that Person.
"Tax" has the meaning assigned to that term in the Tax Sharing Agreement.
"Tax Sharing Agreement" means the Tax Sharing Agreement to be dated as of
the Distribution Date among Delta Woodside, Duck Head and Delta Apparel.
"Welfare Benefits" means medical, surgical or hospital care or benefits, or
benefits in the event of sickness, accident, disability, death or unemployment,
or vacation benefits, apprenticeship or other training programs, or day care
centers, scholarship funds or prepaid legal services; provided that Welfare
Benefits do not include pensions on retirement or death or insurance to provide
those pensions.
(b) Each of the following terms is defined in the Section (or Article) set
forth opposite that term:
Term Section (or Article)
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Alchem 2.1
BNY 4.2
COBRA Coverage 8.8
Code 4.10
Consent 4.4
Damages 14.1
Delta Apparel 401(k) Plan 8.3
Delta Apparel Assets 2.1
Delta Apparel Benefit Plans 6.9
Delta Apparel Disclosure Schedule Article 6
Delta Apparel Financing 2.2
Delta Apparel Interim Financial Statements 6.5
Delta Apparel Obligations 2.1
Delta Apparel Permits 6.12
Delta Apparel Preferred Stock 6.2
Delta Consolidated 2.1
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Delta Merchandising 2.1
Delta Mills 2.1
Delta Mills Credit Agreement 4.2
Delta Woodside 401(k) Plan 8.3
Delta Woodside Benefit Plans 4.9
Delta Woodside Credit Agreement 4.2
Delta Woodside Disclosure Schedule Article 4
Delta Woodside Interim Financial Statements 4.5
Delta Woodside Permits 4.12
Delta Woodside Preferred Stock 4.2
Delta Woodside SEC Reports 4.5
Delta Woodside Stock Options 4.2
DHAC 2.1
Duck Head 401(k) Plan 8.3
Duck Head Assets 2.1
Duck Head Benefit Plans 5.9
Duck Head Disclosure Schedule Article 5
Duck Head Financing 2.2
Duck Head Interim Financial Statements 5.5
Duck Head Obligations 2.1
Duck Head Permits 5.12
Duck Head Preferred Stock 5.2
Environmental Law 4.16
ERISA 4.9
Exchange Act 4.4
GAAP 4.5
GECC 4.2
Hazardous Substance 4.16
Intercompany Reorganization 2.1
IRS 4.10
Lien 4.4
New Delta Woodside Financing 9.7
Permitted Acquisition Proposal 9.6
Rainsford Plant Purchase 2.1
Securities Act 4.4
Violation 4.4
WARN Act 8.11
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ARTICLE 2
PRE-DISTRIBUTION TRANSACTIONS
2.1 Effectuation of Intercompany Reorganization. No later than the
--- ------------ -- ------------ ---------------
Effective Time, Delta Woodside, Duck Head and Delta Apparel shall have caused,
to the extent within their respective powers, the following (collectively, the
"Intercompany Reorganization") to have been effected:
(a) Delta Woodside shall contribute, as contributions to capital, all net
debt amounts owed to it by each of Delta Consolidated Corporation ("Delta
Consolidated"), Delta Merchandising, Inc. ("Delta Merchandising"), Duck Head
Apparel Company, Inc. ("DHAC") and International Apparel Marketing Corporation
("IAMC") to Delta Consolidated, Delta Merchandising, DHAC and IAMC,
respectively.
(b) Alchem Capital Corporation ("Alchem") shall transfer, as a contribution
to capital, to DHAC all of the outstanding capital stock of Delta Consolidated
and Delta Merchandising.
(c) DHAC and Delta Woodside shall transfer, or cause to be transferred, as
a contribution to capital, to Delta Consolidated all of the outstanding capital
stock of Delta Apparel Honduras, S.A. that is beneficially owned by DHAC, Delta
Woodside and Alchem. Delta Apparel Honduras, S.A. shall redeem the portion of
its capital stock beneficially owned by Cargud, S.A.
(d) Delta Woodside shall cause title to all assets used in the operation of
the Delta Apparel Company division of various subsidiaries of Delta Woodside and
all assets that pertain to such operation or to such assets (collectively, the
"Delta Apparel Assets"), other than any intellectual property assets owned by
Alchem that are part of the Delta Apparel Assets and the Rainsford Plant located
in Edgefield, SC, to be transferred to Delta Consolidated. In order to
accomplish this, among other matters, DHAC shall transfer to Delta Consolidated,
as a contribution to capital, all assets owned by DHAC that are part of the
Delta Apparel Assets.
(e) DHAC shall transfer, as a contribution to capital, to Delta Apparel all
of the outstanding capital stock of Delta Consolidated.
(f) Delta Consolidated shall merge with and into Delta Apparel, with Delta
Apparel to be the surviving corporation in the merger.
(g) Delta Mills, Inc. ("Delta Mills") shall sell to Delta Apparel, and
Delta Apparel shall purchase from Delta Mills, the Rainsford Plant, located in
Edgefield, SC, for a purchase price equal to the book value of the purchased
assets, which Delta Woodside and Delta Apparel believe equals the fair market
value of those assets (the "Rainsford Plant Purchase").
(h) Delta Apparel (either directly or through Delta Consolidated) shall
assume all of the Liabilities of the Delta Apparel Company division of various
subsidiaries of Delta Woodside (the
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"Delta Apparel Obligations"), and shall cause all holders of indebtedness for
borrowed money that are part of the Delta Apparel Obligations and all lessors of
leases that are part of the Delta Apparel Obligations to release all obligors
(other than any member of the Delta Apparel Group) of such indebtedness and
under such leases and to release all related liens covering the property of any
Person other than a member of the Delta Apparel Group (except where Delta
Woodside or Duck Head, as applicable, consents to not being released from the
obligations).
(i) Delta Woodside shall cause those individuals who are employed by the
Delta Apparel Company division of various subsidiaries of Delta Woodside to
become employees of Delta Apparel, Delta Apparel shall assume the accrued
employee benefits of such employees and Delta Woodside shall cause the account
balance of each such employee in any and all of Delta Woodside's employee
benefit plans (other than the Delta Woodside Stock Option Plan and the Delta
Woodside Incentive Stock Award Plan) to be transferred to a comparable employee
benefit plan of Delta Apparel.
(j) DHAC shall transfer, as a contribution to capital, to Duck Head all of
the outstanding capital stock of Delta Merchandising and Cargud, S.A.
(k) Delta Woodside shall cause title to all assets used in the operation of
the Duck Head Apparel Company division of various subsidiaries of Delta Woodside
and all assets that pertain to such operation or to such assets (collectively,
the "Duck Head Assets"), other than the intellectual property assets owned by
Alchem that are part of the Duck Head Assets and the Distribution Facility,
located in Winder, GA, that is part of the Duck Head Assets, to be transferred
to Duck Head. In order to accomplish this, among other matters, DHAC shall
transfer to Duck Head, as a contribution to capital, all assets owned by DHAC
that are part of the Duck Head Assets.
(l) Duck Head shall assume all of the Liabilities of the Duck Head Apparel
Company division of various subsidiaries of Delta Woodside (the "Duck Head
Obligations"), and shall cause all holders of indebtedness for borrowed money
that are part of the Duck Head Obligations and all lessors of leases that are
part of the Duck Head Obligations to release all obligors (other than any member
of the Duck Head Group) of such indebtedness and under such leases and to
release all related liens covering the property of any Person other than a
member of the Duck Head Group (except where Delta Woodside or Delta Apparel, as
applicable, consents to not being released from the obligations).
(m) Delta Woodside shall cause those individuals who are employed by the
Duck Head Apparel Company division of various subsidiaries of Delta Woodside to
become employees of Duck Head, Duck Head shall assume the accrued employee
benefits of such employees and Delta Woodside shall cause the account balance of
each such employee in any and all of Delta Woodside's employee benefit plans
(other than the Delta Woodside Stock Option Plan and the Delta Woodside
Incentive Stock Award Plan) to be transferred to a comparable employee benefit
plan of Duck Head.
(n) Delta Woodside shall cause all holders of indebtedness for borrowed
money that are not part of the Duck Head Obligations or the Delta Apparel
Obligations and all lessors of leases that
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are not part of the Duck Head Obligations or the Delta Apparel Obligations to
release all obligors (other than any member of the Delta Woodside Group) of such
indebtedness and under such leases and to release all related liens covering the
property of any Person other than a member of the Delta Woodside Group (except
where Duck Head or Delta Apparel, as the case may be, consents to not being
released from the obligations).
(o) Delta Apparel shall transfer to Duck Head all of the sales operation
assets of Delta Apparel that, immediately prior to the merger described in
paragraph (f) above, were those of the Duck Head Apparel division of Delta
Consolidated, and Duck Head shall assume all of Delta Apparel's obligations
relating to such assets and the business of Delta Apparel that, immediately
prior to the merger described in paragraph (f) above, was the business of the
Duck Head Apparel division of Delta Consolidated, in exchange for a purchase
price equal to the fair market value of the purchased assets (less the assumed
liabilities).
(p) DHAC and IAMC shall merge with and into Alchem, with Alchem to be the
surviving corporation in the merger.
(q) Alchem shall transfer to Delta Apparel, as a contribution to capital,
all intellectual property assets, if any, owned by Alchem that are part of the
Delta Apparel Assets.
(r) Alchem shall transfer to Duck Head, as a contribution to capital, all
intellectual property assets owned by Alchem that are part of the Duck Head
Assets.
(s) Alchem shall merge with and into Delta Woodside, with Delta Woodside to
be the surviving corporation in the merger.
(t) Delta Woodside shall transfer to Duck Head, as a contribution to
capital, the Distribution Facility, located in Winder, GA, that is part of the
Duck Head Assets.
(u) Duck Head shall be renamed "Duck Head Apparel Company, Inc."
2.2 Duck Head Financing and Delta Apparel Financing.
----------------------------------------------------
(a) Prior to the Effective Time, Duck Head shall have obtained credit
facilities (the "Duck Head Financing") that Duck Head believes will be
sufficient to satisfy its reasonably anticipated working capital needs.
(b) Prior to the Effective Time, Delta Apparel shall have obtained credit
facilities (the "Delta Apparel Financing") that Delta Apparel believes will be
sufficient to pay the purchase price in the Rainsford Plant Purchase and to
satisfy Delta Apparel's reasonably anticipated working capital needs.
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ARTICLE 3
THE DISTRIBUTION
3.1 Cooperation Before the Distribution.
----------------------------------------
(a) Duck Head.
---------
(i) Delta Woodside and Duck Head have prepared, and Duck Head has
filed with the SEC, the Duck Head Form 10, which includes as an exhibit the
Duck Head Information Statement. The Duck Head Information Statement sets
forth disclosure concerning Duck Head and the Distribution. Delta Woodside
and Duck Head shall use all commercially reasonable efforts to cause the
Duck Head Form 10 (together with the Duck Head Information Statement
attached as an exhibit) to become effective under the Exchange Act as soon
as practicable. After the Duck Head Form 10 (together with the Duck Head
Information Statement attached as an exhibit) has become effective, Delta
Woodside shall mail the Duck Head Information Statement as promptly as
practicable to the Delta Woodside Stockholders of record as of the Record
Date.
(ii) As promptly as practicable, Duck Head shall prepare, file and
pursue an application to permit the listing of shares of the Duck Head
Common Stock on [the American Stock Exchange].
(b) Delta Apparel.
-------------
(i) Delta Woodside and Delta Apparel have prepared, and Delta Apparel
has filed with the SEC, the Delta Apparel Form 10, which includes as an
exhibit the Delta Apparel Information Statement. The Delta Apparel
Information Statement sets forth disclosure concerning Delta Apparel and
the Distribution. Delta Woodside and Delta Apparel shall use all
commercially reasonable efforts to cause the Delta Apparel Form 10
(together with the Delta Apparel Information Statement attached as an
exhibit) to become effective under the Exchange Act as soon as practicable.
After the Delta Apparel Form 10 (together with the Delta Apparel
Information Statement attached as an exhibit) has become effective, Delta
Woodside shall mail the Delta Apparel Information Statement as promptly as
practicable to the Delta Woodside Stockholders of record as of the Record
Date.
(ii) As promptly as practicable, Delta Apparel shall prepare, file and
pursue an application to permit the listing of shares of the Delta Apparel
Common Stock on [the American Stock Exchange].
(c) Plans. Delta Woodside, Duck Head and Delta Apparel shall cooperate in
-----
preparing and filing with the SEC and causing to become effective any
registration statements or amendments thereto that are necessary or appropriate
to reflect the establishment of or amendments to any
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employee benefit and other plans contemplated by the Distribution Documents.
(d) Blue Sky Laws. Delta Woodside, Duck Head and Delta Apparel shall take
-------------
all actions as may be necessary or appropriate under the securities or blue sky
laws of states or other political subdivisions of the United States in
connection with the transactions contemplated by the Distribution Documents.
3.2 Delta Woodside Board Action. The Delta Woodside Board shall, in its
----------------------------
discretion, establish (or delegate authority to establish) the Record Date and
the Distribution Date and any appropriate procedures in connection with the
Distribution.
3.3 The Distribution. Subject to the terms and conditions set forth or
-----------------
described in this Distribution Agreement, (i) on or before the Distribution
Date, Delta Woodside shall deliver or cause to be delivered to the Distribution
Agent for the benefit of the Delta Woodside Stockholders of record on the Record
Date, a stock certificate or certificates, endorsed by Delta Woodside in blank,
representing all of the then outstanding shares of Duck Head Common Stock, (ii)
on or before the Distribution Date, Delta Woodside shall deliver or cause to be
delivered to the Distribution Agent for the benefit of the Delta Woodside
Stockholders of record on the Record Date, a stock certificate or certificates,
endorsed by Delta Woodside in blank, representing all of the then outstanding
shares of Delta Apparel Common Stock, (iii) the Distribution shall be effective
as of the Effective Time, (iv) Delta Woodside and Duck Head shall instruct the
Distribution Agent to distribute to, or make book-entry credits for, on or as
soon as practicable after the Distribution Date, each Delta Woodside Stockholder
of record as of the Record Date one Duck Head Share for every ten Delta Woodside
Shares so held (subject to Section 3.5), and (v) Delta Woodside and Delta
Apparel shall instruct the Distribution Agent to distribute to, or make
book-entry credits for, on or as soon as practicable after the Distribution
Date, each Delta Woodside Stockholder of record as of the Record Date one Delta
Apparel Share for every ten Delta Woodside Shares so held (subject to Section
3.5). Duck Head agrees to (x) provide all certificates for Duck Head Shares that
Delta Woodside shall require (after giving effect to Sections 3.4 and 3.5) in
order to effect the Distribution and (y) take all necessary actions to adopt a
stock transfer and registration system for Duck Head effective as of the
Distribution Date. Delta Apparel agrees to (x) provide all certificates for
Delta Apparel Shares that Delta Woodside shall require (after giving effect to
Sections 3.4 and 3.5) in order to effect the Distribution and (y) take all
necessary actions to adopt a stock transfer and registration system for Delta
Apparel effective as of the Distribution Date.
3.4 Stock Dividends.
---------------
(a) Duck Head. On or before the Distribution Date, Duck Head shall issue to
---------
Delta Woodside as a stock dividend the number of additional shares of Duck Head
Common Stock that, together with the shares of Duck Head Common Stock already
held by Delta Woodside, will provide Delta Woodside with the number of shares of
Duck Head Common Stock that is required to effect the Distribution, as certified
by the Distribution Agent.
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<PAGE>
(b) Delta Apparel. On or before the Distribution Date, Delta Apparel shall
-------------
issue to Delta Woodside as a stock dividend the number of additional shares of
Delta Apparel Common Stock that, together with the shares of Delta Apparel
Common Stock already held by Delta Woodside, will provide Delta Woodside with
the number of shares of Delta Apparel Common Stock that is required to effect
the Distribution, as certified by the Distribution Agent.
3.5 Fractional Shares. No certificate or scrip representing fractional
------------------
shares of Duck Head Common Stock or Delta Apparel Common Stock will be issued in
the Distribution. In lieu of any such fractional share, each holder of Delta
Woodside Shares who otherwise would be entitled to a fractional share of Duck
Head Common Stock or Delta Apparel Common Stock shall be entitled to receive
promptly from the Distribution Agent a cash payment, without any interest,
representing such holder's proportionate interest in the net proceeds from the
sale or sales by the Distribution Agent on behalf of all such holders of the
aggregate fractional shares of Duck Head Common Stock and Delta Apparel Common
Stock, as applicable, pursuant to this Section 3.5 and the terms of the
Distribution Agent Agreement, after making appropriate deductions of the amount
required, if any, to be withheld for United States federal income tax purposes.
The Distribution Agent shall determine, in its sole discretion, when, how,
through which broker-dealer and at what price such sale(s) shall be made. All
cash in lieu of fractional Duck Head Shares or fractional Delta Apparel Shares
to be paid pursuant to this Section 3.5, if unclaimed at the first anniversary
of the Effective Time, shall be released and paid by the Distribution Agent to
Duck Head (in the case of the sale of fractional Duck Head Shares) and Delta
Apparel (in the case of the sale of fractional Delta Apparel Shares), after
which time persons entitled thereto may look, subject to applicable escheat and
other similar laws, only to the Duck Head or Delta Apparel, respectively, for
payment thereof. Delta Woodside, Duck Head and Delta Apparel will instruct the
Distribution Agent to do the following, as soon as practicable (subject to the
provisions set forth above) after the Effective Time: (a) to determine the
number of whole shares and fractional shares of Duck Head Common Stock and Delta
Apparel Common Stock allocable to each Delta Woodside Stockholder of record as
of the Record Date who, as a result of the Distribution, would own a fractional
share of Duck Head Common Stock or Delta Apparel Common Stock, as applicable,
(b) to aggregate all fractional shares of Duck Head Common Stock and all
fractional shares of Delta Apparel Common Stock held by those holders, and (c)
to sell the whole shares attributable to the aggregate of those fractional
shares, in one or more open market transactions, in each case at the then
prevailing market prices, and to cause to be distributed to each such holder, in
lieu of any fractional share, without interest, that holder's ratable share of
the proceeds of that sale, after making appropriate deductions of the amount
required, if any, to be withheld for United States federal income tax purposes.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF DELTA WOODSIDE
Delta Woodside represents and warrants to Duck Head and Delta Apparel that,
except as disclosed in the Delta Woodside Disclosure Schedule that has been
delivered to Duck Head and
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<PAGE>
Delta Apparel prior to the execution of this Distribution Agreement (the "Delta
Woodside Disclosure Schedule") or as contemplated by this Distribution
Agreement, as of immediately prior to the Effective Time the following will be
true and accurate:
4.1 Organization. Delta Woodside is a corporation duly organized and
------------
validly existing under the laws of the State of South Carolina.
4.2 Capitalization. (a) The authorized capital stock of Delta Woodside
---------------
consists of 50,000,000 shares of Delta Woodside Common Stock and 10,000,000
shares of Preferred Stock, $250,000,000 maximum par value per share (the "Delta
Woodside Preferred Stock"). As of the date hereof, 23,307,645 shares of Delta
Woodside Common Stock and no shares of Delta Woodside Preferred Stock are issued
and outstanding, and all such issued and outstanding shares of Delta Woodside
Common Stock were validly issued and are fully paid and nonassessable. As of the
date hereof, except for stock options to acquire an aggregate of 363,818 shares
of Delta Woodside Common Stock (collectively, the "Delta Woodside Stock
Options"), and except as contemplated by this Distribution Agreement, there are
no options, warrants, calls or other rights, agreements or commitments currently
outstanding obligating Delta Woodside to issue, deliver or sell shares of its
capital stock, or obligating Delta Woodside to grant, extend or enter into any
such option, warrant, call or other such right, agreement or commitment.
(b) All the outstanding shares of capital stock of each of Alchem, Delta
Consolidated, Delta Merchandising and DHAC are validly issued, fully paid and
nonassessable and are owned by Delta Woodside or by a wholly-owned Subsidiary of
Delta Woodside, free and clear of any Liens (other than Liens on the capital
stock of certain Subsidiaries of Delta Woodside granted in favor of General
Electric Capital Corporation ("GECC") in connection with the Credit Agreement to
which GECC, Delta Woodside and various Subsidiaries of Delta Woodside are
parties (the "Delta Woodside Credit Agreement") or granted in favor of BNY
Financial Corporation ("BNY"), as Collateral Agent, in connection with the
Credit Agreement to which Delta Mills, BNY and Bank of America, N.A., as
Administrative Agent, are parties (the "Delta Mills Credit Agreement")). All of
the outstanding shares of capital stock of each of Duck Head and Delta Apparel
are owned by Delta Woodside, free and clear of any Liens (other than Liens
granted in favor of GECC in connection with the Delta Woodside Credit Agreement,
which will be released prior to the Effective Time). There are no existing
options, warrants, calls or other rights, agreements or commitments of any
character relating to the sale, issuance or voting of any shares of the issued
or unissued capital stock of any of Alchem, Delta Consolidated, Delta
Merchandising or DHAC that have been issued, granted or entered into by Delta
Woodside or any of its Subsidiaries.
4.3 Authority Relative to this Distribution Agreement. Delta Woodside has
--------------------------------------------------
the necessary corporate power and authority to execute and deliver this
Distribution Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Distribution Agreement and the consummation
of the transactions contemplated hereby by Delta Woodside have been duly and
validly authorized and approved by Delta Woodside's Board of Directors and no
other corporate proceedings on the part of Delta Woodside are necessary to
authorize or approve this
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<PAGE>
Distribution Agreement or to consummate the transactions contemplated hereby.
This Distribution Agreement has been duly executed and delivered by Delta
Woodside, and, assuming the due authorization, execution and delivery by Duck
Head and Delta Apparel, constitutes the valid and binding obligation of Delta
Woodside enforceable against Delta Woodside in accordance with its terms except
as such enforceability may be limited by general principles of equity or
principles applicable to creditors' rights generally.
4.4 No Conflicts, Required Filings and Consents. (a) None of the execution
--------------------------------------------
and delivery of this Distribution Agreement by Delta Woodside, the consummation
by Delta Woodside of the transactions contemplated hereby or compliance by Delta
Woodside with any of the provisions hereof will (i) conflict with or violate the
Articles of Incorporation or By-laws of Delta Woodside or the comparable
organizational documents of any of Alchem, Delta Consolidated, Delta
Merchandising or DHAC, (ii) subject to receipt or filing of the required
Consents (as defined herein) referred to in Section 4.4(b), conflict with or
violate any statute, ordinance, rule, regulation, order, judgment or decree
applicable to Delta Woodside or any of Delta Woodside's Subsidiaries (other than
a member of the Duck Head Group or a member of the Delta Apparel Group), or by
which any of them or any of their respective properties or assets may be bound
or affected, or (iii) subject to receipt or filing of the required Consents
referred to in Section 4.4(b), result in a violation or breach of or constitute
a default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any lien, charge,
security interest, pledge, or encumbrance of any kind or nature (any of the
foregoing being a "Lien") on any of the property or assets of Delta Woodside or
any of Delta Woodside's Subsidiaries (other than a member of the Duck Head Group
or a member of the Delta Apparel Group) (any of the foregoing referred to in
clause (ii) or this clause (iii) being a "Violation") pursuant to, any note,
bond, mortgage, indenture, Contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Delta Woodside or any of
Delta Woodside's Subsidiaries (other than a member of the Duck Head Group or a
member of the Delta Apparel Group) is a party or by which Delta Woodside or any
of Delta Woodside's Subsidiaries (other than a member of the Duck Head Group or
a member of the Delta Apparel Group) or any of their respective properties may
be bound or affected, except in the case of the foregoing clause (ii) or (iii)
for any such Violations that would not have a Delta Woodside Material Adverse
Effect.
(b) None of the execution and delivery of this Distribution Agreement by
Delta Woodside, the consummation by Delta Woodside of the transactions
contemplated hereby or compliance by Delta Woodside with any of the provisions
hereof will require any consent, waiver, license, approval, authorization, order
or permit of, or registration or filing with or notification to (any of the
foregoing being a "Consent"), any Governmental Entity, except for (i) compliance
with any applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), (ii) compliance with any applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (iii) certain
state takeover, securities, "blue sky" and environmental statutes, (iv) such
filings as may be required in connection with the taxes described in Section
15.12 (b), and (v) Consents the failure of which to obtain or make would not
have a Delta Woodside Material Adverse Effect.
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4.5 Reports and Financial Statements. (a) Delta Woodside has filed with the
--------------------------------
SEC all forms, reports, schedules, registration statements and definitive proxy
statements (the "Delta Woodside SEC Reports") required to be filed by it with
the SEC since July 3, 1999, including without limitation those required to be
filed in connection with the Distribution. As of their respective dates, the
Delta Woodside SEC Reports complied as to form in all material respects with the
requirements of the Exchange Act or the Securities Act, as the case may be, and
the rules and regulations of the SEC thereunder applicable to such Delta
Woodside SEC Reports. As of their respective dates, the Delta Woodside SEC
Reports did not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b) The consolidated balance sheets as of July 3, 1999 and June 27, 1998
and the related consolidated statements of earnings, stockholders' equity and
cash flows for each of the three years in the period ended July 3, 1999
(including the related notes and schedules thereto) of Delta Woodside contained
in the Form 10-K of Delta Woodside for the year ended July 3, 1999 present
fairly, in all material respects, the consolidated financial position and the
consolidated results of operations and cash flows of Delta Woodside and its
consolidated subsidiaries as of the dates or for the periods presented therein
in conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis during the periods involved except as
otherwise noted therein, including in the related notes.
(c) The consolidated balance sheets and the related consolidated statements
of earnings and cash flows (including, in each case, the related notes thereto)
of Delta Woodside contained in the Form 10-Q of Delta Woodside for the quarterly
period ended January 1, 2000 (the "Delta Woodside Interim Financial Statements")
have been prepared in accordance with the requirements for interim financial
statements contained in Regulation S-X, which do not require all the information
and footnotes necessary for a fair presentation of financial position, results
of operations and cash flows in conformity with GAAP. The Delta Woodside Interim
Financial Statements reflect all adjustments necessary to present fairly in
accordance with GAAP (except as indicated), in all material respects, the
consolidated financial position, results of operations and cash flows of Delta
Woodside for all periods presented therein.
4.6 Information. None of the information supplied or to be supplied by
-----------
Delta Woodside or its Representatives for inclusion or incorporation by
reference in the Duck Head Information Statement or the Delta Apparel
Information Statement will or did, at the time of their distribution to the
Delta Woodside Stockholders as of the Record Date or the time of the
effectiveness of the Duck Head Form 10 or the Delta Apparel Form 10 with the
SEC, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
4.7 Litigation. Except as disclosed in the Delta Woodside SEC Reports, as
----------
of the date hereof, there is no suit, action or proceeding pending or, to the
knowledge of Delta Woodside, threatened
18
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against or affecting Delta Woodside or any of its Subsidiaries, nor is there any
judgment, decree, injunction or order of any Governmental Entity or arbitrator
outstanding against Delta Woodside or any of its Subsidiaries, that is
reasonably expected to have a Delta Woodside Material Adverse Effect or to
prevent or materially delay the consummation of the transactions contemplated in
this Distribution Agreement.
4.8 Absence of Certain Changes or Events. Except as disclosed in the Delta
------------------------------------
Woodside SEC Reports or as contemplated by this Distribution Agreement, since
January 1, 2000, Delta Woodside has conducted its business only in the ordinary
course and there has not been any change that would have a Delta Woodside
Material Adverse Effect, other than changes relating to or arising from general
economic conditions.
4.9 Employee Benefit Plans. Except as disclosed in the Delta Woodside SEC
-----------------------
Reports or the Delta Woodside Disclosure Schedule, there are no (a) employee
benefit or compensation plans, agreements or arrangements, including "employee
benefit plans," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and including, but not limited to,
plans, agreements or arrangements relating to former employees, including, but
not limited to, retiree medical plans or life insurance, maintained by Delta
Woodside or any of its Subsidiaries (other than a member of the Duck Head Group
or a member of the Delta Apparel Group) or (b) collective bargaining agreements
to which Delta Woodside or any of its Subsidiaries (other than a member of the
Duck Head Group or a member of the Delta Apparel Group) is a party
(collectively, the "Delta Woodside Benefit Plans"), other than plans, agreements
or arrangements that, in the aggregate, are not material to Delta Woodside and
its Subsidiaries (other than members of the Duck Head Group or members of the
Delta Apparel Group) as a whole. Delta Woodside and its Subsidiaries (other than
members of the Duck Head Group or members of the Delta Apparel Group) have
complied with the terms of all Delta Woodside Benefit Plans, except for such
noncompliance that would not have a Delta Woodside Material Adverse Effect, and
no default exists with respect to the obligations of Delta Woodside or any of
its Subsidiaries (other than members of the Duck Head Group or members of the
Delta Apparel Group) under such Delta Woodside Benefit Plans that would have a
Delta Woodside Material Adverse Effect. Since July 3, 1999, there have been no
disputes, grievances subject to any grievance procedure, unfair labor practice
proceedings, arbitration or litigation (or, to the knowledge of Delta Woodside,
threatened proceedings or grievances) under such Delta Woodside Benefit Plans,
that have not been finally resolved, settled or otherwise disposed of, nor is
there any default, or any condition that, with notice or lapse of time or both,
would constitute such a default, under any such Delta Woodside Benefit Plan, by
Delta Woodside or its Subsidiaries (excluding members of the Duck Head Group and
members of the Delta Apparel Group) or, to the best knowledge of Delta Woodside,
any other party thereto, other than disputes, grievances, arbitration,
litigation, proceedings, threatened proceedings or grievances, defaults or
conditions that would not have a Delta Woodside Material Adverse Effect. Since
July 3, 1999, there have been no strikes, lockouts or work stoppages or
slowdowns, or to the best knowledge of Delta Woodside, labor jurisdictional
disputes or labor organizing activity occurring or threatened with respect to
the business or operations of Delta Woodside or its Subsidiaries (excluding
members of the Duck Head Group and members of the Delta Apparel Group) that have
19
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had or would have a Delta Woodside Material Adverse Effect.
4.10 ERISA. All Delta Woodside Benefit Plans are in compliance with the
-----
applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended
(the "Code"), all other applicable laws and all applicable collective bargaining
agreements, in each case, to the extent applicable, except where such failures
to administer or comply would not have a Delta Woodside Material Adverse Effect.
Each of the Delta Woodside Benefit Plans that is intended to meet the
requirements of Section 401(a) of the Code has been determined by the Internal
Revenue Service ("IRS") to be "qualified," within the meaning of such Section of
the Code and Delta Woodside does not know of any circumstance likely to result
in revocation of such determination. No Delta Woodside Benefit Plan is subject
to Title IV of ERISA or Section 412 of the Code. Neither Delta Woodside nor any
of its Subsidiaries (excluding members of the Duck Head Group and member of the
Delta Apparel Group) (i) has made a complete or partial withdrawal, within the
meaning of Section 4201 of ERISA, from any multiemployer plan or (ii) currently
is a sponsor of or contributes to a multiemployer plan. Neither Delta Woodside
nor any of its Subsidiaries (excluding members of the Duck Head Group and
members of the Delta Apparel Group) has maintained a plan subject to Title IV of
ERISA at any time within the last five years. Except as disclosed in the Delta
Woodside SEC Reports or in the Delta Woodside Disclosure Schedule, neither the
execution and delivery of this Distribution Agreement nor the consummation of
the transactions contemplated hereby will (i) materially increase any benefits
otherwise payable under any Delta Woodside Benefit Plan or (ii) result in the
acceleration of the time of payment or vesting of any such benefits to any
material extent.
4.11 Taxes. Delta Woodside and its Subsidiaries (excluding members of the
-----
Duck Head Group and members of the Delta Apparel Group) have duly filed all
foreign, federal, state and local income, franchise, excise, real and personal
property and other tax returns and reports (including, but not limited to, those
filed on a consolidated, combined or unitary basis) required to have been filed
by Delta Woodside and its Subsidiaries (excluding members of the Duck Head Group
and members of the Delta Apparel Group) prior to the Distribution Date, except
for such returns or reports the failure to file which would not have a Delta
Woodside Material Adverse Effect. All of the foregoing returns and reports are
true and correct in all material respects, and Delta Woodside and its
Subsidiaries (excluding members of the Duck Head Group and members of the Delta
Apparel Group) have paid, or prior to the Effective Time will pay, all taxes,
interest and penalties shown on such returns or reports as being due or (except
to the extent the same are contested in good faith) claimed to be due to any
federal, state, local or other taxing authority. Delta Woodside and its
Subsidiaries (other than any member of the Duck Head Group or the Delta Apparel
Group) have paid and will pay all installments of estimated taxes due on or
before the Effective Time, except for any failure to do so that would not have a
Delta Woodside Material Adverse Effect. All taxes and state assessments and
levies that Delta Woodside and its Subsidiaries (excluding members of the Duck
Head Group and members of the Delta Apparel Group) are required by law to
withhold or collect have been withheld or collected and have been paid to the
proper governmental authorities or are held by Delta Woodside for such payment,
except for any failure to do so that would not have a Delta Woodside Material
Adverse Effect. Except as disclosed in the Delta Woodside Disclosure
20
<PAGE>
Schedule, as of the date hereof, all deficiencies proposed as a result of any
audits have been paid or settled.
4.12 Compliance with Applicable Laws. Delta Woodside and its Subsidiaries
--------------------------------
(excluding members of the Duck Head Group and members of the Delta Apparel
Group) hold all permits, licenses, variances, exemptions, orders and approvals
of all Governmental Entities necessary for them to own, lease or operate their
properties and assets and to carry on their businesses substantially as now
conducted (the "Delta Woodside Permits"), except for such permits, licenses,
variances, exemptions, orders and approvals the failure of which to hold would
not have a Delta Woodside Material Adverse Effect. Delta Woodside and its
Subsidiaries (excluding members of the Duck Head Group and members of the Delta
Apparel Group) are in compliance with all applicable laws and the terms of Delta
Woodside Permits, except for such failures so to comply that would not have a
Delta Woodside Material Adverse Effect.
4.13 No Voting Requirement. No vote of the holders of any class or series
----------------------
of Delta Woodside's capital stock is necessary to approve this Distribution
Agreement and the transactions contemplated by this Distribution Agreement.
4.14 Brokers. No broker or finder is entitled to any broker's or finder's
-------
fee in connection with the transactions contemplated by this Distribution
Agreement based upon arrangements made by or on behalf of Delta Woodside.
4.15 Undisclosed Liabilities. Except as disclosed in Delta Woodside's
------------------------
Quarterly Report on Form 10-Q for the fiscal quarter ended January 1, 2000 (or
in any subsequently filed Delta Woodside SEC Reports), neither Delta Woodside
nor any of its Subsidiaries (excluding members of the Duck Head Group and
members of the Delta Apparel Group) has any liabilities or any obligations of
any nature whether or not accrued, contingent or otherwise, that would be
required by GAAP to be reflected on a consolidated balance sheet of Delta
Woodside and its Subsidiaries (including the notes thereto) (excluding members
of the Duck Head Group and members of the Delta Apparel Group), except for
liabilities or obligations incurred in the ordinary course of business since
January 1, 2000 that would not have a Delta Woodside Material Adverse Effect or
contemplated to be incurred by this Distribution Agreement.
4.16 Environmental Matters. Except as disclosed in the Delta Woodside SEC
----------------------
Reports or as would not reasonably be expected to have a Delta Woodside Material
Adverse Effect: (i) to the best knowledge of Delta Woodside no real property
currently or formerly owned or operated by Delta Woodside or any current
Subsidiary (excluding members of the Duck Head Group and members of the Delta
Apparel Group) is contaminated with any Hazardous Substances (as defined below)
to an extent or in a manner or condition now requiring remediation under any
Environmental Law (as defined below); (ii) no judicial or administrative
proceeding is pending or to the best knowledge of Delta Woodside threatened
against Delta Woodside or any of its Subsidiaries (excluding members of the Duck
Head Group and members of the Delta Apparel Group) relating to liability for any
off-site disposal or contamination; and (iii) Delta Woodside and its
Subsidiaries (excluding members
21
<PAGE>
of the Duck Head Group and members of the Delta Apparel Group) have not received
any claims or notices alleging liability under any Environmental Law, and Delta
Woodside has no knowledge of any circumstances that could result in such claims.
"Environmental Law" means any applicable federal, state or local law,
regulation, order, decree or judicial opinion or other agency requirement having
the force and effect of law and relating to noise, odor, Hazardous Substance or
the protection of the environment. "Hazardous Substance" means any toxic or
hazardous substance that is regulated by or under authority of any Environmental
Law, including any petroleum products, asbestos or polychlorinated biphenyls.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF DUCK HEAD
Duck Head represents and warrants to Delta Woodside and Delta Apparel that,
except as disclosed in the Duck Head Disclosure Schedule that has been delivered
to Delta Woodside and Delta Apparel prior to the execution of this Distribution
Agreement (the "Duck Head Disclosure Schedule") or as contemplated by this
Distribution Agreement, as of immediately prior to the Effective Time the
following will be true and accurate:
5.1 Organization and Qualification. Duck Head is a corporation duly
--------------------------------
organized, validly existing and in good standing under the laws of the State of
Georgia. Each of Duck Head and each of its Subsidiaries has the requisite
corporate power and authority to carry on its business as it is now being
conducted and is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified will not have a Duck Head
Material Adverse Effect.
5.2 Capitalization. (a) The authorized capital stock of Duck Head consists
--------------
of 9,000,000 shares of Duck Head Common Stock and 2,000,000 shares of Preferred
Stock, $0.01 par value per share (the "Duck Head Preferred Stock"). As of the
date hereof, 100 shares of Duck Head Common Stock and no shares of Duck Head
Preferred Stock were issued and outstanding, and all such issued and outstanding
shares of Duck Head Common Stock were validly issued and are fully paid and
nonassessable. As of the date hereof, except for a right held by Robert D.
Rockey, Jr. to acquire 1,000,000 shares of Duck Head Common Stock and an
agreement to grant to Mr. Rockey incentive stock awards and stock options to
acquire shares of Duck Head Common Stock, and except as contemplated by this
Distribution Agreement, there were no options, warrants, calls or other rights,
agreements or commitments currently outstanding obligating Duck Head to issue,
deliver or sell shares of its capital stock, or obligating Duck Head to grant,
extend or enter into any such option, warrant, call or other such right,
agreement or commitment.
(b) All the outstanding shares of capital stock of each Subsidiary of Duck
Head are validly issued, fully paid and nonassessable and are owned by Duck Head
or by a wholly-owned Subsidiary
22
<PAGE>
of Duck Head, free and clear of any Liens (except Liens granted to GECC in
connection with the Delta Woodside Credit Facility, which will be released prior
to the Effective Time). There are no existing options, warrants, calls or other
rights, agreements or commitments of any character relating to the sale,
issuance or voting of any shares of the issued or unissued capital stock of any
of the Subsidiaries of Duck Head that have been issued, granted or entered into
by Duck Head or any of its Subsidiaries.
5.3 Authority Relative to This Distribution Agreement. Duck Head has the
---------------------------------------------------
necessary corporate power and authority to execute and deliver this Distribution
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Distribution Agreement and the consummation of the
transactions contemplated hereby by Duck Head have been duly and validly
authorized and approved by Duck Head's Board of Directors and no other corporate
proceedings on the part of Duck Head are necessary to authorize or approve this
Distribution Agreement or to consummate the transactions contemplated hereby.
This Distribution Agreement has been duly executed and delivered by Duck Head,
and, assuming the due authorization, execution and delivery by Delta Woodside
and Delta Apparel, constitutes the valid and binding obligation of Duck Head
enforceable against Duck Head in accordance with its terms except as such
enforceability may be limited by general principles of equity or principles
applicable to creditors' rights generally.
5.4 No Conflicts, Required Filings and Consents. (a) None of the execution
--------------------------------------------
and delivery of this Distribution Agreement by Duck Head, the consummation by
Duck Head of the transactions contemplated hereby or compliance by Duck Head
with any of the provisions hereof will (i) conflict with or violate the Articles
of Incorporation or By-laws of Duck Head or the comparable organizational
documents of any of Duck Head's Subsidiaries, (ii) subject to receipt or filing
of the required Consents referred to in Section 5.4(b), result in a Violation of
any statute, ordinance, rule, regulation, order, judgment or decree applicable
to Duck Head or any of Duck Head's Subsidiaries, or by which any of them or any
of their respective properties or assets may be bound or affected, or (iii)
subject to receipt or filing of the required Consents referred to in Section
5.4(b), result in a Violation pursuant to, any note, bond, mortgage, indenture,
Contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Duck Head or any of Duck Head's Subsidiaries is a party or
by which Duck Head or any of Duck Head's Subsidiaries or any of their respective
properties may be bound or affected, except in the case of the foregoing clause
(ii) or (iii) for any such Violations that would not have a Duck Head Material
Adverse Effect.
(b) None of the execution and delivery of this Distribution Agreement by
Duck Head, the consummation by Duck Head of the transactions contemplated hereby
or compliance by Duck Head with any of the provisions hereof will require any
Consent of any Governmental Entity, except for (i) compliance with any
applicable requirements of the Securities Act and the Exchange Act, (ii) certain
state takeover, securities, "blue sky" and environmental statutes, (iii) such
filings as may be required in connection with the taxes described in Section
15.12(b), and (iv) Consents the failure of which to obtain or make would not
have a Duck Head Material Adverse Effect.
5.5 Reports and Financial Statements. (a) Duck Head has filed with the SEC
--------------------------------
the Duck Head
23
<PAGE>
Form 10, and the Duck Head Form 10 will be the only registration statement
required to be filed by it with the SEC in connection with the Distribution. As
of its effective date, the Duck Head Form 10 complied as to form in all material
respects with the requirements of the Exchange Act and the applicable rules and
regulations of the SEC. As of its effective date and as of the date that the
Duck Head Information Statement is distributed to the Delta Woodside
Stockholders as of the Record Date, the Duck Head Form 10 did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The combined balance sheets as of July 3, 1999 and June 27, 1998 and
the related combined statements of earnings, stockholders' equity and cash flows
for each of the three years in the period ended July 3, 1999 (including the
related notes and schedules thereto) of Duck Head that are contained in the Duck
Head Information Statement present fairly, in all material respects, the
combined financial position and the combined results of operations and cash
flows of Duck Head and its consolidated Subsidiaries as of the dates or for the
periods presented therein in conformity with GAAP applied on a consistent basis
during the periods involved except as otherwise noted therein, including in the
related notes.
(c) The combined balance sheets and the related statements of earnings and
cash flows (including, in each case, the related notes thereto) of Duck Head
that are contained in the Duck Head Information Statement for the six months
ended January 1, 2000 (the "Duck Head Interim Financial Statements") have been
prepared in accordance with the requirements for interim financial statements
contained in Regulation S-X, which do not require all the information and
footnotes necessary for a fair presentation of financial position, results of
operations and cash flows in conformity with GAAP. The Duck Head Interim
Financial Statements reflect all adjustments necessary to present fairly in
accordance with GAAP (except as indicated), in all material respects, the
combined financial position, results of operations and cash flows of Duck Head
for all periods presented therein.
(d) The combined pro forma balance sheet as of January 1, 2000 and the
related combined pro forma statements of operations for the year ended July 3,
1999 and the six months ended January 1, 2000 (including the related notes and
schedules thereto) of Duck Head contained in the Duck Head Information Statement
have been prepared in accordance with the requirements for pro forma financial
statements contained in Regulation S-X, which do not require all the information
and footnotes necessary for a fair presentation of financial position or results
of operations in conformity with GAAP, and reflect all adjustments necessary to
present fairly in accordance with GAAP (except as indicated), in all material
respects, the combined pro forma financial position and results of operations of
Duck Head as of the dates and for the periods presented therein.
5.6 Information. None of the information supplied or to be supplied by Duck
-----------
Head or its Representatives for inclusion or incorporation by reference in the
Duck Head Form 10 or the Duck Head Information Statement will or did, at the
time of its distribution to the Delta Woodside
24
<PAGE>
Stockholders as of the Record Date or the time of the effectiveness of the Duck
Head Form 10 with the SEC, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. The Duck Head Form 10 and the Duck Head
Information Statement comply as to form in all material respects with the
applicable provisions of the Securities Act and the Exchange Act and the rules
and regulations thereunder, except that no representation is made by Duck Head
with respect to statements made or incorporated by reference therein based on
information supplied by Delta Woodside or Delta Apparel for inclusion or
incorporation by reference therein.
5.7 Litigation. Except as disclosed in the Duck Head Disclosure Statement,
----------
as of the date hereof, there is no suit, action or proceeding pending or, to the
knowledge of Duck Head, threatened against or affecting Duck Head or any of its
Subsidiaries, nor is there any judgment, decree, injunction or order of any
Governmental Entity or arbitrator outstanding against Duck Head or any of its
Subsidiaries, that is reasonably expected to have a Duck Head Material Adverse
Effect or to prevent or materially delay the consummation of the transactions
contemplated in this Distribution Agreement.
5.8 Absence of Certain Changes or Events. Except as disclosed in the Duck
-------------------------------------
Head Information Statement or as contemplated by this Distribution Agreement,
since January 1, 2000, Duck Head has conducted its business only in the ordinary
course, and there has not been any change that would have a Duck Head Material
Adverse Effect, other than changes relating to or arising from general economic
conditions.
5.9 Employee Benefit Plans. Except as disclosed in the Duck Head
------------------------
Information Statement or the Duck Head Disclosure Schedule, there are no (a)
employee benefit or compensation plans, agreements or arrangements, including
"employee benefit plans," as defined in Section 3(3) of ERISA, and including,
but not limited to, plans, agreements or arrangements relating to former
employees, including, but not limited to, retiree medical plans or life
insurance, maintained by Duck Head or any of its Subsidiaries or (b) collective
bargaining agreements to which Duck Head or any of its Subsidiaries is a party
(collectively, the "Duck Head Benefit Plans"), other than plans, agreements or
arrangements that, in the aggregate, are not material to Duck Head and its
Subsidiaries as a whole. Duck Head and its Subsidiaries have complied with the
terms of all Duck Head Benefit Plans, except for such noncompliance that would
not have a Duck Head Material Adverse Effect, and no default exists with respect
to the obligations of Duck Head or any of its Subsidiaries under such Duck Head
Benefit Plans that would have a Duck Head Material Adverse Effect. Since July 3,
1999, there have been no disputes, grievances subject to any grievance
procedure, unfair labor practice proceedings, arbitration or litigation (or, to
the knowledge of Duck Head, threatened proceedings or grievances) under such
Duck Head Benefit Plans, that have not been finally resolved, settled or
otherwise disposed of, nor is there any default, or any condition that, with
notice or lapse of time or both, would constitute such a default, under any such
Duck Head Benefit Plans, by Duck Head or its Subsidiaries or, to the best
knowledge of Duck Head, any other party thereto, other than disputes,
grievances, arbitration, litigation, proceedings, threatened proceedings or
grievances,
25
<PAGE>
defaults or conditions that would not have a Duck Head Material Adverse Effect.
Since July 3, 1999, there have been no strikes, lockouts or work stoppages or
slowdowns, or to the best knowledge of Duck Head, labor jurisdictional disputes
or labor organizing activity occurring or threatened with respect to the
business or operations of Duck Head or its Subsidiaries that have had or would
have a Duck Head Material Adverse Effect.
5.10 ERISA. All the Duck Head Benefit Plans are in compliance with the
-----
applicable provisions of ERISA, the Code, all other applicable laws and all
applicable collective bargaining agreements, in each case, to the extent
applicable, except where such failures to administer or comply would not have a
Duck Head Material Adverse Effect. Each of the Duck Head Benefit Plans that is
intended to meet the requirements of Section 401(a) of the Code has been or will
be determined by the IRS to be "qualified," within the meaning of such Section
of the Code and Duck Head does not know of any circumstances likely to result in
revocation of such determination. No Duck Head Benefit Plan is subject to Title
IV of ERISA or Section 412 of the Code. Neither Duck Head nor any of its
Subsidiaries (i) has made a complete or partial withdrawal, within the meaning
of Section 4201 of ERISA, from any multiemployer plan or (ii) currently is a
sponsor of or contributes to a multiemployer plan. Neither Duck Head nor any of
its Subsidiaries has maintained a plan subject to Title IV of ERISA at any time
within the last five years. Except in their capacities as shareholders of Delta
Woodside and except as disclosed in the Duck Head Information Statement or in
the Duck Head Disclosure Schedule, neither the execution and delivery of this
Distribution Agreement nor the consummation of the transactions contemplated
hereby will (i) result in any material payment (including, without limitation,
severance, unemployment compensation or golden parachute) becoming due to any
director or executive officer of Duck Head, (ii) materially increase any
benefits otherwise payable under any Duck Head Benefit Plan or (iii) result in
the acceleration of the time of payment or vesting of any such benefits to any
material extent.
5.11 Taxes. Duck Head and its Subsidiaries have duly filed all foreign,
-----
federal, state and local income, franchise, excise, real and personal property
and other tax returns and reports (including, but not limited to, those filed on
a consolidated, combined or unitary basis) required to have been filed by Duck
Head and its Subsidiaries prior to the date hereof, except for such returns or
reports the failure to file which would not have a Duck Head Material Adverse
Effect. All of the foregoing returns and reports are true and correct in all
material respects, and Duck Head and its Subsidiaries have paid or, prior to the
Effective Time will pay, all taxes, interest and penalties shown on such returns
or reports as being due or (except to the extent the same are contested in good
faith) claimed to be due to any federal, state, local or other taxing authority.
Duck Head and its Subsidiaries have paid and will pay all installments of
estimated taxes due on or before the Effective Time, except for any failure to
do so that would not have a Duck Head Material Adverse Effect. All taxes and
state assessments and levies that Duck Head and its Subsidiaries are required by
law to withhold or collect have been withheld or collected and have been paid to
the proper governmental authorities or are held by Duck Head for such payment,
except for any failure to do so that would not have a Duck Head Material Adverse
Effect. Duck Head and its Subsidiaries have paid or made adequate provision in
the financial statements of Duck Head for all taxes payable in respect of all
periods ended on or prior to January 1, 2000, except for such taxes that would
not have a Duck Head
26
<PAGE>
Material Adverse Effect. As of the date hereof, all deficiencies proposed as a
result of any audits have been paid or settled.
5.12 Compliance with Applicable Laws. Duck Head and its Subsidiaries hold
-------------------------------
all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary for them to own, lease or operate their
properties and assets and to carry on their businesses substantially as now
conducted (the "Duck Head Permits"), except for such permits, licenses,
variances, exemptions, orders and approvals the failure of which to hold would
not have a Duck Head Material Adverse Effect. Duck Head and its Subsidiaries are
in compliance with all applicable laws and the terms of Duck Head Permits,
except for such failures so to comply that would not have a Duck Head Material
Adverse Effect.
5.13 Brokers. No broker or finder is entitled to any broker's or finder's
-------
fee in connection with the transactions contemplated by this Distribution
Agreement based upon arrangements made by or on behalf of Duck Head.
5.14 Undisclosed Liabilities. Except as disclosed in the Duck Head
------------------------
Information Statement, neither Duck Head nor any of its Subsidiaries has any
liabilities or any obligations of any nature whether or not accrued, contingent
or otherwise, that would be required by GAAP to be reflected on a consolidated
balance sheet of Duck Head and its Subsidiaries (including the notes thereto),
except for liabilities or obligations incurred in the ordinary course of
business since January 1, 2000 that would not have a Duck Head Material Adverse
Effect or contemplated to be incurred by this Distribution Agreement.
5.15 Environmental Matters. Except as disclosed in the Duck Head SEC
----------------------
Reports or as would not reasonably be expected to have a Duck Head Material
Adverse Effect: (i) to the best knowledge of Duck Head no real property
currently or formerly owned or operated by Duck Head or any current Subsidiary
is contaminated with any Hazardous Substances to an extent or in a manner or
condition now requiring remediation under any Environmental Law; (ii) no
judicial or administrative proceeding is pending or to the best knowledge of
Duck Head threatened against Duck Head or its Subsidiaries relating to liability
for any off-site disposal or contamination; and (iii) Duck Head and its
Subsidiaries have not received any claims or notices alleging liability under
any Environmental Law, and Duck Head has no knowledge of any circumstance that
could result in such claims.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF DELTA APPAREL
Delta Apparel represents and warrants to Delta Woodside and Duck Head that,
except as disclosed in the Delta Apparel Disclosure Schedule that has been
delivered to Delta Woodside and Duck Head prior to the execution of this
Distribution Agreement (the "Delta Apparel Disclosure Schedule") or as
contemplated by this Distribution Agreement, as of immediately prior to the
27
<PAGE>
Effective Time the following will be true and accurate:
6.1 Organization and Qualification. Delta Apparel is a corporation duly
--------------------------------
organized, validly existing and in good standing under the laws of the State of
Georgia. Each of Delta Apparel and each of its Subsidiaries has the requisite
corporate power and authority to carry on its business as it is now being
conducted and is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified will not have a Delta
Apparel Material Adverse Effect.
6.2 Capitalization. (a) The authorized capital stock of Delta Apparel
--------------
consists of 7,500,000 shares of Delta Apparel Common Stock and 2,000,000 shares
of Preferred Stock, $0.01 par value per share (the "Delta Apparel Preferred
Stock"). As of the date hereof, 100 shares of Delta Apparel Common Stock and no
shares of Delta Apparel Preferred Stock were issued and outstanding, and all
such issued and outstanding shares of Delta Apparel Common Stock were validly
issued and are fully paid and nonassessable. As of the date hereof, except as
contemplated by this Distribution Agreement, there were no options, warrants,
calls or other rights, agreements or commitments currently outstanding
obligating Delta Apparel to issue, deliver or sell shares of its capital stock,
or obligating Delta Apparel to grant, extend or enter into any such option,
warrant, call or other such right, agreement or commitment.
(b) All the outstanding shares of capital stock of each Subsidiary of Delta
Apparel are validly issued, fully paid and nonassessable and are owned by Delta
Apparel or by a wholly-owned Subsidiary of Delta Apparel (except for certain
shares of the preferred stock of Delta Apparel Honduras, S.A. that are held by
directors of Delta Apparel as a result of Honduran law requirements), free and
clear of any Liens (except Liens granted to GECC in connection with the Delta
Woodside Credit Facility). There are no existing options, warrants, calls or
other rights, agreements or commitments of any character relating to the sale,
issuance or voting of any shares of the issued or unissued capital stock of any
of the Subsidiaries of Delta Apparel that have been issued, granted or entered
into by Delta Apparel or any of its Subsidiaries.
6.3 Authority Relative to This Distribution Agreement. Delta Apparel has
---------------------------------------------------
the necessary corporate power and authority to execute and deliver this
Distribution Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Distribution Agreement and the consummation
of the transactions contemplated hereby by Delta Apparel have been duly and
validly authorized and approved by Delta Apparel's Board of Directors and no
other corporate proceedings on the part of Delta Apparel are necessary to
authorize or approve this Distribution Agreement or to consummate the
transactions contemplated hereby. This Distribution Agreement has been duly
executed and delivered by Delta Apparel, and, assuming the due authorization,
execution and delivery by Delta Woodside and Duck Head, constitutes the valid
and binding obligation of Delta Apparel enforceable against Delta Apparel in
accordance with its terms except as such enforceability may be limited by
general principles of equity or principles applicable to creditors' rights
generally.
28
<PAGE>
6.4 No Conflicts, Required Filings and Consents. (a) None of the execution
--------------------------------------------
and delivery of this Distribution Agreement by Delta Apparel, the consummation
by Delta Apparel of the transactions contemplated hereby or compliance by Delta
Apparel with any of the provisions hereof will (i) conflict with or violate the
Articles of Incorporation or By-laws of Delta Apparel or the comparable
organizational documents of any of Delta Apparel's Subsidiaries, (ii) subject to
receipt or filing of the required Consents referred to in Section 6.4(b), result
in a Violation of any statute, ordinance, rule, regulation, order, judgment or
decree applicable to Delta Apparel or any of Delta Apparel's Subsidiaries, or by
which any of them or any of their respective properties or assets may be bound
or affected, or (iii) subject to receipt or filing of the required Consents
referred to in Section 6.4(b), result in a Violation pursuant to, any note,
bond, mortgage, indenture, Contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Delta Apparel or any of
Delta Apparel's Subsidiaries is a party or by which Delta Apparel or any of
Delta Apparel's Subsidiaries or any of their respective properties may be bound
or affected, except in the case of the foregoing clause (ii) or (iii) for any
such Violations that would not have a Delta Apparel Material Adverse Effect.
(b) None of the execution and delivery of this Distribution Agreement by
Delta Apparel, the consummation by Delta Apparel of the transactions
contemplated hereby or compliance by Delta Apparel with any of the provisions
hereof will require any Consent of any Governmental Entity, except for (i)
compliance with any applicable requirements of the Securities Act and the
Exchange Act, (ii) certain state takeover, securities, "blue sky" and
environmental statutes, (iii) such filings as may be required in connection with
the taxes described in Section 15.12(b), and (iv) Consents the failure of which
to obtain or make would not have a Delta Apparel Material Adverse Effect.
6.5 Reports and Financial Statements. (a) Delta Apparel has filed with the
--------------------------------
SEC the Delta Apparel Form 10, and the Delta Apparel Form 10 will be the only
registration statement required to be filed by it with the SEC in connection
with the Distribution. As of its effective date, the Delta Apparel Form 10
complied as to form in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the SEC. As of its
effective date and as of the date that the Delta Apparel Information Statement
is distributed to the Delta Woodside Stockholders as of the Record Date, the
Delta Apparel Form 10 did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(b) The combined balance sheets as of July 3, 1999 and June 27, 1998 and
the related combined statements of earnings, stockholders' equity and cash flows
for each of the three years in the period ended July 3, 1999 (including the
related notes and schedules thereto) of Delta Apparel that are contained in the
Delta Apparel Information Statement present fairly, in all material respects,
the combined financial position and the combined results of operations and cash
flows of Delta Apparel and its consolidated Subsidiaries as of the dates or for
the periods presented therein in conformity with GAAP applied on a consistent
basis during the periods involved except as otherwise noted therein, including
in the related notes.
29
<PAGE>
(c) The combined balance sheets and the related statements of earnings and
cash flows (including, in each case, the related notes thereto) of Delta Apparel
that are contained in the Delta Apparel Information Statement for the six months
ended January 1, 2000 (the "Delta Apparel Interim Financial Statements") have
been prepared in accordance with the requirements for interim financial
statements contained in Regulation S-X, which do not require all the information
and footnotes necessary for a fair presentation of financial position, results
of operations and cash flows in conformity with GAAP. The Delta Apparel Interim
Financial Statements reflect all adjustments necessary to present fairly in
accordance with GAAP (except as indicated), in all material respects, the
combined financial position, results of operations and cash flows of Delta
Apparel for all periods presented therein.
(d) The combined pro forma balance sheet as of January 1, 2000 and the
related combined pro forma statements of operations for the year ended July 3,
1999 and the six months ended January 1, 2000 (including the related notes and
schedules thereto) of Delta Apparel contained in the Delta Apparel Information
Statement have been prepared in accordance with the requirements for pro forma
financial statements contained in Regulation S-X, which do not require all the
information and footnotes necessary for a fair presentation of financial
position or results of operations in conformity with GAAP, and reflect all
adjustments necessary to present fairly in accordance with GAAP (except as
indicated), in all material respects, the combined pro forma financial position
and results of operations of Delta Apparel as of the dates and for the periods
presented therein.
6.6 Information. None of the information supplied or to be supplied by
-----------
Delta Apparel or its Representatives for inclusion or incorporation by reference
in the Delta Apparel Form 10 or the Delta Apparel Information Statement will or
did, at the time of its distribution to the Delta Woodside Stockholders as of
the Record Date or the time of the effectiveness of the Delta Apparel Form 10
with the SEC, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made,
not misleading. The Delta Apparel Form 10 and the Delta Apparel Information
Statement comply as to form in all material respects with the applicable
provisions of the Securities Act and the Exchange Act and the rules and
regulations thereunder, except that no representation is made by Delta Apparel
with respect to statements made or incorporated by reference therein based on
information supplied by Delta Woodside or Duck Head for inclusion or
incorporation by reference therein.
6.7 Litigation. Except as disclosed in the Delta Apparel Disclosure
----------
Statement, as of the date hereof, there is no suit, action or proceeding pending
or, to the knowledge of Delta Apparel, threatened against or affecting Delta
Apparel or any of its Subsidiaries, nor is there any judgment, decree,
injunction or order of any Governmental Entity or arbitrator outstanding against
Delta Apparel or any of its Subsidiaries, that is reasonably expected to have a
Delta Apparel Material Adverse Effect or to prevent or materially delay the
consummation of the transactions contemplated in this Distribution Agreement.
30
<PAGE>
6.8 Absence of Certain Changes or Events. Except as disclosed in the Delta
------------------------------------
Apparel Information Statement or as contemplated by this Distribution Agreement,
since January 1, 2000, Delta Apparel has conducted its business only in the
ordinary course, and there has not been any change that would have a Delta
Apparel Material Adverse Effect, other than changes relating to or arising from
general economic conditions.
6.9 Employee Benefit Plans. Except as disclosed in the Delta Apparel
------------------------
Information Statement or the Delta Apparel Disclosure Schedule, there are no (a)
employee benefit or compensation plans, agreements or arrangements, including
"employee benefit plans," as defined in Section 3(3) of ERISA, and including,
but not limited to, plans, agreements or arrangements relating to former
employees, including, but not limited to, retiree medical plans or life
insurance, maintained by Delta Apparel or any of its Subsidiaries or (b)
collective bargaining agreements to which Delta Apparel or any of its
Subsidiaries is a party (collectively, the "Delta Apparel Benefit Plans"), other
than plans, agreements or arrangements that, in the aggregate, are not material
to Delta Apparel and its Subsidiaries as a whole. Delta Apparel and its
Subsidiaries have complied with the terms of all Delta Apparel Benefit Plans,
except for such noncompliance that would not have a Delta Apparel Material
Adverse Effect, and no default exists with respect to the obligations of Delta
Apparel or any of its Subsidiaries under such Delta Apparel Benefit Plans that
would have a Delta Apparel Material Adverse Effect. Since July 3, 1999, there
have been no disputes, grievances subject to any grievance procedure, unfair
labor practice proceedings, arbitration or litigation (or, to the knowledge of
Delta Apparel, threatened proceedings or grievances) under such Delta Apparel
Benefit Plans, that have not been finally resolved, settled or otherwise
disposed of, nor is there any default, or any condition that, with notice or
lapse of time or both, would constitute such a default, under any such Delta
Apparel Benefit Plans, by Delta Apparel or its Subsidiaries or, to the best
knowledge of Delta Apparel, any other party thereto, other than disputes,
grievances, arbitration, litigation, proceedings, threatened proceedings or
grievances, defaults or conditions that would not have a Delta Apparel Material
Adverse Effect. Since July 3, 1999, there have been no strikes, lockouts or work
stoppages or slowdowns, or to the best knowledge of Delta Apparel, labor
jurisdictional disputes or labor organizing activity occurring or threatened
with respect to the business or operations of Delta Apparel or its Subsidiaries
that have had or would have a Delta Apparel Material Adverse Effect.
6.10 ERISA. All the Delta Apparel Benefit Plans are in compliance with the
-----
applicable provisions of ERISA, the Code, all other applicable laws and all
applicable collective bargaining agreements, in each case, to the extent
applicable, except where such failures to administer or comply would not have a
Delta Apparel Material Adverse Effect. Each of the Delta Apparel Benefit Plans
that is intended to meet the requirements of Section 401(a) of the Code has been
or will be determined by the IRS to be "qualified," within the meaning of such
Section of the Code and Delta Apparel does not know of any circumstances likely
to result in revocation of such determination. No Delta Apparel Benefit Plan is
subject to Title IV of ERISA or Section 412 of the Code. Neither Delta Apparel
nor any of its Subsidiaries (i) has made a complete or partial withdrawal,
within the meaning of Section 4201 of ERISA, from any multiemployer plan or (ii)
currently is a sponsor of or contributes to a multiemployer plan. Neither Delta
Apparel nor any of its Subsidiaries has
31
<PAGE>
maintained a plan subject to Title IV of ERISA at any time within the last five
years. Except in their capacities as shareholders of Delta Woodside and except
as disclosed in the Delta Apparel Information Statement or in the Delta Apparel
Disclosure Schedule, neither the execution and delivery of this Distribution
Agreement nor the consummation of the transactions contemplated hereby will (i)
result in any material payment (including, without limitation, severance,
unemployment compensation or golden parachute) becoming due to any director or
executive officer of Delta Apparel, (ii) materially increase any benefits
otherwise payable under any Delta Apparel Benefit Plan or (iii) result in the
acceleration of the time of payment or vesting of any such benefits to any
material extent.
6.11 Taxes. Delta Apparel and its Subsidiaries have duly filed all foreign,
-----
federal, state and local income, franchise, excise, real and personal property
and other tax returns and reports (including, but not limited to, those filed on
a consolidated, combined or unitary basis) required to have been filed by Delta
Apparel and its Subsidiaries prior to the date hereof, except for such returns
or reports the failure to file which would not have a Delta Apparel Material
Adverse Effect. All of the foregoing returns and reports are true and correct in
all material respects, and Delta Apparel and its Subsidiaries have paid or,
prior to the Effective Time will pay, all taxes, interest and penalties shown on
such returns or reports as being due or (except to the extent the same are
contested in good faith) claimed to be due to any federal, state, local or other
taxing authority. Delta Apparel and its Subsidiaries have paid and will pay all
installments of estimated taxes due on or before the Effective Time, except for
any failure to do so that would not have a Delta Apparel Material Adverse
Effect. All taxes and state assessments and levies that Delta Apparel and its
Subsidiaries are required by law to withhold or collect have been withheld or
collected and have been paid to the proper governmental authorities or are held
by Delta Apparel for such payment, except for any failure to do so that would
not have a Delta Apparel Material Adverse Effect. Delta Apparel and its
Subsidiaries have paid or made adequate provision in the financial statements of
Delta Apparel for all taxes payable in respect of all periods ended on or prior
to January 1, 2000, except for such taxes that would not have a Delta Apparel
Material Adverse Effect. As of the date hereof, all deficiencies proposed as a
result of any audits have been paid or settled.
6.12 Compliance with Applicable Laws. Delta Apparel and its Subsidiaries
--------------------------------
hold all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary for them to own, lease or operate their
properties and assets and to carry on their businesses substantially as now
conducted (the "Delta Apparel Permits"), except for such permits, licenses,
variances, exemptions, orders and approvals the failure of which to hold would
not have a Delta Apparel Material Adverse Effect. Delta Apparel and its
Subsidiaries are in compliance with all applicable laws and the terms of Delta
Apparel Permits, except for such failures so to comply that would not have a
Delta Apparel Material Adverse Effect.
6.13 Brokers. No broker or finder is entitled to any broker's or finder's
-------
fee in connection with the transactions contemplated by this Distribution
Agreement based upon arrangements made by or on behalf of Delta Apparel.
32
<PAGE>
6.14 Undisclosed Liabilities. Except as disclosed in the Delta Apparel
------------------------
Information Statement, neither Delta Apparel nor any of its Subsidiaries has any
liabilities or any obligations of any nature whether or not accrued, contingent
or otherwise, that would be required by GAAP to be reflected on a consolidated
balance sheet of Delta Apparel and its Subsidiaries (including the notes
thereto), except for liabilities or obligations incurred in the ordinary course
of business since January 1, 2000 that would not have a Delta Apparel Material
Adverse Effect or contemplated to be incurred by this Distribution Agreement.
6.15 Environmental Matters. Except as disclosed in the Delta Apparel SEC
----------------------
Reports or as would not reasonably be expected to have a Delta Apparel Material
Adverse Effect: (i) to the best knowledge of Delta Apparel no real property
currently or formerly owned or operated by Delta Apparel or any current
Subsidiary is contaminated with any Hazardous Substances to an extent or in a
manner or condition now requiring remediation under any Environmental Law; (ii)
no judicial or administrative proceeding is pending or to the best knowledge of
Delta Apparel threatened against Delta Apparel or its Subsidiaries relating to
liability for any off-site disposal or contamination; and (iii) Delta Apparel
and its Subsidiaries have not received any claims or notices alleging liability
under any Environmental Law, and Delta Apparel has no knowledge of any
circumstance that could result in such claims.
ARTICLE 7
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation to Effect the Distribution. The
-----------------------------------------------------------------
respective obligations of each party to effect the Distribution shall be subject
to the fulfillment (or waiver by all parties) at or prior to the Effective Time
of the following conditions:
(a) All Consents from Governmental Entities and other third parties
that in any case are required to be received prior to the Effective Time
with respect to the transactions contemplated hereby shall have been
received other than those Consents the absence of which would not have a
Delta Woodside Material Adverse Effect, a Duck Head Material Adverse Effect
or a Delta Apparel Material Adverse Effect;
(b) Without limiting the generality of paragraph (a) above, the Duck
Head Form 10 shall have been declared effective by the SEC and the Delta
Apparel Form 10 shall have been declared effective by the SEC;
(c) The Intercompany Reorganization shall have been completed;
(d) The Duck Head Financing shall have been completed;
33
<PAGE>
(e) The Delta Apparel Financing shall have been completed;
(f) The New Delta Woodside Financing shall have been completed;
(g) Each of the Board of Directors of Delta Woodside and the Board of
Directors of Duck Head shall have received an opinion, addressed and
satisfactory to it, in its sole discretion, from an independent solvency
firm selected by such Board, and shall otherwise be satisfied in its sole
discretion, as to matters relating to the solvency and adequacy of capital
of Duck Head after giving effect to the consummation of the transactions
contemplated by this Distribution Agreement;
(h) Each of the Board of Directors of Delta Woodside and the Board of
Directors of Delta Apparel shall have received an opinion, addressed and
satisfactory to it, in its sole discretion, from an independent solvency
firm selected by such Board, and shall otherwise be satisfied in its sole
discretion, as to matters relating to the solvency and adequacy of capital
of Delta Apparel after giving effect to the consummation of the
transactions contemplated by this Distribution Agreement; and
(i) The consummation of the Distribution shall not be restrained,
enjoined or prohibited by any order, judgment, decree, injunction or ruling
of a court of competent jurisdiction; provided, however, that the parties
shall comply with the provisions of Sections 9.4, 10.4 and 11.4 and shall
further use their respective best efforts to cause any such order,
judgment, decree, injunction or ruling to be vacated or lifted.
7.2 Conditions to Obligation of Delta Woodside to Effect the Distribution.
---------------------------------------------------------------------------
The obligation of Delta Woodside to effect the Distribution shall be subject to
the fulfillment at or prior to the Effective Time of the additional conditions,
unless waived by Delta Woodside, that
(a) Duck Head and Delta Apparel shall have performed in all material
respects their respective agreements contained in this Distribution
Agreement required to be performed at or prior to the Effective Time and
the representations and warranties of Duck Head and Delta Apparel contained
in this Distribution Agreement shall be true, except as contemplated by
this Distribution Agreement and except for inaccuracies in representations
and warranties and failures to perform their respective agreements that in
the aggregate do not constitute a Delta Woodside Material Adverse Effect, a
Duck Head Material Adverse Effect or a Delta Apparel Material Adverse
Effect; and Delta Woodside shall have received a certificate of the Chief
Executive Officer of each of Duck Head and Delta Apparel to that effect;
and
(b) The Delta Woodside Board, in its sole discretion, shall have
determined to effect the Distribution.
7.3 Conditions to Obligations of Duck Head to Effect the Distribution. The
-----------------------------------------------------------------
obligation of Duck Head to effect the Distribution shall be subject to the
fulfillment at or prior to the Effective
34
<PAGE>
Time of the additional condition, unless waived by Duck Head, that Delta
Woodside and Delta Apparel shall have performed in all respects their respective
agreements contained in this Distribution Agreement required to be performed at
or prior to the Effective Time and the representations and warranties of Delta
Woodside and Delta Apparel contained in this Distribution Agreement shall be
true, except as contemplated by this Distribution Agreement and except for
inaccuracies in representations and warranties and failures to perform its
agreements that in the aggregate do not constitute a Delta Woodside Material
Adverse Effect, a Duck Head Material Adverse Effect or a Delta Apparel Material
Adverse Effect; and Duck Head shall have received a certificate of the Chief
Executive Officer of each of Delta Woodside and Delta Apparel to that effect.
7.4 Conditions to Obligations of Delta Apparel to Effect the Distribution.
-----------------------------------------------------------------------
The obligation of Delta Apparel to effect the Distribution shall be subject to
the fulfillment at or prior to the Effective Time of the additional condition,
unless waived by Delta Apparel, that Delta Woodside and Duck Head shall have
performed in all respects their respective agreements contained in this
Distribution Agreement required to be performed at or prior to the Effective
Time and the representations and warranties of Delta Woodside and Duck Head
contained in this Distribution Agreement shall be true, except as contemplated
by this Distribution Agreement and except for inaccuracies in representations
and warranties and failures to perform its agreements that in the aggregate do
not constitute a Delta Woodside Material Adverse Effect, a Duck Head Material
Adverse Effect or a Delta Apparel Material Adverse Effect; and Delta Apparel
shall have received a certificate of the Chief Executive Officer of each of
Delta Woodside and Duck Head to that effect.
ARTICLE 8
EMPLOYMENT MATTERS
8.1 Stock Options.
-------------
(a) Prior to the Effective Time, Delta Woodside shall provide holders of
Delta Woodside Stock Options, whether or not then exercisable or vested, the
opportunity to amend the terms of their respective Delta Woodside Stock Options
to provide that (i) all unexercisable portions of such Delta Woodside Stock
Options shall become immediately exercisable in full on the date that is five
(5) business days prior to the Record Date and (ii) if the holder elects not to
exercise all or part of the holder's Delta Woodside Stock Options prior to the
Record Date, such unexercised Delta Woodside Stock Options shall remain
exercisable for the same number of Delta Woodside Shares at the same exercise
price after the Distribution as before the Distribution (and for no other
securities), notwithstanding the occurrence of the Distribution.
(b) Notwithstanding anything to the contrary herein, if it is determined
that compliance with paragraph (a) of this Section 8.1 may cause any individual
subject to Section 16 of the Exchange Act to become subject to the profit
recovery provisions thereof, the parties hereto will cooperate, including by
providing alternate arrangements, so as to achieve the intent of the foregoing
35
<PAGE>
together with minimizing or not giving such profit recovery.
8.2 Employees.
---------
(a) Duck Head shall, or shall cause a member of the Duck Head Group to,
assume, honor and be bound by any employment and/or severance agreements between
or among each Duck Head Employee and any member of the Delta Woodside Group, the
Duck Head Group and/or the Delta Apparel Group.
(b) Delta Apparel shall, or shall cause a member of the Delta Apparel Group
to, assume, honor and be bound by any employment and/or severance agreements
between or among each Delta Apparel Employee and any member of the Delta
Woodside Group, the Duck Head Group and/or the Delta Apparel Group.
(c) Delta Woodside shall, or shall cause a member of the Delta Woodside
Group to, assume, honor and be bound by any employment and/or severance
agreements between or among any Delta Woodside Employee and any member the Delta
Woodside Group, the Duck Head Group and/or the Delta Apparel Group.
8.3. Qualified Defined Contribution Plans.
------------------------------------
(a) No member of the Duck Head Group or the Delta Apparel Group shall have
any obligation to make contributions to the Delta Woodside Industries, Inc.
Savings and Investment Plan (the "Delta Woodside 401(k) Plan") in respect of any
member of the Duck Head Employee Group or the Delta Apparel Employee Group or
otherwise after the Effective Time, except for accrued but unpaid employee and
employer contributions, if any, relating to that employee's compensation earned
before the Effective Time.
(b) Effective not later than the Effective Time, Duck Head shall, or shall
cause a member of the Duck Head Group to, adopt or designate a defined
contribution plan intended to qualify under Section 401(a) and Section 401(k) of
the Code (the "Duck Head 401(k) Plan"). Members of the Duck Head Employee Group
shall be vested in their benefits under and eligible to participate in the Duck
Head 401(k) Plan on and after the Effective Time to the same extent that those
members were vested in their benefits under and eligible to participate in the
Delta Woodside 401(k) Plan immediately before the Effective Time.
(c) Effective not later than the Effective Time, Delta Apparel shall, or
shall cause a member of the Delta Apparel Group to, adopt or designate a defined
contribution plan intended to qualify under Section 401(a) and Section 401(k) of
the Code (the "Delta Apparel 401(k) Plan"). Members of the Delta Apparel
Employee Group shall be vested in their benefits under and eligible to
participate in the Delta Apparel 401(k) Plan on and after the Effective Time to
the same extent that those members were vested in their benefits under and
eligible to participate in the Delta Woodside 401(k) Plan immediately before the
Effective Time.
36
<PAGE>
(d) As soon as practicable after the adoption or designation of the Duck
Head 401(k) Plan, Delta Woodside shall cause to be transferred to the Duck Head
401(k) Plan cash or, to the extent provided below, other assets as the parties
may agree, having a fair market value equal to the aggregate value of the
account balances in the Delta Woodside 401(k) Plan, and any allocable portion of
any suspense account, as of the date of the plan asset transfer for each member
of the Duck Head Employee Group. The plan asset transfer contemplated by this
paragraph (d) shall include any notes evidencing loans to members of the Duck
Head Employee Group from their account balances, securities, Delta Woodside
Shares, if any, Duck Head Shares, if any, and Delta Apparel Shares, if any, held
in any such member's account and the balance in cash, and shall also include all
qualified domestic relations orders, within the meaning of Section 414(p) of the
Code, applicable to members of the Duck Head Employee Group. The transfer of
assets contemplated by this paragraph (d) shall be made only after Duck Head has
supplied to Delta Woodside a written representation from Duck Head (with
appropriate indemnities) to the effect that the Duck Head 401(k) Plan has been
established in accordance with the Code and ERISA, and an agreement that Duck
Head has requested or will request a determination letter from the IRS and will
make any and all changes to the Duck Head 401(k) Plan necessary to receive a
favorable determination letter.
(e) As soon as practicable after the adoption or designation of the Delta
Apparel 401(k) Plan, Delta Woodside shall cause to be transferred to the Delta
Apparel 401(k) Plan cash or, to the extent provided below, other assets as the
parties may agree, having a fair market value equal to the aggregate value of
the account balances in the Delta Woodside 401(k) Plan, and any allocable
portion of any suspense account, as of the date of the plan asset transfer for
each member of the Delta Apparel Employee Group. The plan asset transfer
contemplated by this paragraph (e) shall include any notes evidencing loans to
members of the Delta Apparel Employee Group from their account balances,
securities, Delta Woodside Shares, if any, Duck Head Shares, if any, and Delta
Apparel Shares, if any, held in any such member's account and the balance in
cash, and shall also include all qualified domestic relations orders, within the
meaning of Section 414(p) of the Code, applicable to members of the Delta
Apparel Employee Group. The transfer of assets contemplated by this paragraph
(e) shall be made only after Delta Apparel has supplied to Delta Woodside a
written representation from Delta Apparel (with appropriate indemnities) to the
effect that the Delta Apparel 401(k) Plan has been established in accordance
with the Code and ERISA, and an agreement that Delta Apparel has requested or
will request a determination letter from the IRS and will make any and all
changes to the Delta Apparel 401(k) Plan necessary to receive a favorable
determination letter.
(f) In any event, the transfer of plan assets provided for in paragraphs
(d) and (e) above shall occur such that each participant in the Delta Woodside
401(k) Plan immediately prior to the transfer of assets would receive a benefit
immediately after the transfer of assets (if the Delta Woodside 401(k) Plan, the
Duck Head 401(k) Plan and the Delta Apparel 401(k) Plan were then terminated)
that would be equal to or greater than the benefit such participant would have
received immediately before the transfer of assets (if the Delta Woodside 401(k)
Plan had then terminated).
(g) Delta Woodside, Duck Head and Delta Apparel shall cooperate with each
other during
37
<PAGE>
the period beginning on the date hereof and ending on the date that the assets
are transferred to the trust maintained under the Duck Head 401(k) Plan or Delta
Apparel 401(k) Plan, as applicable, to ensure the ongoing operation and
administration of the Delta Woodside 401(k) Plan, the Duck Head 401(k) Plan and
the Delta Apparel 401(k) Plan with respect to the members of the Delta Woodside
Employee Group, the Duck Head Employee Group and the Delta Apparel Employee
Group. After those transfers of assets, (i) Duck Head shall assume all of the
Delta Woodside Group Liabilities under the Delta Woodside 401(k) Plan with
respect to each member of the Duck Head Employee Group and the Delta Woodside
Group shall have no further liability, under this Distribution Agreement or
otherwise, to any member of the Duck Head Group or any member of the Duck Head
Employee Group under the Delta Woodside 401(k) Plan other than liability arising
out of any breach of fiduciary duties or any non-exempt prohibited transaction
occurring before that transfer of assets and liabilities, and (ii) Delta Apparel
shall assume all of the Delta Woodside Group Liabilities under the Delta
Woodside 401(k) Plan with respect to each member of the Delta Apparel Employee
Group and the Delta Woodside Group shall have no further liability, under this
Distribution Agreement or otherwise, to any member of the Delta Apparel Group or
any member of the Delta Apparel Employee Group under the Delta Woodside 401(k)
Plan other than liability arising out of any breach of fiduciary duties or any
non-exempt prohibited transaction occurring before that transfer of assets and
liabilities.
8.4. Welfare Benefit Plans.
---------------------
(a) (i) Effective as of the Effective Time, no member of the Duck Head
Employee Group or the Delta Apparel Employee Group shall be eligible to
participate in any "Employee Welfare Benefit Plan" (within the meaning of
Section 3(1) of ERISA) sponsored by Delta Woodside or any member of the Delta
Woodside Group and neither Delta Woodside nor any member of the Delta Woodside
Group shall have any liability after the Effective Time for Welfare Benefits
(within the contemplation of Section 3(1) of ERISA) of any member of the Duck
Head Employee Group or the Delta Apparel Employee Group.
(ii) Delta Woodside shall be responsible for all Welfare Benefits payable
to or in respect of each member of the Delta Woodside Employee Group regardless
of whether the event(s) giving rise to payment of those benefits occurred
before, on or after the Effective Time.
(b) (i) Effective as of the Effective Time, Duck Head shall establish or
designate one or more Employee Welfare Benefit Plans covering members of the
Duck Head Employee Group as Duck Head, in its sole discretion, shall determine.
(ii) Except as set forth in Section 8.4(d), Duck Head shall be responsible
for all Welfare Benefits payable after the Effective Time to or in respect of
each member of the Duck Head Employee Group including, without limitation,
post-employment medical, dental and life insurance benefits, if any.
(c) (i) Effective as of the Effective Time, Delta Apparel shall establish
or designate one
38
<PAGE>
or more Employee Welfare Benefit Plans covering members of the Delta Apparel
Employee Group as Delta Apparel, in its sole discretion, shall determine.
(ii) Except as set forth in Section 8.4(d), Delta Apparel shall be
responsible for all Welfare Benefits payable after the Effective Time to or in
respect of each member of the Delta Apparel Employee Group including, without
limitation, post-employment medical, dental and life insurance benefits, if any.
(d) Expenses incurred by each member of the Duck Head Employee Group or the
Delta Apparel Employee Group under Delta Woodside's medical and dental plans
during the calendar year that includes the Effective Time shall be taken into
account for purposes of satisfying deductible and coinsurance requirements and
satisfaction of out-of-pocket provisions of the Duck Head Group's or the Delta
Apparel Group's, as applicable, medical and dental plans for that year. Duck
Head shall be liable, and shall to the extent necessary reimburse Delta
Woodside, for all medical or dental claims incurred before the Effective Time by
any member of the Duck Head Employee Group and for life insurance claims in
respect of any member of the Duck Head Employee Group who dies on or before the
Effective Time. Delta Apparel shall be liable, and shall to the extent necessary
reimburse Delta Woodside, for all medical or dental claims incurred before the
Effective Time by any member of the Delta Apparel Employee Group and for life
insurance claims in respect of any member of the Delta Apparel Employee Group
who dies on or before the Effective Time. For purposes of this Section 8.4, a
medical or dental claim shall be deemed "incurred" when the relevant service is
provided or item is purchased.
8.5 Directors. Delta Woodside shall retain all liabilities and related
---------
assets, if any, existing as of the Effective Time relating to any director of
Delta Woodside with respect to his service as a director of Delta Woodside.
8.6 Deferred Compensation.
---------------------
(a) All deferred compensation liabilities to the extent applicable to any
member of the Duck Head Employee Group, and any assets allocable to those
liabilities, shall be transferred to and assumed by Duck Head as of the
Effective Time, and all deferred compensation liabilities to the extent
applicable to any member of the Delta Apparel Employee Group, and any assets
allocable to those liabilities, shall be transferred to and assumed by Delta
Apparel as of the Effective Time.
(b) Delta Woodside shall retain all deferred compensation liabilities, and
any assets allocable to those liabilities, to the extent applicable to any
member of the Delta Woodside Employee Group under the Delta Woodside Deferred
Compensation Plan.
8.7 Employee Benefit Transition Services. Pursuant to and on the terms and
------------------------------------
conditions set forth in Schedule 8.7 hereto, each party agrees to provide
certain administrative services to the other parties in respect of the members
of the Delta Woodside Employee Group, the Duck Head Employee Group and the Delta
Apparel Employee Group, including but not limited to payroll
39
<PAGE>
services, record keeping services and claims processing services and for the
applicable period set forth in that Schedule. The administrative services
contemplated by this Section 8.7 shall not affect the allocation of liabilities
and obligations as set forth in this Article 8.
8.8 COBRA.
-----
(a) As of the Effective Time, Duck Head shall, or shall cause a member of
the Duck Head Group to, assume Delta Woodside's obligations and responsibilities
under ERISA Title I, Subtitle 8, Part 6 and Code Section 4980B ("COBRA
Coverage") to each member of the Duck Head Employee Group.
(b) As of the Effective Time, Delta Apparel shall, or shall cause a member
of the Delta Apparel Group to, assume Delta Woodside's obligations and
responsibilities to provide COBRA Coverage to each member of the Delta Apparel
Employee Group.
(c) Delta Woodside shall, or shall cause a member of the Delta Woodside
Group to, retain the obligation and responsibility to provide COBRA Coverage to
each member of the Delta Woodside Employee Group.
8.9 Third Party Beneficiaries. No provision of this Distribution Agreement
-------------------------
(including without limitation this Article 8) shall (a) create any third party
beneficiary rights in any Person (including any beneficiary or dependent
thereof) in respect of continued employment or resumed employment with the Delta
Woodside Group, the Duck Head Group or the Delta Apparel Group, (b) create any
rights that do not already exist in any Person in respect of any benefits that
may be provided, directly or indirectly, under any employee benefit plan or
benefit arrangement sponsored or to be sponsored by any member of the Delta
Woodside Group, the Duck Head Group or the Delta Apparel Group, or (c) otherwise
establish or create any rights that do not already exist on the part of any
third party.
8.10 No Right to Continued Employment. Nothing in this Article 8 shall
----------------------------------
confer any right to continued employment before or after the Effective Time on
any member of the Delta Woodside Employee Group, the Duck Head Employee Group or
the Delta Apparel Employee Group.
8.11 WARN Act.
--------
(a) Delta Woodside shall be responsible for providing any notification that
may be required under the Workers Adjustment and Retraining Notification Act
("WARN Act") with respect to any member of the Delta Woodside Employee Group on
or after the Effective Time.
(b) Duck Head shall be responsible for providing any notification that may
be required under the WARN Act with respect to any member of the Duck Head
Employee Group on or after the Effective Time.
40
<PAGE>
(c) Delta Apparel shall be responsible for providing any notification that
may be required under the WARN Act with respect to any member of the Delta
Apparel Employee Group on or after the Effective Time.
ARTICLE 9
ADDITIONAL AGREEMENTS OF DELTA WOODSIDE
9.1 Access to Information. From the date hereof through the Effective Time,
---------------------
Delta Woodside and its Subsidiaries shall afford to Duck Head and Delta Apparel
and their respective accountants, counsel and other representatives full and
reasonable access (subject, however, to existing confidentiality and similar
non-disclosure obligations and the preservation of attorney/client and work
product privileges) during normal business hours (and at such other times as the
parties may mutually agree) to its properties, books, contracts, commitments,
records and personnel and, during such period, shall furnish promptly to Duck
Head and Delta Apparel (i) a copy of each report, schedule and other document
filed or received by it pursuant to the requirements of federal securities laws,
and (ii) all other information concerning its business, properties and personnel
as Duck Head or Delta Apparel may reasonably request.
9.2 Preparation of the Duck Head Form 10, Duck Head Information Statement,
-----------------------------------------------------------------------
Delta Apparel Form 10 and Delta Apparel Information Statement. Delta Woodside
- ---------------------------------------------------------------
will assist Duck Head to comply with Duck Head's obligations under Section 10.2
and will assist Delta Apparel to comply with Delta Apparel's obligations under
Section 11.2. Delta Woodside will cooperate and furnish promptly (a) all
information requested by Duck Head or otherwise required for inclusion in the
Duck Head Form 10 or the Duck Head Information Statement and (b) all information
requested by Delta Apparel or otherwise required for inclusion in the Delta
Apparel Form 10 or the Delta Apparel Information Statement. If at any time prior
to the Effective Time any event or circumstance relating to Delta Woodside or
any of its Subsidiaries, or their respective officers or directors, should be
discovered by Delta Woodside that should be set forth in an amendment or a
supplement to the Duck Head Form 10, the Duck Head Information Statement, the
Delta Apparel Form 10 or the Delta Apparel Information Statement, Delta Woodside
shall promptly inform Duck Head or Delta Apparel, as applicable, thereof and
take appropriate action in respect thereof.
9.3 Public Announcements. So long as this Distribution Agreement is in
---------------------
effect, Delta Woodside agrees to use its reasonable efforts to consult with Duck
Head and Delta Apparel before issuing any press release or otherwise making any
public statement with respect to the transactions contemplated by this
Distribution Agreement.
9.4 Efforts; Consents. (a) Subject to the terms and conditions herein
------------------
provided, Delta Woodside agrees to use its best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Distribution Agreement and to cooperate with
41
<PAGE>
Duck Head and Delta Apparel in connection with the foregoing. Without limiting
the generality of the foregoing, Delta Woodside shall make or cause to be made
all required filings with or applications to Governmental Entities (including
under the Securities Act and the Exchange Act) to be made by it, and use its
best efforts to (i) obtain all necessary waivers of any Violations and other
Consents of all Governmental Entities and other third parties necessary for the
parties to consummate the transactions contemplated hereby, (ii) oppose, lift or
rescind any injunction or restraining order or other order adversely affecting
the ability of the parties to consummate the transactions contemplated hereby,
and (iii) fulfill all conditions to this Distribution Agreement.
(b) Delta Woodside shall promptly provide Duck Head and Delta Apparel
copies of (i) all filings made by Delta Woodside with any Governmental Entity in
connection with this Distribution Agreement and the transactions contemplated
hereby, and (ii) any inquiry or request for information (including notice of any
oral request for information), pleading, order or other document Delta Woodside
receives from any Governmental Entity with respect to the matters referred to in
this Section 9.4.
9.5 Notice of Breaches. Delta Woodside shall give prompt notice to Duck
------------------
Head and Delta Apparel of (i) any representation or warranty made by it
contained in this Distribution Agreement that has become untrue or inaccurate in
any material respect, or (ii) the failure by it to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it under this Distribution Agreement; provided, however, that such
notification shall not excuse or otherwise affect the representations,
warranties, covenants or agreements of the parties or the conditions to the
obligations of the parties under this Distribution Agreement.
9.6 Acquisition Proposals Respecting the Duck Head Group or the Delta
----------------------------------------------------------------------
Apparel Group. The parties agree that, prior to the Effective Time, Delta
- --------------
Woodside, its Subsidiaries and their respective Representatives (including,
without limitation, any investment banker, attorney or accountant retained by
Delta Woodside or any of its Subsidiaries) may initiate, continue, solicit and
encourage, directly or indirectly, any inquiries and the making of any proposal
or offer to Delta Woodside and/or any of its Subsidiaries, and engage in any
negotiations concerning, and provide any confidential information or data to,
and have any discussions with, any Person, with respect to a merger,
consolidation or similar transaction involving, or any sale of all or any
significant portion of the assets or any equity securities of, the Delta
Woodside Group, the Duck Head Group or the Delta Apparel Group, singly or
together (any such proposal or offer being hereinafter referred to as an
"Permitted Acquisition Proposal"), and otherwise knowingly facilitate any effort
or attempt to make or implement a Permitted Acquisition Proposal and enter into
any agreement or understanding with any other Person with the intent to effect
any Permitted Acquisition Proposal. Delta Woodside will notify Duck Head and
Delta Apparel of any written Permitted Acquisition Proposals or oral Permitted
Acquisition Proposals made to the Chief Executive Officer of Delta Woodside.
Following receipt of a Permitted Acquisition Proposal, Delta Woodside's Board of
Directors may elect to terminate this Distribution Agreement as provided in
Section 13.1 or to modify the terms of the Distribution and this Distribution
Agreement to permit consummation of the Permitted Acquisition Proposal and
thereby to delete from the Distribution shares of Duck Head Common Stock or
shares
42
<PAGE>
of Delta Apparel Common Stock. If Duck Head and Delta Apparel consent to such
modification, the parties shall amend this Distribution Agreement accordingly,
and shall (if still practicable), subject to the other provisions of this
Distribution Agreement, as so modified, use their respective best efforts to
cause the Distribution to be consummated.
9.7 Completion of Financing. No later than the Effective Time, Delta
-------------------------
Woodside or one or more of its Subsidiaries (other than the Duck Head Group and
the Delta Apparel Group) shall have incurred or repaid such indebtedness and
entered into such credit facilities or amendments to credit facilities, if any,
as shall be necessary for Delta Woodside to be able to consummate the
transactions contemplated by this Distribution Agreement (the "New Delta
Woodside Financing").
9.8 Other Securities Law Actions. Delta Woodside shall prepare and file
------------------------------
with the SEC and cause to become effective any registration statements or
amendments thereto that are necessary or appropriate to reflect the
establishment of or amendments to any employee benefit and other plans of the
Delta Woodside Group contemplated by this Distribution Agreement. Delta Woodside
shall take all actions as may be necessary or appropriate under the securities
or blue sky laws of states or other political subdivisions of the United States
in connection with the transactions contemplated by this Distribution Agreement.
9.9 Delta Woodside Group Liabilities. Except as specifically set forth in
---------------------------------
any of the Distribution Documents, from and after the Effective Time, Delta
Woodside shall, and shall use its reasonable best efforts to cause its
Subsidiaries to, pay, perform and discharge in due course all of the Delta
Woodside Group Liabilities for which such entity is liable
ARTICLE 10
ADDITIONAL AGREEMENTS OF DUCK HEAD
10.1 Access to Information. From the date hereof through the Effective
----------------------
Time, Duck Head and its Subsidiaries shall afford to Delta Woodside and Delta
Apparel and their respective accountants, counsel and other representatives full
and reasonable access (subject, however, to existing confidentiality and similar
non-disclosure obligations and the preservation of attorney/client and work
product privileges) during normal business hours (and at such other times as the
parties may mutually agree) to its properties, books, contracts, commitments,
records and personnel and, during such period, shall furnish promptly to Delta
Woodside and Delta Apparel (i) a copy of each report, schedule and other
document filed or received by it pursuant to the requirements of federal
securities laws, and (ii) all other information concerning its business,
properties and personnel as Delta Woodside or Delta Apparel may reasonably
request.
10.2 Preparation of Duck Head Form 10 and Duck Head Information Statement.
---------------------------------------------------------------------
To the extent not already accomplished, Duck Head will, as soon as practicable
following the date of this Distribution Agreement, prepare and file the Duck
Head Form 10 and a preliminary Duck Head
43
<PAGE>
Information Statement with the SEC and will use all reasonable efforts to
respond to any comments of the SEC or its staff and to cause the Duck Head Form
10 to be declared effective by the SEC and the Duck Head Information Statement
to be mailed to the Delta Woodside Stockholders as promptly as practicable after
responding to all such comments to the satisfaction of the SEC or its staff.
Duck Head will provide Delta Woodside and Delta Apparel with a copy of the Duck
Head Form 10 and the preliminary Duck Head Information Statement and all
modifications thereto prior to filing or delivery to the SEC and will consult
with Delta Woodside and Delta Apparel in connection therewith. Duck Head will
notify Delta Woodside and Delta Apparel promptly of the receipt of any comments
from the SEC or its staff and of any request by the SEC or its staff for
amendments or supplements to the Duck Head Form 10 or the Duck Head Information
Statement or for additional information and will supply Delta Woodside and Delta
Apparel with copies of all correspondence between Duck Head or any of its
Representatives, on the one hand, and the SEC or its staff, on the other hand,
with respect to the Duck Head Form 10, the Duck Head Information Statement or
the Distribution. Duck Head will cooperate and furnish promptly all information
requested by Delta Woodside or Delta Apparel or otherwise required for inclusion
in any Delta Woodside Disclosure Document or the Delta Apparel Form 10 or the
Delta Apparel Information Statement, as the case may be. If at any time prior to
the Effective Time there shall occur any event that should be set forth in an
amendment or supplement to the Duck Head Form 10 or the Duck Head Information
Statement, Duck Head will promptly, as appropriate, file with the SEC or prepare
and mail to the Delta Woodside Stockholders such an amendment or supplement. If
at any time prior to the Effective Time any event or circumstance relating to
Duck Head, or its officers or directors, should be discovered by Duck Head that
should be set forth in an amendment or a supplement to any Delta Woodside
Disclosure Document or the Delta Apparel Form 10 or the Delta Apparel
Information Statement, Duck Head shall promptly inform Delta Woodside or Delta
Apparel (as the case may be) thereof and take appropriate action in respect
thereof.
10.3 Public Announcements. So long as this Distribution Agreement is in
---------------------
effect, Duck Head agrees to use its reasonable efforts to consult with Delta
Woodside and Delta Apparel before issuing any press release or otherwise making
any public statement with respect to the transactions contemplated by this
Distribution Agreement. Prior to the Effective Time, Duck Head shall not issue
any press release or otherwise make any public statement without the consent of
Delta Woodside.
10.4 Efforts; Consents. (a) Subject to the terms and conditions herein
------------------
provided, Duck Head agrees to use its best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Distribution Agreement and the Distribution
and to cooperate with Delta Woodside and Delta Apparel in connection with the
foregoing. Without limiting the generality of the foregoing, Duck Head shall
make or cause to be made all required filings with or applications to
Governmental Entities (including under the Securities Act and the Exchange Act)
to be made by it, and use its best efforts to (i) obtain all necessary waivers
of any Violations and other Consents of all Governmental Entities and other
third parties, necessary for the parties to consummate the transactions
contemplated hereby, (ii) oppose, lift or rescind any
44
<PAGE>
injunction or restraining order or other order adversely affecting the ability
of the parties to consummate the transactions contemplated hereby, and (iii)
fulfill all conditions to this Distribution Agreement.
(b) Duck Head shall promptly provide Delta Woodside and Delta Apparel
copies of (i) all filings made by Duck Head with any Governmental Entity in
connection with this Distribution Agreement and the transactions contemplated
hereby, and (ii) any inquiry or request for information (including notice of any
oral request for information), pleading, order or other document Duck Head
receives from any Governmental Entity with respect to the matters referred to in
this Section 10.4.
10.5 Notice of Breaches. Duck Head shall give prompt notice to Delta
-------------------
Woodside and Delta Apparel of (i) any representation or warranty made by it
contained in this Distribution Agreement that has become untrue or inaccurate in
any material respect, or (ii) the failure by it to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it under this Distribution Agreement; provided, however, that such
notification shall not excuse or otherwise affect the representations,
warranties, covenants or agreements of the parties or the conditions to the
obligations of the parties under this Distribution Agreement.
10.6 Effectuation of Intercompany Reorganization and Duck Head Financing.
---------------------------------------------------------------------
Duck Head shall perform all actions necessary or appropriate, and within its
power, to accomplish the Intercompany Reorganization, as contemplated by Section
2.1, and the Duck Head Financing, as contemplated by Section 2.2.
10.7 [AMEX] Listing. As promptly as practicable, Duck Head shall prepare,
--------------
file and pursue an application to permit the listing of the Duck Head Common
Stock on the [AMEX], and such listing shall be completed by the Effective Time.
10.8 Other Securities Law Actions. Duck Head shall prepare and file with
------------------------------
the SEC and cause to become effective any registration statements or amendments
thereto that are necessary or appropriate to reflect the establishment of or
amendments to any employee benefit and other plans of the Duck Head Group
contemplated by this Distribution Agreement. Duck Head shall take all actions as
may be necessary or appropriate under the securities or blue sky laws of states
or other political subdivisions of the United States in connection with the
transactions contemplated by this Distribution Agreement.
10.9 Duck Head Common Stock. Duck Head agrees to provide to the
-------------------------
Distribution Agent all certificates for shares of Duck Head Common Stock that
shall be required in order to consummate the transactions contemplated by this
Distribution Agreement.
10.10 Duck Head Group Liabilities. Except as specifically set forth in any
---------------------------
of the Distribution Documents, from and after the Effective Time, Duck Head
shall, and shall use its reasonable best efforts to cause its Subsidiaries to,
pay, perform and discharge in due course all of the Duck Head Group Liabilities
for which such entity is liable
45
<PAGE>
ARTICLE 11
ADDITIONAL AGREEMENTS OF DELTA APPAREL
11.1 Access to Information. From the date hereof through the Effective
----------------------
Time, Delta Apparel and its Subsidiaries shall afford to Delta Woodside and Duck
Head and their respective accountants, counsel and other representatives full
and reasonable access (subject, however, to existing confidentiality and similar
non-disclosure obligations and the preservation of attorney/client and work
product privileges) during normal business hours (and at such other times as the
parties may mutually agree) to its properties, books, contracts, commitments,
records and personnel and, during such period, shall furnish promptly to Delta
Woodside and Duck Head (i) a copy of each report, schedule and other document
filed or received by it pursuant to the requirements of federal securities laws,
and (ii) all other information concerning its business, properties and personnel
as Delta Woodside or Duck Head may reasonably request.
11.2 Preparation of Delta Apparel Form 10 and Delta Apparel Information
- --------------------------------------------------------------------------------
Statement. To the extent not already accomplished, Delta Apparel will, as soon
- ---------
as practicable following the date of this Distribution Agreement, prepare and
file the Delta Apparel Form 10 and a preliminary Delta Apparel Information
Statement with the SEC and will use all reasonable efforts to respond to any
comments of the SEC or its staff and to cause the Delta Apparel Form 10 to be
declared effective by the SEC and the Delta Apparel Information Statement to be
mailed to the Delta Woodside Stockholders as promptly as practicable after
responding to all such comments to the satisfaction of the SEC or its staff.
Delta Apparel will provide Delta Woodside and Duck Head with a copy of the Delta
Apparel Form 10 and the preliminary Delta Apparel Information Statement and all
modifications thereto prior to filing or delivery to the SEC and will consult
with Delta Woodside and Duck Head in connection therewith. Delta Apparel will
notify Delta Woodside and Duck Head promptly of the receipt of any comments from
the SEC or its staff and of any request by the SEC or its staff for amendments
or supplements to the Delta Apparel Form 10 or the Delta Apparel Information
Statement or for additional information and will supply Delta Woodside and Duck
Head with copies of all correspondence between Delta Apparel or any of its
Representatives, on the one hand, and the SEC or its staff, on the other hand,
with respect to the Delta Apparel Form 10, the Delta Apparel Information
Statement or the Distribution. Delta Apparel will cooperate and furnish promptly
all information requested by Delta Woodside or Duck Head or otherwise required
for inclusion in any Delta Woodside Disclosure Document or the Duck Head Form 10
or the Duck Head Information Statement, as the case may be. If at any time prior
to the Effective Time there shall occur any event that should be set forth in an
amendment or supplement to the Delta Apparel Form 10 or the Delta Apparel
Information Statement, Delta Apparel will promptly, as appropriate, file with
the SEC or prepare and mail to the Delta Woodside Stockholders such an amendment
or supplement. If at any time prior to the Effective Time any event or
circumstance relating to Delta Apparel, or its officers or directors, should be
discovered by Delta Apparel that should be set forth in an amendment or a
supplement to any Delta Woodside Disclosure Document or the Duck Head Form 10 or
the Duck Head Information Statement, Delta Apparel shall promptly inform Delta
Woodside or Duck
46
<PAGE>
Head (as the case may be) thereof and take appropriate action in respect
thereof.
11.3 Public Announcements. So long as this Distribution Agreement is in
---------------------
effect, Delta Apparel agrees to use its reasonable efforts to consult with Delta
Woodside and Duck Head before issuing any press release or otherwise making any
public statement with respect to the transactions contemplated by this
Distribution Agreement. Prior to the Effective Time, Delta Apparel shall not
issue any press release or otherwise make any public statement without the
consent of Delta Woodside.
11.4 Efforts; Consents. (a) Subject to the terms and conditions herein
------------------
provided, Delta Apparel agrees to use its best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Distribution Agreement and the Distribution
and to cooperate with Delta Woodside and Duck Head in connection with the
foregoing. Without limiting the generality of the foregoing, Delta Apparel shall
make or cause to be made all required filings with or applications to
Governmental Entities (including under the Securities Act and the Exchange Act)
to be made by it, and use its best efforts to (i) obtain all necessary waivers
of any Violations and other Consents of all Governmental Entities and other
third parties, necessary for the parties to consummate the transactions
contemplated hereby, (ii) oppose, lift or rescind any injunction or restraining
order or other order adversely affecting the ability of the parties to
consummate the transactions contemplated hereby, and (iii) fulfill all
conditions to this Distribution Agreement.
(b) Delta Apparel shall promptly provide Delta Woodside and Duck Head
copies of (i) all filings made by Delta Apparel with any Governmental Entity in
connection with this Distribution Agreement and the transactions contemplated
hereby, and (ii) any inquiry or request for information (including notice of any
oral request for information), pleading, order or other document Delta Apparel
receives from any Governmental Entity with respect to the matters referred to in
this Section 11.4.
11.5 Notice of Breaches. Delta Apparel shall give prompt notice to Delta
------------------
Woodside and Duck Head of (i) any representation or warranty made by it
contained in this Distribution Agreement that has become untrue or inaccurate in
any material respect, or (ii) the failure by it to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it under this Distribution Agreement; provided, however, that such
notification shall not excuse or otherwise affect the representations,
warranties, covenants or agreements of the parties or the conditions to the
obligations of the parties under this Distribution Agreement.
11.6 Effectuation of Intercompany Reorganization and Delta Apparel
- --------------------------------------------------------------------------------
Financing. Delta Apparel shall perform all actions necessary or appropriate, and
- ---------
within its power, to accomplish the Intercompany Reorganization, as contemplated
by Section 2.1, and the Delta Apparel Financing, as contemplated by Section 2.2.
47
<PAGE>
11.7 [AMEX] Listing. As promptly as practicable, Delta Apparel shall
---------------
prepare, file and pursue an application to permit the listing of the Delta
Apparel Common Stock on the [AMEX], and such listing shall be completed by the
Effective Time.
11.8 Other Securities Law Actions. Delta Apparel shall prepare and file
------------------------------
with the SEC and cause to become effective any registration statements or
amendments thereto that are necessary or appropriate to reflect the
establishment of or amendments to any employee benefit and other plans of the
Delta Apparel Group contemplated by this Distribution Agreement. Delta Apparel
shall take all actions as may be necessary or appropriate under the securities
or blue sky laws of states or other political subdivisions of the United States
in connection with the transactions contemplated by this Distribution Agreement.
11.9 Delta Apparel Common Stock. Delta Apparel agrees to provide to the
----------------------------
Distribution Agent all certificates for shares of Delta Apparel Common Stock
that shall be required in order to consummate the transactions contemplated by
this Distribution Agreement.
11.10 Delta Apparel Group Liabilities. Except as specifically set forth in
-------------------------------
any of the Distribution Documents, from and after the Effective Time, Delta
Apparel shall, and shall use its reasonable best efforts to cause its
Subsidiaries to, pay, perform and discharge in due course all of the Delta
Apparel Group Liabilities for which such entity is liable
ARTICLE 12
ACCESS TO INFORMATION
12.1 Provision of Corporate Records. Immediately before or as soon as
---------------------------------
practicable after the Effective Time, each Group shall provide to the applicable
other Group all documents, contracts, books, records and data (including, but
not limited to, minute books, stock registers, stock certificates, documents of
title and documents in electronic format) in its possession relating primarily
to the other Group or its business and affairs; provided that if any of those
documents, contracts, books, records or data relate to more than one Group or
the businesses and operations of more than one Group, each Group shall provide
to the other applicable Group when and if requested true and complete copies
(including, if requested, versions of these documents in electronic format) of
those documents, contracts, books, records or data.
12.2 Access to Information. After the Effective Time, each Group shall
----------------------
promptly provide reasonable access during normal business hours to each of the
other Groups and its Representatives to all documents, contracts, books,
records, Defense Materials, computer data and other data in that Group's
possession relating to the other applicable Group or its business and affairs
(other than data and information subject to an attorney/client or other
privilege that is not subject to the provisions of any joint defense arrangement
between the relevant member or members of one Group and the
48
<PAGE>
relevant member or members of another Group), to the extent that such access is
reasonably requested by the other Group, including, but not limited to, for
audit, accounting, litigation, disclosure and reporting purposes.
12.3 Future Litigation and Other Proceedings. Each Group shall use all
------------------------------------------
commercially reasonable efforts to make its directors, officers, employees and
representatives available as witnesses to another Group and its accountants,
counsel and other designated representatives, upon reasonable written request.
Additionally, each Group shall otherwise cooperate with the other Groups, to the
extent reasonably required in connection with any Action arising out of any
Group's business and operations in which the requesting party may be involved.
12.4 Reimbursement. Except and to the extent that any member of one Group
-------------
is obligated to indemnify any member of the other Group under Article 14 for
that cost or expense, each Group providing information or witnesses to the other
Group, or otherwise incurring any expense in connection with cooperating, under
this Agreement shall be entitled to receive from the recipient thereof, upon the
presentation of invoices therefor, payment for all reasonable out-of-pocket
costs and expenses as may reasonably be incurred in providing such information,
witnesses or cooperation.
12.5 Retention of Records. Except as otherwise required by law or agreed to
--------------------
in writing, each party shall retain, and shall cause the members of its Group to
retain, all information relating to any other Group's business and operations in
accordance with the past practice of that party. Notwithstanding the foregoing,
any party may destroy or otherwise dispose of any of that information at any
time, provided that, for a period of six years after the Effective Time, before
destruction or disposal of information that such party consciously knows relates
to any other Group's business and operations, (i) that party shall use its best
efforts to provide not less than 90 days' prior written notice to the other
party, specifying the information proposed to be destroyed or disposed of, and
(ii) if the recipient of that notice shall request in writing before the
scheduled date for destruction or disposal that any of the information proposed
to be destroyed or disposed of be delivered to that requesting party, the party
proposing the destruction or disposal shall promptly deliver to that requesting
party, at the expense of the requesting party, the information that was
requested.
12.6 Confidentiality. Each party shall hold and shall cause its
---------------
Representatives to hold in strict confidence all information (other than any
information relating primarily to the business or affairs of that party)
concerning another party (or the Group of which it forms a part) unless and to
the extent that (i) that party is compelled to disclose that information by
judicial or administrative process or, in the opinion of its counsel, by other
requirements of law or (ii) that information can be shown to have been (A) in
the public domain through no fault of that party, (B) lawfully acquired after
the Effective Time on a non-confidential basis or (C) acquired or developed
independently by that party after the Effective Time without violating this
Section 12.6 or any other confidentiality agreement with the other party.
Notwithstanding the foregoing, a party may disclose that information to its
Representatives so long as those Representatives are informed by that party of
the confidential nature of that information and are directed by that party to
treat that information
49
<PAGE>
confidentially. Each party shall be responsible for any breach of such direction
or of this Section by any of its Representatives. If a party or any of its
Representatives becomes legally compelled to disclose any documents or
information subject to this Section 12.6, that party shall promptly notify the
other party so that the other party may seek a protective order or other remedy
or waive that party's compliance with this Section 12.6. If no such protective
order or other remedy is obtained or waiver granted, that party will furnish
only the portion of the information that it is advised by counsel is legally
required and will exercise all commercially reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded that
information. Without prejudice to the rights and remedies of any party to this
Distribution Agreement, if any party breaches or threatens to breach any
provision of this Section 12.6, the affected party shall be entitled to
equitable relief by way of an injunction without the requirement for the posting
of bond.
12.7 Inapplicability of Article to Tax Matters. Notwithstanding anything to
-----------------------------------------
the contrary in this Article 12, this Article 12 shall not apply to information,
records and other matters relating to Taxes, all of which shall be governed by
the Tax Sharing Agreement.
ARTICLE 13
TERMINATION, AMENDMENT AND WAIVER
13.1 Termination. This Distribution Agreement may be terminated at any time
-----------
prior to the Effective Time by Delta Woodside for any reason.
13.2 Effect of Termination. In the event of termination of this
------------------------
Distribution Agreement by Delta Woodside, as provided in Section 13.1, this
Distribution Agreement shall forthwith become void and there shall be no
liability hereunder on the part of any of Delta Woodside, Duck Head or Delta
Apparel or their respective officers or directors; provided that Sections 13.2
and 15.11 shall survive the termination.
13.3 Amendment. This Distribution Agreement may be amended by the parties
---------
hereto at any time. This Distribution Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
13.4 Waiver. At any time prior to the Effective Time, the parties hereto
------
may, to the extent permitted by applicable law, (i) extend the time for the
performance of any of the obligations or other acts of any other party hereto,
(ii) waive any inaccuracies in the representations and warranties by any other
party contained herein or in any documents delivered by any other party pursuant
hereto and (iii) waive compliance with any of the agreements of any other party
or with any conditions to its own obligations contained herein. Any agreement on
the part of a party hereto to any such extension or to any waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party. No
delay on the part of any party hereto in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any waiver on the
part of any party hereto of any
50
<PAGE>
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder, nor will any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. Unless
otherwise provided, the rights and remedies herein provided are cumulative and
are not exclusive of any rights or remedies that the parties may otherwise have
at law or in equity.
ARTICLE 14
INDEMNIFICATION
14.1 Indemnification by Delta Woodside. From and after the Effective Time,
---------------------------------
Delta Woodside shall indemnify and hold harmless, to the full extent permitted
by law, each member of the Duck Head Group and each member of the Delta Apparel
Group, and each present and former director, officer, employee and agent of any
member of the Duck Head Group and/or the Delta Apparel Group, against any and
all liabilities and expenses, including reasonable attorneys' fees, fines,
losses, claims, damages, liabilities, costs, expenses, judgments and amounts
paid in settlement (collectively, "Damages"), incurred or suffered by such
member of the Duck Head Group or member of the Delta Apparel Group, or such
director, officer, employee or agent, as the case may be, whether or not in
connection with any threatened, pending or completed Action (and whether
asserted or commenced prior to or after the Effective Time), and Delta Woodside
shall advance expenses to each such indemnified Person, arising out of or
pertaining to:
(a) any breach of the representations and warranties made by Delta
Woodside in Article 4 (which representations and warranties shall not
expire for purposes of this Article 14, notwithstanding any other provision
of this Distribution Agreement to the contrary);
(b) the breach by any member of the Delta Woodside Group of any
obligation under (i) this Distribution Agreement or (ii) any of the other
Distribution Documents, other than the Tax Sharing Agreement;
(c) any and all Delta Woodside Group Liabilities; or
(d) any untrue statement or alleged untrue statement of a material
fact contained in any Delta Woodside Disclosure Document, or any omission
or alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as those Damages are caused by any
such untrue statement or omission or alleged untrue statement or omission
that was based upon information furnished to Delta Woodside by any member
of the Duck Head Group or any member of the Delta Apparel Group expressly
for use therein.
14.2 Indemnification by Duck Head. From and after the Effective Time, Duck
----------------------------
Head shall indemnify and hold harmless, to the full extent permitted by law,
each member of the Delta
51
<PAGE>
Woodside Group and each member of the Delta Apparel Group, and each present and
former director, officer, employee and agent of any member of the Delta Woodside
Group and/or the Delta Apparel Group, against any and all Damages incurred or
suffered by such member of the Delta Woodside Group or member of the Delta
Apparel Group, or such director, officer, employee or agent, as the case may be,
whether or not in connection with any threatened, pending or completed Action
(and whether asserted or commenced prior to or after the Effective Time), and
Duck Head shall advance expenses to each such indemnified Person, arising out of
or pertaining to:
(a) any breach of the representations and warranties made by Duck Head
in Article 5 (which representations and warranties shall not expire for
purposes of this Article 14, notwithstanding any other provision of this
Distribution Agreement to the contrary);
(b) the breach by any member of the Duck Head Group of any obligation
under (i) this Distribution Agreement or (ii) any of the other Distribution
Documents, other than the Tax Sharing Agreement;
(c) any and all Duck Head Group Liabilities; or
(d) any untrue statement or alleged untrue statement of a material
fact contained in any Duck Head Disclosure Document, or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as those Damages are caused by any
such untrue statement or omission or alleged untrue statement or omission
that was based upon information furnished to Duck Head by any member of the
Delta Woodside Group or any member of the Delta Apparel Group expressly for
use therein.
14.3 Indemnification by Delta Apparel. From and after the Effective Time,
--------------------------------
Delta Apparel shall indemnify and hold harmless, to the full extent permitted by
law, each member of the Delta Woodside Group and each member of the Duck Head
Group, and each present and former director, officer, employee and agent of any
member of the Delta Woodside Group and/or the Duck Head Group, against any and
all Damages incurred or suffered by such member of the Delta Woodside Group or
member of the Duck Head Group, or such director, officer, employee or agent, as
the case may be, whether or not in connection with any threatened, pending or
completed Action (and whether asserted or commenced prior to or after the
Effective Time), and Delta Apparel shall advance expenses to each such
indemnified Person, arising out of or pertaining to:
(a) any breach of the representations and warranties made by Delta
Apparel in Article 6 (which representations and warranties shall not expire
for purposes of this Article 14, notwithstanding any other provision of
this Distribution Agreement to the contrary);
(b) the breach by any member of the Delta Apparel Group of any
obligation under (i) this Distribution Agreement or (ii) any of the other
Distribution Documents, other than the Tax Sharing Agreement;
52
<PAGE>
(c) any and all Delta Apparel Group Liabilities; or
(d) any untrue statement or alleged untrue statement of a material
fact contained in any Delta Apparel Disclosure Document, or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as those Damages are caused by any
such untrue statement or omission or alleged untrue statement or omission
that was based upon information furnished to Delta Apparel by any member of
the Delta Woodside Group or any member of the Duck Head Group expressly for
use therein.
14.4 Third-Party Rights; Insurance Proceeds; Tax Benefits; Mitigation.
----------------------------------------------------------------
(a) No insurer or any other third party shall be (i) entitled by reason of
this Article 14 to a benefit (as a third-party beneficiary or otherwise) that it
would not be entitled to receive in the absence of Section 14.1, 14.2 or 14.3,
(ii) relieved by reason of this Article 14 of the responsibility to pay any
claim to which it is obligated or (iii) entitled to any subrogation right with
respect to any obligation under Section 14.1, 14.2 or 14.3.
(b) The amount that any indemnifying party is or may be required to pay to
any indemnified Person pursuant to this Article 14 (i) shall be reduced
(including retroactively) by (A) any insurance proceeds or other amounts
actually recovered by or on behalf of such indemnified Person in reduction of
the related Damages and (B) any Tax benefits realized or realizable by such
indemnified Person based on the present value thereof by reason of such loss and
(ii) shall be increased by any Tax liability incurred by such indemnified Person
based on such indemnity payment. If an indemnified Person shall have received
the payment required by this Distribution Agreement from an indemnifying party
in respect of Damages and shall subsequently actually receive insurance
proceeds, Tax benefits or other amounts in respect of such Damages as specified
above, then such indemnified Person shall pay to such indemnifying party a sum
equal to the amount of such insurance proceeds, Tax benefits or other amounts
actually received. The indemnified Person shall take all reasonable steps to
mitigate all Damages, including availing itself of any defenses, limitations,
rights of contribution, claims against third parties and other rights at law (it
being understood that any reasonable out-of-pocket costs paid to third parties
in connection with such mitigation shall constitute Damages), and shall provide
such evidence and documentation of the nature and extent of any Damages as may
be reasonably requested by the indemnifying party.
(c) In addition to any adjustments required pursuant to paragraph (b)
above, if the amount of any Damages shall, at any time subsequent to the payment
required by this Distribution Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the indemnified Person to the
indemnifying party.
53
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14.5 Indemnification Procedures.
--------------------------
(a) In the event of any Action (whether asserted or commenced prior to or
after the Effective Time) as to which indemnification will be sought pursuant to
Section 14.1, 14.2 or 14.3, the indemnifying party shall be entitled to
participate in and, to the extent that it may wish, to assume the defense
thereof with counsel selected by the indemnifying party and reasonably
acceptable to the indemnified Person; provided that the indemnified Person shall
have the right to participate in those proceedings and to be represented by
counsel of its own choosing at the indemnified Person's sole cost and expense;
provided, however, that, if any indemnified Person (or group of indemnified
Persons) reasonably believes that, as a result of an actual or potential
conflict of interest, it is advisable for such indemnified Person (or group of
indemnified Persons) to be represented by separate counsel or if the
indemnifying party shall fail to assume responsibility for such defense, such
indemnified Person (or group of indemnified Persons) will act in good faith with
respect to such Action and may retain counsel satisfactory to such indemnified
Person (or group of indemnified Persons) who will represent such indemnified
Person or Persons, and the indemnifying party shall pay all reasonable fees and
expenses of such counsel promptly as statements therefor are received. The
indemnified Persons and the indemnifying party shall use their respective best
efforts to assist in the vigorous defense of any such matter. The indemnifying
party shall not be liable for any settlement effected without its written
consent, which consent shall not be unreasonably withheld. The indemnifying
party may settle or compromise the Action without the prior written consent of
the indemnified Person so long as any settlement or compromise of the Action
includes an unconditional release of the indemnified Person from all claims that
are the subject of that Action, provided, however, that the indemnifying party
may not agree to any such settlement or compromise that includes any remedy or
relief (other than monetary damages for which the indemnifying party shall be
responsible under this Article) applying to or against the indemnified Person,
without the prior written consent of the indemnified Person (which consent shall
not be unreasonably withheld). Notwithstanding the other provisions of this
Article, the indemnifying party shall have no obligation under this Article to
any indemnified Person when and if a court of competent jurisdiction shall
ultimately determine, in a decision constituting a final determination, that
such indemnified Person is not entitled to indemnification hereunder.
(b) Any indemnified Person wishing to claim indemnification under this
Article, upon learning of any such Action, shall promptly notify the
indemnifying party thereof in writing and shall deliver to the indemnifying
party an undertaking to repay any amounts advanced pursuant to this Article when
and if a court of competent jurisdiction shall ultimately determine, in a
decision constituting a final determination, that such indemnified Person is not
entitled to indemnification hereunder. The failure of the indemnified Person to
give notice as provided in this paragraph (b) or paragraph (f) below shall not
relieve the indemnifying party of its obligations under this Article, except to
the extent that the indemnifying party is prejudiced by the failure to give
notice. The indemnified Persons may as a group retain only one law firm pursuant
to the preceding paragraph (a) to represent them at the expense of the
indemnifying party with respect to any such matter unless there is, under
applicable standards of professional conduct, a conflict on any significant
issue between the positions of any two or more indemnified Persons in which case
the indemnified Persons may retain, at the expense of the indemnifying party,
such number of additional counsel as are reasonably necessary to eliminate all
such conflicts.
54
<PAGE>
(c) This Article shall survive the Effective Time and the Distribution, is
intended to benefit each indemnified Person and their respective successors,
heirs, personal representatives and assigns (each of whom shall be entitled to
enforce this Article), and shall be binding on all successors and assigns of the
indemnifying party.
(d) In the event any indemnifying party or any of its successors or assigns
(i) consolidates with or merges into any other entity and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers all or substantially all of its assets to any entity, then,
and in each such case, proper provision shall be made so that the successors and
assigns of the indemnifying party assume the obligations of the indemnifying
party set forth in this Article.
(e) Each of the parties hereto agrees vigorously to defend against any
Action in which such party is named as a defendant and that seeks to enjoin,
restrain or prohibit the transactions contemplated hereby or seeks damages with
respect to such transactions.
(f) If any indemnified Person determines that it is or may be entitled to
indemnification by any party under this Article 14 (other than in connection
with any Action), the indemnified Person shall promptly deliver to the
indemnifying party a written notice specifying, to the extent reasonably
practicable, the basis for the indemnified Person's claim for indemnification
and the amount for which the indemnified Person reasonably believes it is
entitled to be indemnified.
(g) In the event of payment by an indemnifying party to any indemnified
Person in connection with any claim, such indemnifying party shall be subrogated
to and shall stand in the place of such indemnified Person as to any events,
circumstances or Persons in respect of which such indemnified Person may have
any right or claim relating to such claim. Such indemnified Person shall
cooperate with such indemnifying party in a reasonable manner, and at the cost
and expense of such indemnifying party, in prosecuting any subrogated right or
claim.
(h) The remedies provided in this Article 14 shall be cumulative and shall
not preclude assertion by any indemnified Person of any other rights or the
seeking of any and all other remedies against any indemnifying party.
14.6 Contribution. If for any reason the indemnification provided for in
------------
Section 14.1, 14.2 or 14.3 is unavailable to any indemnified Person, or
insufficient to hold the indemnified Person harmless, then the indemnifying
party shall contribute to the amount paid or payable by that indemnified Person
as a result of those Damages in that proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and of the
indemnified Person, on the other hand, respecting those Damages, which relative
fault shall be determined by reference to the Business and Group to which the
relevant actions, conduct, statements or omissions are primarily related, as
well as any other relevant equitable considerations.
55
<PAGE>
ARTICLE 15
GENERAL PROVISIONS
15.1 Intercompany Accounts. Except for any amounts owed by Delta Apparel to
---------------------
the Delta Woodside Group for yarn sold by the Delta Woodside Group to Delta
Apparel, which amounts shall be paid in the ordinary course of business, and
except as otherwise provided in this Distribution Agreement (including without
limitation Article 2) or any of the other Distribution Documents, all
intercompany receivable, payable and loan balances existing as of the Effective
Time between any member of any Group and any member of any other Group will be
deemed to have been paid in full by the party or parties owing any such
obligation on and as of the Effective Time.
15.2 Existing Arrangements. Except for the Distribution Documents and
----------------------
except as otherwise contemplated by any Distribution Document, all prior
executory agreements and arrangements, including those relating to goods, rights
or services provided or licensed, between any member(s) of any Group and any
member(s) of any other Group shall be terminated effective as of the Effective
Time, if not previously terminated. No such agreements or arrangements shall be
in effect after the Effective Time unless embodied in the Distribution
Documents.
15.3 Intellectual Property Rights and Licenses. No Group shall have any
-------------------------------------------
right or license in or to any technology, software, intellectual property
(including, without limitation, any trademark, service mark, patent or
copyright), know-how or other proprietary right owned, licensed or used by any
other Group.
15.4 Further Assurances and Consents. In addition to the actions
-----------------------------------
specifically provided for elsewhere in this Distribution Agreement and the other
Distribution Documents, each of the parties to this Distribution Agreement shall
use all commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things, reasonably necessary,
proper or advisable under applicable laws, regulations and agreements or
otherwise to consummate and make effective the transactions contemplated by this
Distribution Agreement and the other Distribution Documents, including, but not
limited to, using all commercially reasonable efforts to obtain any Consents and
approvals and to make any filings and applications necessary or desirable in
order to consummate the transactions contemplated by this Distribution Agreement
and the other Distribution Documents; provided that no party to this
Distribution Agreement shall be obligated to pay any consideration for any
consent or approval (except for filing fees and other similar charges) to any
third party from whom a consent or approval is requested or to take any action
or omit to take any action if the taking of or the omission to take that action
would be unreasonably burdensome to that party, its Group or its Group's
business.
15.5 Notices. All notices or other communications under this Distribution
-------
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by telecopy (with
confirmation of receipt), or by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
56
<PAGE>
If to Delta Woodside:
Delta Woodside Industries, Inc.
233 North Main Street
Greenville, South Carolina 29601
Attention: President
Telecopy No.: (864) 232-6164
If to Duck Head:
Duck Head Apparel Company, Inc.
1020 Barrow Industrial Parkway
P.O. Box 688
Winder, Georgia 30680
Attention: President
Telecopy No.: (770) 867-3111
If to Delta Apparel:
Delta Apparel, Inc.
3355 Breckinridge Blvd.
Suite 100
Duluth, Georgia 30096
Attention: President
Telecopy No.: (770) 806-6800
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
15.6 Specific Performance. The parties hereto agree that irreparable damage
--------------------
would occur in the event that any of the provisions of this Distribution
Agreement were not performed in accordance with its specific terms or were
otherwise breached. Accordingly, each party shall be entitled, without posting
any bond, to an injunction or injunctions to prevent breaches of this
Distribution Agreement and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which it is entitled under
this Distribution Agreement, at law or in equity.
15.7 Entire Agreement. This Distribution Agreement (together with the
-----------------
Distribution Documents and the other documents and instruments referred to
herein) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
15.8 Assignments; Parties in Interest. Prior to the Effective Time, neither
--------------------------------
this Distribution Agreement nor any of the rights, interests or obligations
hereunder may be assigned by any of the
57
<PAGE>
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding and succeeding
sentences, this Distribution Agreement shall be binding upon and inure solely to
the benefit of each of the parties hereto and their respective successors and
assigns. Nothing in this Distribution Agreement, express or implied, is intended
to or shall confer upon any Person not a party hereto any right, benefit or
remedy of any nature whatsoever under or by reason of this Distribution
Agreement, including to confer third party beneficiary rights, except as
specifically set forth in Article 14 in respect of any indemnified Person and
except for the provisions of Section 3.5.
15.9 Governing Law. This Distribution Agreement shall be governed in all
-------------
respects by the laws of the State of South Carolina (without giving effect to
the provisions thereof relating to conflicts of law).
15.10 Headings; Disclosure. The descriptive headings herein are inserted
---------------------
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Distribution Agreement. Any
disclosure by Delta Woodside, Duck Head or Delta Apparel in any portion of its
respective disclosure schedule shall be deemed disclosure in each other portion
of such disclosure schedule.
15.11 Expenses. Except as specifically provided otherwise in any of the
--------
Distribution Documents, whether or not the Distribution is consummated, all
costs and expenses incurred in connection with the preparation, execution and
delivery of the Distribution Documents and the consummation of the transactions
contemplated hereby and thereby (including, without limitation, (x) the fees and
expenses of all counsel, accountants and financial and other advisors of all
Groups in connection therewith, and all expenses in connection with preparing,
filing and printing the Disclosure Documents and (y) any fees and expenses
incurred to repay any indebtedness, but not to incur any indebtedness (which
shall be paid by the party incurring such indebtedness)) shall be paid by Delta
Woodside, Duck Head and Delta Apparel proportionately in accordance with the
respective benefits received by Delta Woodside, Duck Head and Delta Apparel as
determined in good faith by the parties; provided that the holders of the Delta
Woodside Shares shall pay their own expenses, if any, incurred in connection
with the Distribution.
15.12 Tax Sharing Agreement; Certain Transfer Taxes.
---------------------------------------------
(a) Except to the extent that a provision of this Distribution Agreement
expressly indicates otherwise, this Distribution Agreement shall not govern any
Tax matters, and any and all Liabilities relating to Taxes shall be governed
exclusively by the Tax Sharing Agreement.
(b) Notwithstanding the Tax Sharing Agreement, all transfer, documentary,
sales, use, stamp and registration taxes and fees (including filing fees and any
penalties and interest) incurred in connection with any of the transactions
described in this Distribution Agreement (including without limitation the
Intercompany Reorganization) shall be borne and paid by Delta Woodside, Duck
Head and Delta Apparel proportionately in accordance with the respective
benefits received
58
<PAGE>
by Delta Woodside, Duck Head and Delta Apparel as determined in good faith by
the parties. The party or parties that is or are required by applicable law to
file any Return (as defined in the Tax Sharing Agreement) or make any payment
with respect to any of those taxes shall do so, and the other party or parties
shall cooperate with respect to that filing or payment as necessary. The non-
paying party or parties shall promptly reimburse the paying party in accordance
with this Section 15.12, as appropriate, after it or they receive(s) notice of
the payment of those taxes.
15.13 Jurisdiction. Any Action seeking to enforce any provision of, or
------------
based on any matter arising out of or in connection with, any of the
Distribution Documents or any of the transactions contemplated by any of the
Distribution Documents shall be brought exclusively in the United States
District Court for the District of South Carolina or any South Carolina State
court sitting in Greenville County, and each of the parties hereby consents to
the exclusive jurisdiction of those courts (and of the appropriate appellate
courts therefrom) in any such Action and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such Action in any of those courts or that any such
Action that is brought in any of those courts has been brought in an
inconvenient forum. Process in any such Action may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on that party as provided in Section 15.5 shall be deemed effective service of
process on that party.
15.14 Counterparts. This Distribution Agreement may be executed in two or
------------
more counterparts which together shall constitute a single agreement.
15.15 Severability. If any provision of this Distribution Agreement is
------------
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other provisions of this Distribution Agreement shall nevertheless
remain in full force and effect so long as the economics or legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon determination that any term or other provision hereof
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Distribution Agreement so as to effect
the original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, Delta Woodside, Duck Head and Delta Apparel have caused
this Distribution Agreement to be signed by their respective officers thereunto
duly authorized all as of the date first written above.
DELTA WOODSIDE INDUSTRIES, INC.
By /s/
------------------------------------
Title:
59
<PAGE>
DH APPAREL COMPANY, INC.
By /s/
------------------------------------
Title:
DELTA APPAREL, INC.
By /s/
------------------------------------
Title:
60
<PAGE>
DH APPAREL COMPANY, INC.
BOARD OF DIRECTORS
RESOLUTIONS RESPECTING
AMENDMENT OF BYLAWS
- --------------------------------------------------------------------------------
The Board of Directors (the "Board") of DH Apparel Company, Inc., a Georgia
corporation (the "Company"), does hereby adopt the following resolutions of the
Board:
WHEREAS, the Board believes that it is in the best interest of the Company
and its shareholders to amend the Company's bylaws (the "Bylaws") to provide an
orderly method for the submission of shareholder proposals to the Company's
annual meeting of shareholders and an orderly method for the submission of any
proposals to special meetings of the Company's shareholders so that the
Company's shareholders may make informed and carefully-considered decisions as
to whether to adopt or reject such proposals;
NOW THEREFORE, the Board hereby adopts the following resolutions:
RESOLVED, that Section 2.2 of the Bylaws is hereby amended by adding the
following sentence to the end of such Section 2.2:
Only such business shall be conducted at a special shareholder meeting as
shall have been brought before such meeting pursuant to the Corporation's
notice of meeting given in accordance with Section 2.3.
RESOLVED, that the Bylaws are hereby amended by adding the following
Section 2.14:
2.14 Procedures for Submission of Shareholder Proposals at Annual Meeting.
(a) At any annual meeting of the shareholders of the Corporation, only such
business shall be conducted as shall have been brought before the meeting (i) by
or at the direction of the board of directors or (ii) by any shareholder of the
Corporation entitled to vote for the election of directors at such meeting who
complies with the procedures set forth in this Section 2.14.
(b) For business properly to be brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation and such business must
otherwise be a proper matter for shareholder action.
(1) To be timely, a shareholder's notice must be personally delivered
to or mailed, postage prepaid, and received at the principal executive
offices of the Corporation not later than 120 days prior to the
<PAGE>
first anniversary date of the immediately preceding annual meeting or not
later than 10 days after notice or public disclosure of the date of the
annual meeting shall be given or made to stockholders, whichever date shall
be earlier.
(2) To be in proper written form, a shareholder's notice to the
Secretary shall set forth in writing as to each matter the shareholder
proposes to bring before the annual meeting:
(i) a description of such item of business, the reasons for
conducting it at such meeting and, in the event that such item of
business shall include a proposal to amend either the Articles of
Incorporation or these Bylaws, the text of the proposed amendment;
(ii) the name and address of the shareholder proposing such item
of business, as they appear on the Corporation's books, and the
beneficial owner, if any, on whose behalf the proposal is made;
(iii) the class and number of shares held of record, beneficially
owned and represented by proxy by such shareholder as of the record
date for the meeting (if such a date has been established) and as of
the date of such notice, the name in which those shares are registered
and a representation that the shareholder intends to appear in person
or by proxy at the meeting to propose such item of business;
(iv) any material interest of the shareholder in such item of
business;
(v) a description of all arrangements and understandings between
the shareholder and any other person or persons (naming such person or
persons) pursuant to which the proposal is made by the shareholder;
and
(vi) such other information as the Corporation shall reasonably
request.
(c) Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 2.14. The Chairman of an annual meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 2.14, and, if he should so determine, he shall so declare to the
<PAGE>
meeting, and any such business not properly brought before the meeting shall not
be transacted.
(d) Notwithstanding the foregoing provisions of this Section 2.14, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.14.
RESOLVED, that the Company shall cause to performed all such acts as shall
be necessary or advisable in order to accomplish the purposes of these
resolutions.
RESOLVED, that the officers of the Company, be, and they hereby are, each
authorized, empowered and directed, on behalf of and in the name of the Company,
to do and perform all such acts and things, and to execute, deliver and/or file
all such instruments, agreements and other documents (including without
limitation any notices of the amendment of the Bylaws provided herein required
to be filed by applicable law or rules with any governmental or regulatory
agency and any stock market, stock exchange or other self regulatory
organization on which the Company's securities are listed or proposed to be
listed) as they or such officer may deem necessary or desirable to carry into
effect the purposes and intent of the foregoing resolutions, and to perform all
acts necessary or advisable in order to perform the Company's obligations under,
and to consummate the transactions contemplated by, any such executed document;
and the execution and/or filing of each such instrument, agreement and document
shall constitute conclusive evidence of the Board's approval thereof.
RESOLVED, that each act consistent with the purposes of these resolutions
performed prior to the execution of these resolutions by any officer of the
Company is hereby ratified.
RESOLVED, that the Secretary or any Assistant Secretary of the Company is
authorized to make such corrective or minor modifications or additions to the
foregoing resolutions as shall be deemed necessary or appropriate, so long as
the resolutions, as so modified or supplemented, effect the intent and purposes
of these resolutions.
RESOLVED, that these resolutions supersede any prior resolutions of this
Board, if any, that are inconsistent with these resolutions.
Adopted January 20th, 2000.
DH APPAREL COMPANY, INC.
BOARD OF DIRECTORS
RESOLUTIONS RESPECTING
AMENDMENT OF BYLAWS
- --------------------------------------------------------------------------------
The Board of Directors (the "Board") of DH Apparel Company, Inc., a Georgia
corporation (the "Company"), does hereby adopt the following resolutions of the
Board:
WHEREAS, the Board believes that it is in the best interest of the Company
and its shareholders to amend the Company's bylaws (the "Bylaws") to provide
that the Company's Chairman of the Board or Chief Executive Officer, as well as
the Company's President or any Vice President, may sign certificates for the
Company's stock;
NOW THEREFORE, the Board hereby adopts the following resolutions:
RESOLVED, that Section 7.2 of the Bylaws is hereby amended by adding the
phrase "the Chairman of the Board, the Chief Executive Officer," to such Section
7.2 immediately before the phrase "the President or a Vice President."
RESOLVED, that the Company shall cause to be performed all such acts as
shall be necessary or advisable in order to accomplish the purposes of these
resolutions.
RESOLVED, that the officers of the Company, be, and they hereby are, each
authorized, empowered and directed, on behalf of and in the name of the Company,
to do and perform all such acts and things, and to execute, deliver and/or file
all such instruments, agreements and other documents (including without
limitation any notices of the amendment of the Bylaws provided herein required
to be filed by applicable law or rules with any governmental or regulatory
agency and any stock market, stock exchange or other self regulatory
organization on which the Company's securities are listed or proposed to be
listed) as they or such officer may deem necessary or desirable to carry into
effect the purposes and intent of the foregoing resolutions, and to perform all
acts necessary or advisable in order to perform the Company's obligations under,
and to consummate the transactions contemplated by, any such executed document;
and the execution and/or filing of each such instrument, agreement and document
shall constitute conclusive evidence of the Board's approval thereof.
RESOLVED, that each act consistent with the purposes of these resolutions
performed prior to the execution of these resolutions by any officer of the
Company is hereby ratified.
RESOLVED, that the Secretary or any Assistant Secretary of the Company is
authorized to make such corrective or minor modifications or additions to the
foregoing resolutions as shall be deemed necessary or appropriate, so long as
the resolutions, as so modified or supplemented, effect the intent and purposes
of these resolutions.
RESOLVED, that these resolutions supersede any prior resolutions of this
Board, if any, that are inconsistent with these resolutions.
Adopted February 17th, 2000.
DH APPAREL COMPANY, INC.
and
FIRST UNION NATIONAL BANK,
as Rights Agent
SHAREHOLDER RIGHTS AGREEMENT
January 27, 2000
1
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<TABLE>
<CAPTION>
Table of Contents
<S> <C> <C>
Section 1. Certain Definitions.................................................................1
Section 2. Appointment of Rights Agent.........................................................5
Section 3. Issue of Right Certificates.........................................................5
Section 4. Form of Right Certificates..........................................................7
Section 5. Countersignature and Registration...................................................8
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates.............................8
Section 7. Exercise of Rights; Exercise Price; Final Expiration Date of Rights.................9
Section 8. Cancellation and Destruction of Right Certificates.................................11
Section 9. Reservation and Availability of Common Stock.......................................11
Section 10. Common Stock Record Date...........................................................12
Section 11. Adjustment of Exercise Price, Number and Kind of Shares or Number of Rights........13
Section 12. Certificate of Adjusted Exercise Price or Number of Shares.........................21
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power...............21
Section 14. Fractional Rights and Fractional Shares............................................24
Section 15. Rights of Action...................................................................25
Section 16. Agreement of Right Holders.........................................................25
Section 17. Right Certificate Holder Not Deemed a Shareholder..................................26
Section 18. Concerning the Rights Agent........................................................26
Section 19. Merger or Consolidation or Change of Name of Rights Agent..........................27
Section 20. Duties of Rights Agent.............................................................27
Section 21. Change of Rights Agent.............................................................30
Section 22. Issuance of New Right Certificates.................................................30
Section 23. Redemption.........................................................................31
Section 24. Exchange...........................................................................32
Section 25. Notice of Certain Events...........................................................34
Section 26. Notices............................................................................34
Section 27. Supplements and Amendments.........................................................35
Section 28. Successors.........................................................................36
Section 29. Determinations and Actions by the Board of Directors...............................36
Section 30. Benefits of this Agreement.........................................................36
Section 31. Severability.......................................................................36
Section 32. Governing Law......................................................................37
Section 33. Counterparts.......................................................................37
Section 34. Descriptive Headings...............................................................37
Exhibit A -- Form of Right Certificate
Exhibit B -- Form of Summary of Rights
</TABLE>
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SHAREHOLDER RIGHTS AGREEMENT
Shareholder Rights Agreement (as the same may from time to time be amended
or supplemented, this "Agreement"), dated as of January 27, 2000, between DH
Apparel Company, Inc., a Georgia corporation (the "Company"), and First Union
National Bank, a national bank, (the "Rights Agent", which term shall include
any successor Rights Agent hereunder).
W I T N E S S E T H
WHEREAS, on January 20, 2000 the Board of Directors of the Company
authorized and declared a dividend distribution of one Right (as hereinafter
defined) for each whole share of Common Stock, $0.01 par value per share, of the
Company (the "Common Stock") outstanding as of the Close of Business on January
20, 2000 (the "Record Date") and authorized the issuance of one Right for each
whole share of Common Stock of the Company which is issued or which becomes
outstanding between the Record Date and the earliest of the Distribution Date,
the Redemption Date and the Final Expiration Date (as such terms are hereinafter
defined), each Right initially representing the right to purchase one quarter of
a share of Common Stock, upon the terms and conditions set forth herein (the
"Rights");
WHEREAS, First Union National Bank has agreed to serve as Rights Agent;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall on any date hereafter, be
the Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or any of its
Subsidiaries, or (iv) any entity or Person holding shares of Common Stock for or
pursuant to the terms of any such plan if such entity or Person is not a
beneficiary of or participant in such plan. The Persons described in clauses (i)
through (iv) above are referred to herein as "Exempt Persons." Notwithstanding
the foregoing, no Person shall become an "Acquiring Person" as the result of an
acquisition of Common Stock by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of shares beneficially
owned by such Person (together with all Affiliates and Associates of such
Person) to 20% or more of the Common Stock of the Company then outstanding;
provided, however, that if any Person, (together with all Affiliates and
Associates of such Person, (other than Exempt Persons) shall become the
Beneficial Owner of 20% or more of the Common Stock of the Company then
outstanding by reason of share purchases by the Company and shall, after such
share purchases by the Company, become the Beneficial Owner of any
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additional shares of Common Stock of the Company, then such Person shall be
deemed to be an "Acquiring Person." Notwithstanding anything contained in this
Agreement to the contrary, Robert D. Rockey, Jr. shall not be deemed to be or
become an Acquiring Person as a result of the exercise of his right to acquire
up to 1,000,000 shares of the Common Stock on the date that is six months after
the date Common Stock is distributed by Delta Woodside Industries, Inc. to its
shareholders as contemplated in that certain letter dated March 15, 1999 which
was amended on October 19, 1999 pertaining to Mr. Rockey's employment by the
Company unless he shall also be or become the Beneficial Owner of more than 10%
of the Common Stock then outstanding after the exercise of such right in
addition to the shares acquired upon exercise of such right.
(b) "Adjustment Event" shall mean any Section 11(a)(ii) Event or any
Section 13 Event.
(c) "Adjustment Shares" shall have the meaning set forth in Section
11(a)(ii).
(d) "Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act, as in effect on the date of this Agreement; provided, however,
that no Exempt Person shall be deemed an Affiliate or an Associate.
(e) A Person shall be deemed the "Beneficial Owner" of, and shall be deemed
to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, beneficially own, directly or indirectly (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the
Exchange Act, as in effect on the date of this Agreement) or has the right
to dispose of;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has (A) the right to acquire (whether
such right is exercisable immediately or after the passage of time)
pursuant to any agreement, arrangement or understanding, upon the exercise
of conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall
not be deemed the "Beneficial Owner" of, or to "beneficially own" (1)
securities tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; (2) securities issuable
upon exercise of Rights at any time prior to the occurrence of an
Adjustment Event; or (3) securities issuable upon exercise of Rights from
and after the occurrence of an Adjustment Event, if such Rights were
acquired by such Person or such Person's Affiliates or Associates prior to
the Distribution Date or pursuant to Section 3(a) or Section 22 or pursuant
to Section 11(a)(i) in connection with an adjustment made with respect to
any of the Rights heretofore specified in this clause (3); or (B) the right
to vote pursuant to any agreement, arrangement or understanding (whether or
not in writing); provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under this
clause (B) if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy given to such Person or
any of such Person's Affiliates or Associates in response to a public proxy
or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act, or (2)
is made in connection with, or is to otherwise participate in, a proxy or
consent solicitation made or to be made pursuant to, and in accordance
with, the applicable rules and regulations promulgated under the Exchange
Act, in the case of either clause (1) or (2) of this proviso whether or not
such agreement, arrangement or
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understanding is also then reportable by such person on Schedule 13D under
the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with which such Person
or any of such Person's Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing), for the purpose
of acquiring, holding, voting (except pursuant to a revocable proxy as
described in clause (B) of Section 1(e)(ii) hereof) or disposing of any
securities of the Company; provided, however, that (1) no Person engaged in
business as an underwriter of securities shall be deemed the Beneficial
Owner of any securities acquired through such Person's participation as an
underwriter or selling group member in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such
acquisition; (2) no Person who is a director or an officer of the Company
shall be deemed the Beneficial Owner of any securities of the Company that
are beneficially owned by any other director or officer of the Company
solely as a result of his or her position as director or officer of the
Company; (3) any agreement, arrangement or understanding (whether or not in
writing), or any communication or discussion, among two or more Persons
with respect to any matter relating to the management, operation or conduct
of the business of the Company, including any discussion or agreement on,
or any communication with respect to, a position with respect to any such
matter and the disclosure of such communication, discussion, agreement or
position to other Persons (including shareholders of the Company) or to the
Company shall not constitute an agreement, arrangement or understanding
contemplated by Section 1(e)(ii)(B).
(f) "Business Day" shall mean any day other than a Saturday, Sunday, or a
day on which banking institutions in the State of Georgia are authorized or
obligated by law or executive order to close.
(g) "Close of Business" on any given date shall mean 5:00 P.M., Eastern
time, on such date; provided, however, that if such date is not a Business Day
it shall mean 5:00 P.M., Eastern time, on the next succeeding Business Day.
(h) "Common Stock" shall mean the Common Stock, $0.01 par value per share,
of the Company, except that "common stock" when used with reference to any
Person other than the Company shall mean the capital stock (or equity interest)
with the greatest voting power of such Person, or the equity securities or other
equity interest having power to control or direct the management, of such person
or, if such Person is a subsidiary of another Person, the Person which
ultimately controls such first-mentioned Person and which has issued and
outstanding such capital stock, equity securities or equity interests.
(i) "Current Per Share Market Price" shall have the meaning set forth in
Section 11(d).
(j) "Current Value" shall have the meaning set forth in Section 11(a)(iii).
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<PAGE>
(k) "Disinterested Director" shall mean (i) any member of the Company's
Board of Directors who is unaffiliated with an Acquiring Person, or an Affiliate
or Associate of any such Person and was a member of the Company's Board of
Directors prior to the time that an Acquiring Person became such, and any
successor of a Disinterested Director who is unaffiliated with an Acquiring
Person, or any Affiliate or Associate of any such Person and is recommended to
succeed a Disinterested Director by a majority of the Disinterested Directors
then on the Company's Board of Directors.
(l) "Distribution Date" shall have the meaning defined in Section 3(a)
hereof.
(m) "Equivalent Common Stock" shall have the meaning set forth in Section
11(a)(iii) hereof.
(n) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(o) "Exchange Rate" shall have the meaning set forth in Section 24(a)
hereof
(p) "Exercise Price" shall have the meaning set forth in Section 4 hereof.
(q) "Final Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(r) "Group" shall mean two or more Persons acting as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring, holding or
disposing of the Common Stock.
(s) "Person" shall mean any individual, firm, corporation, partnership or
other entity or Group, and shall include any successor (by merger or otherwise)
thereof; provided, however, that when two or more Persons act as a partnership,
limited partnership, syndicate or other Group for the purpose of acquiring,
holding disposing of the Common Stock, such partnership, limited partnership,
syndicate or other Group shall be deemed to be a single Person.
(t) "Principal Party" shall have the meaning set forth in Section 13(b)
hereof.
(u) "Record Date" shall have the meaning set forth in the recital clause of
this Agreement.
(v) "Redemption Date" shall have the meaning set forth in Section 7(a).
(w) "Rights" shall have the meaning set forth in the recital clause of this
Agreement.
(x) "Right Certificate" shall have the meaning set forth in Section 3(a).
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<PAGE>
(y) "Section 11(a)(ii) Adjustment Date" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(z) "Section 11(a)(ii) Event" shall mean any event described in Section
11(a)(ii)(A), (B), or (C) hereof.
(aa) "Section 13 Event" shall mean any event described in clauses (x), (y)
or (z) of Section 13(a) hereof.
(bb) "Share Acquisition Date" shall mean the first date on which there
shall be a public announcement by the Company or an Acquiring Person that an
Acquiring Person has become such.
(cc) "Spread" shall have the meaning set forth in Section 11(a)(iii)
hereof.
(dd) "Subsidiary" of any Person shall mean any other corporation or other
entity of which a majority of the voting equity securities or voting interests
is owned, directly or indirectly, by such Person, or which is otherwise
controlled by such Person.
(ee) "Substitution Period" shall have the meaning set forth in Section
11(a)(iii) hereof.
(ff) "Summary of Rights" shall have the meaning set forth in Section 3(b).
(gg) "Trading Day" shall have the meaning set forth in Section 11(d)(i)
hereof.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with Section 3 hereof, shall prior to the Distribution Date also
be the holders of the Common Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem necessary or
desirable, upon ten (10) days' prior written notice to the Rights Agent. The
Rights Agent shall have no duty to supervise and shall in no event be liable
for, the acts or omissions of any such co-Rights Agent. In the event the Company
appoints one or more co-Rights Agents, the respective duties of the Rights Agent
and any co-Rights Agents shall be as the Company shall determine.
Section 3. Issue of Right Certificates
(a) Until the earlier of (i) the Close of Business on the 10th calendar day
after the Share Acquisition Date, (ii) the Close of Business on the 10th
Business Day (or such later date as may be determined by action of the Board of
Directors of the Company prior to such time as any Person shall become an
Acquiring Person) after the date of (x) the commencement, by any Person, other
than an Exempt Person, of, or (y) the first public announcement of the intention
of any Person
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(other than an Exempt Person) to commence, a tender or exchange offer if, upon
consummation thereof, such Person would be an Acquiring Person, including any
such date which is after the date of this Agreement and prior to the issuance of
the Rights (the earliest of such dates being herein referred to as the
"Distribution Date"), the Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by certificates for the Common Stock registered in the
names of the holders of the Common Stock (which certificates for Common Stock
shall be deemed also to be certificates for Rights) and not by separate
certificates, and the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock. The Board of Directors of the
Company may defer the date set forth in clause (ii) in the preceding sentence to
a specified later date or to an unspecified later date to be determined, with
the concurrence of a majority of the Disinterested Directors, by action of the
Directors of the Company. As soon as practicable after the Company has notified
the Rights Agent of the occurrence of the Distribution Date, the Rights Agent
will send, by first-class, insured, postage prepaid mail, to each record holder
of the Common Stock as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, one or more
certificates, in substantially the form attached hereto as Exhibit A (the "Right
Certificates"), evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided herein. As of and after the Close of Business
on the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) On the Record Date, or thereafter, the Company will send a notification
of the existence of the Rights, by postage prepaid mail, to each record holder
of the Common Stock as of the Close of Business on the Record Date, at the
address of such holder shown on the records of the Company. With respect to
certificates for the Common Stock outstanding as of the Record Date, until the
Distribution Date or the earlier of the Redemption Date or the Final Expiration
Date, the Rights will be evidenced by such certificates for the Common Stock
with or without a copy of the Summary of Rights in the form attached hereto as
Exhibit B (the "Summary of Rights") attached thereto, and the registered holders
of the Common Stock shall also be the registered holders of the associated
Rights. Until the Distribution Date (or earlier redemption, expiration or
termination of the Rights), the transfer of any of the certificates for the
Common Stock outstanding on the Record Date, even without a copy of the Summary
of Rights attached thereto, shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate.
(c) Certificates for the Common Stock issued after the Record Date, but
prior to the earlier of the Distribution Date, the Redemption Date or the Final
Expiration Date, shall be deemed also to be certificates for Rights, and shall
bear the following legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Shareholder Rights Agreement between DH Apparel
Company, Inc. and First Union National Bank, as Rights Agent, dated as of
January 27, 2000 (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal offices of DH Apparel Company, Inc. Under certain circumstances,
as set forth in the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by this certificate.
DH Apparel Company, Inc. will mail to the holder of this certificate
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<PAGE>
a copy of the Rights Agreement, as in effect on the date of mailing,
without charge promptly after receipt of a written request therefor. Under
certain circumstances, Rights issued to Acquiring Persons or any Affiliates
or Associates thereof (as defined in the Rights Agreement) and any
subsequent holder of such Rights may become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date or the earlier of the Redemption Date or the Final Expiration
Date, the Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone, and the transfer of
any of such certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates. In the event
that the Company purchases or acquires any shares of Common Stock after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Stock shall be deemed cancelled and retired so that the Company shall not
be entitled to exercise any Rights associated with the shares of Common Stock
which are no longer outstanding.
Section 4. Form of Right Certificates.
(a) The Right Certificates (and the forms of election to purchase shares
and of assignment to be printed on the reverse thereof) shall each be
substantially in the form of Exhibit A hereto and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or to conform to
usage. Subject to the provisions of Section 11 and Section 22 hereof, the Right
Certificates, whenever distributed, shall be dated as of the Record Date, and on
their face shall entitle the holders thereof to Purchase such number of shares
of Common Stock as shall be set forth therein at the price set forth therein
(the "Exercise Price"), but the number of such shares and the Exercise Price
shall be subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or Section 22
hereof that represents Rights beneficially owned by (i) an Acquiring Person or
any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person (or of such Affiliate or Associate) to
holders of equity interests in such Acquiring Person (or of such Affiliate or
Associate) or to any Person with whom the Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights, or (B)
a transfer which the Board of Directors of the Company has determined is part of
a plan, arrangement or understanding which has as a primary purpose or effect
the avoidance of Section 11 hereof, and any Right Certificate issued pursuant to
Section 6 or Section 11 upon transfer, exchange, replacement or adjustment of
any other Right Certificate referred to in this sentence, shall contain the
following legend:
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The Rights represented by this Right Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or an Affiliate or
an Associate of an Acquiring Person (as such terms are defined in the
Rights Agreement). This Right Certificate and the Rights represented hereby
may become null and void under certain circumstances as specified in
Section 11 of the Rights Agreement.
The Company shall give notice to the Rights Agent promptly after it becomes
aware of the existence and identity of any Acquiring Person or any Associate or
Affiliate thereof.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Company by
its Chairman of the Board, its President or any Vice President, either manually
or by facsimile signature, and shall have affixed thereto the Company's seal or
a facsimile thereof which shall be attested by the Secretary or any Assistant
Secretary of the Company, either manually or by facsimile signature. The Right
Certificates shall be manually countersigned by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent, and issued and delivered by the Company
with the same force and effect as though the Person who signed such Right
Certificates had not ceased to be such officer of the Company; and any Right
Certificates may be signed on behalf of the Company by any Person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this Rights Agreement any such Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at one of its offices designated as the appropriate place for surrender
of Right Certificates upon exercise or transfer, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Section 4(b), Section 11, Section 14 and
Section 24 hereof, at any time after the Close of Business on the Distribution
Date, and at, or prior to, the Close of Business on the earlier of the
Redemption Date or the Final Expiration Date, any Right Certificate or
Certificates may be transferred, split up, combined or exchanged for another
Right Certificate or Certificates, entitling the registered holder to purchase a
like number of shares of Common Stock (or following an Adjustment Event, other
securities, cash or other assets as the case may be) as the Right Certificate or
Certificates surrendered then entitled such holder to purchase. Any registered
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<PAGE>
holder desiring to transfer, split up, combine or exchange any Right Certificate
shall make such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Certificates to be transferred, split up,
combined or exchanged, with the form of assignment and certificate duly
executed, at the office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Right Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 11 and Section 14 hereof,
countersign and deliver to the Person entitled thereto a Right Certificate or
Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or exchange of
Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security satisfactory to them, and reimbursement to the Company and the Rights
Agent of all reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Right Certificate if mutilated, the Company
will execute and deliver a new Right Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Exercise Price; Final Expiration Date of
Rights.
(a) Subject to Section 11(a)(ii) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein, including, without limitation, the restrictions on
exercisability set forth in Section 9, Section 11(a)(iii) and Section 23(a)), in
whole or in part at any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase and the certificate set
forth on the reverse side thereof completed and duly executed, to the Rights
Agent at the office or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Exercise Price for the total number of
shares of Common Stock (or other securities, cash or other assets, as the case
may be) as to which such surrendered Rights are then exercised, at or prior to
the earlier of (i) the Close of Business on January 20, 2010 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption Date") or (iii) the time which such Rights
are exchanged as provided in Section 24. Except as set forth in Section 11(a)
hereof and notwithstanding any other provision of this Agreement, any Person who
prior to the Distribution Date becomes a record holder of shares of Common Stock
may exercise all of the rights of a registered holder of a Right Certificate
with respect to the Rights associated with such shares of Common Stock in
accordance with the provisions of this Agreement, as of the date such Person
becomes a record holder of shares of Common Stock.
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(b) The Exercise Price for each quarter share of Common Stock pursuant to
the exercise of a Right shall initially be $10.00 (equivalent to $40.00 for each
share of Common Stock), shall be subject to adjustment from time to time
provided in Section 11 and Section 13 hereof, and shall be payable in lawful
money of the United States of America in accordance with Section 7(c) below.
(c) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase and the certificate set forth on the
reverse side thereof completed and duly executed, accompanied by payment of the
Exercise Price for the shares (or, following an Adjustment Event, other
securities, cash or other assets, as the case may be) to be purchased and an
amount equal to any applicable transfer tax (as determined by the Rights Agent)
in cash, or by certified check or bank draft payable to the order of the
Company, the Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i)(A) requisition from any transfer agent of the shares of Common
Stock (or make available, if the Rights Agent is the transfer agent therefor)
certificates for the number of shares of Common Stock to be purchased and the
Company hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company shall have elected to deposit the total number
of shares of Common Stock issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent depositary receipts
representing such number of shares of Common Stock as are to be purchased (in
which case certificates for the shares of Common Stock represented by such
receipts shall be deposited by the transfer agent with the depositary agent) and
the Company will direct the depositary agent to comply with such request, (ii)
when appropriate, requisition from the Company the amount of cash, if any, to be
paid in lieu of issuance of fractional shares in accordance with Section 14
hereof, (iii) promptly after receipt of such certificates or depository
receipts, cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after receipt promptly
deliver such cash to or upon the order of the registered holder of such Right
Certificate. In the event that the Company is obligated to issue other
securities of the Company, pay cash or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary so that
such other securities, cash or other property are available for distribution by
the Rights Agent, if and when appropriate.
(d) In case the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to the registered holder of such Right Certificate or
to his duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, neither the
Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder of Rights upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Right Certificate surrendered for
such exercise, and
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(ii) provided such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All Right
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
cancelled Right Certificates to the Company, or shall, at the written request of
the Company, destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Common Stock.
(a) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of Common Stock (and,
following the occurrence of an Adjustment Event, other securities or out of its
authorized and issued shares held in its treasury) the number of shares of
Common Stock (and, following the occurrence of an Adjustment Event, other
securities) that, as provided in this Agreement will be sufficient to permit the
exercise in full of all outstanding Rights; provided, that such action need not
be taken with respect to shares of Common Stock (or other securities) issuable
upon occurrence of an Adjustment Event until the occurrence of such event.
(b) If at the time the Rights become exercisable, the then outstanding
shares of Common Stock are listed on any national or regional securities
exchange or are quoted on the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or any successor thereto or other
comparable quotation system, the Company shall use its best efforts to cause,
from and after such time as the Rights become exercisable, all shares of Common
Stock (and, following the occurrence of an Adjustment Event, other securities)
reserved for issuance upon such exercise to be quoted on such system or listed
on such exchange, as the case may be.
(c) The Company shall use its best efforts to (i) file, as soon as
practicable following the earliest date after the occurrence of a Section
11(a)(ii) Event as of which the consideration to be delivered by the Company
upon exercise of the Rights has been determined in accordance with this
Agreement, or as soon as required by law following the Distribution Date, as the
case may be, a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Common Stock or other
securities purchasable upon exercise of the Rights on an appropriate form, (ii)
cause such registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to remain
effective (with a prospectus that at all times meets the requirements of the
Securities Act) until the earlier of (A) the date as of
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which the Rights are no longer exercisable for such securities, and (B) the date
of the expiration of the Rights. The Company will also take such action as may
be appropriate under, and which will ensure compliance with, the securities or
blue sky laws of the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend for a period of time not to exceed
ninety (90) days after the date set forth in clause (i) of the first sentence of
this Section 9(c), the exercisability of the Rights in order to prepare and file
such registration statement and permit it to become effective. Upon such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect.
Notwithstanding any such provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite qualification
in such jurisdiction shall have been obtained.
(d) The Company covenants and agrees that it will take all such action as
may be reasonably necessary to ensure that all shares of Common Stock (and,
following the occurrence of an Adjustment Event, other securities) delivered
upon exercise of Rights shall, at the time of delivery of the certificates for
such shares (subject to payment of the Exercise Price), be duly and validly
authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees that, subject to Section 6, it
will pay when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of the Right
Certificates or of any certificates for shares of Common Stock (or other
securities, as the case may be) upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Right Certificates to a Person other
than, or in respect of the issuance or delivery of securities in a name other
than that of, the registered holder of the Right Certificates evidencing Rights
surrendered for exercise or to issue or deliver any certificates for securities
in a name other than that of the registered holder upon the exercise of any
Rights until such tax shall have been paid (any such tax being payable by the
holder of such Right Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 10. Common Stock Record Date. Each Person in whose name any
certificate for Common Stock is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares of Common
Stock represented thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly surrendered and
payment of the Exercise Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a date upon
which the Common Stock transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which the Common
Stock transfer books of the Company are open. Prior to the exercise of the Right
evidenced thereby, the holder of a Right Certificate shall not be entitled to
any rights of a shareholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to
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exercise any preemptive rights, and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Exercise Price, Number and Kind of Shares or
Number of Rights. The Exercise Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a)(i) In the event the Company shall at any time after the date of this
Agreement (A) declare a dividend on the Common Stock payable in shares of Common
Stock, (B) subdivide the outstanding Common Stock, (C) combine the outstanding
Common Stock into a smaller number of shares or (D) issue any shares of its
capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, except as otherwise
provided in this Section 11(a), the Exercise Price in effect at the time of the
record date for such dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of shares of Common
Stock or capital stock, as the case may be, issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and kind of shares of
Common Stock or capital stock, as the case may be, which, if such Right had been
exercised immediately prior to such date and at a time when the Common Stock (or
other capital stock, as the case may be) transfer books of the Company were
open, such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate par value of
the shares of the Company issuable upon the exercise thereof. If an event occurs
which would require an adjustment under both Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be
in addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) Subject to Section 24, in the event
(A) any Acquiring Person or any Associate or Affiliate of any Acquiring
Person, at any time after the date of this Agreement, directly or indirectly,
(1) shall merge into the Company or otherwise combine with the Company and the
Company shall be the continuing or surviving corporation of such merger or
combination and the Common Stock of the Company shall remain outstanding and not
changed into or exchanged for stock or other securities of any other Person or
the Company or cash or any other property, (2) shall, in one or more
transactions, transfer any assets to the Company in exchange (in whole or in
part) for shares of any equity security of the Company or any of its
Subsidiaries or for securities exercisable for or convertible into shares of any
equity security of the Company or any of its Subsidiaries or otherwise obtain
from the Company, with or without consideration, any additional shares of any
equity security of the Company or securities exercisable for or convertible into
shares of any equity security of the Company or any of its Subsidiaries (other
than as part of a pro rata distribution to all holders of Common Stock), (3)
shall sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise
dispose (in one or more
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transactions), to, from or with, as the case may be, the Company or any of its
Subsidiaries, assets on terms and conditions less favorable to the Company than
the Company would be able to obtain in arm's-length negotiation with an
unaffiliated third Person, (4) shall engage in any transaction with the Company
involving the sale, purchase, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions), other than
incidental to the lines of business currently engaged in as of the date hereof
by the Company and such Acquiring Person, or Associate or Affiliate, of assets
having an aggregate fair market value of more than $5,000,000, (5) shall receive
any compensation from the Company or any of the Company's Subsidiaries other
than compensation for full time employment as a regular employee at rates in
accordance with the Company's (or its Subsidiaries') past practices, or (6)
shall receive the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans other than in the ordinary course of business),
advances, guarantees, pledges or other financial assistance or any tax credits
or other tax advantage provided by the Company or any of its Subsidiaries, or
(B) any Person (other than an Exempt Person), shall become an Acquiring
Person, or
(C) during such time as there is an Acquiring Person, there shall be any
reclassification of securities (including any reverse stock split), or
recapitalization of the Company, or any merger or consolidation of the Company
with any of its Subsidiaries or any other transaction or series of transactions
(whether or not with or into or otherwise involving an Acquiring Person) which
has the effect, directly or indirectly, of increasing by more than 1% the
proportionate share of the outstanding shares of any class of equity securities
of the Company or any of its Subsidiaries which is directly or indirectly owned
by any Acquiring Person or any Associate or Affiliate of any Acquiring Person,
then, and in each such case, proper provision shall be made so that each holder
of a Right, except as provided in this paragraph (ii), shall thereafter have a
right to receive, upon exercise of such Right at the then current Exercise Price
in accordance with the terms of this Agreement, such number of shares of Common
Stock of the Company as shall equal the result obtained by (x) multiplying the
then current Exercise Price by the then number of one quarter shares of Common
Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event and (y) dividing that product (which,
following such first occurrence, shall thereafter be referred to as the
"Exercise Price" for each Right and for all purposes of this Agreement) by 50%
of the Current Per Share Market Price of the Common Stock (determined pursuant
to Section 11(d)) on the date of the occurrence of any one of the events listed
above in this Section 11(a)(ii) (such number of shares is herein called the
"Adjustment Shares"); provided, however, that if the transaction that would
otherwise give rise to the foregoing adjustment is also subject to the
provisions of Section 13 hereof, then only the provisions of Section 13 shall
apply and no adjustment shall be made pursuant to this Section 11(a)(ii). The
Company shall not enter into any transaction of the kind listed in this Section
11(a)(ii) if at the time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements or arrangements which as
a result of the consummation of such
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transaction, would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights.
Notwithstanding anything in this Agreement to the contrary, from and after
the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned
by (i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person,
(ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate)
who becomes a transferee after the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person becoming
such and receives such Rights pursuant to either (A) a transfer (whether or not
for consideration) from the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights, or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 11(a), shall become null
and void without any further action and no holder or beneficial owner of such
Rights shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall use all
reasonable efforts to ensure that the provisions of this Section 11(a) and
Section 4(b) hereof are complied with, but shall have no liability to any holder
or beneficial owner of Right Certificates or any other Person as a result of its
failure to make any determinations with respect to an Acquiring Person or any
Affiliates and Associates thereof or any transferee of any of them hereunder.
(iii) In the event that the number of shares of Common Stock which are
authorized by the Company's articles of organization but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in accordance with
Section 11(a)(ii), the Company shall: (A) determine the excess of (1) the value
of the Adjustment Shares issuable upon the exercise of a Right (the "Current
Value") over (2) the Exercise Price (such excess is herein called the "Spread"),
and (B) with respect to each Right, make adequate provision to substitute for
the Adjustment Shares, upon payment of the applicable Exercise Price, (1) cash,
(2) a reduction in the Exercise Price, (3) Common Stock or other equity
securities of the Company (including, without limitation, shares, or units of
shares, of preferred stock which the Board has deemed to have the same value as
shares of Common Stock (such shares or units of shares of preferred stock are
herein called "Equivalent Common Stock")), (4) debt securities of the Company,
(5) other assets, or (6) any combination of the foregoing, having an aggregate
value equal to the Current Value, where such aggregate value has been determined
by the Board based upon the advice of a competent investment banking firm
selected by the Board; provided, however, if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above within thirty
(30) days following the later of (x) the first occurrence of a Section 11(a)(ii)
Event and (y) the date on which the Company's right of redemption pursuant to
Section 23(a) expires (the later of (x) and (y) being referred to herein as the
"Section 11(a)(ii) Adjustment Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a Right and without requiring
payment of the Exercise Price, shares of Common Stock (to the extent available)
and then, if necessary, cash, which shares or cash have an aggregate value equal
to the Spread. If the Board shall
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<PAGE>
determine in good faith that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise in full of the
Rights, the thirty (30) day period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the Section 11(a)(ii)
Adjustment Date, in order that the Company may seek stockholder approval for the
authorization of such additional shares (such thirty (30) day period, as it may
be extended, is herein called the "Substitution Period"). To the extent that the
Company determines that some action need be taken pursuant to the first or
second sentence of this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 11(a)(ii) hereof, that such action shall apply uniformly to
all outstanding Rights, and (y) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order to seek an
authorization of additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to determine the
value thereof. In the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For the purpose of this Section 11(a)(iii),
the value of Adjustment Shares shall be the Current Per Share Market Price of
the Common Stock on the Section 11(a)(ii) Adjustment Date, and the per share or
per unit value of any Equivalent Common Stock shall be deemed to equal the
Current Per Share Market Price of the Common Stock on such date.
(b) If the Company shall fix a record date for the issuance of rights
(other than the Rights), options or warrants to all holders of Common Stock
entitling them (for a period expiring within 45 calendar days after such record
date) to subscribe for or purchase Common Stock or Equivalent Common Stock or
securities convertible into Common Stock or Equivalent Common Stock at a price
per share of Common Stock or per share of Equivalent Common Stock (or having a
conversion price per share, if a security convertible into Common Stock or
Equivalent Common Stock) less than the Current Per Share Market Price (as
determined pursuant to Section 11(d) hereof) of the Common Stock on such record
date, the Exercise Price to be in effect after such record date shall be
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on such record date, plus the number of shares of
Common Stock which the aggregate offering price of the total number of shares of
Common Stock or Equivalent Common Stock to be offered (and the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such Current Per Share Market Price and the denominator of which shall be the
number of shares of Common Stock outstanding on such record date, plus the
number of additional shares of Common Stock or Equivalent Common Stock to be
offered for subscription or purchase (or into which the convertible securities
so to be offered are initially convertible); provided, however, that in no event
shall the consideration to be paid upon the exercise of one Right be less than
the aggregate par value of the shares of the Company issuable upon the exercise
thereof. In case such subscription price may be paid in a consideration part or
all of which shall be in a form other than cash, the value of such consideration
shall be the Current Per Share Market Price thereof determined in accordance
with Section 11(d) hereof. Shares of Common Stock owned by or held for the
account of the Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such rights or
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warrants are not so issued, the Exercise Price shall be adjusted to be the
Exercise Price which would then be in effect if such record date had not been
fixed.
(c) If the Company shall fix a record date for the making of a distribution
to all holders of Common Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness, cash (other than a regular periodic
cash dividend out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Common Stock, but including any dividend
payable in stock other than Common Stock) or options, subscription rights or
warrants (excluding those referred to in Section 11(b)), the Exercise Price to
be in effect after such record date shall be determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the Current Per Share Market Price (as
determined pursuant to Section 11(d) hereof) of Common Stock on such record
date, less the Current Per Share Market Price (as determined pursuant to Section
11(d) hereof) of the portion of the cash, assets or evidences of indebtedness so
to be distributed or of such options, subscription rights or warrants applicable
to one share of Common Stock and the denominator of which shall be the Current
Per Share Market Price (as determined pursuant to Section 11(d) hereof) per one
share of Common Stock; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of the Company issuable upon the exercise
thereof. Such adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made, the Exercise
Price shall again be adjusted to be the Exercise Price which would be in effect
if such record date had not been fixed.
(d) For the purpose of this Agreement, the "Current Per Share Market Price"
of any share of Common Stock or any other stock or any Right or other security
or any other property shall be determined as provided in this Section 11(d).
(i) In the case of a publicly-traded stock or other security
(hereinafter in this Section 11(d)(i) a "Security"), the Current Per Share
Market Price on any date shall be deemed to be the average of the daily
closing prices per share of such Security for the thirty (30) consecutive
Trading Days (as such term is hereinafter defined) immediately prior to
such date; provided, however, that for the purpose of computations made
pursuant to Section 11(a)(iii) hereof, the Current Per Share Market Price
on any date shall be deemed to be the average of the daily closing prices
per share of such Security for the ten (10) consecutive Trading Days
immediately following such date; and provided further, that in the event
that the Current Per Share Market Price of any Security is determined
during a period following the announcement by the issuer of such Security
of (x) a dividend or distribution on such Security payable in shares of
such Security or securities convertible into shares of such Security (other
than the Rights) or (y) any subdivision, combination or reclassification of
such Security, and prior to the expiration of the requisite thirty (30)
Trading Day or ten (10) Trading Day period, as set forth above, after the
ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each such
case, the Current Per Share Market Price shall be properly adjusted to take
into account ex-dividend trading. The closing price for each day shall be
the last sale price, regular way, or, in
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case no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the Securities
are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which such Security is listed or admitted to trading; or, if not listed
or admitted to trading on any national securities exchange, the last quoted
price (or, if not so quoted, the average of the last quoted high bid and
low asked prices) in the over-the-counter market, as reported by NASDAQ or
such other system then in use; or, if, on any such date no bids for such
Security are quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a
market in such Security selected by the Board of Directors of the Company.
If on any such date no market maker is making a market in such Security,
the Current Per Share Market Price of such Security on such date shall be
determined reasonably and with good faith to the holders of the Rights by
the Board of Directors of the Company, including, if at the time of such
determination there is an Acquiring Person, a majority of the Disinterested
Directors then in office, or if there are no Disinterested Directors, by a
competent investment banking firm selected by the Board of Directors, which
determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and the holders of the Rights. The
term "Trading Day" shall mean a day on which the principal national
securities exchange on which such Security is listed or admitted to trading
is open for the transaction of business or, if such Security is not listed
or admitted to trading on any national securities exchange, a Business Day.
(ii) If a Security is not publicly held or not so listed or traded,
"Current Per Share Market Price" shall mean the fair value per share of
stock or per other unit of such Security, determined reasonably and with
utmost good faith to the holders of the Rights by the Board of Directors of
the Company, including, if at the time of such determination there is an
Acquiring Person, a majority of the Disinterested Directors then in office,
or if there are no Disinterested Directors, by a competent investment
banking firm selected by the Board of Directors, which determination shall
be described in a statement filed with the Rights Agent and shall be
binding on the Rights Agent and the holders of the Rights.
(iii) In the case of property other than securities, the Current Per
Share Market Price thereof shall be determined reasonably and with utmost
good faith to the holders of Rights by the Board of Directors of the
Company, including, if at the time of such determination there is an
Acquiring Person, a majority of the Disinterested Directors then in office,
or if there are no Disinterested Directors, by a competent investment
banking firm selected by the Board of Directors, which determination shall
be described in a statement filed with the Rights Agent and shall be
binding upon the Rights Agent and the holders of the Rights.
(e) Anything herein to the contrary notwithstanding, no adjustment in the
Exercise Price shall be required unless such adjustment would require an
increase or decrease of at least l% in the Exercise Price; provided, however,
that any adjustments which by reason of this Section 11(e)
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<PAGE>
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share, as the case may
be. Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section shall be made no later than the earlier of (i) three
(3) years from the date of the transaction which mandates such adjustment or
(ii) the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)(ii) or
Section 13(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of any
Right and the Exercise Price thereof shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in Section 11(a) through
(c), (e), (g) through (k), and (m), inclusive, and the provisions of Sections 7,
9, 10, 13 and 14 hereof with respect to the Common Stock shall apply on like
terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Exercise Price hereunder shall evidence the right to
purchase, at the adjusted Exercise Price, the number of shares (or fractions
thereof) of Common Stock purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Exercise Price as a result of the
calculations made in Section 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Exercise Price, that number of shares of Common Stock
(calculated to the nearest one ten-thousandth) obtained by (i) multiplying (x)
the number of shares covered by a Right immediately prior to this adjustment by
(y) the Exercise Price in effect immediately prior to such adjustment of the
Exercise Price, and (ii) dividing the product so obtained by the Exercise Price
in effect immediately after such adjustment of the Exercise Price.
(i) The Company may elect on or after the date of any adjustment of the
Exercise Price to adjust the number of Rights, in substitution for any
adjustment in the number of shares of Common Stock purchasable upon the exercise
of a Right. Each of the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of shares of Common Stock for which a
Right was exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest one ten-thousandth) obtained by dividing
the Exercise Price in effect immediately prior to adjustment of the Exercise
Price by the Exercise Price in effect immediately after adjustment of the
Exercise Price. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the adjustment, and,
if known at the time, the amount of the adjustment to be made. This record date
may be the date on which the Exercise Price is adjusted or any day thereafter,
but, if the Right Certificates have been issued, shall be at least ten (10) days
later than the date of the public announcement. If Right Certificates have been
issued,
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upon each adjustment of the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be distributed to holders of
record of Right Certificates on such record date Right Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and may bear, at
the option of the Company, the adjusted Exercise Price) and shall be registered
in the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Exercise Price or the
number of shares of Common Stock issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue to express the
Exercise Price per share and the number of shares which were expressed in the
initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Exercise Price below the then par value, if any, of the number of shares of
Common Stock issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock at such adjusted Exercise Price.
(l) In any case in which this Section 11 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event the
issuing to the holder of any Right exercised after such record date the number
of shares of Common Stock and other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the number of shares of
Common Stock and other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Exercise Price in effect prior
to such adjustment; provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such holder's right
to receive such additional shares upon the occurrence of the event requiring
such adjustment.
(m) Notwithstanding anything in this Section 11 to the contrary, the
Company shall be entitled to make such reductions in the Exercise Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Common Stock, issuance wholly
for cash of any shares of Common Stock at less than the Current Per Share Market
Price, issuance wholly for cash of shares of Common Stock or securities which by
their terms are convertible into or exchangeable for shares of Common Stock,
stock dividends or issuance of rights, options or warrants referred to
hereinabove in this Section 11, hereafter made by the Company to holders of its
Common Stock, shall not be taxable to such shareholders.
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(n) The Company covenants and agrees that it shall not, at any time after
the Distribution Date, (i) consolidate with, (ii) merge with or into, or (iii)
sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction or a series of related transactions, assets or earning power
aggregating 50% or more of the assets or earning power of the Company and its
Subsidiaries taken as a whole, to any other Person or Persons if (x) at the time
of or immediately after such consolidation, merger or sale there are any rights,
warrants or other instruments outstanding or agreements or arrangements in
effect which would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights, or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale the shareholders of a
Person who constitutes, or would constitute, the "Principal Party" for the
purposes of Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that after the Distribution Date it
will not, except as permitted by Section 23 or Section 24 hereof, take (or
permit any Subsidiary to take) any action if at the time such action is taken it
is reasonably foreseeable that such action will substantially diminish or
otherwise eliminate the benefits intended to be afforded by the Rights.
Section 12. Certificate of Adjusted Exercise Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11 and Section 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent and with each transfer agent for the
Common Stock a copy of such certificate and (c) mail a brief summary thereof to
each holder of a Right Certificate in accordance with Section 25 hereof. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment contained therein and shall not be deemed to have knowledge of
any such adjustment unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
(a) In the event that, on or after the Share Acquisition Date, directly or
indirectly, (x) the Company shall consolidate with, or merge with and into, any
other Person (other than a Subsidiary of the Company in a transaction which is
not prohibited by Section 11(o) hereof), and the Company shall not be the
continuing or surviving corporation of such consolidation or merger (y) any
Person (other than a Subsidiary of the Company in a transaction which is not
prohibited by Section 11(o) hereof) shall consolidate with the Company, or merge
with and into the Company and the Company shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or part of
the shares of Common Stock shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property, or (z) the Company
shall sell, mortgage or otherwise transfer (or one or more of its Subsidiaries
shall sell, mortgage or otherwise transfer), in one transaction or a series of
related transactions, assets or earning power aggregating 50% or more of the
assets or earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person or Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which is not prohibited by Section
11(o) hereof)
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then, and in each such case, proper provision shall be made so that: (i) each
holder of a Right, except as provided otherwise herein, shall have the right to
receive, upon the exercise thereof at the then current Exercise Price in
accordance with the terms of this Agreement, such number of validly authorized
and issued, fully paid and nonassessable shares of freely tradeable Common Stock
of the Principal Party (as hereinafter defined in Section 13(b)), free and clear
of rights of call or first refusal, liens, encumbrances or other adverse claims,
as shall be equal to the result obtained by (1) multiplying the then current
Exercise Price by the number of one quarter shares of Common Stock for which a
Right is exercisable immediately prior to the first occurrence of a Section 13
Event (or, if a Section 11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number of one quarter shares
of Common Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the Exercise Price in effect
immediately prior to such first occurrence) and dividing that product (which,
following the first occurrence of a Section 13 Event, shall be referred to as
the "Exercise Price" for each Right and for all purposes of this Agreement) by
(2) 50% of the Current Per Share Market Price (determined pursuant to Section
11(d) hereof) of the Common Stock of such Principal Party on the date of
consummation of such consolidation, merger, sale or transfer; (ii) such
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such consolidation, merger, sale or transfer, all the obligations and duties of
the Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply to such Principal
Party; and (iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common Stock
to permit exercise of all outstanding Rights in accordance with this Section
13(a)) in connection with such consummation as may be necessary to assure that
the provisions hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights. The Company shall not enter into any transaction of
the kind set forth in this subsection if at the time of the consummation of such
transaction there are any options, warrants, rights, conversion or exchange
provisions or securities outstanding or any agreements or arrangements in effect
which, as a result of the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be afforded by the Rights. If,
in the case of a transaction of the kind described in clause (z) of the first
sentence of this subsection, the Person or Persons to whom assets or earning
power are sold or otherwise transferred are individuals, then the preceding
sentences of this subsection shall be inapplicable, and the Company shall
require as a condition to such sale or transfer that such Person or Persons pay
to each holder of a Rights Certificate, upon its surrender to the Rights Agent
and in exchange therefor (without requiring payment by such holder), cash in the
amount determined by multiplying the then current Exercise Price by the number
of one quarter shares of Common Stock for which a Right is then exercisable.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause (x) or (y) of
the first sentence of Section 13(a), the Person that is the issuer of any
securities into which shares of
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Common Stock of the Company are converted in such merger or consolidation,
and if no securities are so issued, the Person that is the other party to
the merger or consolidation; and
(ii) in the case of any transaction described in clause (z) of the
first sentence of Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions;
provided, however, that in any such case, (x) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the Common Stock of which is and
has been so registered, "Principal Party" shall refer to such other Person; and
(y) in case such Person is a Subsidiary, directly or indirectly, or more than
one Person, the Common Stocks of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market value of shares
outstanding.
(c) The Company shall not consummate any such consolidation, merger, sale
or transfer unless prior thereto (x) the Principal Party shall have a sufficient
number of authorized shares of its Common Stock which have not been issued or
reserved for issuance to permit the exercise in full of the Rights in accordance
with this Section 13, and (y) the Company and each Principal Party and each
other Person who may become a Principal Party as a result of such consolidation,
merger, sale or transfer shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in Section 13(a) and
(b) and further providing that, as soon as practicable after the date of any
consolidation, merger, sale or transfer of assets mentioned in Section 13(a),
the Principal Party at its own expense will
(i) prepare and file a registration statement under the Securities Act
with respect to the Rights and the securities purchasable upon exercise of
the Rights on an appropriate form, use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing and use its best efforts to cause such registration statement
to remain effective (with a prospectus that at all times meets the
requirements of the Securities Act) until the Final Expiration Date;
(ii) use its best efforts to qualify or register the Rights and the
securities purchasable upon exercise of the Rights under the blue sky laws
of such jurisdictions as may be necessary or appropriate;
(iii) use its best efforts to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the Rights on a
national securities exchange or to meet the eligibility requirements for
quotation on NASDAQ; and
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(iv) deliver to holders of the Rights historical financial statements
for the Principal Party and each of its Affiliates which comply in all
material respects with the requirements for registration on Form 10 under
the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. If any Section 13 Event shall occur
at any time after the occurrence of a Section 11(a)(ii) Event, the Rights which
have not theretofore been exercised shall thereafter become exercisable in the
manner described in Section 13(a).
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights, or to
distribute Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there may be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price per Right for the Trading Day
immediately prior to such date on which fractional Rights would have been
otherwise issuable. The closing price for any Trading Day shall be the last sale
price, regular way, or, in case no such sale takes place on such Trading Day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading; or, if not listed or
admitted to trading on any national securities exchange, the last quoted price
(or, if not so quoted, the average of the last quoted high bid and low asked
prices) in the over-the-counter market, as reported by NASDAQ or such other
system then in use; or, if, on any such Trading Day no bids for the Rights are
quoted by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Rights
selected by the Board of Directors of the Company. If on any such date no market
maker is making a market in the Rights the current market value of the Rights on
such Trading Day shall be determined reasonably and with utmost good faith to
the holders of the Rights by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent.
(b) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company may pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value per share of
Common Stock. For purposes of this Section 14(b), the current market value per
share of Common Stock shall be the closing price per share of Common Stock
determined pursuant to Section 11(d) hereof for the Trading Day immediately
prior to the date of such exercise.
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(c) The holder of a Right by the acceptance of the Rights expressly waives
his right to receive any fractional Rights or any fractional shares upon
exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of this
Agreement, other than rights of action vested in the Rights Agent pursuant to
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Right evidenced by such Right Certificate in the manner provided in
such Right Certificate and in this Agreement. Without limiting the foregoing or
any remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this Agreement.
Holders of Rights shall be entitled to recover the reasonable costs and
expenses, including attorneys' fees, incurred by them in any action to enforce
the provisions of this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and with the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, each Right will be transferable only
simultaneously and together with the transfer of shares of Common Stock;
(b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the office or
offices of the Rights Agent designated for such purpose, duly endorsed or
accompanied by a proper instrument of transfer;
(c) subject to Sections 6 and 11, the Company and the Rights Agent may deem
and treat the person in whose name a Right Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates or the associated
Common Stock certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither the
Company nor the Rights Agent shall have any liability to any holder of a Right
or other Person as the result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or
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<PAGE>
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative agency
or commission, or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligations; provided, however, that the Company must use
its reasonable best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No holder,
as such, of any Right Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the shares of Common Stock or any
other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel fees and disbursements and
other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent and its directors, officers, employees
and agents for, and to hold each of them harmless against any loss, liability,
or expense, incurred without gross negligence, recklessness, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or omitted
by the Rights Agent or such other indemnified party in connection with the
acceptance and administration of this Agreement or the performance of the Rights
Agent's duties hereunder, including the costs and expenses of defending against
any claim of liability arising therefrom, directly or indirectly.
(b) The Rights Agent shall be protected and shall incur no liability for or
in respect of any action taken, suffered or omitted by it in connection with its
administration of this Agreement or the performance of the Rights Agent's duties
hereunder in reliance upon any Right Certificate or certificate for Common Stock
or other securities of the Company, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper Person or Persons, or in reliance upon the advice of counsel as set
forth in Section 20.
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(c) The indemnity provided in this Section 18 shall survive the expiration
of the Rights and the termination of the Agreement.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation succeeding to the
corporate trust or shareholder services business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Right Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel selected by it (who may
be legal counsel for the Company), and the advice or opinion of such counsel
shall be full and complete authorization and protection to the Rights Agent as
to any action taken or omitted by it in good faith and in accordance with such
advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of Current Per Share Market Price) be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed) may
be deemed to be
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conclusively proved and established by a certificate signed by any duly
authorized officer of the Company and delivered to the Rights Agent; and such
certificate shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith in reliance
upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, recklessness, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall it
be responsible for any change in the exercisability of the Rights (including the
Rights becoming void pursuant to Section 11(a) hereof) or any adjustment
required under the provisions of Sections 3, 11, 13, 23 or 24 hereof or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by Right Certificates
after receipt of a certificate describing any such adjustment furnished in
accordance with Section 12 hereof), nor shall it be responsible for any
determination by the Board of Directors of the Company of current market value
of the Rights or Common Stock pursuant to the provisions of Section 14 hereof;
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of Common Stock to
be issued pursuant to this Agreement or any Right Certificate or as to whether
any shares of Common Stock will, when so issued, be validly authorized and
issued, fully paid and nonassessable; nor shall it be under any obligation to
institute any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more of the registered
holders of the Rights Certificates shall furnish the Rights Agent with security
and indemnity to its satisfaction for any costs and expenses which may be
incurred; nor shall it be liable for any failure to perform any duties except as
specifically set forth herein and no implied covenants or obligations shall be
read into this Agreement against the Rights Agent, whose duties and obligations
shall be determined solely by the express provisions hereof.
(f) The Company agrees that it will inform the Rights Agent promptly upon
the Company's determination that a Person has become an Acquiring Person, and
the Rights Agent will not be responsible for making such determination or be
deemed to have knowledge thereof prior to such notice by the Company. The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and other
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acts, instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder and
certificates delivered pursuant to any provision hereof from any duly authorized
officer of the Company, and is authorized to apply to any such officer for
advice or instructions in connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer or for any delay in acting while awaiting
instructions. Any application by the Rights Agent for written instructions from
the Company may, at the option of the Rights Agent, set forth in writing any
action proposed to be taken or omitted by the Rights Agent under this Agreement
and the date on and/or after which such action shall be taken or such omission
shall be effective. The Rights Agent shall not be liable for any action taken
by, or omission of, the Rights Agent in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than five Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to an earlier date) unless, prior to taking any such action
(or the effective date in the case of an omission), the Rights Agent shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or employee of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not the Rights Agent under
this Agreement. Nothing herein shall preclude the Rights Agent from acting in
any other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers
vested in it or perform any of its duties hereunder either directly or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorney or
agent or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided the Rights Agent was not grossly negligent in
the selection or continued employment of such agent.
(j) If, with respect to any Right Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause (1) or clause (2)
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
(k) Anything in this Agreement to the contrary not withstanding, in no
event shall the Rights Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits).
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(l) No provision in this Agreement shall require the Rights Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this agreement
upon thirty (30) days' notice in writing mailed to the Company, and to each
transfer agent of the Common Stock by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. The Company may remove
the Rights Agent or any successor Rights Agent (with or without cause) upon
thirty (30) days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common Stock
by registered or certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the incumbent Rights Agent or the registered holder of any Right
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation or trust company
organized and doing business under the laws of the United States or of the State
of State of Georgia (or of any other state of the United States so long as such
corporation is authorized to do business as a banking institution in the State
of Georgia), in good standing, which is authorized under such laws to exercise
shareholder services or corporate trust powers and is subject to supervision or
examination by federal or state authority or (b) an Affiliate of a corporation
described in clause (a) of this sentence. After appointment, the successor
Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock and mail a notice thereof in writing
to the registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Right Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the Exercise Price and the number or kind or class of shares of stock or other
securities or property purchasable under the Right Certificates made in
accordance with the
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<PAGE>
provisions of this Agreement. In addition, in connection with the issuance or
sale of shares of Common Stock following the Distribution Date and prior to the
redemption or expiration of the Rights, the Company (a) shall, with respect to
shares of Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities hereafter issued by the Company, and (b)
may, in any other case, if deemed necessary or appropriate by the Board of
Directors of the Company, issue Right Certificates representing the appropriate
number of Rights in connection with such issuance or sale; provided, however,
that (i) no such Right Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
person to whom such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate adjustments
shall otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, at any time
prior to the earlier of (x) the Close of Business on the tenth day following the
Share Acquisition Date (or, if the Share Acquisition Date shall have occurred
prior to the Record Date, the Close of Business on the tenth day following the
Record Date), or (y) the Final Expiration Date, redeem all but not less than all
of the then outstanding Rights at a redemption price of $.001 per Right, as such
amount may be appropriately adjusted, as determined by the Board of Directors,
to reflect any transaction of the kind described in clauses (A) through (D) of
Section 11(a)(i) occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"); provided, however, that if
the Board of Directors of the Company shall authorize the redemption of the
Rights in the circumstances set forth in clause (i) or (ii) below, then there
must be Disinterested Directors in office and such authorization shall require
the concurrence of a majority of such Disinterested Directors: (i) such
authorization occurs on or after the date a Person becomes an Acquiring Person
or (ii) such authorization occurs on or after the date of a change (resulting
from one or more proxy or consent solicitations) in a majority of the directors
in office at the commencement of such solicitation if any Person who is a
participant in such solicitation has stated (or, if upon the commencement of
such solicitation a majority of the Board of Directors of the Company has
determined in good faith) that such Person (or any of its Affiliates or
Associates) intends to take, or may consider taking, any action which would
result in such person becoming an Acquiring Person or which would cause the
occurrence of an Adjustment Event. In considering whether to redeem the Rights,
the Board of Directors of the Company may consider the best long-term and
short-term interests of the Company, including, without limitation, the effects
of the redemption of the Rights upon employees, suppliers and customers of the
Company or any Subsidiary of the Company and communities in which offices or
other establishments of the Company or any Subsidiary of the Company are located
and all other pertinent factors, including without limitation the factors set
forth in the Company's Articles of Incorporation as amended from time to time.
The redemption of the Rights by the Board of Directors may be effective at such
time, on such basis and with such conditions as such Board of Directors in its
sole discretion may establish. In addition to the right of redemption reserved
in the first sentence of this subsection (a), if there are Disinterested
Directors then in office, such Board
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of Directors may redeem, with the concurrence of a majority of such
Disinterested Directors, all, but not less than all, of the then outstanding
Rights at the Redemption Price after the occurrence of a Share Acquisition Date,
but prior to the occurrence of any transaction of the kind described in Section
11(a)(ii)(A) or (C) or Section 13(a), if either (i) a Person who is an Acquiring
Person shall have transferred or otherwise disposed of a number of shares of
Common Stock in one transaction or series of transactions, not directly or
indirectly involving the Company or any of its Subsidiaries and which did not
result in the occurrence of any transaction of the kind described in Section
11(a)(ii)(A) or (C) or Section 13(a), as shall result in such Person thereafter
being a Beneficial Owner of 10% or less of the outstanding shares of Common
Stock of the Company, and after such transfer or other disposition there are no
other Acquiring Persons, or (ii) in connection with any transaction of the kind
described in Section 11(a)(ii)(A) or Section 13(a) in which all holders of the
Common Stock of the Company are treated the same and which shall not involve an
Acquiring Person, an Affiliate or Associate of an Acquiring Person, any other
Person in which such Acquiring Person, Affiliate or Associate has any interest
or any other Person acting, directly or indirectly, on behalf of or in
association with such Acquiring Person, Affiliate or Associate. Notwithstanding
any other provision of this Agreement, the Rights shall not be exercisable after
the first occurrence of an event specified in Section 11(a)(ii) until such time
as the Company's right of redemption hereunder has expired.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights, and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption
Price for each Right so held. Promptly after the action of the Board of
Directors ordering the redemption of the Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of the then outstanding
Rights by mailing such notice to the Rights Agent and to all such holders at
their last addresses as they appear upon the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books of the Transfer Agent
for the Common Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment of the
Redemption Price will be made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase of value any Rights at any time in
any manner other than that specifically set forth in this Section 23, or in
connection with the purchase, acquisition or redemption of shares of Common
Stock prior to the Distribution Date.
(c) The Company may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the Current Per Share Market Price of the
Common Stock as of the time of redemption) or any other form of consideration
deemed appropriate by the Board.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its option, at any time
after any Person shall have become an Acquiring Person, exchange all or any part
of the then outstanding and exercisable Rights (which shall not include Rights
which have become void pursuant to the
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provisions of Section 11(a)(ii)) for Common Stock of the Company at an exchange
rate of one quarter share of Common Stock per Right, appropriately adjusted to
reflect any transaction specified in clauses (A) through (D), inclusive, of
Section 11(a)(i) occurring after the date hereof (such exchange rate being
hereinafter called the "Exchange Rate"); provided, however, that the Board of
Directors shall not be empowered to effect such an exchange at any time after
any Person (other than an Exempt Person), together with all Affiliates and
Associates of such Person, shall have become the Beneficial Owner of 50% or more
of the Common Stock of the Company then outstanding.
(b) Immediately after any action by the Board of Directors of the Company
directing the exchange of any Rights pursuant to subsection (a) of this Section
24, notice of which shall be filed with the Rights Agent, and without any
further action and without any notice, the right to exercise such Rights shall
terminate and each registered holder of such Rights shall thereafter be entitled
to receive only the number of shares of Common Stock which shall equal the
number of Rights held by such registered holder multiplied by the Exchange Rate.
The Company shall give prompt public notice of any exchange directed pursuant to
such subsection (a); provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of such exchange. Within 10
days after action by such Board of Directors directing the exchange of such
Rights, the Company shall mail a notice of exchange to all registered holders of
such Rights at their last addresses appearing upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Common Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not received by the registered
holder to whom sent; provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of any such exchange. Each
such notice shall state the method by which the exchange of Common Stock for
Rights will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected pro rata
among the registered holders of the Rights based upon the number of Rights held
(excluding Rights which have become void pursuant to the provisions of Section
11(a)(ii)); and in such case, a new Rights Certificate evidencing the Rights not
being exchanged shall be prepared and executed by the Company and countersigned
and delivered by the Rights Agent to the registered holder of such Rights
subject to the provisions of Section 14.
(c) In the event that there shall be an insufficient number of shares of
Common Stock authorized but unissued or issued and held in the treasury of the
Company to permit an exchange of Rights directed by the Board of Directors of
the Company, the Company shall take all such action as may be necessary to
authorize additional shares of Common Stock for issuance upon such exchange of
the Rights. In any such exchange, the Company may, at its option, substitute
Equivalent Common Stock for some or all of the Common Stock otherwise
exchangeable for the Rights.
(d) The Company shall not be required to issue fractional shares of Common
Stock in exchange for Rights or to distribute certificates which evidence
fractional shares of Common Stock. In lieu of fractional shares of Common Stock,
the Company shall pay to the registered holders of the Rights with respect to
which such fractional Common Stock would otherwise be issuable an amount in cash
equal to the same fraction of the Current Per Share Market Value of Common Stock
(as
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determined as provided in Section 11(d)) for the Trading Day immediately prior
to the date of such exchange.
Section 25. Notice of Certain Events
(a) In case the Company shall propose, at any time after the Distribution
Date, (i) to pay any dividend payable in stock of any class to the holders of
Common Stock or to make any other distribution to the holders of Common Stock
(other than a regular periodic cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders of Common Stock rights
or warrants to subscribe for or to purchase any additional shares of Common
Stock or shares of stock of any class or any other securities, rights or
options, or (iii) to effect any reclassification of its Common Stock (other than
a reclassification involving only the subdivision of outstanding shares of
Common Stock), or (iv) to effect any consolidation or merger into or with, or to
effect any sale, non-ordinary course mortgage or other transfer (or to permit
one or more of its Subsidiaries to effect any sale, non-ordinary course mortgage
or other transfer), in one transaction or a series of related transactions, of
50% or more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other person (other than a Subsidiary of the Company
in one or more transactions each of which is not prohibited by Section 11(o)
hereof), or (v) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder of a
Right Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the shares of Common Stock, if any such date is to be
fixed, and such notice shall be so given, in the case of any action covered by
clause (i) or (ii) above, at least ten (10) days prior to the record date for
determining holders of the shares of Common Stock for purposes of such action,
and in the case of any such other action, at least ten (10) days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of the shares of Common Stock, whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event shall occur, then, in any such
case, the Company shall as soon as practicable thereafter give to each
registered holder of a Right Certificate, in accordance with Section 26 hereof,
a notice of the occurrence of such event, which shall specify the event and the
consequences of the event to holders of Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Right Certificate to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
DH Apparel Company, Inc.
1020 Barrow Industrial Parkway
Winder, Georgia 30680
Attn: Secretary
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Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
First Union National Bank
1525 West W.T. Harris Boulevard, 3C3
Charlotte, North Carolina 28288-1153
Attention: Shareholder Services Group
Notices or demands authorized by this Agreement to be given or made by the
company or the Rights Agent to the holder of any Right Certificate (or, prior to
the Distribution Date, to the holder of any certificate representing shares of
Common Stock) shall be sufficiently given or made if sent by first- class mail,
postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 27. Supplements and Amendments. Prior to the Distribution Date, the
Company and the Rights Agent shall, if so directed by the Company, supplement or
amend any provision of this Agreement without the approval of any holders of
certificates representing Common Stock. From and after the Distribution Date,
the Company and the Rights Agent shall, if the Company so directs, supplement or
amend this Agreement without the approval of any holder of Right Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period hereunder or
(iv) to change or supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable and which shall not adversely affect, as
determined solely by the Company, the interests of the holders of the Rights or
the Right Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, however, that this Agreement may
not be supplemented or amended pursuant to clause (iii) of this sentence (A) to
lengthen any time period unless (1) approved by a majority of the Disinterested
Directors then in office and (2) such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits to,
registered holders of the Rights, or (B) to lengthen any time period relating to
when the Rights may be redeemed if at such time the Rights are not then
redeemable. Upon the delivery of such certificate from an appropriate officer of
the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall execute
such supplement or amendment. Notwithstanding anything contained in this
Agreement to the contrary, no supplement or amendment shall be made on or after
the Distribution Date which changes the Redemption Price, the Final Expiration
Date, the Exercise Price or the number of shares (or portions thereof) of Common
Stock for which a Right is exercisable, and no supplement or amendment that
changes the rights and duties of the Rights Agent under this Agreement shall be
effective without the consent of the Rights Agent. Prior to the Distribution
Date,
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<PAGE>
the interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Common Stock.
Section 28. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
Section 29. Determinations and Actions by the Board of Directors. For all
purposes of this Agreement, any calculation of the number of shares of Common
Stock outstanding at any particular time, including for purposes of determining
the particular percentage of such outstanding shares of Common Stock of which
any Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act as in effect on the date hereof. The Board of Directors of the
Company (with, where specifically provided for herein, the approval of a
majority of the Disinterested Directors) shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board (with, where specifically provided for herein,
the approval of a majority of the Disinterested Directors) or to the Company, or
as may be necessary or advisable in the administration of this Agreement,
including without limitation, the right and power to (i) interpret the
provisions of this Agreement and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement (including a determination
to redeem or not redeem the Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for purposes of
clause (y) below, all omissions with respect to the foregoing) which are done or
made by the Board of Directors (or, where specifically provided for herein, by a
majority of the Disinterested Directors) in good faith shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights and all other parties, and (y) not subject any member of the Board of
Directors or any of the Disinterested Directors to any liability to the holders
of the Rights or to any other person.
Section 30. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person or corporation other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock).
Section 31. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company (including, if at the time of such determination, there
is an Acquiring
36
<PAGE>
Person, a majority of the Disinterested Directors then in office) determines in
its good faith judgment that severing the invalid language from the Agreement
would adversely affect the purpose or effect of the Agreement, the right of
redemption set forth in Section 23 hereof shall be reinstated and shall not
expire until the Close of Business on the tenth day following the date of such
determination by the Board of Directors.
Section 32. Governing Law. This Agreement, each Right and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Georgia and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and to be performed entirely within Georgia.
Section 33. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this Shareholder Rights
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ATTEST: DH APPAREL COMPANY, INC.
By: s/ Cathy G. Morris By: s/ K. Scott Grassmyer
- --- ------------------ --- ---------------------
Name: Cathy G. Morrie Name: K. Scott Grassmyer
Title: Assistant to Chairman & CFO Title: Sr. V.P., CFO
ATTEST: FIRST UNION NATIONAL BANK
By: s/ Johnnie H. Coble By: s/ Patrick J. Edwards
- --- ------------------- --- ---------------------
Name: Johnnie H. Coble Name: Patrick J. Edwards
Title: Corporate Trust Officer Title: Vice President
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Exhibit A
[Form of Right Certificate]
Certificate No. R-______________ __________ Rights
NOT EXERCISABLE AFTER JANUARY 20, 2010 OR EARLIER IF NOTICE OF REDEMPTION IS
GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT
$.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. [UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
MAY BECOME NULL AND VOID.] [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT). THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME VOID UNDER CERTAIN CIRCUMSTANCES AS SPECIFIED IN SECTION 11(a) OF THE
RIGHTS AGREEMENT.]
RIGHT CERTIFICATE
DH APPAREL COMPANY, INC.
This certifies that ________________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the
Shareholder Rights Agreement dated as of January 27, 2000 (the "Rights
Agreement") between DH Apparel Company, Inc. (the "Company"), and First Union
National Bank (the "Rights Agent"), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the Rights Agreement)
and prior to the Close of Business on January 20, 2010, at the office or offices
of the Rights Agent designated for such purpose, or its successors as Rights
Agent, one quarter of a fully paid and nonassessable share of common stock,
$0.01 par value per share (the "Common Stock"), of the Company, at an exercise
price of $10.00 per quarter share (the "Exercise Price") equivalent to $40.00
for each share), upon presentation and surrender of this Right Certificate with
the Form of Election to Purchase and the related Certificate duly executed. The
number of Rights evidenced by this Right Certificate (and the number of shares
which may be purchased upon exercise thereof) set forth above and the Exercise
Price per share set forth above, are the number and Exercise Price as of
_________________, based on the Common Stock as constituted at such date.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined
in the Rights Agreement), if the Rights evidenced by this Right Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of
any such Person (as such terms are defined in the
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Rights Agreement), (ii) a transferee of any such Acquiring Person, Affiliate or
Associate, or (iii) under certain circumstances specified in the Rights
Agreement, a transferee of a Person who, after such transfer, became an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person, such
Right shall become null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such Section 11(a)(ii)
Event.
As provided in the Rights Agreement, the Exercise Price and the number of
shares of Common Stock or other securities which may be purchased upon the
exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal offices of the
Company and the Rights Agent and are also available upon written request to the
Company or the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Certificates of like
tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Common Stock as the Rights evidenced by the Right
Certificate or Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Right Certificate or
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Board of Directors of the Company at its
option at a redemption price of $.001 per Right (payable in cash, Common Stock
or other consideration deemed appropriate by the Board of Directors), or may be
exchanged, in whole or in part, for Common Stock.
No fractional shares of Common Stock will be issued upon the exercise of
any Right or Rights evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder, as such, of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of Common
Stock or any other securities of the Company which may at any time be issuable
on the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any
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<PAGE>
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of ____________, 20__.
ATTEST: DH APPAREL COMPANY, INC.
By:________________________ By:________________________
Secretary President
Countersigned:
FIRST UNION NATIONAL BANK
as Rights Agent
By: ____________________________
Title: ___________________________
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<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ____________________________ hereby sells, assigns and
transfers unto ______________________________________________________ (please
print name and address of transferee) this Right Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint ________________________ Attorney, to transfer the within Right
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: _________________ 20___ ______________________________
Signature
Signature Guaranteed:____________________
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate __ are __ are not being
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Person (as such terms are defined in the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, the
undersigned __ did __ did not directly or indirectly acquire the Rights
evidenced by this Right Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of any such Person.
Dated: ____________, 20___ ______________________________
Signature
NOTICE
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
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<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the
Rights represented by the Right Certificate.)
To: DH Apparel Company, Inc.:
The undersigned hereby irrevocably elects to exercise ____________ Rights
represented by this Right Certificate to purchase the shares of Common Stock
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued in the name of:
______________________________________________________________________________
(Please print name and address)
___________________________________
(Please insert social security or other identifying number)
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance of such Rights shall
be registered in the name of and delivered to:
______________________________________________________________________________
(Please print name and address)
___________________________________
(Please insert social security or other identifying number)
Dated: ____________, 20___
____________________________________
Signature
Signature Guaranteed:______________________
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Exhibit B
DH APPAREL COMPANY, INC.
SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK
On January 20, 2000, the Board of Directors of DH Apparel Company, Inc.
(the "Company") declared a dividend distribution of one Common Stock Purchase
Right for each outstanding share of Common Stock of the Company to stockholders
of record at the close of business on January 20, 2000. Each Right entitles the
registered holder to purchase from the Company one quarter share of Common
Stock, $0.01 par value per share (the "Common Stock"), at a cash exercise price
of $10.00 per quarter share, subject to adjustment. The description and terms of
the Rights are set forth in a Shareholder Rights Agreement between the Company
and First Union National Bank, as Rights Agent.
Initially, the Rights will not be exercisable, will be attached to all
outstanding shares of Common Stock, and no separate Right Certificates will be
distributed. The Rights will separate from the Common Stock and a Distribution
Date will occur upon the earliest of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") (other than an Exempt Person as defined in the Agreement) has acquired
beneficial ownership of 20% or more of the outstanding shares of Common Stock
(the date of said announcement being referred to as the "Share Acquisition
Date") and (ii) 10 business days following the commencement of a tender offer or
exchange offer that would result in a Person or group owning 20% or more of the
outstanding shares of Common Stock. Pursuant to the terms of his employment, the
Company's President, Chairman and Chief Executive Officer, Robert D. Rockey,
Jr., has the right to purchase up to 1,000,000 shares of the Common Stock on a
date six months after the "spin-off" of the Company from its initial parent
company, Delta Woodside Industries, Inc. Notwithstanding the other provisions
of this paragraph, the exercise of this right will not by itself, cause Mr.
Rockey to become an Acquiring Person.
Until the Distribution Date (or earlier redemption or expiration of the
Rights), (a) the Rights will be evidenced by the Common Stock certificates and
will be transferred only with such Common Stock certificates, (b) new Common
Stock certificates issued after January 20, 2000 will contain a notation
incorporating the Shareholder Rights Agreement by reference, and (c) the
surrender for transfer of any certificates for Common Stock will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on January 20, 2010 unless previously redeemed by the
Company as described below.
As soon as practicable after the Distribution Date, Right Certificates will
be mailed to holders of record of Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Right Certificates alone
will represent the Rights. Except as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the Distribution Date
will be issued with Rights.
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In the event that (i) a Person acquires beneficial ownership of 20% or more
of the Company's Common Stock, (ii) the Company is the surviving corporation in
a merger with an Acquiring Person or any Affiliate or Associate of an Acquiring
Person and the Common Stock is not changed or exchanged, (iii) an Acquiring
Person engages in one of a number of self-dealing transactions specified in the
Shareholder Rights Agreement, or (iv) an event occurs that results in an
Acquiring Person's ownership interest being increased by more than 1%, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive upon exercise thereof at the then current exercise price, that
number of shares of Common Stock (or in certain circumstances, cash, property,
or other securities of the Company) having a market value of two times such
exercise price. However, the Rights are not exercisable following the occurrence
of any of the events set forth above until the time the Rights are no longer
redeemable as set forth below. Notwithstanding any of the foregoing, upon any of
the events set forth above, rights that are or were beneficially owned by an
Acquiring Person shall become null and void.
In the event that, at any time following the Share Acquisition Date, (i)
the Company is acquired in a merger or other business combination transaction or
(ii) 50% or more of the Company's assets or earning power is sold, each holder
of a Right shall thereafter have the right to receive, upon exercise, common
stock of the acquiring company having a market value equal to two times the
exercise price of the Right.
At any time after any person becomes an Acquiring Person and prior to such
the time such Person, together with its Affiliates and Associates, becomes the
Beneficial Owner of 50% or more of the outstanding Common Stock, the Board of
Directors of the Company may exchange the Rights (other than Rights that have
become void), in whole or in part, at the exchange rate of one quarter share of
Common Stock per Right, subject to adjustment as provided in the Rights
Agreement.
The exercise price payable, and the number of shares of Common Stock or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Stock, (ii) if all holders of the Common Stock are granted certain rights or
warrants to subscribe for Common Stock or securities convertible into Common
Stock at less than the current market price of the Common Stock, or (iii) upon
the distribution to all holders of the Common Stock of evidence of indebtedness
or assets (excluding regular quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above).
With certain exceptions, no adjustment in the exercise price will be
required until cumulative adjustments amount to at least 1% of the exercise
price. No fractional shares of Common Stock will be issued upon exercise of a
Right and, in lieu thereof, a payment , in cash will be made based on the fair
market value of the Common Stock on the last trading date prior to the date of
exercise.
The Rights may be redeemed in whole, but not in part, at a price of $.001
per Right (payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors) by the Board of Directors at any time
prior to the close of business on the tenth day after the Share
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Acquisition Date or the final expiration Date of the Rights (whichever is
earlier); provided that under certain circumstances, the Rights may not be
redeemed unless there are Disinterested Directors in office and such redemption
is approved by a majority of such Disinterested Directors. After the redemption
period has expired, the Company's right of redemption may be reinstated upon the
approval of the Board of Directors if an Acquiring Person reduces his beneficial
ownership to 10% or less of the outstanding shares of Common Stock in
transaction or series of transactions not involving the Company and there are no
other Acquiring Persons. Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and thereafter the
only right of the holders of Rights will be to receive the redemption price.
Until a Right is exercised, the holder will have no rights as a stockholder
of the Company (beyond those as an existing stockholder), including the right to
vote or to receive dividends.
Any of the provisions of the Rights Agreement may be amended by the Board
of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement, other than those
relating to the principal economic terms of the Rights, may be amended by the
Board to cure any ambiguity, defect or inconsistency, to make changes that do
not adversely affect the interests of holders of Rights (excluding the interests
of any Acquiring Person), or to shorten or lengthen any time period under the
Rights Agreement. Amendments adjusting time periods may, under certain
circumstances, require the approval of a majority of Disinterested Directors, or
otherwise be limited.
While the distribution of the Rights will not be taxable to stockholders or
to the Company, stockholders may, depending upon the circumstances, recognize
taxable income in the event that the Rights become exercisable for Common Stock
(or other consideration) of the Company or for common stock of an acquiring
company as set forth above.
A copy of the Shareholder Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Shareholder Rights
Agreement.
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TAX SHARING AGREEMENT
dated as of ________, 2000
among
DELTA WOODSIDE INDUSTRIES, INC.
DELTA APPAREL, INC.
and
DUCK HEAD APPAREL COMPANY, INC.
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TAX SHARING AGREEMENT
TAX SHARING AGREEMENT dated as of _______, 2000 among DELTA WOODSIDE
INDUSTRIES, INC., a South Carolina corporation (together with its successors,
"Delta Woodside"), DELTA APPAREL, INC., a Georgia corporation (together with its
successors, "Delta Apparel"), and DUCK HEAD APPAREL COMPANY, INC., a Georgia
corporation (together with its successors, "Duck Head").
RECITALS
WHEREAS, pursuant to the Tax laws of various jurisdictions, certain members
of the Delta Woodside Tax Group, certain members of the Delta Apparel Tax Group
and certain members of the Duck Head Tax Group, as defined below, have filed or
will file certain Tax returns on an affiliated, consolidated, combined, unitary
or other group basis (including as permitted by Section 1501 of the Internal
Revenue Code of 1986, as amended (the "Code")) (each such group, a "Consolidated
Group");
WHEREAS, the Board of Directors of Delta Woodside has determined that it is
in the best interests of Delta Woodside and its stockholders to distribute all
of the outstanding shares of the common stock of Delta Apparel and all of the
outstanding shares of the common stock of Duck Head to the holders of the common
stock of Delta Woodside on a pro rata basis (the "Distribution"); and
WHEREAS, the parties have set forth in this Agreement the rights and
obligations of Delta Woodside and the other members of the Delta Woodside Tax
Group, Delta Apparel and the other members of the Delta Apparel Tax Group, and
Duck Head and the other members of the Duck Head Tax Group with respect to the
handling and allocation of certain federal, state, local and other Taxes
incurred in Taxable periods beginning prior to the Distribution Date, and
various other Tax matters;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.
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(a) As used herein, the following terms have the following meanings:
"Business Day" means any day other than a Saturday, a Sunday or one on
which banks are authorized or required by law to close in Greenville, South
Carolina.
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"Delta Apparel Tax Group" means, at any time, Delta Apparel and any direct
or indirect corporate subsidiaries (including predecessors and successors
thereto) of Delta Apparel that would be eligible, assuming, where applicable,
that Delta Apparel is not a member of a group that includes Delta Woodside or
Duck Head, to join with Delta Apparel, (i) with respect to Federal Taxes, in the
filing of a consolidated Federal Tax return, (ii) with respect to State Taxes,
in the filing of an affiliated, consolidated, combined or unitary State Tax
return or (iii) with respect to other Taxes, in the filing of a Tax return as an
affiliated, consolidated, combined or unitary group.
"Delta Woodside Consolidated Group" means Delta Woodside and each direct
and indirect corporate subsidiary (including predecessors and successors
thereto) that is eligible to join with Delta Woodside (i) with respect to
Federal Taxes, in the filing of a consolidated Federal Tax return, (ii) with
respect to State Taxes, in the filing of an affiliated, consolidated, combined
or unitary State Tax return, or (iii) with respect to other Taxes, in the filing
of a Tax return as an affiliated, consolidated, combined or unitary group.
"Delta Woodside Tax Group" means, at any time, Delta Woodside and any
direct or indirect corporate subsidiaries (including predecessors and successors
thereto) of Delta Woodside that would be eligible, assuming, where applicable
that Delta Woodside is not a member of a group that includes Delta Apparel or
Duck Head, to join with Delta Woodside, (i) with respect to Federal Taxes, in
the filing of a consolidated Federal Tax return, (ii) with respect to State
Taxes, in the filing of an affiliated, consolidated, combined or unitary State
Tax return or (iii) with respect to other Taxes, in the filing of a Tax return
as an affiliated, consolidated, combined or unitary group.
"Designated Delta Apparel Affiliate" means Delta Apparel or the member of
the Delta Apparel Tax Group that has been designated as such by Delta Apparel.
"Designated Duck Head Affiliate" means Duck Head or the member of the Duck
Head Tax Group that has been designated as such by Duck Head.
"Distribution Agreement" means the Distribution Agreement dated as of March
15, 2000 among Delta Woodside, Delta Apparel and Duck Head.
"Distribution Date" means the Business Day on which the Distribution shall
be effected.
"Duck Head Tax Group" means, at any time, Duck Head and any direct or
indirect corporate subsidiaries (including predecessors and successors thereto)
of Duck Head that would be eligible, assuming, where applicable, that Duck Head
is not a member of a group that includes Delta Woodside or Delta Apparel, to
join with Duck Head, (i) with respect to Federal Taxes, in the filing of a
consolidated Federal Tax return, (ii) with respect to State Taxes, in the filing
of an
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affiliated, consolidated, combined or unitary State Tax return or (iii) with
respect to other Taxes, in the filing of a Tax return as an affiliated,
consolidated, combined or unitary group.
"Effective Realization" (and the correlative terms, "Effectively Realized"
and "Effectively Realizes") means, with respect to a tax saving, tax benefit or
tax attribute, the earliest to occur of (i) the receipt by a member of the Delta
Woodside Tax Group, a member of the Delta Apparel Tax Group or a member of the
Duck Head Tax Group of cash from a Taxing Authority reflecting such tax saving,
tax benefit or tax attribute, (ii) the application of such tax saving, tax
benefit or tax attribute to reduce (A) the Tax liability on a Return of any of
such corporations or of any affiliated, consolidated, combined or unitary group
of which any of such corporations is a member, or (B) any other outstanding Tax
liability of any of such corporations or of such group, or (iii) a Final
Determination of the entitlement of any of such corporations or of such group to
such tax saving, tax benefit or tax attribute.
"Federal Employment Tax" means the Federal Insurance Contributions Act, the
Federal Unemployment Tax Act and any other federal tax that applies or that
shall apply to a corporation in connection with the payment or provision of
salaries, or the provision of benefits and other remuneration, to employees.
"Federal Tax" means any tax imposed under Subtitle A of the Code.
"Final Determination" means (i) with respect to Federal Taxes, (A) a
"determination" as defined in Section 1313(a) of the Code, or (B) the acceptance
by or on behalf of the IRS of Form 870-AD (or any successor form thereto) as a
final resolution of Tax liability for any Taxable period, except as to items in
respect of which the right of the taxpayer to file a claim for refund or the
right of the IRS to assert a further deficiency has been reserved; (ii) with
respect to Taxes other than Federal Taxes, any final determination of liability
in respect of a Tax that, under applicable law, is not subject to further
appeal, review or modification, through Tax Proceedings or otherwise (including,
without limitation, the expiration of a statute of limitations or a period for
the filing of claims for refunds, amended returns or appeals from adverse
determinations); or (iii) the payment of Tax by the corporation among the
members of the Delta Woodside Tax Group, the members of the Delta Apparel Tax
Group and the members of the Duck Head Tax Group that is responsible for payment
of such Tax under applicable law with respect to any item that has been
disallowed or adjusted by a Taxing Authority and as to which Delta Woodside,
Delta Apparel or Duck Head (as applicable) has made a determination that no
recoupment shall be sought.
"Fiscal 2000 Pre-Distribution Period" means the taxable period from July 4,
1999 through the Distribution Date.
"Grossed Up Tax Amount" means an additional amount (taking into account any
taxation of such additional amount) necessary to reflect the hypothetical Tax
consequences of the receipt or accrual of any payment, using the highest Tax
rate (or rates, in the case of an item that affects
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more than one Tax) applicable to the recipient of such payment for the relevant
Taxable period, reflecting for example, the effect of any deductions available
for interest paid or accrued and for appropriate Taxes such as State Taxes.
"Intercompany Interest Rate" means the rate, from time to time, that is
equal to the London Interbank Offered Rate for dollar deposits, plus 2% per
annum.
"Intercompany Reorganization" shall have the meaning ascribed to that term
in the Distribution Agreement.
"IRS" means the Internal Revenue Service.
"Post-Distribution Period" means any taxable period (or portion thereof)
beginning after the close of business on the Distribution Date.
"Pre-Distribution Period" means any taxable period (or portion thereof)
ending on or before the close of business on the Distribution Date.
"Return" means any Tax return, statement, report, form or election
(including, without limitation, estimated Tax returns and reports, extension
requests and forms, and information returns and reports) required to be filed
with any Taxing Authority, in each case as amended and as finally adjusted.
"State Taxes" mean any income, franchise or similar tax payable to a state
or local taxing jurisdiction of the United States.
"Tax" (and the correlative term, "Taxable") means (i) any Federal Tax, or
any net income, alternative or add-on minimum, gross income, gross receipts,
sales, use, ad valorem, value added, transfer, franchise, profits, license,
withholding (as payor or recipient), payroll, employment, excise, severance,
stamp, capital stock, occupation, property, real property gains, environmental,
windfall, premium, custom, duty or other tax, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest thereon
and any penalty, addition to tax or additional amount thereto; (ii) any
liability of a corporation for the payment of any amounts of the type described
in clause (i) for any taxable period resulting from such corporation's being a
part of a Consolidated Group pursuant to the application of Treasury Regulations
Section 1.1502-6 (or a successor thereto) or any similar provision applicable
under state, local or foreign law; or (iii) any liability for the payment of any
amounts described in clause (i) as a result of any express or implied obligation
to indemnify any other person.
"Tax Asset" means any net operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction, or any other loss, credit,
deduction or tax attribute that could reduce any tax (including, without
limitation, deductions, credits, alternative minimum net operating loss
carryforwards related to alternative minimum taxes or additions to the basis of
property).
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"Tax Packages", with respect to a corporation, mean one or more packages of
information, relating to such corporation, that are reasonably necessary for the
purpose of preparing the Return of any Consolidated Group that includes such
corporation.
"Tax Proceeding" means any Tax audit, dispute or proceeding (whether
administrative or judicial). Without limiting the generality of the foregoing, a
reference to a Tax Proceeding relating to any taxable year shall include a Tax
Proceeding relating to multiple taxable years that include such taxable year,
notwithstanding that other included taxable years may be Post- Distribution
Periods.
"Taxing Authority" means any governmental authority (whether United States
or non- United States, and including, without limitation, any state,
municipality, political subdivision or governmental agency) responsible for the
imposition of any Tax.
(b) Each of the following terms is defined in the Section or portion of
this Agreement set forth opposite such term:
Term Section
Code Recitals
Consolidated Group Recitals
Delta Apparel Recitals
Delta Woodside Recitals
Distribution Recitals
Duck Head Recitals
Indemnitee 7.04
Indemnitor 7.04
Tax Benefit 7.07
(c) Each of the following terms has the definition for that term in the
Distribution Agreement: "Delta Apparel Business", "Delta Apparel Employee
Group", "Delta Woodside Business", "Delta Woodside Employee Group", "Duck Head
Business" and "Duck Head Employee Group".
(d) Any term used in this Agreement that is not defined in this Agreement
shall, to the extent the context requires, have the meaning assigned to it in
the Code or in comparable provisions of applicable Tax law.
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ARTICLE 2
ADMINISTRATIVE AND COMPLIANCE MATTERS
SECTION 2.01. Sole Tax Sharing Agreement.
--------------------------
(a) Except for Sections 14.4(b) and 15.12 of the Distribution Agreement and
except for any agreement described in paragraph (b) below, any and all existing
Tax sharing agreements or arrangements, written or unwritten, among two or more
of any member of the Delta Woodside Tax Group, any member of the Delta Apparel
Tax Group and any member of the Duck Head Tax Group shall be or shall have been
terminated as of the Distribution Date. On and after the Distribution Date, none
of the members of the Delta Woodside Tax Group, the members of the Delta Apparel
Tax Group and the members of the Duck Head Tax Group shall have any rights or
liabilities (including, without limitation, any rights and liabilities that
accrued prior to the Distribution Date) under such terminated agreements and
arrangements.
(b) This Agreement shall not address the obligations or arrangements, if
any, solely (i) among members of the Delta Woodside Tax Group, (ii) among
members of the Delta Apparel Tax Group, or (iii) among members of the Duck Head
Tax Group. Without limiting the generality of the foregoing, that certain Income
Tax Sharing Agreement, dated as of August 1, 1997, by and between Delta Woodside
and Delta Mills, Inc. remains in full force and effect notwithstanding this
Agreement.
SECTION 2.02. Designation of Agent.
--------------------
(a) Each member of the Delta Apparel Tax Group and each member of the Duck
Head Tax Group hereby irrevocably authorizes and designates Delta Woodside as
its agent, attorney- in-fact, coordinator and administrator for the purposes of
taking any and all actions with respect to Taxes for which such member is a
member of the Delta Woodside Consolidated Group in connection with any taxable
period that includes a Pre-Distribution Period. In connection with any
Pre-Distribution Period, Delta Woodside shall have the same authority under this
Section 2.02(a), with respect to the Taxes described in the preceding sentence,
to act on behalf of each member of the Delta Apparel Tax Group and each member
of the Duck Head Tax Group as would such member, were such member acting on its
own behalf, and as would the parent of the Consolidated Group that includes such
member, were such parent acting on behalf of such member. Delta Woodside
covenants to the Delta Apparel Tax Group and the Duck Head Tax Group that it
shall be responsible to see that matters handled pursuant to its exercise of its
authority under this Section 2.02(a) shall be handled promptly and, to the
knowledge of Delta Woodside, appropriately.
(b) Without limiting the generality of Section 2.02(a), Delta Woodside
shall have the authority, with respect to the Taxes and taxable periods
described in Section 2.02(a), to take any and all actions necessary, helpful or
incidental to, or otherwise in connection with, (i) the
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preparation or filing of any Return or claim for refund (even where an item or
Tax Asset giving rise to an amended Return or claim for refund arises in a
Post-Distribution Period), (ii) the conduct, management, prosecution, defense,
contest, compromise or settlement of (A) any adjustment or deficiency proposed,
asserted or assessed as a result of any audit of any Return, or (B) any other
Tax Proceeding, (iii) the determination of the taxable periods (including,
without limitation, taxable periods that include a Post-Distribution Period)
that a settlement of a Tax Proceeding may impact and other timing
considerations, (iv) the determination as to whether any refunds shall be
received by way of refund or credited against tax liability, (v) the
determination as to the treatment of Tax Assets that are allowed under
applicable law to be carried back or carried forward, (vi) the determination as
to whether any, and what, Tax elections shall be made, (vii) the determination
as to whether any, and what, extensions shall be requested, (viii) the receipt
of confidential information from, or the provision of such information to, any
Taxing Authority, (ix) the making of payments to, or collection of refunds from,
any Taxing Authority, and (x) the performance of any and all actions that are
described to be undertaken by Delta Woodside under this Agreement or that are
necessary, helpful or incidental to the implementation of the provisions of this
Agreement.
(c) Notwithstanding anything in Section 10.07 to the contrary, Delta
Woodside may, in its sole and absolute discretion, delegate at any time all or a
portion of its authority, rights or obligations under this Agreement to any
corporation(s) or any person(s). Such delegation may be revoked by Delta
Woodside in its sole and absolute discretion.
SECTION 2.03. Preparation of Returns.
----------------------
(a) Delta Woodside shall prepare and file the Returns (including, without
limitation, the consolidated Federal Tax Returns and State Tax Returns) of the
Delta Woodside Consolidated Group for all taxable periods that include a
Pre-Distribution Period with the assistance of the members of the Delta Apparel
Tax Group and the members of the Duck Head Tax Group. In preparing such Returns,
Delta Woodside shall not discriminate among the members of the Delta Woodside
Consolidated Group. Without limiting the generality of Section 2.02, Delta
Woodside shall have the right to determine the manner in which such Returns
shall be prepared and filed, including, without limitation, the manner in which
any item of income, gain, loss, deduction or credit shall be reported thereon.
(b) The Returns of the Delta Woodside Consolidated Group for the taxable
year ended July 1, 2000 shall reflect the inclusion of the members of the Delta
Apparel Tax Group and the Duck Head Tax Group in the Delta Woodside Consolidated
Group for the Fiscal 2000 Pre- Distribution Period.
SECTION 2.04. Procedure for Collection of Information.
---------------------------------------
(a) No more than 60 days after the Distribution Date, the Designated Delta
Apparel Affiliate shall prepare and deliver to Delta Woodside Tax Packages with
respect to the members
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of the Delta Apparel Tax Group for the Fiscal 2000 Pre-Distribution Period and
the Designated Duck Head Affiliate shall prepare and deliver to Delta Woodside
Tax Packages with respect to the members of the Duck Head Tax Group for the
Fiscal 2000 Pre-Distribution Period.
(b) At the request of the Designated Delta Apparel Affiliate or the
Designated Duck Head Affiliate, Delta Woodside shall forward thereto, within 60
days of such request or such lengthier period of time as Delta Woodside shall
determine to be appropriate, such information regarding Federal Tax and credit
allocations as is necessary for the preparation of Tax Packages related to State
Taxes with respect to the members of the Delta Apparel Tax Group or the members
of the Duck Head Tax Group, respectively.
SECTION 2.05. Allocation.
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(a) With respect to any Pre-Distribution Period, Delta Woodside may, at its
option, elect, and the Delta Apparel Tax Group shall join it in electing (if
necessary), to ratably allocate items of the Delta Apparel Tax Group in
accordance with relevant provisions of Treasury Regulations Section 1.1502-76.
If Delta Woodside exercises its option to make such election, the members of the
Delta Apparel Tax Group shall provide to Delta Woodside such statements as are
required under the regulations and other appropriate assistance.
(b) With respect to any Pre-Distribution Period, Delta Woodside may, at its
option, elect, and the Duck Head Tax Group shall join it in electing (if
necessary), to ratably allocate items of the Duck Head Tax Group in accordance
with relevant provisions of Treasury Regulations Section 1.1502-76. If Delta
Woodside exercises its option to make such election, the members of the Duck
Head Tax Group shall provide to Delta Woodside such statements as are required
under the regulations and other appropriate assistance.
SECTION 2.06. Certain Other Returns.
---------------------
(a) The members of the Delta Apparel Tax Group shall be solely responsible
for the preparation and filing of (i) their respective separate state and local
Returns, (ii) Returns filed on behalf of an affiliated, consolidated, combined
or unitary group that includes neither any member of the Delta Woodside Tax
Group nor any member of the Duck Head Tax Group, and (iii) Returns for all
taxable periods that begin after the Distribution Date.
(b) The members of the Duck Head Tax Group shall be solely responsible for
the preparation and filing of (i) their respective separate state and local
Returns, (ii) Returns filed on behalf of an affiliated, consolidated, combined
or unitary group that includes neither any member of the Delta Woodside Tax
Group nor any member of the Delta Apparel Tax Group, and (iii) Returns for all
taxable periods that begin after the Distribution Date.
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ARTICLE 3
TAX SHARING
SECTION 3.01. Tax Sharing Principles With Respect to Federal Taxes for Each
-------------------------------------------------------------
Pre- Distribution Period. With respect to Federal Taxes:
- ------------------------
(a) For each taxable year during the Pre-Distribution Period prior to the
Fiscal 2000 Pre-Distribution Period, Delta Woodside shall be responsible for
paying any increase in Federal Taxes, and shall be entitled to receive the
benefit of any refund of or saving in Federal Taxes, that results from any Tax
Proceeding with respect to any Returns relating to Federal Taxes of the Delta
Woodside Consolidated Group.
(b) For the Fiscal 2000 Pre-Distribution Period, Delta Woodside shall be
responsible for paying any Federal Taxes, and shall be entitled to any refund of
or saving in Federal Taxes, with respect to the Delta Woodside Consolidated
Group.
SECTION 3.02. Tax Sharing Principles With Respect to State Taxes. With
----------------------------------------------------
respect to State Taxes, for each taxable period during the Pre-Distribution
Period, each corporation that is a member of the Delta Woodside Tax Group, the
Delta Apparel Tax Group or the Duck Head Tax Group shall be responsible for
paying any State Taxes, and any increase in States Taxes, and shall be entitled
to receive the benefit of any refund of or saving in State Taxes, with respect
to that corporation (or any predecessor by merger of that corporation) or that
results from any Tax Proceeding with respect to any Returns relating to State
Taxes of that corporation (or any predecessor by merger of that corporation).
SECTION 3.03. Tax Sharing Principles With Respect to Federal Employment
------------------------------------------------------------
Tax.
- ---
(a) Delta Woodside shall be responsible for the Federal Employment Taxes
payable with respect to the compensation paid, whether before, on or after the
Distribution Date, by any member of the Delta Woodside Consolidated Group for
any Pre-Distribution Period or by any member of the Delta Woodside Tax Group for
any period after the Distribution Date to all individuals who are members of the
Delta Woodside Employee Group.
(b) Delta Apparel shall be responsible for the Federal Employment Taxes
payable with respect to the compensation paid, whether before, on or after the
Distribution Date, by any member of the Delta Woodside Consolidated Group for
any Pre-Distribution Period or by any member of the Delta Apparel Tax Group for
any period after the Distribution Date to all individuals who are members of the
Delta Apparel Employee Group.
(c) Duck Head shall be responsible for the Federal Employment Taxes payable
with respect to the compensation paid, whether before, on or after the
Distribution Date, by any member of the Delta Woodside Consolidated Group for
any Pre-Distribution Period or by any
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member of the Duck Head Tax Group for any period after the Distribution Date to
all individuals who are members of the Duck Head Employee Group.
SECTION 3.04. Tax Sharing Principles With Respect to Other Taxes. With
----------------------------------------------------
respect to any Taxes, other than Federal Employment Taxes, Federal Taxes and
State Taxes:
(a) Delta Woodside shall be responsible for any such Taxes, regardless of
the time period or circumstance with respect to which such Taxes are payable,
arising from or attributable to the Delta Woodside Business;
(b) Delta Apparel shall be responsible for any such Taxes, regardless of
the time period or circumstance with respect to which such Taxes are payable,
arising from or attributable to the Delta Apparel Business; and
(c) Duck Head shall be responsible for any such Taxes, regardless of the
time period or circumstance with respect to which such Taxes are payable,
arising from or attributable to the Duck Head Business.
SECTION 3.05. Post-Distribution Periods. The Delta Woodside Tax Group shall
-------------------------
be responsible for all Taxes, and shall receive the benefit of all Tax items, of
any member of the Delta Woodside Tax Group that relate to any Post-Distribution
Period. The Delta Apparel Tax Group shall be responsible for all Taxes, and
shall receive the benefit of all Tax items, of any member of the Delta Apparel
Tax Group that relate to any Post-Distribution Period. The Duck Head Tax Group
shall be responsible for all Taxes, and shall receive the benefit of all Tax
items, of any member of the Duck Head Tax Group that relate to any
Post-Distribution Period.
ARTICLE 4
CERTAIN REPRESENTATIONS AND COVENANTS
SECTION 4.01. Delta Apparel Tax Group Covenants. Delta Apparel and each
----------------------------------
other member of the Delta Apparel Tax Group covenant to each member of the Delta
Woodside Tax Group and each member of the Duck Head Tax Group that, on or after
the Distribution Date, Delta Apparel shall not, nor shall it permit any member
of the Delta Apparel Tax Group to, make or change any tax election, change any
accounting method, amend any Return, take any tax position on any Return, take
any action, omit to take any action or enter into any transaction that results
in an increased tax liability or reduction of any Tax Asset of the Delta
Woodside Tax Group or of the Duck Head Tax Group with respect to any
Pre-Distribution Period. The Delta Apparel Tax Group agrees that the Delta
Woodside Tax Group and the Duck Head Tax Group shall have no liability for any
Tax resulting from any action referred to in the
11
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preceding sentence and agrees to hold harmless the Delta Woodside Tax Group and
the Duck Head Tax Group from any such Tax.
SECTION 4.02. Duck Head Tax Group Covenants. Duck Head and each other
-------------------------------
member of the Duck Head Tax Group covenant to each member of the Delta Woodside
Tax Group and each member of the Delta Apparel Tax Group that, on or after the
Distribution Date, Duck Head shall not, nor shall it permit any member of the
Duck Head Tax Group to, make or change any tax election, change any accounting
method, amend any Return, take any tax position on any Return, take any action,
omit to take any action or enter into any transaction that results in an
increased tax liability or reduction of any Tax Asset of the Delta Woodside Tax
Group or of the Delta Apparel Tax Group with respect to any Pre-Distribution
Period. The Duck Head Tax Group agrees that the Delta Woodside Tax Group and the
Delta Apparel Tax Group shall have no liability for any Tax resulting from any
action referred to in the preceding sentence and agrees to hold harmless the
Delta Woodside Tax Group and the Delta Apparel Tax Group from any such Tax.
ARTICLE 5
PAYMENTS
SECTION 5.01. Procedure for Making Payments. All payments to be made under
-----------------------------
this Agreement shall be made in immediately available funds. Except as otherwise
provided, all payments required to be made under this Agreement shall be due 30
days after the receipt of notice of such payment or, where no notice is
required, 30 days after (i) the fixing of a Tax liability, (ii) the Effective
Realization of a tax saving, tax benefit or tax attribute, (iii) the receipt of
a refund, or (iv) the resolution of a dispute. Unless otherwise indicated, any
payment that is not made when due shall bear interest at the Intercompany
Interest Rate. If, pursuant to a Final Determination, any amount paid by any
member of the Delta Woodside Tax Group, any member of the Delta Apparel Tax
Group or any member of the Duck Head Tax Group under this Agreement results in
any increased Tax liability or reduction of any Tax Asset of the recipient of
such payment, then, in addition to any amounts otherwise owed under this
Agreement, the payor shall pay the sum of (i) any interest or penalty
attributable to such increased tax liability or to the reduction of such Tax
Asset, and (ii) the Grossed Up Tax Amount.
ARTICLE 6
CERTAIN TAX MATTERS RELATED TO THE DISTRIBUTION AGREEMENT
AND TO POST-DISTRIBUTION DEDUCTIONS
SECTION 6.01. Payment of Grossed Up Tax Amounts. If any amount paid
---------------------------------
12
<PAGE>
under the Distribution Agreement by one party to another party to that agreement
results in any increased Tax liability or reduction of any Tax Asset of any
member of the Delta Apparel Tax Group or any member of the Duck Head Tax Group,
in the case of Delta Woodside, or any member of the Delta Woodside Tax Group or
any member of the Duck Head Tax Group, in the case of Delta Apparel, or any
member of the Delta Woodside Tax Group or the Delta Apparel Tax Group, in the
case of Duck Head, then the party making such payment shall, in addition to
paying any amounts otherwise owed under the Distribution Agreement, indemnify
the recipient of such payment against and hold it harmless from, without
duplication, (i) such increased Tax or the reduction of such Tax Asset, (ii) any
interest or penalty attributable to such increased Tax liability or the
reduction of such Tax Asset and (iii) the Grossed Up Tax Amount.
SECTION 6.02. Deductions and Certain Taxes Related to Stock Options.
-----------------------------------------------------
(a) Delta Woodside shall claim the Federal Tax deductions and any State Tax
deductions attributable to the exercise, following the Distribution Date, of
options to purchase the stock of Delta Woodside that are held by a person who is
at the time the deduction is claimed (or, in the case of a person who is no
longer employed by a member of the Delta Woodside Tax Group, a member of the
Delta Apparel Tax Group or a member of the Duck Head Tax Group at the time the
deduction is claimed, who before or after the Distribution was) an employee of a
member of the Delta Woodside Tax Group.
(b) Delta Woodside shall claim the Federal Tax deductions and any State Tax
deductions attributable to the exercise, following the Distribution Date, of
options to purchase the stock of Delta Woodside that are held by a person who is
at the time the deduction is claimed (or, in the case of a person who is no
longer employed by a member of the Delta Woodside Tax Group, a member of the
Delta Apparel Tax Group or a member of the Duck Head Tax Group at the time the
deduction is claimed, who before or after the Distribution was) an employee of a
member of the Delta Apparel Tax Group or the Duck Head Tax Group.
(c) The employer of the person who exercises stock options (or, if such
person is not employed by a member of the Delta Woodside Tax Group, a member of
the Delta Apparel Tax Group or a member of the Duck Head Tax Group, the company
among the members of the Delta Woodside Tax Group, the members of the Delta
Apparel Tax Group and the members of the Duck Head Tax Group that employed such
person immediately before such individual ceased such employment) shall timely
pay the applicable Federal Employment Tax or any state employment tax in
connection with such exercise.
SECTION 6.03. Deductions Related to Employee Severance and Other Enumerated
-------------------------------------------------------------
Expenses. For purposes of computing Delta Woodside's Federal Taxes and Delta
- --------
Woodside's State Taxes for any Pre-Distribution Period, Delta Woodside shall
receive the Federal Tax deductions and any State Tax deductions, as appropriate,
attributable to any and all expenses incurred in connection with the termination
of the employment of persons who were employees of Delta Woodside immediately
before the Distribution.
13
<PAGE>
SECTION 6.04. Indemnification under Article 6. To the extent that any
---------------------------------
deduction accorded to a member of the Delta Woodside Tax Group by Section 6.02
or 6.03 is disallowed because a Taxing Authority makes a Final Determination
that a member of the Delta Apparel Tax Group or of the Duck Head Tax Group
should have claimed such deduction, the Designated Delta Apparel Affiliate or
Designated Duck Head Affiliate, respectively, shall pay to Delta Woodside an
amount equal to the resulting actual tax benefit Effectively Realized by the
Delta Apparel Tax Group or the Duck Head Tax Group, respectively, within 30 days
of the Effective Realization thereof.
ARTICLE 7
INDEMNITIES
SECTION 7.01. Indemnification by Delta Woodside Tax Group. Delta Woodside
--------------------------------------------
and each other member of the Delta Woodside Tax Group shall jointly and
severally indemnify Delta Apparel, the other members of the Delta Apparel Tax
Group, Duck Head, and the other members of the Duck Head Tax Group against and
hold them harmless from:
(a) liability for any Taxes for which any member of the Delta Woodside Tax
Group is responsible under Article 3 hereof (provided that, for purposes of the
foregoing portion of this Section 7.01(a), Taxes shall refer only to such taxes
as are described in clause (i) of the definition of such term in Section
1.01(a)), including without limitation, (i) any tax liability of any member of
the Delta Woodside Tax Group resulting from the existence of any excess loss
accounts or deferred intercompany gains immediately before the Distribution, and
(ii) any Federal Employment Tax of any member of the Delta Woodside Tax Group,
but excluding any Tax liability resulting from the Distribution except for such
amounts as are described in clause (i) of this Section 7.01(a);
(b) liability for Taxes relating to any taxable period resulting from a
breach by Delta Woodside or any other member of the Delta Woodside Tax Group of
any representation or covenant made by any member of the Delta Woodside Tax
Group in this Agreement; and
(c) liability for Taxes resulting from the Intercompany Reorganization or
from the Distribution, except (A) to the extent that such liability arises by
reason of the breach by (I) Delta Apparel or any other member of the Delta
Apparel Tax Group of any representation or covenant made by any member of the
Delta Apparel Tax Group in this Agreement, or (II) Duck Head or any other member
of the Duck Head Tax Group of any representation or covenant made by any member
of the Duck Head Tax Group in this Agreement, (B) for such amounts as are
described in Section 7.01(a)(i), and (C) for any tax liability of any member of
the Delta Woodside Tax Group resulting from the existence of any deferred
intercompany gains immediately before the Distribution.
14
<PAGE>
SECTION 7.02. Indemnification by Delta Apparel Tax Group. Delta Apparel and
------------------------------------------
each other member of the Delta Apparel Tax Group shall jointly and severally
indemnify Delta Woodside, the other members of the Delta Woodside Tax Group,
Duck Head, and the other members of the Duck Head Tax Group against and hold
them harmless from:
(a) liability for any Taxes for which any member of the Delta Apparel Tax
Group is responsible under Article 3 hereof (provided that, for purposes of the
foregoing portion of this Section 7.02(a), Taxes shall refer only to such taxes
as are described in clause (i) of the definition of such term in Section
1.01(a)), including without limitation, (i) any tax liability of any member of
the Delta Apparel Tax Group resulting from the existence of any excess loss
accounts or deferred intercompany gains immediately before the Distribution, and
(ii) any Federal Employment Tax of any member of the Delta Apparel Tax Group,
but excluding any Tax liability resulting from the Distribution except for such
amounts as are described in clause (i) of this Section 7.02(a);
(b) liability for Taxes relating to any taxable period resulting from a
breach by Delta Apparel or any other member of the Delta Apparel Tax Group of
any representation or covenant made by any member of the Delta Apparel Tax Group
in this Agreement; and
(c) liability for Taxes resulting from the Intercompany Reorganization or
from the Distribution, except (A) to the extent that such liability arises by
reason of the breach by (I) Delta Woodside or any other member of the Delta
Woodside Tax Group of any representation or covenant made by any member of the
Delta Woodside Tax Group in this Agreement, or (II) Duck Head or any other
member of the Duck Head Tax Group of any representation or covenant made by any
member of the Duck Head Tax Group in this Agreement, (B) for such amounts as are
described in Section 7.02(a)(i), and (C) for any tax liability of any member of
the Delta Apparel Tax Group resulting from the existence of any deferred
intercompany gains immediately before the Distribution.
SECTION 7.03. Indemnification by Duck Head Tax Group. Duck Head and each
---------------------------------------
other member of the Duck Head Tax Group shall jointly and severally indemnify
Delta Woodside, the other members of the Delta Woodside Tax Group, Delta
Apparel, and the other members of the Delta Apparel Tax Group against and hold
them harmless from:
(a) liability for any Taxes for which any member of the Duck Head Tax Group
is responsible under Article 3 hereof (provided that, for purposes of the
foregoing portion of this Section 7.03(a), Taxes shall refer only to such taxes
as are described in clause (i) of the definition of such term in Section
1.01(a)), including without limitation, (i) any tax liability of any member of
the Duck Head Tax Group resulting from the existence of any excess loss accounts
or deferred intercompany gains immediately before the Distribution, and (ii) any
Federal Employment Tax of any member of the Duck Head Tax Group, but excluding
any Tax liability resulting from the Distribution except for such amounts as are
described in clause (i) of this Section 7.03(a);
15
<PAGE>
(b) liability for Taxes relating to any taxable period resulting from a
breach by Duck Head or any other member of the Duck Head Tax Group of any
representation or covenant made by any member of the Duck Head Tax Group in this
Agreement; and
(c) liability for Taxes resulting from the Intercompany Reorganization or
from the Distribution, except (A) to the extent that such liability arises by
reason of the breach by (I) Delta Woodside or any other member of the Delta
Woodside Tax Group of any representation or covenant made by any member of the
Delta Woodside Tax Group in this Agreement, or (II) Delta Apparel or any other
member of the Delta Apparel Tax Group of any representation or covenant made by
any member of the Delta Apparel Tax Group in this Agreement, (B) for such
amounts as are described in Section 7.03(a)(i), and (C) for any tax liability of
any member of the Duck Head Tax Group resulting from the existence of any
deferred intercompany gains immediately before the Distribution.
SECTION 7.04. Additional Indemnity Amounts. Each party with indemnification
----------------------------
obligations under Section 7.01, 7.02 or 7.03 (an "Indemnitor") shall also pay to
each party that is indemnified by such Indemnitor under such provision (an
"Indemnitee") all liabilities, losses, damages, assessments, settlements,
judgments, costs and properly documented expenses (including, without
limitation, expenses of investigation and reasonable attorneys' fees and
expenses) arising out of or incident to the imposition, assessment or assertion
of any liabilities or damage described in such provision, including, without
limitation, those incurred in the contest in good faith in appropriate
proceedings relating to the imposition, assessment or assertion of any such
liability or damage.
SECTION 7.05. Notice of Claim. The Indemnitee agrees to give prompt notice
---------------
to the Indemnitor of the assertion of any claim, or the commencement of any
suit, action or proceeding, in respect of which indemnity may be sought under
Section 7.01, 7.02 or 7.03.
SECTION 7.06. Discharge of Indemnity. An Indemnitor shall discharge its
----------------------
obligations by paying all amounts specified in Sections 7.01, 7.02, 7.03 and
7.04 within 30 days of demand therefor. After a Final Determination of an
obligation against which an Indemnitee is indemnified, the Indemnitee shall send
a statement to the Indemnitor showing the amount, if any, due under such
provisions. Calculation mechanics relating to items described in Sections 7.01,
7.02 and 7.03 shall be in accordance with the principles of Article 3 to the
extent they are applicable. Notwithstanding that an Indemnitor disputes in good
faith the fact or the amount of any obligation under Section 7.01, 7.02 or 7.03,
payment thereunder and under Section 7.04 shall be made within 30 days of demand
therefor.
SECTION 7.07. Tax Benefits. If an indemnification obligation of any
-------------
Indemnitor under this Article 7 arises in respect of an adjustment that makes
allowable to the Indemnitee any deduction, amortization, exclusion from income
or other allowance (a "Tax Benefit") that would not, but for such adjustment, be
allowable, then any payment by the Indemnitor pursuant to this Article 7 shall
be an amount equal to the excess of (a) the amount otherwise due but for this
16
<PAGE>
Section 7.07, over (b) the present value of the product of the Tax Benefit
multiplied by (i) in the case of a credit, 100 percent, or (ii) otherwise, the
highest Tax rate applicable to the Indemnitee in effect under applicable law at
the time such Tax Benefit becomes allowable to the Indemnitee. Present value
computations shall be made by discounting, at the Intercompany Interest Rate,
the product described in Section 7.07(b) in view of the date on which the Tax
Benefit becomes allowable.
ARTICLE 8
AUDIT AND OTHER TAX PROCEEDINGS
SECTION 8.01. Control Over Tax Proceedings.
----------------------------
(a) Notwithstanding anything in this Agreement to the contrary, Delta
Woodside shall have full control over any and all matters with respect to which
the Delta Apparel Tax Group and the Duck Head Tax Group have provided authority
to Delta Woodside under Section 2.02, including, without limitation, any and all
matters that would give rise to an indemnification obligation under Article 7 on
the part of any member of the Delta Woodside Tax Group, any member of the Delta
Apparel Tax Group or any member of the Duck Head Tax Group. Delta Woodside shall
have absolute discretion with respect to any decisions to be made, or any action
to be taken, with respect to any matter described in the preceding sentence.
(b) Without limiting the generality of Section 8.01(a), Delta Woodside may,
in its sole and absolute discretion, settle any Tax Proceeding with respect to
the Taxes over which it has authority under Section 2.02 (including, without
limitation, a Tax Proceeding relating to any and all matters that would give
rise to an indemnification obligation under Section 7.01, 7.02 or 7.03). Any
such settlement shall be binding on the parties to this Agreement without
further recourse.
ARTICLE 9
COMMUNICATIONS AND COOPERATION
SECTION 9.01. Consult and Cooperate. Delta Woodside, Delta Apparel and Duck
---------------------
Head shall consult and cooperate (and shall cause their respective subsidiaries
to cooperate) fully at the times and to the extent reasonably requested by a
party to this Agreement in connection with all matters subject to this
Agreement. The cooperation under this Section 9.01 shall, subject to the terms
of this Agreement, include, without limitation:
(a) the retention and provision on reasonable request of any information
(including,
17
<PAGE>
without limitation, any books, records, documentation or other information)
pertaining to any Tax matters relating to the Delta Woodside Tax Group, the
Delta Apparel Tax Group or the Duck Head Tax Group, any necessary explanations
of information, and access to personnel, until the expiration of the applicable
statute of limitation (giving effect to any extension, waiver or mitigation
thereof);
(b) the execution, acknowledgment and delivery of any instrument or
document that may be necessary or helpful in connection with (i) any Return,
(ii) any Tax Proceeding or other litigation, investigation or action, or (iii)
the carrying out of the parties' respective obligations under this Agreement;
and
(c) the use of the parties' best efforts to obtain any documentation from a
Taxing Authority, another governmental authority or another third party that may
be necessary or helpful in connection with the foregoing.
SECTION 9.02. Provide Information. Delta Woodside, the Designated Delta
--------------------
Apparel Affiliate and the Designated Duck Head Affiliate shall keep one another
fully informed with respect to any material developments relating to the matters
subject to this Agreement.
SECTION 9.03. Tax Attribute Matters. Delta Woodside, the Designated Delta
---------------------
Apparel Affiliate and the Designated Duck Head Affiliate shall promptly advise
one another with respect to any proposed Tax adjustments, relating to a
Consolidated Group, that are the subject of a Tax Proceeding or other
litigation, investigation or action and that may materially affect any Tax
liability or Tax attribute of the other parties to this Agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Guarantee. Delta Apparel guarantees the obligations under
---------
this Agreement of each other member of the Delta Apparel Tax Group. Duck Head
guarantees the obligations under this Agreement of each other member of the Duck
Head Tax Group. Delta Woodside guarantees the obligations under this Agreement
of each other member of the Delta Woodside Tax Group.
SECTION 10.02. Dispute Resolution. If the parties hereto are unable to
-------------------
resolve any disagreement or dispute relating to this Agreement within 20 days,
such disagreement or dispute shall be resolved by Delta Woodside. Any such
resolution shall be binding on the parties to this Agreement without further
recourse.
SECTION 10.03. Authorization. Each of Delta Woodside, Delta Apparel and
-------------
Duck Head hereby represents and warrants that (i) it has the power and authority
to execute,
18
<PAGE>
deliver and perform this Agreement, (ii) this Agreement has been duly authorized
by all necessary corporate action on the part of such party, (iii) this
Agreement constitutes a legal, valid and binding obligation of such party, and
(iv) the execution, delivery and performance of this Agreement by such party
does not contravene or conflict with any provision of law or of such party's
charter or bylaws or any agreement, instrument or order binding on such party.
SECTION 10.04. Notices. All notices, requests and other communications to
-------
any party hereunder shall be in writing (including facsimile or similar writing)
and shall be given:
If to Delta Woodside:
Delta Woodside Industries, Inc.
233 North Main Street
Greenville, South Carolina 29601
Attention: President
Telecopy No.: (864) 232-6164
If to Duck Head:
Duck Head Apparel Company, Inc.
1020 Barrow Industrial Parkway
P.O. Box 688
Winder, Georgia 30680
Attention: President
Telecopy No.: (770) 867-3111
If to Delta Apparel:
Delta Apparel, Inc.
3355 Breckinridge Blvd.
Suite 100
Duluth, Georgia 30096
Attention: President
Telecopy No.: (770) 806-6800
or such other address or facsimile number as such party may hereafter specify in
writing for this purpose by notice to the other parties hereto. Each such
notice, request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section 10.04 and the appropriate facsimile confirmation is received or
(b) if given by any other means, when delivered at the address specified in this
Section 10.04.
19
<PAGE>
SECTION 10.05. Amendments; No Waivers.
----------------------
(a) Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by Delta Woodside, Delta Apparel and Duck Head, or in the case of a
waiver, by the party or parties against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 10.06. Expenses. Except as specifically provided otherwise in this
--------
Agreement or in the Distribution Agreement, each party shall bear its own costs
and expenses (including, without limitation, reasonable attorneys' fees and
other professional fees and expenses).
SECTION 10.07. Successors and Assigns. The provisions of this Agreement
-----------------------
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors (whether by merger, acquisition of assets or
otherwise, and, including, without limitation, any successor succeeding to the
tax attributes of a party under Section 381 of the Code) and assigns, to the
same extent as if such successor or assign had been an original party to this
Agreement; provided that, except as set forth in this Agreement, no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each of the other parties hereto.
SECTION 10.08. Governing Law. This Agreement shall be construed in
--------------
accordance with and governed by the internal laws of the State of South
Carolina.
SECTION 10.09. Counterparts; Effectiveness; No Third Party Beneficiaries.
---------------------------------------------------------
(a) This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective
upon the consummation of the Distribution, provided that at or before such time,
each party hereto shall have received a counterpart hereof signed by the other
parties hereto. No provision of this Agreement is intended to confer any rights,
benefits, remedies, obligations or liabilities hereunder upon any person other
than (i) the parties hereto, (ii) other members of the Delta Woodside Tax Group,
(iii) other members of the Delta Apparel Tax Group and (iv) other members of the
Duck Head Tax Group, together in each case with their respective successors and
assigns.
(b) All rights and obligations arising under this Agreement shall survive
until they are
20
<PAGE>
fully effectuated or performed. Notwithstanding anything in this Agreement to
the contrary, this Agreement shall remain in effect and its provisions shall
survive for the full period of all applicable statutes of limitation (giving
effect to any extension, waiver or mitigation thereof).
SECTION 10.10. Severability. If any one or more of the provisions of this
------------
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions so that the replacement provisions will be valid, legal
and enforceable and will have an economic effect that comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
SECTION 10.11. Specific Performance. Each of Delta Woodside, the other
---------------------
members of the Delta Woodside Tax Group, Delta Apparel, the other members of the
Delta Apparel Tax Group, Duck Head and the other members of the Duck Head Tax
Group acknowledges and agrees that damages for a breach or threatened breach of
any of the provisions of this Agreement would be inadequate and that irreparable
harm would occur. In recognition of this fact, each such corporation agrees
that, in the event of such breach or threatened breach, in addition to any
damages, any of the other parties to this Agreement, without posting any bond,
shall be entitled to seek and obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction,
attachment or any other equitable remedy that may then be available to obligate
the breaching party to (i) comply with the covenants made by, and perform other
obligations of, it (or, as appropriate, of Delta Woodside, Delta Apparel or Duck
Head) under this Agreement, or (ii) if the breaching party is unable, for
whatever reason, to comply with such covenants and perform such obligations, to
take such other actions as are necessary or appropriate to give the other
parties to this Agreement the tax effect and the economic effect that come as
close as possible to compliance with such covenants and performance of such
obligations.
SECTION 10.12. Captions. Section captions used in this Agreement are for
--------
convenience only and shall not affect the construction of this Agreement.
21
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this Tax Sharing
Agreement to be duly executed by their respective authorized officers as of the
date first above written.
DELTA WOODSIDE INDUSTRIES, INC.
By /s/
_________________________
Title:
DELTA APPAREL, INC.
By /s/
_________________________
Title:
DUCK HEAD APPAREL COMPANY, INC.
By /s/
_________________________
Title:
22
<PAGE>
DH APPAREL COMPANY, INC.
2000 STOCK OPTION PLAN
Effective as of February 15, 2000
Amended and Restated March 15, 2000
<PAGE>
DH APPAREL COMPANY, INC.
2000 STOCK OPTION PLAN
----------------------
1. PURPOSE.
- -----------
The purpose of the DH Apparel Company, Inc. 2000 Stock Option Plan (the
"Plan") is to promote the growth and profitability of DH Apparel Company, Inc.
(the "Company") and its subsidiaries from time to time ("Subsidiaries") by
increasing the personal participation of key and middle level executives in the
continued growth and financial success of the Company and the Subsidiaries, by
enabling the Company and the Subsidiaries to attract and retain executives of
outstanding competence and by providing such executives with an equity
opportunity in the Company. This purpose will be achieved through the grant of
options ("Options") to purchase shares of the common stock of the Company
("Shares").
2. ADMINISTRATION.
- ------------------
The Plan shall be administered by the Company's Board of Directors (the
"Board"); provided, however, that in its discretion, the Board may delegate its
authority under the Plan to a committee of the Board (the "Committee") composed
solely of two or more "Non-Employee Directors" ( as defined in Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended, or any
applicable successor rule or regulation (the "Exchange Act")).
The Board (or Committee, as applicable) shall have complete and final
authority to: (i) interpret all terms and provisions of the Plan; (ii) select
from the group of key and middle level executives eligible to participate in the
Plan the executives to whom Options will be granted; (iii) subject to the terms
of the Plan, establish the terms and conditions of each Option, including
without limitation the number of Shares subject to the Option, the term of the
Option, and any schedule for or conditions of the exercise of the Option; (iv)
prescribe the form of instrument(s) evidencing Options granted under the Plan;
(v) determine the time or times at which Options will be granted; (vi) make
special grants of Options as the Board (or Committee, as applicable) may
determine to be appropriate; (vii) determine the method of exercise of Options
granted under the Plan; (viii) adopt, amend and rescind general and special
rules for the Plan's administration; and (ix) make all other determinations and
take all other actions necessary or advisable for the administration of the
Plan.
Unless the bylaws or a resolution of the Board provides otherwise, any
action that the Board (or Committee, as applicable) is authorized to take may be
taken without a meeting if all the member of the Board (or Committee, as
applicable) sign a written document authorizing such action.
The Board (or Committee, as applicable) may designate selected Board
members or certain employees of the Company to assist the Board (or Committee,
as applicable) in the administration of the Plan and may grant authority to such
persons to execute documents, including Options, on behalf of the Board (or
Committee, as applicable).
No member of the Board shall be liable for any action taken or
determination made in good faith in connection with the Plan.
1
<PAGE>
3. ELIGIBILITY AND FACTORS TO BE CONSIDERED IN GRANTING OPTIONS.
- ----------------------------------------------------------------
Key or middle level executive, whether or not officers or members of the
Board, of the Company and its Subsidiaries who have the greatest impact on the
Company's long-term performance shall be eligible to receive Options under the
Plan. In determining the key and middle level executives to which Options will
be granted and the number of shares subject to each Option, the Board (or
Committee, as applicable) shall take into account the level and responsibility
of the executive's position, the executive's performance, the assessed potential
of the executive and such other factors as the Board (or Committee, as
applicable) may deem relevant to the accomplishment of the purposes of the Plan.
Options may be granted under the Plan only for reasons connected with an
executive's employment with the Company or a Subsidiary.
Directors of the Company or any Subsidiary who are not also employees of
the Company or any of its Subsidiaries are not eligible to participate in the
Plan.
4. SHARES SUBJECT TO THE PLAN.
- ------------------------------
Subject to the provisions of Section 14, the aggregate number of Shares
with respect to which Options may be granted under the Plan shall not exceed
500,000 Shares. If an Option expires, terminates or is surrendered without
having been fully exercised, any Shares subject to the Option with respect to
which the Option was not exercised shall again be available for purposes of this
Plan. The Board (or Committee, as applicable) shall maintain records showing the
cumulative total of all Shares subject to outstanding Options.
5. DESIGNATION OF OPTIONS; NUMBER OF SHARES.
- --------------------------------------------
Subject to the terms of the Plan, the Board (or Committee, as applicable)
may, in its sole discretion, grant Options to eligible participants.
In granting Options, the Board (or Committee, as applicable) shall clearly
indicate as to each Option whether the Option is an incentive stock option
("ISO") or a non-qualified stock option ("NQO"). The Board (or Committee, as
applicable) may grant both ISOs and NQOs to the same executive, provided that
the ISOs and NQOs are granted separately. The Board (or Committee, as
applicable) shall not designate an Option as an ISO unless the terms of the
Option comply with all of the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
Subject to Section 4., the Board (or Committee, as applicable) may grant
Options to eligible participants with respect to such number of Shares as the
Board (or Committee, as applicable), in its sole discretion, may determine;
provided, that no participant may be awarded Options during any calendar year
with respect to an aggregate (subject to Section 14) of more than 125,000 shares
of common stock.
With respect to Options designated as ISOs, the aggregate fair market value
(determined at the Options' respective dates of grant in accordance with Section
422(c)(7) of the Code) of the Shares with respect to which such Options are
exercisable for the first time by a participant during any calendar year (under
all plans taken into account pursuant to Section 422(d) of the Code) shall not
exceed $100,000.
2
<PAGE>
6. EXERCISE PRICE.
- ------------------
The price per Share at which each Option may be exercised shall be the
price determined by the Board (or Committee, as applicable) at the time of grant
based on such criteria as may be adopted by the Board (or Committee, as
applicable) in good faith, but in no event shall the exercise price per share of
an Option be less than the par value of a Share or less than fifty percent (50%)
of the fair market value of a Share at the time such Option is granted. In
addition, (i) the exercise price per share for any ISO shall be not less than
the fair market value of a Share (determined in accordance with Section
422(c)(7) of the Code) at the time such Option is granted; (ii) the exercise
price per share for any ISO shall be not less than 110% of the fair market value
of a Share (determined in accordance with Section 422(c)(7) of the Code) at the
time such Option is granted if immediately prior to the grant, the recipient is
a person who beneficially owns (determined in accordance with Section 424 of the
Code) stock having more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or any parent or subsidiary
corporation of the Company (determined in accordance with Section 424(d) of the
Code) (a "10% Owner"); and (iii) the exercise price per share shall be not less
than the fair market value of a Share at the time the Option is granted for any
grant that is intended to qualify as "performance-based compensation" under
Section 162(m)(4)(C) of the Code and the regulations promulgated thereunder.
7. TERM.
- --------
The term of each Option shall be established by the Board (or Committee, as
applicable) but shall not exceed ten (10) years from the date of grant. In
addition, no ISO granted to a participant who is a 10% Owner shall have a term
exceeding five (5) years from the date of grant.
8. TIME OF GRANT.
- -----------------
The date of grant of an Option for all purposes shall be the date on which
the Board (or Committee, as applicable) approves the grant of the Option. Notice
of the grant shall be given to each Option recipient (each a "Grantee") within a
reasonable time after the date of grant.
9. TRANSFER.
- ------------
An Option shall not be transferable by the Grantee except by will or the
laws of descent and distribution. During the Grantee's lifetime, an Option may
only be exercised by the Grantee.
10. EXERCISE.
- -------------
Subject to the terms of the Plan, an Option may be exercisable at such time
or times after the date of grant and upon such conditions and according to such
schedule as may be determined by the Board (or Committee, as applicable) at the
time of grant.
At the time of grant of each Option, the Board (or Committee, as
applicable) shall determine, and the written Option agreement or letter shall
set forth, the effect on the Option of the termination of the Grantee's
employment with the Company or any of its Subsidiaries for any reason other than
death or permanent and total disability with the meaning of Section 22(e)(3) of
the Code (or any
3
<PAGE>
successor provision). In the discretion of the Committee, such effect may
include immediate expiration of the Option or expiration of the Option at the
end of a period of time (not to exceed either three months or the stated term of
the Option) immediately following such termination of employment. In no event
shall the Grantee be able to exercise an Option for more Shares than the number
of shares for which the Option could have been exercised at the time the Grantee
ceased to be an employee.
If a Grantee dies while in the employ of the Company or a Subsidiary, or
(if the Board (or Committee, as applicable) so determines at the time of grant)
within three months after the termination of such employment, or if a Grantee
terminates employment with the Company or a Subsidiary due to permanent and
total disability (within the meaning of Section 22(e)(3) of the Code or any
successor provision), the Grantee's Option(s) may be exercised by the Grantee or
the Grantee's estate, as the case may be, during a period not exceeding one year
after the date of the Grantee's death or termination of employment for the
number of Shares for which the Option could have been exercised at the time the
Grantee died or became permanently and totally disabled.
Notwithstanding any other provision of this Plan, in no event may an Option
be exercised after the expiration of its stated term.
Upon any Change of Control, all outstanding Options, to the extent not
vested and/or exercisable, shall become immediately vested and exercisable in
their entirety. "Change of Control" shall mean the occurrence of any one of the
following: (a) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole to any "person" (within the meaning of Section
13(d) of the Exchange Act) other than one or more wholly-owned Subsidiaries of
the Company; (b) the adoption of a plan relating to the liquidation or
dissolution of the Company; (c) the first day on which a majority of the members
of the Board are not Continuing Directors; or (d) the consummation of any
transaction (including without limitation any merger, share exchange or
consolidation) the result of which is that any "person" (as defined above),
other than an Exempt Person or Exempt Persons, becomes, directly or indirectly,
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that an entity or person shall be deemed to have "beneficial
ownership" of all shares that any such entity or person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time) of more than 30% of the outstanding common stock of the Company;
provided that the transactions covered by this clause (d) shall not include the
acquisition by the Company of its common stock; provided further, however, that
if (x) any "person" (as defined above) becomes, directly or indirectly, the
"beneficial owner" (as defined above) of more than 30% of the outstanding common
stock of the Company solely as a result of acquisition by the Company of its
common stock, (y) such "person" thereafter acquires any additional shares of
common stock of the Company and (z) immediately after such acquisition such
"person" is, directly or indirectly, the "beneficial owner" (as defined above)
of 30% or more of the outstanding common stock of the Company, then such
additional acquisition shall constitute a Change of Control.
"Exempt Person" shall mean (a) the Company, (b) any wholly-owned Subsidiary
of the Company, (c) any individual who immediately before the transaction is an
executive officer of the Company, (d) any employee benefit plan of the Company
or any of its wholly-owned Subsidiaries or (e) any entity or person holding
shares of common stock for or pursuant to the terms of any such plan if such
entity or person is not a beneficiary of or participant in such plan.
"Continuing Directors" shall mean, as of any date, any member of the Board
who (i) was a
4
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member of the Board on the date this Plan was adopted by the Board or (ii) was
nominated for election or elected to the Board with the approval of a majority
of the Continuing Directors who were members of the Board at the time of such
nomination or election.
11. METHOD OF EXERCISE.
- -----------------------
An Option shall be deemed exercised when (i) the Company receives written
notice of the holder's decision to exercise the Option; (ii) the holder tenders
to the Company payment in full in cash (or if the Board (or Committee, as
applicable) so determines at the time of grant, in Shares) the aggregate
exercise price for the Shares with respect to which the Option is to be
exercised; (iii) the holder tenders to the Company payment in full in cash the
amount of all federal and state withholding or other employment taxes applicable
to the taxable income, if any, of the holder resulting from the exercise of the
Option; and (iv) the holder complies with such other reasonable requirements as
the Board (or Committee, as applicable) may establish.
An Option may be exercised for any lesser number of Shares than the full
number for which it could have been exercised. Such a partial exercise shall not
affect the right to exercise the Option from time to time with respect to the
remaining Shares subject to the Option.
12. CANCELLATION AND REPLACEMENT OF OPTIONS.
- --------------------------------------------
The Board (or Committee, as applicable) may at any time or from time to
time permit a Grantee to voluntarily surrender any outstanding Options where
such surrender is conditioned upon the granting to the Grantee of new Options
for such number of Shares as the Board (or Committee, as applicable) may
determine. The Board (or Committee, as applicable) may require a Grantee to
surrender outstanding Options as a condition precedent to the grant of new
Options to such Grantee.
Subject to the terms of the Plan, the Board (or Committee, as applicable)
shall determine the terms and conditions of any new Options, including the
prices at and periods during which they may be exercised, all of which may
differ from the terms and conditions of the Options surrendered. Any such new
Options shall be subject to the Plan. The grant of new Options in connection
with the surrender of outstanding Options shall be considered, for purposes of
the Plan, as the grant of new Options and not as an alteration, amendment or
modification of the Plan or the Options surrendered.
The Shares subject to any Options surrendered shall no longer be charged
against the aggregate Share limit set forth in Section 4. and shall again be
available for grants of Options under the Plan.
13. TERMINATION OF OPTIONS.
- ---------------------------
An Option shall be considered terminated in whole or in part to the extent
that, in accordance with the provisions of the Plan, it can no longer be
exercised with respect to Shares subject to the Option. The Shares subject to
any Option, or portion thereof, that terminates shall no longer be charged
against the aggregate Share limit set forth in Section 4. and shall again be
available for the grant of Options under the Plan.
5
<PAGE>
14. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
- -----------------------------------------------
In the event of any change in the characteristics of the Shares by reason
of a stock dividend, recapitalization, merger, reorganization, consolidation,
stock split, reverse stock split or any other similar event, the Shares subject
to the Plan and the Shares subject to each outstanding Option shall be
correspondingly increased, reduced or changed, such that by exercise of any
outstanding Option, a Grantee will receive, without change in the aggregate
purchase price, securities, as so increased, reduced or changed, comparable to
the securities the Grantee would have received if the Grantee had exercised the
Option prior to such event. In the case of an ISO, the foregoing sentence shall
apply in the event of a merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation, if the excess of the aggregate fair
market value of the Shares subject to the Option immediately after such event
over the aggregate exercise price of such Shares is not more than the excess of
the aggregate fair market value of all Shares subject to the Option immediately
prior to such event over the aggregate exercise price of such Shares.
Adjustments under this Section shall be made by the Board (or Committee, as
applicable), whose determination as to the nature and extent of any adjustments
shall be binding and final.
15. COMPLIANCE WITH SECURITIES AND EXCHANGE COMMISSION AND OTHER REQUIREMENTS.
- ------------------------------------------------------------------------------
No certificates for Shares shall be executed and delivered upon exercise of
any Option unless and until the Company is able to take such action, if any, as
is then required to comply with the Securities Act of 1933, as amended; the
Exchange Act; the South Carolina Uniform Securities Act, as amended; any other
applicable state securities laws and the requirements of any exchange on which
the Shares may be listed.
In the case of the exercise of an Option by a person or estate acquiring
the right to exercise the Option by bequest of inheritance, the Board (or
Committee, as applicable) may require reasonable evidence as to the ownership of
the Option and may require such consent and releases of taxing authorities as it
may deem advisable.
16. NO RIGHT TO EMPLOYMENT.
- ---------------------------
Neither the adoption of the Plan nor its operation, nor any document
describing or referring to the Plan, or any part thereof, shall confer upon any
participant under this Plan any right to continue in the employ of the Company
or any Subsidiary, or shall in any way affect the right and power of the Company
or any Subsidiary to terminate the employment of any participant at any time
with or without cause, to the same extent as the Company or Subsidiary might
have done if the Plan had not been adopted.
17. NO RIGHTS AS SHAREHOLDER.
- -----------------------------
No person, estate or other entity shall have any rights as a shareholder
with respect to the Shares obtained as a result of the exercise of an Option
until a certificate or certificates for the Shares have been received.
6
<PAGE>
18. AMENDMENT AND TERMINATION.
- ------------------------------
The Board may at any time suspend, amend or terminate this Plan. The Board
(or Committee, as applicable) may make such modifications to the terms and
conditions of any Option as it shall deem advisable. No Option shall be granted
during any suspension or after termination of the Plan. Notwithstanding the
foregoing provisions of this Section, no amendment, suspension or termination of
the Plan and no modification of any Option shall, without the consent of the
holder of an Option, alter or impair any rights or obligations under any Option
granted prior to the effective date of the amendment, suspension or termination
of the Plan or of the modification to the Option.
In addition to Board approval of an amendment to the Plan, the Board shall
obtain such consent by the holders of the capital stock of the Company, if any,
as may be required by applicable law, including without limitation Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended, Sections
162(m) and 421 through 424 of the Internal Revenue Code.
19. USE OF PROCEEDS.
- --------------------
The proceeds received by the Company from the sale of Shares pursuant to
the exercise of Options shall be used for general corporate purposes as
determined by the Board.
20. INDEMNIFICATION OF BOARD.
- -----------------------------
In addition to such other rights of indemnification as they may have as
members of the Board, the members of the Board (and the Committee, as
applicable) shall, to the fullest extent permitted by law, be indemnified by the
Company against the reasonable expenses, including attorneys' fees and legal
costs, actually and necessarily incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to which
they or any of them may be a party by reason of any action or omission in
connection with the Plan or any Option, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except in relation to matters as to
which it has been adjudged in such action, suit or proceeding that such Board or
Committee member is liable for gross negligence or misconduct in the performance
of such member's duties; provided that within 60 days after institution of any
such action, suit or proceeding the Board or Committee member shall in writing
offer the Company the opportunity, at the Company's own expense, to handle and
defend the same.
21. EFFECTIVE DATE OF THE PLAN.
- -------------------------------
This Plan shall be effective February 15, 2000, subject to subsequent
approval by the requisite shareholder vote no later than the next annual meeting
of the shareholders of the Company. Any Options granted prior to such
shareholder approval shall also be subject to shareholder approval of the Plan.
If the Plan is not approved by the shareholders of the Company, the Plan shall
terminate and any Options granted under the Plan shall expire.
7
<PAGE>
22. DURATION OF THE PLAN.
- -------------------------
Unless previously terminated by the Board, this Plan shall terminate at the
close of business on February 15, 2010, and no Option may be granted under the
Plan thereafter, but such termination shall not affect any Option granted prior
to termination of the Plan.
23. GOVERNING LAW.
- ------------------
This Plan shall be governed, interpreted and enforced in accordance with
the laws of South Carolina without regard to choice of law principles.
8
<PAGE>
DH APPAREL COMPANY, INC.
INCENTIVE STOCK AWARD PLAN
Effective February 15, 2000
Amended and Restated March 15, 2000
<PAGE>
DH APPAREL COMPANY, INC.
INCENTIVE STOCK AWARD PLAN
ARTICLE I
THE PLAN
Sec. 1.1 NAME.
This plan shall be known as the "Incentive Stock Award Plan" (the "Plan").
Sec. 1.2 PURPOSES
The purposes of the Plan are to establish or increase the equitable
ownership in DH Apparel Company, Inc. (the "Company") by key and middle level
management employees of the Company and/or its subsidiaries and to provide
incentives to key and middle level management employees of the Company and/or
its subsidiaries through the prospect of such common stock ownership. By thus
achieving ownership or the prospect of ownership of the Company's common stock
by such employees, the Company expects to attract, retain and motivate
exceptionally well qualified and competent individuals in key and middle level
management positions.
ARTICLE II
PARTICIPANTS
Sec. 2.1 ELIGIBILITY
Any officer of other key management employee or middle level management
employee of the Company or any subsidiary shall be eligible to receive an
Incentive Stock Award (an "Award").
ARTICLE III
ADMINISTRATION
Sec. 3.1 SELECTION OF AWARDS
The Board of Directors (the "Board") of the Company shall have the
authority from time to time to select key and middle level management employees
("Participants") to receive Awards and the number of shares to be awarded under
each such Award. In its discretion, the Board may delegate its authority under
the Plan to a committee of the Board (the "Committee") composed solely of two or
more "Non-Employee Directors" ( as defined in Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, or any applicable successor rule or
regulation (the "Exchange Act").
Sec. 3.2 INTERPRETATION OF PLAN
The Board (or Committee, as applicable) shall have full and final authority
to interpret and administer the Plan and to determine and interpret the terms
and conditions of each Incentive Stock Award Agreement.
Page 1 of 7
<PAGE>
ARTICLE IV
SHARES ELIGIBLE TO BE GRANTED UNDER THE PLAN
Sec. 4.1 NUMBER OF SHARES
Subject to the provisions of Section 4.2, the aggregate number of shares of
common stock of the Company which may be awarded under the Plan shall not exceed
200,000 shares. Such shares may be either shares previously issued and
thereafter acquired by the Company or they may be authorized but unissued
shares. Any shares covered by an Award (or portion thereof) that have been
forfeited pursuant to the provisions of the applicable Incentive Stock Award
Agreement shall again become available for the purposes of the Plan.
Sec. 4.2 ANTI-DILUTION
In the event that the outstanding shares of common stock of the Company
hereafter are changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation, or cash or other
property, by reason of a merger, consolidation, reorganization,
recapitalization, reclassification, combination of shares, stock split, stock
dividend or similar event:
(a) the aggregate number and kind of shares subject to Awards which
shall have been or may thereafter be granted hereunder shall be adjusted
appropriately; and
(b) the new, additional or different shares and securities and the
cash and other property into which the shares subject to outstanding Awards
would have been converted (had the shares covered by such Awards been
outstanding) shall be considered to be property granted by and subject to
the Awards and shall be subject to all of the conditions and restrictions
applicable to such Awards and the shares subject to such Awards.
The foregoing adjustments and the manner of application of the foregoing
provisions shall be determined solely by the Board (or Committee, as
applicable), and any such adjustment may provide for the elimination of
fractional shares or security interests.
ARTICLE V
AWARD
Sec. 5.1 AWARD GRANT
The Board (or Committee, as applicable) shall determine from time to time
who is to be a Participant and the number of shares to be awarded; provided,
that during any calendar year no Participant may be awarded an aggregate of more
than 75,000 shares of common stock under the Plan. Such determination shall be
recorded in the minutes of the meeting at which such determination was made.
Page 2 of 7
<PAGE>
Sec. 5.2 INCENTIVE STOCK AWARD AGREEMENT
A Participant shall be entitled to receive an Award only upon execution of
an Incentive Stock Award Agreement with the Company. Such Incentive Stock Award
Agreement shall be substantially in the form attached hereto but may be modified
form time to time by the Board (or Committee, as applicable) consistent with the
terms of this Plan.
Sec. 5.3 CASH PURCHASE PRICE OF STOCK
The cash purchase price to be paid by each Participant in connection with
receiving shares covered by an Award (or portion thereof) that has vested
pursuant to the provisions of an Incentive Stock Award Agreement shall be $0.01
per share and such sum shall be payable prior to issuance to the Participant of
the certificate(s) representing such shares.
Sec. 5.4 FORFEITURE OF AN AWARD (OR PORTION THEREOF)
The Incentive Stock Award Agreement shall set forth the circumstances under
which the Award granted thereby (or portion thereof) shall be forfeited. These
circumstances (i) may include the termination of employment of the Participant
with the Company, or any subsidiary thereof, for any reason other than death,
retirement or permanent total disability, prior to the date set forth in the
Incentive Stock Award Agreement when the Award (or relevant portion thereof)
shall vest, and (ii) may include such additional circumstances as may be deemed
appropriate by the Board (or Committee, as applicable). The forfeiture
circumstances may vary among the shares covered by an Award. In the event an
Award (or portion thereof) shall be forfeited pursuant to the terms of the
applicable Incentive Stock Award Agreement, the Participant shall immediately
have no further rights under such Award (or portion thereof) or in the shares
covered thereby.
Sec. 5.5 VESTING OF AN AWARD (OR PORTION THEREOF)
(a) The Incentive Stock Award Agreement shall set forth the
circumstances under which the Award granted thereby (or portion thereof)
shall vest. With respect to any Award (or portion of an Award) intended to
qualify as "performance-based compensation" under Section 162(m)(4)(C) of
the Code and the regulations promulgated thereunder, (i) these
circumstances shall consist of the achievement of one or more
performance-based goals established by the Committee, and such
performance-based goals shall be based on one of, or a combination of, the
following factors, as the Committee deems appropriate: total stockholder
return; revenues, sales, net income, EBIT, EBITDA, stock price, and/or
earnings per share; return on assets, net assets, and/or capital; return on
stockholders' equity; debt/equity ratio; working capital; safety; quality;
the Company's financial performance or the performance of the Company's
stock versus peers; cost reduction; productivity; market mix; or economic
value added; (ii) the Committee shall establish the performance-related
goals in writing no later than 90 days after the commencement of the period
of service to which the Award relates (and in all events before 25% of the
period of service has elapsed); and (iii) the Award shall be made by a
Committee, which shall consist solely of two or more directors who are
"outside directors" within the meaning of Treasury Regulation Section
1.162-27(e)(3). The vesting circumstances may vary among the shares covered
by an Award.
Page 3 of 7
<PAGE>
(b) In the event an Award (or portion thereof) shall vest pursuant to
the terms of the applicable Incentive Stock Award Agreement, the Company
shall issue and deliver, or cause to be issued and delivered, to the
Participant or his or her legal representative, free from any legend and
any other restriction (other than those required by federal or state
securities laws or any other applicable law), certificate(s) for the number
of shares covered by the vested portion of the Award, subject to receipt by
the Company of the cash purchase price described in Section 5.3 above. In
addition, at or about such time the Company shall pay the Participant in
cash an amount that will be approximately sufficient, after the payment of
all applicable federal and state income taxes, to pay the federal and state
income taxes which the Participant will incur by virtue of the vesting of
such Award (or portion thereof). With respect to any Award (or portion of
an Award) intended to qualify as "performance-based compensation" under
Section 162(m)(4)(C) of the Code and the regulations promulgated
thereunder, no issue of shares, delivery of any certificates or payments
shall occur, however, unless and until the Board (or the Committee, as
applicable) has previously certified in writing that the relevant
performance-based goal(s) have been met.
(c) No stock certificate shall be delivered to a Participant or his or
her legal representative unless and until the Participant or his or her
legal representative shall have paid to the Company in cash the full amount
of all federal and state withholding or other employment taxes applicable
to the taxable income of such Participant resulting from the vesting of
such Award (or portion thereof).
(d) (i) Upon any Change of Control, all outstanding Awards, to the
extent not vested, shall become immediately vested in their entirety.
"Change of Control" shall mean the occurrence of any one of the following:
(a) the sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its subsidiaries taken as a whole to any "person" (within the meaning of
Section 13(d) of the Exchange Act) other than one or more wholly-owned
subsidiaries of the Company; (b) the adoption of a plan relating to the
liquidation or dissolution of the Company; (c) the first day on which a
majority of the members of the Board are not Continuing Directors; or (d)
the consummation of any transaction (including without limitation any
merger, share exchange or consolidation) the result of which is that any
"person" (as defined above), other than an Exempt Person or Exempt Persons,
becomes, directly or indirectly, the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that an entity or
person shall be deemed to have "beneficial ownership" of all shares that
any such entity or person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time) of more than 30%
of the outstanding common stock of the Company; provided that the
transactions covered by this clause (d) shall not include the acquisition
by the Company of its common stock; provided further, however, that if (x)
any "person" (as defined above) becomes, directly or indirectly, the
"beneficial owner" (as defined above) of more than 30% of the outstanding
common stock of the Company solely as a result of acquisition by the
Company of its common stock, (y) such "person" thereafter acquires any
additional shares of common stock of the Company and (z) immediately after
such acquisition such "person" is, directly or indirectly, the "beneficial
owner" (as defined above) of 30% or more of the outstanding common stock of
the Company, then such additional acquisition shall constitute a Change of
Control.
Page 4 of 7
<PAGE>
(ii) "Exempt Person" shall mean (a) the Company, (b) any wholly-owned
subsidiary of the Company, (c) any individual who immediately before the
transaction is an executive officer of the Company, (d) any employee
benefit plan of the Company or any of its wholly-owned subsidiaries or (e)
any entity or person holding shares of common stock for or pursuant to the
terms of any such plan if such entity or person is not a beneficiary of or
participant in such plan.
(iii) "Continuing Directors" shall mean, as of any date, any member of
the Board who (i) was a member of the Board on the date this Plan was
adopted by the Board or (ii) was nominated for election or elected to the
Board with the approval of a majority of the Continuing Directors who were
members of the Board at the time of such nomination or election.
Sec. 5.6 NO RIGHTS AS SHAREHOLDER
Until the issuance and delivery to the Participant of certificate(s) for
such shares by reason of the vesting of an Award (or portion thereof) and
payment of the applicable cash purchase price, the Participant shall have none
of the rights of a shareholder with respect to the shares covered by an Award.
ARTICLE VI
STOCK CERTIFICATE
Sec. 6.1 STOCK CERTIFICATES
The Company shall not be required to issue or deliver, or cause to be
issued or delivered, any certificate for shares of stock of the Company pursuant
to an Incentive Stock Award Agreement executed hereunder prior to fulfillment of
all of the following conditions:
(a) the admission of such shares to listing on any over-the-counter
markets and stock exchanges on which the Company's stock is then traded or
listed;
(b) the completion of any registration or other qualification of such
shares under any federal or state law or under the rulings or regulations
of the Securities and Exchange Commission or any other governmental
regulatory body, that the Board (or Committee, as applicable) in its sole
discretion deems necessary or advisable;
(c) the obtaining of any approval or other clearance from any federal
or state governmental agency which the Board (or Committee, as applicable)
shall in its sole discretion determine to be necessary or advisable; and
(d) the lapse of such reasonable period of time following the vesting
of an Award (or portion thereof) as the Board (or Committee, as applicable)
from time to time may establish for reasons of administrative convenience.
Page 5 of 7
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ARTICLE VII
TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
Sec. 7.1 TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
The Board (or Committee, as applicable) may at any time and from time to
time and in any respect amend, modify or terminate the Plan; provided, however,
that no such action of the Board (or Committee, as applicable) without approval
of the shareholders of the Company may:
(a) increase the total number of shares of common stock covered by the
Plan except as contemplated in Section 4.2 hereof; or
(b) change the $0.01 per share cash purchase price under Section 5.3;
provided further, that no termination, amendment or modification of the Plan
shall in any manner, without the consent of the Participant, affect any Award
previously made to a Participant under the Plan.
ARTICLE VIII
MISCELLANEOUS
Sec. 8.1 EMPLOYMENT
Nothing in this Plan or in any Award granted hereunder or in any Incentive
Stock Award Agreement relating thereto shall confer upon any employee the right
to continue in the employ of the Company or any subsidiary.
Sec. 8.2 OTHER COMPENSATION PLANS
The adoption of this Plan shall not affect any other existing incentive or
compensation plans of the Company or any subsidiary, nor shall this Plan
preclude the Company from establishing any other forms of incentive or other
compensation for employees of the Company or any subsidiary.
Sec. 8.3 PLAN BINDING ON SUCCESSORS
This Plan shall be binding upon the successors and assigns of the Company.
Sec. 8.4 SINGULAR, PLURAL; GENDER; HEADINGS
Whenever used herein, nouns in the singular shall include the plural, and
the masculine pronoun shall include the feminine gender. The headings in this
Plan or any Incentive Stock Award Agreement are and shall be for reference
purposes only and shall not affect the meaning or interpretation hereof or
thereof.
Page 6 of 7
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Sec. 8.5 AWARD NOT TRANSFERABLE
A Participant shall have no right to transfer, assign or hypothecate an
Award or, until the portion of an Award covering such shares shall vest, the
shares covered by an Award, other than by will or the laws of descent and
distribution, and the rights of any purported owner, holder, pledgee or any
other person in possession of or claiming any right in such Award or shares
shall at all times be subject to the provisions of this Plan and the applicable
Incentive Stock Award Agreement.
Sec. 8.6 GOVERNING LAW
This Plan shall be governed, interpreted and enforced in accordance with
the laws of South Carolina without regard to choice of law principles.
Page 7 of 7
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DUCK HEAD APPAREL COMPANY, INC.
DEFERRED COMPENSATION PLAN
FOR
KEY MANAGERS
Effective [ ], 2000
1
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TABLE OF CONTENTS
Page
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ARTICLE I. REFERENCES, CONSTRUCTION AND DEFINITIONS.................................................... 1
1.1 Adjustment Date...................................................................... 1
1.2 Beneficiary.......................................................................... 1
1.3 Board................................................................................ 2
1.4 Code................................................................................. 2
1.5 Committee............................................................................ 2
1.7 Compensation......................................................................... 2
1.8 Deemed Deferrals..................................................................... 2
1.9 Deferral Account..................................................................... 3
1.10 Deferral Election.................................................................... 3
1.11 Disability........................................................................... 4
1.12 Effective Date....................................................................... 4
1.13 Elective Deferrals................................................................... 4
1.14 Elective 401(k) Deferrals............................................................ 4
1.15 Employee............................................................................. 4
1.16 Employment Year...................................................................... 4
1.17 ERISA................................................................................ 4
1.18 Hour of Service...................................................................... 4
1.19 Installment Account.................................................................. 5
1.20 Interest Equivalent.................................................................. 5
1.21 Lump Sum Account..................................................................... 5
1.22 Month of Service..................................................................... 5
1.23 Named Fiduciary...................................................................... 5
1.24 Participant.......................................................................... 5
1.25 Participating Company................................................................ 5
1.26 Plan................................................................................. 5
1.27 Plan Administrator................................................................... 5
1.28 Plan Year............................................................................ 5
1.29 Retirement........................................................................... 5
1.30 Savings Plan......................................................................... 6
1.31 Termination of Service............................................................... 6
1.32 Trigger Event........................................................................ 6
1.33 Year of Service...................................................................... 6
ARTICLE II. ELIGIBILITY AND PARTICIPATION.............................................................. 6
2.1 Eligibility.......................................................................... 6
2.2 Participation........................................................................ 6
2.3 Elective Deferrals................................................................... 6
2.4 Limitations on Elective Deferrals.................................................... 7
2.5 Deemed Deferrals..................................................................... 7
2.6 Method-of-Payment Election........................................................... 7
ARTICLE III. ACCOUNTS OF PARTICIPANTS.................................................................. 7
3.1 Accounts............................................................................. 7
3.2 Accounting of Lump Sum Account....................................................... 7
3.3 Accounting of Installment Account.................................................... 8
3.4 Accounting of Level-Payment Installment Account ..................................... 8
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ARTICLE IV. VESTING.................................................................................... 9
ARTICLE V. BENEFITS.................................................................................... 9
5.1 Method and Timing.................................................................... 9
5.2 Payments to Beneficiary.............................................................. 10
5.3 Withholding Taxes; Employment Taxes.................................................. 10
5.4 Payments To Relieve Financial Hardship............................................... 10
ARTICLE VI. DESIGNATION OF BENEFICIARIES............................................................... 10
6.1 Beneficiary Designation.............................................................. 10
6.2 Failure to Designate Beneficiary..................................................... 11
ARTICLE VII. COMMITTEE................................................................................. 11
7.1 Authority............................................................................ 11
7.2 Voting............................................................................... 11
7.3 Records.............................................................................. 11
7.4 Liability............................................................................ 11
7.5 Ministerial Duties................................................................... 11
ARTICLE VIII. AMENDMENT AND TERMINATION................................................................ 11
ARTICLE IX. CLAIMS PROCEDURE........................................................................... 12
9.1 Filing of a Claim for Benefits....................................................... 12
9.2 Notification to Claimant of Decision................................................. 12
9.3 Procedure for Review................................................................. 12
9.4 Decision on Review................................................................... 12
9.5 Action by Authorized Representative of Claimant...................................... 13
ARTICLE X. MISCELLANEOUS .............................................................................. 13
10.1 Nonalienation of Benefits............................................................ 13
10.2 No Trust Created..................................................................... 13
10.3 No Employment Agreement.............................................................. 13
10.4 Funding Policy....................................................................... 13
10.5 Binding Effect....................................................................... 13
10.6 Entire Plan.......................................................................... 14
10.7 Merger or Consolidation.............................................................. 14
10.8 Payment to Incompetent............................................................... 14
10.9 No Contributions..................................................................... 14
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DUCK HEAD APPAREL COMPANY, INC.
DEFERRED COMPENSATION PLAN
FOR
KEY MANAGERS
EFFECTIVE [_____________, 2000]
PREAMBLE
The Participating Companies have established this Plan to contribute to their
long-range growth. It is the intention of the parties that the Plan be unfunded
for tax purposes and for purposes of Title I of ERISA. A Participating Company
shall be liable only with respect to obligations incurred pursuant to this Plan
for its own Employees; no Participating Company shall be liable with respect to
benefits due an Employee of any other Participating Company. Under the Plan,
each year, each Participating Company awards a select group of its key Employees
with deferred benefits based on the Employee's Elective and Deemed Deferrals for
the year. Such benefits are normally payable by that Participating Company to
its Employees or their beneficiaries upon Retirement, Disability, death, or
other Termination of Service.
ARTICLE I. REFERENCES, CONSTRUCTION AND DEFINITIONS
Unless otherwise indicated, all references to articles, sections and subsections
shall be to the Plan as set forth herein. The Plan and all rights thereunder
shall be construed and enforced in accordance with ERISA and the laws of the
State of South Carolina, to the extent that each may be applicable. The article
titles and the captions preceding sections and subsections have been inserted
solely as a matter of convenience and in no way define or limit the scope or
intent of any provisions. Whenever used herein, the singular includes the
plural, the masculine includes the feminine. Whenever used herein and
capitalized, the following terms shall have the respective meaning indicated
unless the context plainly requires otherwise.
1.1 ADJUSTMENT DATE. The last day of each calendar quarter, the date of a
Trigger Event, and such other times as the Committee shall establish.
1.2 BENEFICIARY. The beneficiary or beneficiaries designated by a Participant
pursuant to ARTICLE VI to receive the amount, if any, payable under the
Plan upon the death of such Participant, or, where there has been no such
designation or an invalid designation, the individual or entity, or the
individuals or entities, who will receive such amount.
1.3 BOARD. The respective Boards of Directors of each of the Participating
Companies.
1.4 CODE. The Internal Revenue Code of 1986, as amended. All citations to
sections of the Code are to such sections as they may from time to time be
amended or renumbered.
1.5 COMMITTEE. The committee which administers the Plan and which is more
particularly described in ARTICLE VII below. The Committee shall be
constituted by the individuals who hold the following offices of Duck Head
Apparel Company, Inc.: Vice President, Vice President - Administration,
Human Resources, Director and Controller.
1.7 COMPENSATION. Compensation with respect to any Participant means such
Participant's wages as defined in Code Ssection 3401(a) and all other
payments of compensation by a Participating Company (in the course of the
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Participating Company's business for a Plan Year for which the
Participating Company is required to furnish the Participant a written
statement under Code Sections 6041(d), 6051(a)(3) and 6052). The
determination of Compensation shall be made by excluding moving expenses,
income from stock options, income from stock awards, income from incentive
stock awards.
1.8 DEEMED DEFERRALS. With respect to a Participant, an amount equal to the sum
of subsections (a) and (b) below:
(a) During each Plan Year, the difference between:
(i) the Nonelective Contribution and forfeitures allocation for the
Plan Year which would have been credited to the account of the
Participant in the Savings Plan had the Participant's Elective
Deferrals under this Plan counted as compensation under the
Savings Plan for the Plan Year and had there been disregarded the
compensation and annual addition limitations of Sections
401(a)(17) and 415 of the Code and the corresponding provisions
of the Savings Plan, and
(ii) the Nonelective Contribution and forfeitures for the Plan Year
actually credited to the Participant's account in the Savings
Plan; plus
(b) Subject to the limitations set forth in subsection (b)(ii) below, and
less the amount set forth in subsection (b)(iii) below, during each
Plan Year, the following amount:
(i) effective as of July 1, 1999, an amount equal to the following
percentage of the Participant's Elective 401(k) Deferrals for
such Plan Year:
# Years of Service % of the Participant's
Elective 401(k) Deferrals
0-5 25%
5-10 30%
11-15 35%
16 and over 40%
(ii) The amount computed under subsection (b)(i) above shall be
limited as follows:
(A) the above percentages shall not be applied to any portion of
the Participant's Elective 401(k) Deferrals which exceeds
four percent (4%) of the Participant's Compensation, and in
computing the Participant's Compensation, there shall be
disregarded any portion of Compensation which exceeds an
amount equal to the compensation limitation of Section
401(a)(17) of the Code as adjusted as of the start of the
Plan Year (e.g., $160,000 for 1998);
(B) the above percentages shall not be applied to any portion of
the Participant's Elective 401(k) Deferrals which exceeds an
amount equal to the amount set forth in Code Section
402(g)(1) as adjusted as of the start of the Plan Year
(e.g., $10,000 for 1998); and
(C) for purposes of the above formula, "Years of Service" shall
be calculated from the Participant's most recent date of
hire. With respect to a Participant who (i) was employed by
an entity that was a Participating Company (the "Prior
Employer") under the Delta Woodside Group Deferred
Compensation Plan for Key Managers on January 1, 2000 and
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(ii) in connection with the distribution from Delta Woodside
Industries, Inc. to its shareholders of all of the stock of Delta
Apparel, Inc. and Duck Head Apparel Company, Inc. on
[___________________, 2000] (the "DWI Reorganization") became an
employee of the Participating Company (under this Plan) by which
the Participant is currently employed, the "most recent date of
hire" shall be the most recent date of hire of the Participant by
the Prior Employer preceding the DWI Reorganization.
(iii)from the amount computed pursuant to subsection (b)(i) above
(and as limited as provided in subsection (b)(ii) above), the
amount of any matching contribution allocated to the
Participant's account under the Savings Plan for the Plan Year
shall be subtracted.
1.9 DEFERRAL ACCOUNT. With respect to each Participant, the separate
bookkeeping account (consisting of the Participant's Lump Sum Account,
Installment Account and Level-Payment Installment Account) to be kept with
respect to such Participant.
1.10 DEFERRAL ELECTION. An irrevocable election by a Participant to defer a
portion of Compensation for a Plan Year, such election to be made in the
manner prescribed in Section 2.3. Amounts so deferred are "Elective
Deferrals."
1.11 DISABILITY. A physical or mental condition under which the Employee
qualifies for disability benefits under the long-term disability plan of
the Participating Company which employs the Employee; provided, however, if
the Employee is not covered by such plan, the Employee shall be under a
Disability if he would have qualified for disability benefits under the
plan were he covered by the plan; provided, further, if there is no such
plan, the Employee shall be under a Disability if the Committee, in the
exercise of its sole and absolute discretion, determines based upon
competent medical evidence satisfactory to the Committee that the Employee,
after 60 days following the expiration of any sick pay to which the
Participant may be entitled, cannot perform each of the material duties of
the Employee's regular occupation by reason of sickness or injury .
1.12 EFFECTIVE DATE. The Effective Date of this Plan is [_______________, 2000].
1.13 ELECTIVE DEFERRALS. With respect to a Participant for a Plan Year, the
amount of the Participant's Compensation deferred pursuant to a Deferral
Election.
1.14 ELECTIVE 401(K) DEFERRALS. With respect to a Participant for a Plan Year,
the Participant's elective deferrals under the Savings Plan for the plan
year of the Savings Plan corresponding to the Plan Year.
1.15 EMPLOYEE. An individual in the service of the Participating Company if the
relationship between him and the Participating Company is the legal
relationship of employer and employee.
1.16 EMPLOYMENT YEAR. The 12-month period beginning on the Employee's date of
hire.
1.17 ERISA. The Employee Retirement Income Security Act of 1974, as amended. All
citations to sections of ERISA are to such sections as they may from time
to time be amended or renumbered.
1.18 HOUR OF SERVICE. An Hour of Service means (1) each hour for which an
Employee is directly or indirectly compensated or entitled to compensation
by a Participating Company for the performance of duties during the
applicable computation period; (2) each hour for which an Employee is
directly or indirectly compensated or entitled to compensation by a
Participating Company (irrespective of whether the
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employment relationship has terminated) for reasons other than performance
of duties (such as vacation, holidays, sickness, jury duty, disability,
lay-off, military duty or leave of absence) during the applicable
computation period; (3) each hour for which back pay is awarded or agreed
to by a Participating Company without regard to mitigation of damages.
These hours will be credited to the Employee for the computation period or
periods to which the award or agreement pertains rather that the
computation period in which the award, agreement or payment is made. The
same Hours of Service shall not be credited both under (1) or (2), as the
case may be, and under (3).
1.19 INSTALLMENT ACCOUNT. With respect to each Participant, the account
described in Section 3.3 below.
1.20 INTEREST EQUIVALENT. With respect to each Adjustment Date, the dollar
amount to be added to the Participant's Lump Sum Account, Installment
Account or Level-Payment Installment Account, as the case may be, equal to
the product of the amount credited to the account as of the next preceding
Adjustment Date reduced by one-half of the amount of benefit payments made
since the next preceding Adjustment Date (i.e., during the "current
calendar quarter") and increased by one-half of the Elective and Deemed
Deferrals for the "current calendar quarter" allocable to such account,
times the greater of (i) the Average AAA Corporate Bond Yield last
published by Moody's Bond Survey before the next preceding Adjustment Date
or (ii) such other interest or yield rate as the Committee may designate
for the Plan Year ending on such Adjustment Date.
1.21 LUMP SUM ACCOUNT. With respect to each Participant, the account described
in Section 3.2 below.
1.22 MONTH OF SERVICE. A Month of Service means a calendar month during any part
of which an Employee completed an Hour of Service; provided, however, that
a Participant shall be credited with a Month of Service for each month
during the 12-month computation period in which he has not incurred a
1-Year Break in Service.
1.23 NAMED FIDUCIARY. Delta Apparel, Inc.
1.24 PARTICIPANT. An Employee who has been notified pursuant to Section 2.1 that
he is eligible to participate in the Plan and who has made a Deferral
Election and any former Employee who has a Deferral Account under the Plan.
1.25 PARTICIPATING COMPANY. Duck Head Apparel Company, Inc. The term
"Participating Company" shall be construed as if the Plan were solely the
Plan of such Participating Company, unless the context plainly requires
otherwise. Notwithstanding anything herein to the contrary, with the
consent of Duck Head Apparel Company, Inc., any other corporation or
entity, whether an affiliate or subsidiary or not, may adopt this plan and
all of the provisions hereof, and participate herein and be known as a
Participating Company.
1.26 PLAN. The Duck Head Apparel Company, Inc. Deferred Compensation Plan for
Key Managers as contained herein and as may be amended from time to time
hereafter.
1.27 PLAN ADMINISTRATOR. The Committee.
1.28 PLAN YEAR. The period commencing January 1 and ending on the first December
31 thereafter.
1.29 RETIREMENT. Termination of Service, other than on account of death, after
attaining age 62.
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1.30 SAVINGS PLAN. The Duck Head Apparel Company, Inc. Savings and Investment
Plan, a 401(k) profit-sharing plan qualified under Section 401(a) of the
Code, and any successor plan.
1.31 TERMINATION OF SERVICE. Termination of the Participant's employment with a
Participating Company for any reason; provided, however, that the transfer
of an Employee from employment by one Participating Company or affiliated
company to employment by another Participating Company or affiliated
company shall not constitute a Termination of Service.
1.32 TRIGGER EVENT. A Trigger Event is either of the following: (a) The last day
of the fiscal quarter of Duck Head Apparel Company, Inc. if as of such date
the Cumulative Net Loss exceeds 30% of Shareholders' Equity at
Reorganization. "Cumulative Net Loss" shall mean the aggregate net loss, if
any, for the period beginning with the date of the DWI Reorganization and
ending with the last day of the relevant fiscal quarter. The date of the
DWI Reorganizastion is the date of the distribution to the shareholders of
Delta Woodside Indusries, Inc. of the stock of the DH Apparal Company, Inc.
and Delta Apparel, Inc. "Shareholders' Equity at Reorganization" shall mean
the shareholders' equity in the Company immediately following the date of
the DWI Reorganization; provided, that the Trigger Event described in this
Section 1.32(a) shall constitute a Trigger Event for purposes of this Plan
only with respect to benefits accrued under the Plan after the date that
Delta Woodside Industries, Inc. distributes to its shareholders all of the
stock of Delta Apparel, Inc. and DH Apparel Company, Inc. in connection
with the DWI Reorganization; and,
(b) Any other event designated as a "Trigger Event" by action of the Board of a
Participating Company in the exercise of its sole and absolute discretion.
No event shall qualify as a Trigger Event merely because the Board has
previously designated one or more similar events as a Trigger Event.
1.33 YEAR OF SERVICE. Any twelve consecutive Months of Service. For vesting
purposes, the computation period shall be the Employment Year. For purposes
of Deemed Deferrals only, the computation period shall be the Employment
Year; however, only Years of Service from the Participant's most recent
date of hire shall be considered; provided that with respect to a
Participant who (i) was employed by an entity that was a Participating
Company (the "Prior Employer") under the Delta Woodside Group Deferred
Compensation Plan for Key Managers on January 1, 2000 and (ii) in
connection with the DWI Reorganization, became an employee of the
Participating Company (under this Plan) by which the Participant is
currently employed, the "most recent date of hire" shall be the most recent
date of hire of the Participant by the Prior Employer preceding the DWI
Reorganization. For all other purposes, the computation period shall be the
Plan Year.
ARTICLE II. ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY. Such Employees as the Committee designates shall be eligible
to participate in this Plan; provided, however, that no Employee who is not
a member of the "select group of management" or a "highly compensated
employee," as defined in Ssections 201(2), 301(a)(3) and 401(a) of ERISA
shall be eligible to become a Participant.
2.2 PARTICIPATION. The Committee shall notify each Employee selected to be a
Participant of the Employee's eligibility, and an Employee so notified
shall become a Participant by making a Deferral Election.
2.3 ELECTIVE DEFERRALS. For each Plan Year, each eligible Employee is entitled
to make a Deferral Election, in such manner and form as the Committee
prescribes, to defer Compensation for the Plan Year. Except in the case of
an "unforeseeable emergency" as defined in Section 5.4 below, such election
shall be irrevocable during the Plan Year. Deferral Elections shall be made
as follows: (a) within 30 days following the adoption of this Plan to defer
Compensation to be earned subsequent to the Deferral Election for the
remainder of such
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Plan Year; (b) within 30 days following the date on which an Employee first
becomes eligible to participate in this Plan to defer compensation to be
earned subsequent to the Deferral Election for the remainder of such Plan
Year; or (c) in all other cases on or before December 31 to defer
compensation to be earned in succeeding Plan Years. The foregoing
notwithstanding, each eligible Employee may make a special Deferral
Election with respect to each bonus to which the Employee becomes entitled,
provided that such Deferral Election is made before the Employee earns such
bonus.
2.4 LIMITATIONS ON ELECTIVE DEFERRALS. The maximum amount of Elective Deferrals
a Participant may make for a Plan Year shall be One Hundred percent (100%)
of the Participant's Compensation which would otherwise be paid to the
Participant during the Plan Year and which is not subject to another
deferral agreement or other withholding.
2.5 DEEMED DEFERRALS. In addition to any Elective Deferrals, for each Plan Year
for which a Participant has made a Deferral Election, the Participant shall
receive credit for Deemed Deferrals.
2.6 METHOD-OF-PAYMENT ELECTION. Contemporaneously with the making of each
Deferral Election, the Participant shall designate on a form prescribed by
the Committee for such purpose whether the benefits pursuant to such
Deferral Election are to be paid in a single sum, installments or
level-payment installments, as provided in Section 5.1(a). If a Participant
fails to make such method-of-payment election, the Participant shall be
deemed to have elected installment payments.
ARTICLE III. ACCOUNTS OF PARTICIPANTS
3.1 ACCOUNTS. The Committee shall establish and cause to be maintained three
separate accounts for each Participant to be known respectively as the
Participant's "Lump Sum Account," "Installment Account," and "Level-Payment
Installment Account."
3.2 ACCOUNTING OF LUMP SUM ACCOUNT. As of each Adjustment Date, the Committee
shall debit and credit each Participant's Lump Sum Account in the following
order:
(A) PAYMENTS. There shall be debited the amount of benefit payments made
to or on behalf of the Participant or the Participant's Beneficiary
during the Plan Year ending on the Adjustment Date (i.e., the "current
calendar quarter") and allocable to such Lump Sum Account.
(B) INTEREST EQUIVALENT. The Committee, in the exercise of its sole and
absolute discretion, shall determine the Interest Equivalent for the
"current calendar quarter" and there shall be credited the Interest
Equivalent, if any, for such Lump Sum Account.
(C) ELECTIVE DEFERRALS. If the Participant elected pursuant to Section 2.6
for benefits payable under a Deferral Election for the "current Plan
Year" to be paid in a single sum, then there shall be credited the
Participant's Elective Deferrals made pursuant to such Deferral
Election for the "current Plan Year."
(D) DEEMED DEFERRALS. If the Participant elected pursuant to Section 2.6
for benefits payable under a Deferral Election for the "current Plan
Year" to be paid in a single sum, then there shall be credited the
Participant's Deemed Deferrals relating to such Deferral Election.
(E) ADMINISTRATIVE EXPENSES. The Committee, in the exercise of its sole
and absolute discretion, shall determine the amount of the expenses
each Participating Company incurred for the "current Plan Year" in
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administering the Plan. There shall be debited such portion of the
amount of such administrative expenses as the Committee determines, in
the exercise of its sole and absolute discretion, to be equitable.
3.3 ACCOUNTING OF INSTALLMENT ACCOUNT. As of each Adjustment Date, the
Committee shall debit and credit each Participant's Installment Account in
the following order:
(A) PAYMENTS. There shall be debited the amount of benefit payments made
to or on behalf of the Participant or the Participant's Beneficiary
during the Plan Year ending on the Adjustment Date (i.e., the "current
calendar quarter") and allocable to such Installment Account.
(B) INTEREST EQUIVALENT. The Committee, in the exercise of its sole and
absolute discretion, shall determine the Interest Equivalent for the
"current calendar quarter" and there shall be credited the Interest
Equivalent, if any, for such Installment Account on the last day of
the calendar quarter.
(C) ELECTIVE DEFERRALS. If the Participant elected pursuant to Section 2.6
for benefits payable under a Deferral Election for the "current Plan
Year" to be paid in installments, then there shall be credited the
Participant's Elective Deferrals made pursuant to such Deferral
Election for the "current Plan Year."
(D) DEEMED DEFERRALS. If the Participant elected pursuant to Section 2.6
for benefits payable under a Deferral Election to be paid in
installments, then there shall be credited for the "current Plan Year"
the Participant's Deemed Deferrals relating to such Deferral Election.
(E) ADMINISTRATIVE EXPENSES. The Committee, in the exercise of its sole
and absolute discretion, shall determine the amount of the expenses
each Participating Company incurred for the "current Plan Year" in
administering the Plan. There shall be debited such portion of the
amount of such administrative expenses as the Committee determines, in
the exercise of its sole and absolute discretion, to be equitable.
3.4 ACCOUNTING OF LEVEL-PAYMENT INSTALLMENT ACCOUNT. As of each Adjustment
Date, the Committee shall debit and credit each Participant's Level-Payment
Installment Account in the following order:
(A) PAYMENTS. There shall be debited the amount of benefit payments made
to or on behalf of the Participant or the Participant's Beneficiary
during the Plan Year ending on the Adjustment Date (i.e., the "current
calendar quarter") and allocable to such Level-Payment Installment
Account.
(B) INTEREST EQUIVALENT. The Committee, in the exercise of its sole and
absolute discretion, shall determine the Interest Equivalent for the
"current calendar quarter" and there shall be credited the Interest
Equivalent, if any, for such Level-Payment Installment Account on the
last day of the calendar quarter; provided that no Interest Equivalent
shall be credited for such Level-Payment Installment Account on or
after the date that the Participant first receives a monthly benefit
payment pursuant to Section 5.1(a)(ii)(B).
(C) ELECTIVE DEFERRALS. If the Participant elected pursuant to Section 2.6
for benefits payable under a Deferral Election for the "current Plan
Year" to be paid in level-payment installments, then there shall be
credited the Participant's Elective Deferrals made pursuant to such
Deferral Election for the "current Plan Year."
(D) DEEMED DEFERRALS. If the Participant elected pursuant to Section 2.6
for benefits payable under a Deferral Election to be paid in
level-payment installments, then there shall be credited for the
"current Plan Year" the Participant's Deemed Deferrals relating to
such Deferral Election.
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(E) ADMINISTRATIVE EXPENSES. The Committee, in the exercise of its sole
and absolute discretion, shall determine the amount of the expenses
each Participating Company incurred for the "current Plan Year" in
administering the Plan. There shall be debited such portion of the
amount of such administrative expenses as the Committee determines, in
the exercise of its sole and absolute discretion, to be equitable.
ARTICLE IV. VESTING
Participants are always One Hundred percent (100%) vested in the portion of
their Deferral Accounts attributable to Elective Deferrals. Each Participant
shall vest in that portion of the Participant's Deferral Account attributable to
Deemed Deferrals (the "Deemed Deferral Benefit") at the same rate as the
Participant vests in the Participant's account balance in the Savings Plan,
except that upon, and at all times following, a Trigger Event, Participants of
the Participating Company which has incurred such Trigger Event shall be One
Hundred percent (100%) vested in their Deemed Deferral Benefits. If as of a
Participant's Termination of Service the Participant is not fully vested in the
Participant's account in the Savings Plan and a Trigger Event has not occurred,
then the Participant shall forfeit the percentage of the Participant's Deemed
Deferral Benefit equal to the percentage of the account in the Savings Plan in
which the Participant is not vested as of such Termination of Service.
ARTICLE V. BENEFITS
5.1 METHOD AND TIMING.
(A) RETIREMENT, DISABILITY OR DEATH.
(i) LUMP SUM PAYMENT. On the January 1st following the Participant's
Retirement or Termination of Service on account of Disability or
death, the Participating Company which is the employer of such
Participant shall pay in a single sum to the Participant or the
Participant's Beneficiary, as the case may be, an amount equal to
the vested amount credited to the Participant's Lump Sum Account
adjusted in accordance with Section 3.1 as of the last Adjustment
Date preceding such payment.
(ii)
(A) INSTALLMENTS. After the Participant's Retirement or
Termination of Service on account of Disability or death,
the Participating Company which is the employer of such
Participant shall pay in 120 monthly installments the vested
amount credited to the Participant's Installment Account.
Payment shall commence on the first January 1st following
such Retirement or Termination of Service, and shall
continue on the first day of each month thereafter until 120
monthly payments have been made. The amount of each monthly
installment payable during a Plan Year shall equal the
quotient obtained by dividing (1) the balance credited to
the Participant's Installment Account as of the Adjustment
Date next preceding the Plan Year by (2) the number of
installments remaining as of such Adjustment Date. As
provided by and in accordance with Article III, during the
period of payment of such installments the Participant's
Installment Account shall continue to be credited with its
Interest Equivalent.
(B) LEVEL-PAYMENT INSTALLMENTS. After the Participant's
Retirement or Termination of Service on account of
Disability or death, the Participating Company which is the
employer of such Participant shall pay in 120 monthly
installments the vested amount credited to the Participant's
Level- Payment Installment Account plus interest as set
forth in this Section 5.1(a)(ii)(B). Payment shall commence
on the first January 1st following such Retirement or
Termination of Service, and shall continue on the first
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<PAGE>
day of each month thereafter until 120 monthly payments have
been made. The amount of each monthly installment shall be
determined in accordance with the following formula:
PV
---------------------------
Payment = (1-1/1+i)119
----------- + 1
i
PV = Level-Payment Installment Account balance as of the last day of the last
quarter ending prior to the payment date for the first monthly installment
i = Level-Payment Installment Fixed Rate divided by 12
The Committee shall set the "LEVEL-PAYMENT INSTALLMENT FIXED RATE" each Plan
Year on the last day of the third calendar quarter at a rate equal to (i) the
Average AAA Corporate Bond Yield last published by Moody's Bond Survey prior to
such date or (ii) such higher rate as the Committee, in its sole discretion, may
determine on or prior to such date. The Level-Payment Installment Fixed Rate set
by the Committee in any given Plan Year shall be the Level-Payment Installment
Fixed Rate used to calculate the monthly payments for all Participants who first
begin receiving monthly payments of benefits from their Level-Payment
Installment Account in the immediately following Plan Year.
(iii)DISCRETIONARY PAYMENT UPON DEATH. Notwithstanding the provisions
of Sections 5.1(a)(i) and (ii) above, upon a Participant's death,
the Participating Company which is the employer of such
Participant may, in the exercise of its absolute and sole
discretion, pay in a single sum to the Participant's Beneficiary
an amount equal to the vested amount credited to the
Participant's Lump Sum Account, Installment Account and
Level-Payment Installment Account adjusted in accordance with
Section 3.1 as of the last Adjustment Date preceding such
payment. Such lump sum payment shall discharge the Participating
Company's obligation to pay benefits under this Plan to such
Beneficiary.
(B) OTHER TERMINATION OF SERVICE. On the first January 1st following the
Participant's Termination of Service other than on account of
Retirement, Disability or death, the Participating Company which is
the employer of such Participant shall pay in a single sum to the
Participant or the Participant's Beneficiary, as the case may be, an
amount equal to the vested amount credited to the Participant's Lump
Sum Deferral Account, Installment Account and Level-Payment
Installment Account, each adjusted in accordance with Article III as
of the last Adjustment Date preceding such January 1st.
Notwithstanding the foregoing, if a Participant's employment is
terminated as a result of the sale or closure of a Participating
Company, or of a subsidiary or division of a Participating Company,
the Participating Company which is the employer of such Participant
shall pay in a single sum to the Participant or the Participant's
Beneficiary, as the case may be, an amount equal to the vested amount
credited to the Participant's Lump Sum Deferral Account, Installment
Account and Level-Payment Installment Account, each adjusted in
accordance with Article III as of the last Adjustment Date preceding
such sale or closure, such payment to occur as soon as
administratively feasible after such sale or closure.
(C) TRIGGER EVENT. Upon the happening of a Trigger Event, the
Participating Company which is subject to such Trigger Event shall
immediately pay to each Participant which is its Employee, in a single
sum, the amount credited to the Participant's Deferral Account
adjusted in accordance with Article III as of the date of the Trigger
Event.
9
<PAGE>
5.2 PAYMENTS TO BENEFICIARY. In the event a Participant dies prior to full
payment of the Participant's Deferral Account under this Article V, all
remaining payments due hereunder shall be made to such Participant's
Beneficiary; provided, however, if the Committee so directs in the exercise
of its sole discretion, the Participating Company shall pay the remainder
of the Deferral Account in one single sum. In the event the Beneficiary
survives the Participant but dies prior to full payment of benefits
hereunder, all remaining payments shall be made to the Beneficiary's
estate.
5.3 WITHHOLDING TAXES; EMPLOYMENT TAXES. Any amounts paid to a Participant or
Beneficiary shall be reduced by the amount of taxes required by law to be
withheld. The Participating Company which is the employer of the
Participant shall timely furnish the Participant and Beneficiary with the
appropriate tax information form evidencing such payment and the amount
thereof. Each Participating Company shall be solely responsible for paying
employment taxes (e.g., FICA, FUTA, state unemployment), if any,
attributable to payments to Participants and Beneficiaries which are its
Employees.
5.4 PAYMENTS TO RELIEVE FINANCIAL HARDSHIP. Notwithstanding any provision in
this Plan to the contrary, the Committee in the exercise of its sole and
absolute discretion shall have the power and authority to direct a
Participating Company to pay to a Participant or the Participant's
Beneficiary such amount as is necessary to enable the Participant or
Beneficiary to relieve or mitigate an "unforeseeable emergency". For
purposes of the foregoing, an "unforeseeable emergency" shall have the
meaning set forth in Internal Revenue Code Regulation Ssections
1.457-2(h)(4) and (5) and shall include a severe financial hardship to the
Participant or Beneficiary resulting from a sudden and unexpected illness
or accident of the Participant or Beneficiary or of a dependent (as defined
in Code Section 152(a)) of the Participant or Beneficiary, loss of the
Participant's or Beneficiary's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant or Beneficiary. The circumstances
that will constitute an "unforeseeable emergency" will depend upon the
facts of each case, but, in any case, payment may not be made to the extent
that such hardship is or may be relieved --
(a) through reimbursement or compensation by insurance or otherwise;
(b) by liquidation of the Participant's or Beneficiary's assets, to the
extent the liquidation of such assets would not itself cause severe
financial hardship; or
(c) by cessation of deferrals under this Plan.
College tuition or the costs of purchasing a home are not considered
"unforeseeable emergencies." Withdrawals of amounts because of an "unforeseeable
emergency" will only be permitted to the extent reasonably needed to satisfy the
emergency need. The amount of any such payment shall be debited to the
Participant's Lump Sum Account, Installment Account and Level-Payment
Installment Account in such order as the Committee elects and shall not exceed
the amount credited to the Deferral Account determined as of the Adjustment Date
next following such payment and without regard to such payment.
10
<PAGE>
ARTICLE VI. DESIGNATION OF BENEFICIARIES
6.1 BENEFICIARY DESIGNATION. Every Participant shall file with the Committee a
written designation of one or more persons as the Beneficiary who shall be
entitled to receive the amount, if any, payable under the Plan upon his
death. A Participant may from time to time revoke or change his Beneficiary
designation without the consent of any prior Beneficiary by filing a new
designation with the Committee. The last such designation received by the
Committee shall be controlling; provided, however, that no designation, or
change or revocation thereof, shall be effective unless received by the
Committee prior to the Participant's death, and in no event shall it be
effective as of a date prior to such receipt. All decisions of the
Committee concerning the effectiveness of any Beneficiary designation and
the identity of any Beneficiary shall be final. If a Beneficiary shall die
after the death of the Participant and prior to receiving the distribution
that would have been made to such Beneficiary had such Beneficiary's death
not occurred, and no alternate Beneficiary has been designated, then for
the purposes of the Plan the distribution that would have been received by
such Beneficiary shall be made to the Beneficiary's estate.
6.2 FAILURE TO DESIGNATE BENEFICIARY. Subject to Section 6.1, if no Beneficiary
designation is in effect at the time of a Participant's death, the payment
of the amount, if any, payable under the Plan upon his death shall be made
to the Participant's surviving spouse, if any, or if the Participant has no
surviving spouse, to the Participant's estate. If the Committee is in doubt
as to the right of any person to receive such amount, the Committee may
direct the Participating Company to withhold payment without liability for
any interest thereon, until the rights thereto are determined, or the
Committee may direct the Participating Company to pay any such amount into
any court of appropriate jurisdiction, and such payment shall be a complete
discharge of the liability of the Participating Company therefor.
ARTICLE VII. COMMITTEE
7.1 AUTHORITY. The Committee shall be responsible for the administration and
interpretation of the Plan, shall act as the Plan Administrator and shall
have all powers necessary to enable it to carry out its duties in the
administration and interpretation of the Plan, and shall have the duty and
power to determine, in the exercise of its sole and absolute discretion,
all questions that may arise hereunder as to the status and rights of
Participants and Beneficiaries in the Plan and as to the right of any
individual to a benefit.
7.2 VOTING. The Committee shall act by a majority of the number then
constituting the Committee, and such action may be taken either by vote at
a meeting or in writing without a meeting.
7.3 RECORDS. The Committee shall keep a complete record of all its proceedings
and all data relating to the administration of the Plan. The Committee
shall make such rules and regulations for the conduct of its business as it
shall deem advisable.
7.4 LIABILITY. No member of the Committee shall be personally liable for any
actions taken or omitted by the Committee unless the member's action or
inaction involves willful misconduct. To the extent permitted by applicable
law, each Participating Company shall indemnify and hold harmless each
member of the Committee and each employee of the Participating Company
acting pursuant to the direction of the Committee from and against any and
all liability, claims, demands, costs and expenses (including reasonable
attorneys' fees) arising out of or incident to any act or failure to act in
connection with the administration of the Plan, except for any such act or
failure to act that involves willful misconduct.
11
<PAGE>
7.5 MINISTERIAL DUTIES. The Committee may appoint one of its members to perform
such ministerial duties as the Committee delegates.
ARTICLE VIII. AMENDMENT AND TERMINATION
Each Participating Company reserves the right, at any time and from time to
time, by action of its Board to amend or terminate the Plan with respect to
itself and the Participants employed by it; provided, however, no such amendment
or termination shall either (a) reduce the amount of any Deferral Account,
determined as of the Adjustment Date coincident with or next preceding the
amendment or termination, or (b) defer payment of such Deferral Account.
ARTICLE IX. CLAIMS PROCEDURE
The following claims procedure shall apply with respect to the Plan:
9.1 FILING OF A CLAIM FOR BENEFITS. If a Participant or Beneficiary (the
"claimant") believes that he is entitled to benefits under the Plan which
are not being paid to him, he shall file a written claim therefor with the
Plan Administrator. In the event a member of the Plan Administrator shall
be the claimant, all actions which are required to be taken by the Plan
Administrator pursuant to this Article IX shall be taken instead by the
remaining members of the Plan Administrator.
9.2 NOTIFICATION TO CLAIMANT OF DECISION. Within 90 days after receipt of a
claim by the Plan Administrator (or within 180 days if special
circumstances require an extension of time), the Plan Administrator shall
notify the claimant of the Plan Administrator's decision with regard to the
claim. In the event of such special circumstances requiring an extension of
time, there shall be furnished to the claimant prior to expiration of the
initial 90-day period written notice of the extension, which notice shall
set forth the special circumstances and the date by which the decision
shall be furnished. If such claim shall be wholly or partially denied,
notice thereof shall be in writing and worded in a manner calculated to be
understood by the claimant, and shall set forth: (a) the specific reason or
reasons for the denial; (b) specific reference to pertinent provisions of
the Plan on which the denial is based; (c) a description of any additional
material or information necessary for the claimant to perfect the claim and
an explanation of why such material or information is necessary; and (d) an
explanation of the procedure for review of the denial. If the Plan
Administrator fails to notify the claimant of the decision in timely
manner, the claim shall be deemed denied as of the close of the initial 90-
day period (or the close of the extension period, if applicable).
9.3 PROCEDURE FOR REVIEW. Within 60 days following receipt by the claimant of
notice denying his claim in whole or in part or, if such notice shall not
be given, within 60 days following the latest date on which such notice
could have been timely given, the claimant shall appeal denial of the claim
by filing a written application for review with the Plan Administrator.
Following such request for review, the Plan Administrator shall fully and
fairly review the decision denying the claim. Prior to the decision of the
Plan Administrator, the claimant shall be given an opportunity to review
pertinent documents and to submit issues and comments in writing.
9.4 DECISION ON REVIEW. The decision on review of a claim denied in whole or in
part by the Plan Administrator shall be made in the following manner:
12
<PAGE>
(a) Within 60 days following receipt by the Plan Administrator of the
request for review (or within 120 days if special circumstances
require an extension of time), the Plan Administrator shall notify the
claimant in writing of its decision with regard to the claim. In the
event of such special circumstances requiring an extension of time,
written notice of the extension shall be furnished to the claimant
prior to the commencement of the extension. If the decision on review
is not furnished in a timely manner, the claim shall be deemed denied
as of the close of the initial 60-day period (or the close of the
extension period, if applicable).
(b) With respect to a claim that is denied in whole or in part, the
decision on review shall set forth specific reasons for the decision,
shall be written in a manner calculated to be understood by the
claimant, and shall cite specific references to the pertinent plan
provisions on which the decision is based.
(c) The decision of the Plan Administrator shall be final and conclusive.
9.5 ACTION BY AUTHORIZED REPRESENTATIVE OF CLAIMANT. All actions set forth in
this Article IX to be taken by the claimant may likewise be taken by a
representative of the claimant duly authorized by him to act in his behalf
on such matters. The Plan Administrator may require such evidence as it may
reasonably deem necessary or advisable of the authority to act of any such
representative.
ARTICLE X. MISCELLANEOUS
10.1 NONALIENATION OF BENEFITS. No right or benefit under the Plan shall be
subject to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, garnishment or charge, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, attach,
garnish or charge any right or benefit under the Plan shall be void. No
right or benefit hereunder shall in any manner be liable for or subject to
the debts, contracts, liabilities or torts of the person entitled to such
benefit. If a Participant or Beneficiary hereunder shall become bankrupt,
or attempt (voluntarily or involuntarily) to anticipate, alienate, sell,
transfer, assign, pledge, encumber, or charge any right hereunder, or if
any creditor shall attempt to attach, garnish, levy on or otherwise
alienate or affect the right or benefit of any Participant or Beneficiary
hereunder, then such right or benefit shall, in the discretion of the
Committee, cease and terminate, and in such event, the Committee may hold
or apply the same, or any part thereof, for the benefit of the Participant
or Beneficiary in such manner and in such amounts and proportions as the
Committee may deem proper.
10.2 NO TRUST CREATED. The Plan constitutes a mere promise by a Participating
Company to make benefit payments in the future. The obligation of a
Participating Company to make a payment hereunder shall constitute only a
liability of such Participating Company to the Participant, and no
Participating Company shall be liable to make a payment to any Participant
who is not its Employee. Each such payment shall be made from the general
funds of the Participating Company, and no Participating Company shall be
required to establish or maintain any special or separate fund, or to
purchase or acquire life insurance on a Participant's life, or otherwise to
segregate assets to assure that such payments shall be made. Neither a
Participant nor a Beneficiary shall have any interest in any particular
asset of a Participating Company by reason of its obligations hereunder,
and the right of a Participant to receive payments under this Plan shall be
merely the right of a general unsecured creditor of the Participating
Company which is his employer. Nothing contained in the Plan shall create
or be construed as creating a trust of any kind or any other fiduciary
relationship between a Participating Company and a Participant or
Beneficiary.
10.3 NO EMPLOYMENT AGREEMENT. Neither the execution of this Plan nor any action
taken by a Participating Company pursuant to this Plan shall be held or
construed to confer on a Participant any legal right to be
13
<PAGE>
continued as an employee of the Participating Company. This Plan shall not
be deemed to constitute a contract of employment between a Participating
Company and a Participant, nor shall any provision herein restrict the
right of any Participant to terminate his employment with a Participating
Company.
10.4 FUNDING POLICY. This Plan is unfunded, and benefits shall be paid from the
general assets of the Participating Company which is the employer of the
Participant. However, a Participating Company may reserve such funds, make
such investments or purchase such insurance policies as it may from time to
time choose to provide a source for payments under the Plan. The
Participants and Beneficiaries shall have no claims to any such funds,
investments or policies.
10.5 BINDING EFFECT. A Participating Company shall be liable only with respect
to obligations incurred pursuant to this Plan for its own Employees; no
Participating Company shall be liable with respect to benefits due an
Employee of any other Participating Company. Benefits under the Plan shall
inure to the benefit of the Participant and the Participant's Beneficiary.
10.6 ENTIRE PLAN. This document and any amendments hereto contain all the terms
and provisions of the Plan and shall constitute the entire Plan, any other
alleged terms or provisions being of no effect.
10.7 MERGER OR CONSOLIDATION. In the event of a merger or a consolidation of a
Participating Company with another corporation or entity, or the
acquisition of substantially all of the assets or outstanding stock of a
Participating Company by another corporation or entity, then and in such
event the obligations and responsibilities of such merged or acquired
corporation under this Plan shall be assumed by any such successor or
acquiring corporation or entity, and all of the rights, privileges and
benefits of the Participants hereunder shall continue.
10.8 PAYMENT TO INCOMPETENT. Payments of benefits shall be made directly to a
Participant or Beneficiary entitled thereof, or if such Participant or
Beneficiary has been determined by a court of competent jurisdiction to be
mentally or physically incompetent, then payment shall be made to the duly
appointed guardian, conservator or other authorized representative of such
Participant or Beneficiary. The Participating Company shall have the right
to make payment directly to a Participant or Beneficiary until it has
received actual notice of the physical or mental incapacity of such
Participant or Beneficiary and notice of the appointment of a duly
authorized representative of his estate. Any such payment to an authorized
representative for the benefit of a Participant or Beneficiary shall be a
complete discharge of all liability of the Participating Company therefor.
10.9 NO CONTRIBUTIONS. Participants shall not be permitted to make any
contributions to this plan.
[Page Ends; Signature Page Follows]
<PAGE>
Duck Head Apparel Company, Inc. Deferred Compensation Plan
for Key Managers; Signature Page]
Executed as of ______________, 2000.
DUCK HEAD APPAREL COMPANY, INC.
By:___________________________
Its:_____________________
<PAGE>
DH APPAREL COMPANY, INC.
AMENDMENT OF CERTAIN RIGHTS AND BENEFITS
RELATING TO STOCK OPTIONS AND DEFERRED COMPENSATION
This Amendment of Certain Rights and Benefits Relating to Stock Options and
Deferred Compensation (this "Agreement") is entered into as of the ____ day of
______________, 2000 by and between Delta Woodside Industries, Inc. ("DWI"), DH
Apparel Company, Inc. ("Duck Head") and the undersigned individual
("Participant").
WHEREAS, the Participant currently holds unexercised options (the "Stock
Options") to purchase the common stock of DWI and/or is entitled to accrued but
unpaid benefits under the Delta Woodside Group Deferred Compensation Plan for
Key Managers (the "Deferred Compensation");
WHEREAS, DWI proposes to consummate a corporate reorganization (the
"Reorganization") whereby DWI will distribute to its shareholders all of the
stock of Delta Apparel, Inc. ("Delta Apparel") and Duck Head;
WHEREAS, to facilitate the Reorganization, DWI and Duck Head desire to have the
Participant agree to certain modifications of the terms and conditions governing
the Stock Options and the Deferred Compensation;
WHEREAS Participant hereby agrees to such modifications in return for new rights
with respect to the Stock Options and Deferred Compensation to which the
Participant was not previously entitled;
NOW THEREFORE, in consideration of the mutual covenants and representations made
herein, the parties agree as follows:
A. AMENDMENT OF STOCK OPTIONS.
1. VESTING AND EXERCISE. Any and all of the Stock Options that were not fully
vested and exercisable immediately prior to the date of this Agreement are fully
vested and exercisable as of the date of this Agreement.
2. NO ADJUSTMENT FOR REORGANIZATION; LOSS OF ABILITY TO RECEIVE DELTA APPAREL
AND DUCK HEAD STOCK. Notwithstanding any stock option grant letter or agreement,
the terms of the Delta Woodside Industries, Inc. Stock Option Plan, or the terms
of any other agreement or understanding, no adjustment shall be made on account
of the Reorganization to the stock and other property that the Participant is
entitled to receive upon the exercise of a Stock Option. Therefore, if the
Participant exercises a Stock Option after the record date of the distribution
by DWI to its shareholders of the stock of Delta Apparel and Duck Head (the
"Record Date"), the Participant will not be entitled to receive any shares of
the common stock of Delta Apparel or Duck Head and shall be entitled to receive
only the same number of shares of common stock of DWI that the Participant would
have received if the Participant had exercised the Stock Option prior to the
Reorganization.
Assuming consummation of the Reorganization, if the Participant exercises a
Stock Option on or prior to the Record Date, the Participant will be entitled to
receive a distribution of Delta Apparel common stock, Duck Head common stock
and/or cash for fractional shares with respect to the shares of DWI common stock
acquired pursuant to such exercise on the same terms and conditions applicable
to all other persons holding DWI common stock on the Record Date.
<PAGE>
3. OTHER TERMS REMAIN IN EFFECT. Except to the extent expressly amended by this
Agreement, the Stock Options shall remain subject to all of the terms and
conditions applicable to them immediately prior to the execution of this
Agreement.
B. AMENDMENT OF TERMS APPLICABLE TO DEFERRED COMPENSATION BENEFITS ACCRUED PRIOR
TO REORGANIZATION.
1. ADDITIONAL TRIGGER EVENT. For purposes of the Delta Woodside Group Deferred
Compensation Plan for Key Managers (the "Plan"), the following described date
shall constitute a Trigger Event under the Plan:
The last day of a fiscal quarter of Duck Head if as of such date the
Cumulative Net Loss exceeds 30% of Shareholders' Equity at Reorganization.
"Cumulative Net Loss" means the aggregate net loss, if any, for the period
beginning with the effective date (and not the record date) of the distribution
by DWI to its shareholders of the stock of Delta Apparel and Duck Head (the
"Reorganization Date") and ending with the last day of the relevant fiscal
quarter.
"Shareholders' Equity at Reorganization" means the shareholders' equity in
the Company immediately following the Reorganization Date.
2. ONE-TIME CASH OUT ELECTION. Notwithstanding the terms of the Plan,
Participant may elect to receive a lump sum payment of all or a portion of the
Participant's vested benefits under the Plan accrued as of the effective date
(and not the record date) of the Reorganization Date; provided that (i) such
election must be made in writing on a form provided by the Plan administrative
committee and (ii) such election form must be submitted to the administrative
committee no later than [_____________, 2000]. Any such election may be
withdrawn or amended at any time prior to [______________, 2000] but shall be
binding upon the Participant and irrevocable after such date. Such lump-sum
payment shall be made to the Participant as soon as reasonably feasible after
the Reorganization Date.
3. ELECTION TO CHANGE PAYMENT METHOD. Notwithstanding the terms of the Plan,
Participant may elect to change his or her method-of-payment election with
respect to all or a portion of the Participant's benefits accrued under the Plan
prior to the Reorganization Date and the methods of payment among which the
Participant may choose shall include the lump sum, installment payment and
level-payment installment payment options as described in the Delta Woodside
Group Deferred Compensation Plan for Key Managers as amended and restated
effective on or about the Reorganization Date.
4. RELEASE OF OTHER DWI COMPANIES FROM LIABILITY FOR DEFERRED COMPENSATION
BENEFITS. Participant releases any and all natural persons and legal entities
other than Duck Head from any and all obligations and liabilities that currently
exist or may arise in connection with Participant's benefits accrued prior to
the Reorganization Date under the Plan (whether under its terms as currently
amended or as amended from time to time at any time prior to the date of this
Agreement). Duck Head agrees to assume all such liabilities. Participant
understands that this release relieves DWI and all other DWI subsidiaries (other
than Duck Head) of their current joint and several obligations to pay all or a
portion of the Participant's benefits accrued under the Plan.
5. OTHER TERMS REMAIN IN EFFECT. Except as such terms and conditions are
expressly amended by this Agreement, Participant's benefits accrued under the
Plan shall remain subject to all of the terms and conditions applicable to such
benefits immediately prior to the execution of this Agreement.
<PAGE>
C. OTHER TERMS.
1. THIRD-PARTY BENEFICIARIES. The parties to this Agreement specifically intend
for any and all beneficiaries of the release set forth in Section B.4. to be
third-party beneficiaries of this entire Agreement, entitled to enforce the
terms of this Agreement against any party signing the Agreement.
2. REVIEW OF INFORMATION STATEMENTS DESCRIBING THE REORGANIZATION AND ITS
EFFECTS. Participant acknowledges that (i) Participant has received and reviewed
copies of the Information Statements of Delta Apparel, Inc. and DH Apparel
Company, Inc. respecting the Reorganization and (ii) Participant has had the
opportunity to ask the management of Delta Woodside Industries, Inc. and its
subsidiaries for any additional information that Participant desired in order to
make a fully informed decision with respect to signing this Agreement,
exercising Stock Options and making the various elections permitted by this
Agreement with respect to Participant's benefits under the Plan.
3. NO REPRESENTATIONS REGARDING TAX CONSEQUENCES. Neither DWI nor Delta Apparel
nor Duck Head nor any other subsidiary or affiliate of DWI make any
representation as to the tax consequences to the Participant of any decision the
Participant may make regarding the exercise of any Stock Options or making any
of the elections permitted by this Agreement with respect to Participant's
benefits under the Plan. The Participant understands that he or she should
consult with the Participant's personal tax advisor if the Participant wishes to
receive any assurances regarding such tax consequences.
4. ENTIRE AGREEMENT; AMENDMENT. This Agreement is the entire agreement between
the parties with respect to the subject matter addressed herein, and supersedes
any prior or contemporaneous oral or written agreements or understandings. This
Agreement may not be amended except by written amendment duly executed by the
party against whom such amendment is to be enforced.
5. GOVERNING LAW. This Agreement shall be governed by the law of South Carolina
without regard to the application of the principles of conflicts of laws.
Executed as of the date first above written.
DELTA WOODSIDE INDUSTRIES, INC. DH APPAREL COMPANY, INC.
By: By:
---------------------------- -----------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
---------------------------- -----------------------------
PARTICIPANT
- --------------------------------
Name:
---------------------------
<PAGE>
Exhibit 21.1
Subsidiaries of
Duck Head Apparel Company, Inc.
Listed below are the subsidiaries of Duck Head which are expected to exist
following the Duck Head distribution:
(1) Delta Merchandising, Inc., a South Carolina corporation (100% owned).
(2) Cargud, S.A., a Costa Rican socieda anonima (100% owned).
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUL-01-2000
<PERIOD-START> JUL-05-1999
<PERIOD-END> JAN-01-2000
<CASH> 179
<SECURITIES> 0
<RECEIVABLES> 5589
<ALLOWANCES> (1594)
<INVENTORY> 16211
<CURRENT-ASSETS> 23839
<PP&E> 30245
<DEPRECIATION> (20297)
<TOTAL-ASSETS> 33787
<CURRENT-LIABILITIES> 106401
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> (96610)
<TOTAL-LIABILITY-AND-EQUITY> 33787
<SALES> 28993
<TOTAL-REVENUES> 28993
<CGS> 20030
<TOTAL-COSTS> 20030
<OTHER-EXPENSES> 9185
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4207
<INCOME-PRETAX> (4429)
<INCOME-TAX> 234
<INCOME-CONTINUING> (4663)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4663)
<EPS-BASIC> (1.94)
<EPS-DILUTED> (1.94)
</TABLE>
INFORMATION STATEMENT
DUCK HEAD APPAREL COMPANY, INC.
COMMON STOCK
This document relates to the distribution (which this document refers to as
the Duck Head distribution) of 100% of the common stock of Duck Head Apparel
Company, Inc., a Georgia corporation (which this document refers to as Duck
Head), by Delta Woodside Industries, Inc., a South Carolina corporation (which
this document refers to as Delta Woodside). Delta Woodside will make the Duck
Head distribution to record holders of Delta Woodside common stock as of April
28, 2000 (which this document refers to as the Duck Head record date). In the
Duck Head distribution, those Delta Woodside stockholders will receive one share
of Duck Head common stock for every ten shares of Delta Woodside common stock
that they hold on that date. If you are a record holder of Delta Woodside common
stock on April 28, 2000, you will receive your Duck Head common shares
automatically. You do not need to take any further action. Currently, Duck Head
expects the Duck Head distribution to occur on or about May 12, 2000.
------------------------
Before the Duck Head distribution, Duck Head will apply to The American
Stock Exchange to approve shares of Duck Head's common stock for listing,
subject to official notice of issuance. If this application is not approved,
Duck Head expects that the Duck Head shares will trade in the over-the-counter
market.
------------------------
YOU SHOULD CAREFULLY REVIEW THIS ENTIRE DOCUMENT. IN REVIEWING THIS
DOCUMENT, YOU SHOULD CAREFULLY CONSIDER THE MATTERS AFFECTING DUCK HEAD'S
FINANCIAL CONDITION AND RESULTS OF OPERATIONS AND THE VALUE OF ITS COMMON STOCK
THAT THIS DOCUMENT DESCRIBES IN DETAIL UNDER THE HEADING "RISK FACTORS"
BEGINNING ON PAGE 15.
------------------------
STOCKHOLDER APPROVAL IS NOT REQUIRED FOR THE DUCK HEAD DISTRIBUTION OR ANY
OF THE OTHER TRANSACTIONS THAT THIS DOCUMENT DESCRIBES. DUCK HEAD IS NOT ASKING
YOU FOR A PROXY AND REQUESTS THAT YOU NOT SEND ONE TO IT.
This document is not an offer to sell or solicitation of an offer to buy
any securities.
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities or determined if this document is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this document is April 18, 2000, and Duck Head first mailed
this document to stockholders on May 1, 2000.
<PAGE>
TABLE OF CONTENTS
Page
----
QUESTIONS AND ANSWERS ABOUT THE DUCK HEAD DISTRIBUTION. . . . . . . . 3
SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
THE DUCK HEAD DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . . 25
TRADING MARKET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
RELATIONSHIPS AMONG DUCK HEAD, DELTA WOODSIDE AND DELTA APPAREL. . . 43
CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS . . . . . . . . . . . 50
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS . . . . . . . . . . . . . . . . . . . . . . . 56
BUSINESS OF DUCK HEAD . . . . . . . . . . . . . . . . . . . . . . . . . . 70
MANAGEMENT OF DUCK HEAD . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECURITY OWNERSHIP OF SIGNIFICANT BENEFICIAL OWNERS AND
MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS IN THE
DUCK HEAD DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . 96
DESCRIPTION OF DUCK HEAD CAPITAL STOCK. . . . . . . . . . . . . . . . . 101
2000 ANNUAL MEETING OF DUCK HEAD STOCKHOLDERS. . . . . . . . . . . . . 111
FORWARD-LOOKING STATEMENTS MAY NOT BE ACCURATE. . . . . . . . . . . . . 111
INDEPENDENT AUDITORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
ADDITIONAL INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 111
INDEX TO COMBINED FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . 113
INDEPENDENT AUDITORS' REPORT . . . . . . . . . . . . . . . . . . . . . . . F-1
AUDITED COMBINED FINANCIAL STATEMENTS FOR DUCK HEAD'S THREE MOST
RECENT FISCAL YEARS . . . . . . . . . . . . . . . . . . . . . . . . . . . F-2
UNAUDITED CONDENSED COMBINED FINANCIAL STATEMENTS FOR DUCK HEAD'S
MOST RECENTLY ENDED SIX MONTHS. . . . . . . . . . . . . . . . . . . . .F-18
2
<PAGE>
QUESTIONS AND ANSWERS ABOUT THE DUCK HEAD DISTRIBUTION
The following questions and answers highlight important information about
the Duck Head distribution. For a more complete description of the terms of the
Duck Head distribution, please read this entire document and the other materials
to which it refers.
Q: WHAT WILL HAPPEN IN THE DUCK HEAD DISTRIBUTION AND RELATED TRANSACTIONS?
A: Delta Woodside is separating the two apparel businesses (the Duck Head
Apparel Company division and the Delta Apparel Company division) conducted
by its wholly-owned subsidiary, Duck Head Apparel Company, Inc., a
Tennessee corporation, from each other and from the textile fabric business
(which this document refers to as Delta Mills Marketing Company) conducted
by its wholly-owned subsidiary, Delta Mills, Inc., a Delaware corporation
(which this document refers to as Delta Mills). It will accomplish this as
follows:
- Delta Woodside has created two new wholly-owned corporations, Duck
Head Apparel Company, Inc., a Georgia corporation (which this document
refers to as Duck Head), and Delta Apparel, Inc., a Georgia
corporation (which this document refers to as Delta Apparel).
- The Duck Head Apparel Company business, and associated assets and
liabilities, will be transferred to Duck Head, and the Delta Apparel
Company business, and associated assets and liabilities, will be
transferred to Delta Apparel.
- Delta Woodside will simultaneously distribute all the common stock of
Duck Head (which this document refers to as the Duck Head
distribution) and all the common stock of Delta Apparel (which this
document refers to as the Delta Apparel distribution) to the Delta
Woodside stockholders of record as of April 28, 2000. (This document
refers to this record date for the Duck Head distribution as the Duck
Head record date, and to this record date for the Delta Apparel
distribution as the Delta Apparel record date).
Upon completion of these two distributions, you will own shares in three
separately traded public companies, Delta Woodside Industries, Inc., Duck
Head Apparel Company, Inc. and Delta Apparel, Inc.
Q: WHAT WILL I RECEIVE IN THE DUCK HEAD DISTRIBUTION?
A: You will receive one share of Duck Head common stock for every ten shares
of Delta Woodside common stock that you own of record on April 28, 2000,
the Duck Head record date. Simultaneously with the Duck Head distribution,
you will receive in the Delta Apparel distribution one share of Delta
Apparel common stock for every ten shares of Delta Woodside common stock
that you own of record on April 28, 2000, the Delta Apparel record date.
After the Duck Head distribution, you will also continue to own the shares
of Delta Woodside common stock that you owned immediately before the Duck
Head distribution.
Q: WILL I BE TAXED AS A RESULT OF THE DUCK HEAD DISTRIBUTION?
3
<PAGE>
A: Delta Woodside has obtained an opinion from KPMG LLP that it is more likely
than not that each of the Duck Head distribution and the Delta Apparel
distribution will qualify as tax-free under US Internal Revenue Code
Section 355. If the Duck Head distribution and the Delta Apparel
distribution qualify as tax-free under US Internal Revenue Code Section
355, your receipt of Duck Head shares in the Duck Head distribution and
Delta Apparel shares in the Delta Apparel distribution will be tax-free for
United States federal income tax purposes, except that you will be taxed on
any gain attributable to cash that you receive in lieu of a fractional
share.
Q: WHAT WILL DUCK HEAD'S BUSINESS BE AFTER THE DUCK HEAD DISTRIBUTION?
A: After the Duck Head distribution, Duck Head will continue its business of
designing, sourcing, producing, marketing and distributing boys' and men's
value-oriented casual sportswear predominantly under the 134-year-old
nationally recognized "Duck Head" (Reg. Trademark) label. See information
under the heading "Business of Duck Head".
Q: WHAT WILL DELTA WOODSIDE'S AND DELTA APPAREL'S RESPECTIVE BUSINESSES BE
AFTER THE DUCK HEAD DISTRIBUTION?
A: After the Duck Head distribution, Delta Woodside will own all of the
outstanding stock of Delta Mills, whose sole business is the manufacture
and sale, through Delta Mills Marketing Company, of a broad range of
finished apparel fabrics primarily to branded apparel manufacturers and
resellers, and private label apparel manufacturers. After the Duck Head
distribution and the Delta Apparel distribution, Delta Woodside will have
no operating business other than Delta Mills Marketing Company.
Delta Apparel is a vertically integrated supplier of knit apparel,
particularly T-shirts, sportswear and fleece goods, and sells these
products to distributors, screen printers and private label accounts.
Q: WHAT DO I HAVE TO DO TO PARTICIPATE IN THE DUCK HEAD DISTRIBUTION?
A: Nothing. No proxy or vote is necessary for the Duck Head distribution, the
Delta Apparel distribution or the other transactions described in this
document to occur. You do not need to, and should not, mail in any
certificates of Delta Woodside common stock to receive shares of Duck Head
common stock in the Duck Head distribution. Similarly, you will not need
to, and should not, mail in any certificates of Delta Woodside common stock
to receive shares of Delta Apparel common stock in the Delta Apparel
distribution.
Q: HOW WILL DELTA WOODSIDE DISTRIBUTE DUCK HEAD COMMON STOCK TO ME?
A: If you are a record holder of Delta Woodside common stock as of the close
of business on the Duck Head record date, Delta Woodside's distribution
agent, First Union National Bank (which this document refers to as the
distribution agent), will automatically send to you a stock certificate for
the number of whole shares of Duck Head common stock to which you are
entitled. This stock certificate will be mailed to you on or around May 12,
2000.
Q: WHAT IF I HOLD MY SHARES OF DELTA WOODSIDE COMMON STOCK THROUGH MY
STOCKBROKER, BANK OR OTHER NOMINEE?
4
<PAGE>
A: If you hold your shares of Delta Woodside common stock through your
stockbroker, bank or other nominee, you are probably not a registered
stockholder of record and your receipt of Duck Head common stock depends on
your arrangements with the stockbroker, bank or nominee that holds your
shares of Delta Woodside common stock for you. Duck Head anticipates that
stockbrokers and banks generally will credit their customers' accounts with
Duck Head common stock on or about May 12, 2000, but you should confirm
that with your stockbroker, bank or other nominee.
After the Duck Head distribution, you may instruct your stockbroker, bank
or other nominee to transfer your shares of Duck Head common stock into
your own name.
Q: WHAT ABOUT FRACTIONAL SHARES?
A: If you own ten or more shares of Delta Woodside common stock, the
distribution agent will send to you a stock certificate for all of the
whole shares of Duck Head common stock that you are entitled to receive in
the Duck Head distribution, and your account with Delta Woodside's
distribution agent will be credited with any fractional share of Duck Head
common stock that you would otherwise be entitled to receive in the Duck
Head distribution. Promptly after the Duck Head distribution, the
distribution agent will aggregate and sell all fractional shares, and will
send to you your portion of the cash sale proceeds (less any brokerage
commissions).
If you own fewer than ten shares of Delta Woodside common stock, you will
receive cash instead of your fractional share of Duck Head common stock.
Promptly after the Duck Head distribution, the distribution agent will
distribute to those registered stockholders the portion of the cash sale
proceeds (less any brokerage commissions) that those holders are entitled
to receive.
No interest will be paid on any cash distributed in lieu of fractional
shares. None of Delta Woodside, Duck Head or the distribution agent
guarantees any minimum sale price for the fractional shares of Duck Head
common stock.
Q: ON WHICH EXCHANGE WILL SHARES OF DUCK HEAD COMMON STOCK TRADE IMMEDIATELY
AFTER THE DUCK HEAD DISTRIBUTION?
A: Before the Duck Head distribution, Duck Head will apply to The American
Stock Exchange to approve shares of Duck Head's common stock for listing,
subject to official notice of issuance. If this application is not
approved, Duck Head expects that the Duck Head shares will trade in the
over-the-counter market.
Q: WHEN WILL I BE ABLE TO BUY AND SELL DUCK HEAD COMMON SHARES?
A: Regular trading in Duck Head common stock is expected to begin on or about
May 12, 2000. Duck Head expects, however, that "when-issued" trading for
Duck Head common stock will develop before the Duck Head distribution date,
which is expected to be on or about May 12, 2000.
"When-issued" trading means that you may trade shares of Duck Head common
stock before the Duck Head distribution date. "When-issued" trading
reflects the value at which the market expects the shares of Duck Head
common stock to trade after the Duck Head distribution. If "when-issued"
trading develops in shares of Duck Head common stock, you may buy and sell
those shares before the Duck Head distribution date. None of these trades,
however, will settle until after the Duck Head distribution date, when
regular trading in Duck Head common stock has begun. If the Duck Head
distribution does not occur, all "when-issued" trading will be null and
void.
5
<PAGE>
Q: WHAT WILL HAPPEN TO THE LISTING OF DELTA WOODSIDE COMMON STOCK ON THE NEW
YORK STOCK EXCHANGE AFTER THE DUCK HEAD DISTRIBUTION?
A: Delta Woodside expects that, following the Duck Head distribution, The New
York Stock Exchange will continue to list the Delta Woodside common stock
under the symbol "DLW". You will not receive new share certificates for
Delta Woodside common stock, nor will the Duck Head distribution change the
number of shares of Delta Woodside common stock that you own.
Q: HOW WILL I BE ABLE TO BUY AND SELL DELTA WOODSIDE COMMON STOCK BEFORE THE
DUCK HEAD DISTRIBUTION DATE?
A: Delta Woodside expects that its common stock will continue to trade on the
New York Stock Exchange on a regular basis through the Duck Head
distribution date under the current symbol "DLW". Any shares of Delta
Woodside common stock sold on a regular basis in the period between the
date that is two days before the Duck Head record date and the Duck Head
distribution date (i.e., between April 26 and May 12, 2000) will be
accompanied by an attached "due bill" representing Duck Head common stock
to be distributed in the Duck Head distribution.
Additionally, Delta Woodside expects that "ex-distribution" trading for
Delta Woodside common stock may develop before the Duck Head distribution
date and the Delta Apparel distribution date. "Ex-distribution" trading
means that you may trade shares of Delta Woodside common stock before the
completion of the Duck Head distribution and the Delta Apparel
distribution, but on a basis that reflects the value at which the market
expects the shares of Delta Woodside common stock to trade after the Duck
Head distribution and the Delta Apparel distribution.
If "ex-distribution" trading develops in shares of Delta Woodside common
stock, you may buy and sell those shares before the Duck Head distribution
date and the Delta Apparel distribution date on The New York Stock Exchange
under the symbol "DLWwi". None of these trades, however, will settle until
after the Duck Head distribution date and the Delta Apparel distribution
date. If the Duck Head distribution does not occur or the Delta Apparel
distribution does not occur, all "ex-distribution" trading will be null and
void.
Q: WHAT WILL BE THE RELATIONSHIP BETWEEN DUCK HEAD, DELTA WOODSIDE AND DELTA
APPAREL AFTER THE DUCK HEAD DISTRIBUTION?
A: Duck Head, Delta Woodside and Delta Apparel will be independent, separate,
publicly owned companies. After the Duck Head distribution, Delta Woodside
will not own any of Duck Head's common stock, and after the Delta Apparel
distribution Delta Woodside will not own any of Delta Apparel's common
stock. Seven of Duck Head's initial directors will also be Delta Woodside
directors after the Duck Head distribution. Seven of Duck Head's initial
directors will also be Delta Apparel directors after the Duck Head
distribution. In connection with the Duck Head distribution, Delta
Woodside, Duck Head and Delta Apparel are entering into agreements to
govern their relationship after the Duck Head distribution and after the
Delta Apparel distribution. This document describes these agreements and
ongoing relationships in detail on pages 43-48.
6
<PAGE>
Q: WHOM SHOULD I CALL WITH QUESTIONS ABOUT THE DUCK HEAD DISTRIBUTION?
A: If you have questions about the Duck Head distribution or the related
transactions or if you would like additional copies of this document or any
other materials to which this document refers, you should contact:
David R. Palmer, Controller
Delta Woodside Industries, Inc.
233 N. Main Street
Greenville, SC 29601
Telephone No.: 864-232-8301
7
<PAGE>
SUMMARY
The following information and the material under the heading "Questions and
Answers About the Duck Head Distribution" are a brief summary of the matters
that this document addresses. This summary and the material under the heading
"Questions and Answers About the Duck Head Distribution" do not contain all of
the information that is important to you as a recipient of Duck Head shares. For
a more complete description of the Duck Head distribution and related
transactions, you should read this entire document and the other materials to
which it refers. All descriptions in this document of Duck Head's business
assume that the transactions contemplated by the distribution had been
consummated.
DUCK HEAD
Duck Head is a Georgia corporation with its principal executive offices
located at 1020 Barrow Industrial Parkway, Winder, Georgia 30680 (telephone
number: 770-867-3111). Duck Head designs, sources, produces, markets and
distributes boys' and men's value-oriented casual sportswear predominantly under
the 134-year-old nationally recognized "Duck Head" (Reg. Trademark) label. Duck
Head's collections are centered around its core khaki trouser. Duck Head sells
its apparel primarily in the Southeastern United States to national and regional
department store chains and large specialty apparel retailers. In addition,
Duck Head operates 25 retail apparel outlet stores that sell primarily closeout
and irregular "Duck Head" products. Duck Head also licenses the use of the
"Duck Head" trademark for the manufacture and sale of certain apparel items and
accessories. Duck Head has operations in 9 states and Costa Rica, and at
January 1, 2000 had approximately 500 employees.
THE DUCK HEAD DISTRIBUTION
The following information and the material under the heading "Questions and
Answers About the Duck Head Distribution" are a brief summary of the principal
terms of the Duck Head distribution.
DISTRIBUTING COMPANY
Delta Woodside Industries, Inc. Before the Duck Head distribution, the
Delta Woodside common stock trades on The New York Stock Exchange
under the symbol "DLW". After the Duck Head distribution, Delta
Woodside's common stock will continue to trade under the symbol "DLW"
and Delta Woodside will not own any shares of Duck Head common stock.
PRIMARY PURPOSES OF THE DUCK HEAD DISTRIBUTION AND THE DELTA APPAREL
DISTRIBUTION
The board of directors and management of Delta Woodside have concluded
that separating the Duck Head and Delta Apparel businesses from the
Delta Mills Marketing Company business by means of the distribution of
shares of Duck Head common stock to Delta Woodside stockholders, and
the simultaneous distribution of shares of Delta Apparel common stock
to Delta Woodside stockholders, is in the best interests of Delta
Woodside, Duck Head, Delta Apparel and the Delta Woodside
stockholders. The Delta Woodside board of directors and management
believe that this separation will further the following objectives,
among others, and thereby enhance stockholder value:
8
<PAGE>
(a) Permit the grant of equity incentives to the separate management
of each business, which incentives would not be affected by the
results of the other businesses and, therefore, would have
excellent potential to align closely the interests of that
management with those of the stockholders;
(b) Permit the elimination of certain existing corporate overhead
expenses that result from the current need to coordinate the
operations of three distinct businesses that have separate modes
of operation and markets;
(c) Eliminate the complaints of certain customers of Delta Mills
Marketing Company (which, as a supplier to those customers, has
access to certain of their competitive information) that a
competitor of theirs (Duck Head Apparel Company) is under common
management with Delta Mills Marketing Company;
(d) Permit each business to obtain, when needed, the best equity and
debt financing possible without being affected by the operational
results of the other businesses;
(e) Permit each business to establish long-range plans geared toward
the expected cyclicality, competitive conditions and market
trends in its own line of business, unaffected by the markets,
needs and constraints of the other businesses;
(f) Promote a more streamlined management structure for each of the
three businesses, better able to respond quickly to customer and
market demands; and
(g) Permit the value of each of the three divisions to be more
accurately reflected in the equity market by separating the
results of each business from the other two businesses.
9
<PAGE>
SECURITIES TO BE DISTRIBUTED
All of the outstanding shares of Duck Head common stock will be
distributed to Delta Woodside stockholders of record as of April 28,
2000. Based on the number of shares of Delta Woodside common stock
outstanding as of March 3, 2000, the Duck Head distribution ratio of
one Duck Head common share for every ten Delta Woodside common shares
and the number of Delta Woodside shares to be issued as described in
"Interests of Directors and Executive Officers in the Duck Head
Distribution - Payments in Connection with Duck Head Distribution and
Delta Apparel Distribution", Delta Woodside will distribute
approximately 2,400,000 shares of Duck Head common stock to Delta
Woodside stockholders. After the Duck Head distribution, Duck Head
will have approximately 1,500 stockholders of record.
DUCK HEAD DISTRIBUTION RATIO
You will receive one share of Duck Head common stock for every ten
shares of Delta Woodside common stock that you own as of the close of
business on April 28, 2000.
DUCK HEAD RECORD DATE
April 28, 2000 (5:00 p.m., Eastern time).
DUCK HEAD DISTRIBUTION DATE
May 12, 2000 (4:59 p.m., Eastern time). On the Duck Head distribution
date, Delta Woodside's distribution agent will credit the shares of
Duck Head common stock that you will receive in the Duck Head
distribution to your account or to the account of your stockbroker,
bank or other nominee if you are not a registered stockholder of
record.
DISTRIBUTION AGENT
Delta Woodside has appointed First Union National Bank, Delta
Woodside's transfer agent, as its distribution agent for the Duck Head
distribution.
TRADING MARKET
Because Duck Head has been a wholly-owned subsidiary of Delta
Woodside, there has been no trading market for Duck Head common stock.
Before the Duck Head distribution, Duck Head will apply to The
American Stock Exchange to approve shares of Duck Head's common stock
for listing, subject to official notice of issuance. If this
application is not approved, Duck Head expects that the Duck Head
shares will trade in the over-the-counter market. Duck Head expects
that a "when-issued" trading market will develop before the Duck Head
distribution date.
RISK FACTORS
You should carefully consider the matters discussed under the section
of this document entitled "Risk Factors".
RELATIONSHIP WITH DELTA WOODSIDE AND DELTA APPAREL AFTER THE DUCK HEAD
DISTRIBUTION
Duck Head has entered into a distribution agreement with Delta
Woodside and Delta Apparel dated as of March 15, 2000. Duck Head will
also enter into a tax sharing agreement with Delta Woodside and Delta
Apparel on or before the Duck Head distribution date. These are
described on pages 43 to 46 of this document.
SELECTED HISTORICAL FINANCIAL DATA
10
<PAGE>
The selected financial data of Duck Head set forth below should be read in
conjunction with Duck Head's combined financial statements, including the notes
to those statements, which are at pages F-1 to F-23 of this document, and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations", which begins on page 56 of this document. The combined financial
statements of Duck Head include the operations and accounts of the Duck Head
Apparel Company division, which consists of operations and accounts included in
various subsidiaries of Delta Woodside. The combined statement of operations
data for the years ended July 1, 1995 and June 29, 1996, and the combined
balance sheet data as of July 1, 1995, June 29, 1996 and June 28, 1997, are
derived from unaudited combined financial statements not included in this
document. The combined statement of operations data for the years ended June 28,
1997, June 27, 1998 and July 3, 1999, and the combined balance sheet data as of
June 27, 1998 and July 3, 1999, are derived from, and are qualified by reference
to, Duck Head's audited combined financial statements included elsewhere in this
document. The financial information as of January 1, 2000 and December 26, 1998
and for the six months ended January 1, 2000 and December 26, 1998 has been
derived from Duck Head's unaudited financial information. Duck Head did not
operate as a stand alone company for any of the periods presented. In the
opinion of management, the unaudited financial information has been prepared on
a basis consistent with the annual audited combined financial statements that
appear elsewhere in this document, and include all adjustments, consisting of
only normal recurring adjustments, necessary for a fair statement of the
financial position and results of operations for those unaudited periods.
Historical results are not necessarily indicative of results to be expected in
the future.
11
<PAGE>
<TABLE>
<CAPTION>
SELECTED FINANCIAL DATA
Fiscal Year Ended Six Months Ended
--------------------------------------------------------------------- --------------------------
July 3, June 27, June 28, June 29, July 1, January 1, December 26,
------------------- ----------------- --------- --------- -------- ----------- -------------
1999 1998 1997 1996 1995 2000 1998
------------------- ----------------- --------- --------- -------- ----------- -------------
(In thousands) (In thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF
OPERATIONS DATA:
Net Sales. . . . . . . . $ 70,642 83,953 79,642 68,881 73,441 28,993 38,306
Cost of goods sold . . . (62,468) (57,088) (53,391) (84,397) (49,822) (20,030) (28,160)
Selling, general and
administrative expenses. (34,005) (28,980) (25,624) (26,778) (24,785) (10,351) (13,067)
Impairment charges (13,650) --- --- 5,312 7,000 --- ---
Other income (expense) . 250 864 667 (897) (157) 1,166 1,045
------------------- ----------------- --------- --------- -------- ----------- -------------
Operating income (loss). (39,231) (1,251) 1,294 (37,879) 5,677 (222) (1,876)
Interest expense, net. . (8,222) (6,951) (6,183) (5,988) (4,645) (4,207) (3,717)
------------------- ----------------- --------- --------- -------- ----------- -------------
Income (loss). . . . . . (47,453) (8,202) (4,889) (43,867) 1,032 (4,429) (5,593)
before taxes
Income tax . . . . . . . 261 159 (337) 1,013 1,204 234 31
expense (benefit)
------------------- ----------------- --------- --------- -------- ----------- -------------
Net loss . . . . . . . . $ (47,714) (8,361) (4,552) (44,880) (172) (4,663) (5,624)
=================== ================= ========= ========= ======== =========== =============
BALANCE SHEET DATA
(AT PERIOD END):
Working capital. . . . . $ (67,979) (47,571) (17,509) (19,940) 37,541 (82,562) (53,173)
(deficit)
Total assets . . . . . . 46,394 75,383 73,836 63,122 120,150 33,787 80,395
Total long-term debt . . 23,236 29,701 52,277 31,917 31,809 23,206 29,475
Divisional . . . . . . . (91,947) (44,233) (35,872) (31,320) 13,560 (96,610) (49,857)
(deficit) equity
</TABLE>
12
<PAGE>
SUMMARY PRO FORMA FINANCIAL DATA
The unaudited pro forma financial data set forth below are derived from the
unaudited pro forma combined financial statements of Duck Head at and for the
six month period ended January 1, 2000 and for the year ended July 3, 1999 that
are set forth under the heading "Unaudited Pro Forma Combined Financial
Statements" and give effect to the transactions described in that section of
this document as if those transactions had occurred, in the case of the pro
forma balance sheet, on the date of that balance sheet and, in the case of the
pro forma statements of operations, at the beginning of the fiscal year that
ended July 3, 1999.
Duck Head has provided the unaudited pro forma financial data to you for
informational purposes only. You should not construe them to be indicative of
the results of operations or financial position of Duck Head had the
transactions referred to above been consummated on the dates given. Those
financial statements also do not project the results of operations or financial
position for any future period or date. You should read these pro forma data in
conjunction with the information found under the heading "Unaudited Pro Forma
Combined Financial Statements" and the combined financial statements of Duck
Head and the related notes as of July 3, 1999 and June 27, 1998 and for each of
the three years in the period ended July 3, 1999, and as of and for the six
month period ended January 1, 2000, included on pages 50-55 and F-1- F-23,
respectively.
13
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS
FISCAL YEAR ENDED
ENDED JANUARY 1,
JULY 3, 1999 2000
-------------------------- ----------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
STATEMENT OF
OPERATIONS DATA:
Net Sales . . . . . . . . $ 70,642 28,993
Cost of goods sold. . . . (62,468) (20,030)
Selling, general and. . . (34,603) (10,523)
administrative expenses
Impairment charges (13,650) ---
Other income. . . . . . . 1,027 1,166
-------------------------- ----------------------------
Operating income. . . . . (39,052) (394)
(loss)
Interest expense, net . . (1,905) (971)
-------------------------- ----------------------------
Loss before . . . . . . . (40,957) (1,365)
income taxes
Income tax benefit (261) ---
-------------------------- ----------------------------
Net loss. . . . . . . . . $ (41,218) (1,365)
========================== ============================
Basic and diluted
net loss per share. . . . $ (17.17) (0.57)
========================== ============================
Weighted average shares
outstanding used
in basic and diluted
per share calculation (a) 2,400,000 2,400,000
========================== ============================
BALANCE SHEET DATA:
Working capital $ 18,442
Total assets 36,889
Total long-term debt 4,828
Stockholders' equity 22,772
<FN>
- -----------------------------------------------------------------------------------
(a) Weighted-average shares outstanding were determined assuming a distribution
of one share of Duck Head common stock for every ten shares of Delta Woodside
common stock outstanding on the record date. The weighted-average shares do not
include securities that would be anti-dilutive for each of the periods
presented.
</TABLE>
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<PAGE>
RISK FACTORS
In addition to all other information in this document, you should read and
carefully consider the following risk factors which may affect Duck Head's
financial condition or results of operations and/or the value of its common
stock.
The following discussion contains various "forward-looking statements".
Please refer to "Forward-Looking Statements May Not Be Accurate" for a
description of the uncertainties and risks associated with forward-looking
statements.
THE DUCK HEAD DISTRIBUTION AND THE DELTA APPAREL DISTRIBUTION MAY, FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES, BE TAXABLE TO THE DELTA WOODSIDE
STOCKHOLDERS.
Delta Woodside has obtained an opinion from KPMG LLP that it is more likely
than not that each of the Duck Head distribution and the Delta Apparel
distribution will qualify as tax-free for United States federal income tax
purposes under Section 355 of the Internal Revenue Code of 1986, as amended. If
the Duck Head distribution and the Delta Apparel distribution qualify as
tax-free under Internal Revenue Code Section 355, your receipt of Duck Head
shares in the Duck Head distribution and Delta Apparel shares in the Delta
Apparel distribution will be tax-free for United States federal income tax
purposes, except that you will be taxed on any gain attributable to cash that
you receive in lieu of a fractional share.
The opinion of KPMG LLP is not binding upon the IRS, any other tax
authority or any court. No assurance can, therefore, be given that a position
contrary to that expressed in the opinion of KPMG LLP will not be asserted by
the IRS or any other tax authority and ultimately sustained by a court of law.
Delta Woodside has not sought a ruling from the IRS regarding the Duck Head
distribution or the Delta Apparel distribution, in part because neither
distribution satisfies all the conditions imposed by the IRS for such a ruling.
Accordingly, if the IRS and the courts disagree with the conclusion of KPMG
LLP, each Delta Woodside stockholder as of the record date for the Duck Head
distribution and the Delta Apparel distribution may recognize dividend income
and possibly capital gain on the Duck Head distribution and the Delta Apparel
distribution, all to the extent described in "The Duck Head Distribution -
Material Federal Income Tax Consequences".
DUCK HEAD HAS HAD SIGNIFICANT OPERATING LOSSES AND USED SIGNIFICANT AMOUNTS OF
CASH IN ITS OPERATIONS IN ITS LAST TWO FULL FISCAL YEARS AND THESE LOSSES AND
THIS USE OF CASH MAY RECUR.
Duck Head had operating losses of $39.2 million in the fiscal year ended
July 3, 1999, and $1.3 million in the fiscal year ended June 27, 1998. Duck
Head had operating losses of $0.2 million in the six months ended January 1,
2000.
Net cash used in operating activities by Duck Head was $16.0 million in the
1999 fiscal year and $5.8 million in the 1998 fiscal year. During the first six
months of the 2000 fiscal year, Duck Head generated $6.0 million of cash from
operations.
Duck Head believes that the primary factors that have contributed to the
improvement in the results of its operations in the most recent six month
period, as compared to the last few full fiscal years, have been:
- The shift in emphasis in Duck Head's product mix away from fashion
products and more toward core and fashion basic products;
15
<PAGE>
- The reduction by Duck Head of its selling, general and administrative
costs;
- Duck Head's implementation of a more stringent inventory control
process; and
- The relocation of substantially all of Duck Head's manufacturing
operations off-shore.
Continuation of this improvement in Duck Head's results of operations will
be dependent on Duck Head's ability to manage effectively the various aspects of
its business, control the non-variable components of its selling, general and
administrative expenses and increase the sales of its products. In view of the
highly competitive nature of the branded apparel business and the changes in
market conditions of that business, Duck Head may not be able to expand its
product sales or prevent unexpected increases in its inventory or operating
expenses. A lack of success in this regard could cause Duck Head to continue to
incur operating losses and use cash in its operations. Significant operating
losses or significant uses by Duck Head of cash in its operations could cause
Duck Head to be unable to pay its debts as they become due and to default on its
credit facility, which would have an adverse effect on the value of the Duck
Head shares.
IN THE PAST, DUCK HEAD'S NEEDS FOR CASH HAVE GENERALLY BEEN MET BY ADVANCES FROM
DELTA WOODSIDE. AFTER THE DUCK HEAD DISTRIBUTION, DUCK HEAD WILL BE ENTIRELY
DEPENDENT ON ITS OWN OPERATIONS AND THIRD PARTY LENDERS TO OBTAIN NEEDED
FINANCING.
After the Duck Head distribution, Duck Head will no longer have any
affiliation with the Delta Mills Marketing Company textile business of Delta
Woodside's subsidiary, Delta Mills. This affiliation has historically
benefitted Duck Head because, until fiscal year 2000, Delta Mills Marketing
Company was a significant source of needed funds for Duck Head's business.
Since the end of fiscal 1999, Delta Mills Marketing Company has ceased being a
source of funds for Duck Head, in part because Duck Head's operations have been
generating cash in fiscal 2000 and in part because Delta Mills' Senior Note
Indenture has not permitted dividends by Delta Mills to Delta Woodside
Prior to fiscal year 2000, when the Duck Head operations needed funds for
operations or capital expenditures, it received those funds from Delta Woodside,
which in turn received most of its funds from the positive cash flows generated
by Delta Mills Marketing Company. During the three fiscal years ended July 3,
1999, Duck Head used an aggregate of $26.1 million of cash provided by Delta
Woodside (of which $19.6 million was used to pay interest to Delta Woodside on
the affiliated debt owed by the Duck Head Apparel Company division). During the
six months ended January 1, 2000, Duck Head generated $6.0 million of cash from
operations and reduced the balance of the affiliated debt to Delta Woodside by
$6.5 million. Both the cash generated from operations and the reduction in
affiliated debt was after the effect of $3.9 million in interest charges on debt
owed to Delta Woodside.
In addition, lenders to Duck Head as a stand alone company will not be able
to take advantage of the diversification of risk that might be provided by
lending to a business that had more than one operation which may in some
circumstances adversely affect Duck Head's ability to obtain financing on
acceptable terms.
DUCK HEAD'S REVOLVING CREDIT FACILITY MAY NOT BE AVAILABLE OR SUFFICIENT TO
SATISFY DUCK HEAD'S NEEDS FOR WORKING CAPITAL.
Duck Head expects that its peak borrowing needs will be in its third fiscal
quarter and that during that quarter it may need to draw or set aside for
letters of credit an aggregate of approximately $7.0 million under its revolving
credit facility for working capital purposes and letters of credit.
Approximately forty percent of the face amount of outstanding documentary
letters of credit will reduce the amount available under the revolving credit
facility for working capital loans.
16
<PAGE>
Duck Head's ability to borrow under its $15 million revolving credit
facility will be based upon, and thereby limited by, the amounts of its accounts
receivable and inventory. Any material deterioration in Duck Head's results of
operations could, therefore, result in a reduction in Duck Head's borrowing
base, which could cause Duck Head to lose its ability to borrow additional
amounts under its revolving credit facility or to issue additional letters of
credit to suppliers. In such a circumstance, the borrowing availability under
Duck Head's credit facility may not be sufficient for Duck Head's working
capital needs.
DUCK HEAD'S RECENT TREND OF SALES DECLINES MAY NOT BE REVERSED.
Since the beginning of fiscal year 1999, Duck Head has experienced
significant declines in its sales. There have been several reasons for these
declines. The reasons include the loss of key customers, the reduction of sales
of tops and fashion items as Duck Head concentrates on its core products,
reductions in the number of stores in which Duck Head products are sold,
inadequate product focus and poor service. While Duck Head believes that it is
implementing a strategy that will reverse this trend, Duck Head may be
unsuccessful in this regard, because success of the strategy depends heavily on
customers' willingness to purchase Duck Head's products.
DUCK HEAD HAS RECENTLY LOST SEVERAL KEY CUSTOMERS AND MAY LOSE ADDITIONAL KEY
CUSTOMERS IN THE FUTURE.
During fiscal year 1999, Duck Head lost three key customers. One customer
closed down, another merged into another company and the third elected to
discontinue brands, such as the Duck Head brand, that are prominently featured
by certain of that customer's competitors. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations".
Similar or other factors could lead to the loss of additional customers or
the decrease of orders from existing customers. The decision of a customer to
cease or diminish purchasing product from Duck Head can be based on factors
within the control of Duck Head, such as product quality, product mix and
service quality, and on factors outside the control of Duck Head, such as
changes in the customer's management or strategy, acquisition of the customer or
financial troubles of the customer.
ONE CUSTOMER ACCOUNTS FOR OVER 20% OF DUCK HEAD'S NET SALES. FIVE OF DUCK
HEAD'S CUSTOMERS ACCOUNT FOR MORE THAN 40% OF ITS NET SALES. THE LOSS OF ANY
KEY CUSTOMER COULD ADVERSELY AFFECT DUCK HEAD.
During the six months ended January 1, 2000 and the fiscal years 1999, 1998
and 1997, approximately 26%, 24%, 21% and 17%, respectively, of Duck Head's
sales were to J. C. Penney, Inc. No other customer accounted for 10% or more of
Duck Head's sales during any of those periods. The loss of J.C. Penney, Inc. as
a customer, or a significant reduction in its purchases from Duck Head, may have
a material adverse effect on Duck Head's business.
During the six months ended January 1, 2000 and the fiscal years 1999, 1998
and 1997, approximately 47%, 46%, 45% and 41%, respectively, of Duck Head's
sales were made to Duck Head's five largest customers. The loss by Duck Head of
any of these customers, or a significant reduction in purchases from Duck Head
by any of these customers, could have a material adverse effect on Duck Head's
business.
One of Duck Head's significant customers, accounting for 7% of fiscal year
2000 first six months sales and 8% of fiscal year 1999 sales, is currently
undergoing major management changes. Due to these key management changes, the
customer's business strategy may change as well. Duck Head does not know what
this customer's future strategies may be concerning national and regional
brands.
17
<PAGE>
DUCK HEAD'S STRATEGY INCLUDES REDUCING THE MARGIN SUPPORT COMMITMENTS IT MAKES
TO SOME OF ITS KEY CUSTOMERS AND THE ACQUISITION OF ADDITIONAL KEY CUSTOMERS.
IMPLEMENTATION OF THESE ASPECTS OF DUCK HEAD'S STRATEGY DEPENDS ON REACHING
AGREEMENTS WITH THIRD PARTIES, WHICH DUCK HEAD MAY NOT BE ABLE TO ACCOMPLISH.
Approximately 40% of Duck Head's sales are made under margin support
agreements, under which the retailer is entitled to reduce the amount payable to
Duck Head for any retail gross margin shortfall below the target gross margin.
An important component of Duck Head's strategy is to reduce the margin support
commitments that it makes to some of its key customers. Since these customers
find these commitments to be beneficial, they may not be willing to agree to the
margin commitment reductions desired by Duck Head.
In order to implement its strategy of selling more of its product outside
the Southeastern United States, Duck Head is seeking to place its product with
new retailers. Duck Head may not be successful in working out acceptable
arrangements with these third parties.
THE MARKET TREND OF NATIONAL RETAILERS FOCUSING MORE OF THEIR PURCHASING ON
BRANDS WITH A NATIONAL EXPOSURE MAY ADVERSELY AFFECT DUCK HEAD.
Duck Head sells its apparel primarily in eleven states in the Southeastern
United States (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, Tennessee and Virginia) where its
trademarks are most well known. At January 1, 2000, approximately 1,400 of the
approximately 1,800 retail stores in which Duck Head products are displayed are
located in these eleven states.
In recent years, there has been a significant consolidation among
department store retailers. This has led to more purchasing being done at a
national level by department store retailers and to those retailers focusing
more of their purchasing on brands with a national exposure and not on brands,
such as Duck Head, with more of a regional concentration.
One important aspect of Duck Head's strategy is to develop a significant
presence outside of the Southeastern United States. Duck Head can give no
assurance, however, that it will be able successfully to implement this
strategy. The development by Duck Head of a significant presence in areas where
it has not historically sold much of its product will depend primarily on the
willingness of national retailers to provide Duck Head with store space to sell
Duck Head products and then on the willingness of consumers to purchase those
products.
DUCK HEAD FACES INTENSE COMPETITION IN ITS MARKETS, AND DUCK HEAD'S FINANCIAL
RESOURCES ARE NOT AS GREAT AS SEVERAL OF ITS COMPETITORS.
The domestic apparel industry is highly competitive. In part because there
are low economic barriers to entry into the apparel manufacturing business, a
large number of domestic and foreign manufacturers supply apparel into the
United States market, none of which dominates the market for any of Duck Head's
product lines but many of which have a much more significant market presence
than does Duck Head.
Some of Duck Head's competitors also have substantially greater financial,
marketing, personnel and other resources than does Duck Head. This may enable
Duck Head's competitors to compete more aggressively than can Duck Head in
pricing, marketing and other respects, to react more quickly to market trends
and to better weather market downturns.
18
<PAGE>
THERE MAY BE LITTLE INSTITUTIONAL INTEREST, RESEARCH COVERAGE OR TRADING VOLUME
IN THE DUCK HEAD SHARES BECAUSE OF DUCK HEAD'S SIZE. IN ADDITION, AT THE TIME
OF THE DUCK HEAD DISTRIBUTION A LARGE PERCENTAGE OF THE OUTSTANDING DUCK HEAD
SHARES WILL BE HELD BY A FEW INSTITUTIONAL INVESTORS WHO WILL BE FREE TO SELL
THEIR DUCK HEAD SHARES AT ANY TIME. FURTHERMORE, ROBERT D. ROCKEY, JR. HAS THE
RIGHT TO ACQUIRE UP TO 1,000,000 DUCK HEAD SHARES SIX MONTHS AFTER THE
DISTRIBUTION DATE (REPRESENTING APPROXIMATELY 29.4% OF THE DUCK HEAD SHARES
EXPECTED TO BE OUTSTANDING IMMEDIATELY AFTER THE EXERCISE OF THAT RIGHT, IF
EXERCISED IN FULL). THESE FACTORS COULD HAVE A MAJOR DEPRESSIVE EFFECT ON THE
MARKET PRICE OF THE DUCK HEAD SHARES FOR AN INDETERMINATE PERIOD OF TIME.
Various investment banking firms have informed Delta Woodside and Duck Head
that public companies with relatively small market capitalizations have
difficulty generating institutional interest, research coverage or trading
volume, which illiquidity can translate into price discounts as compared to
industry peers or to the shares' inherent value. Duck Head believes that the
market will perceive it to have a relatively small market capitalization. In
addition, some of Delta Woodside's stockholders who receive Duck Head shares in
the Duck Head distribution may wish to dispose of those shares because they do
not meet the stockholders' investment objectives regardless of the shares' value
or prospects. Furthermore, Robert D. Rockey, Jr. has the right to acquire up to
1,000,000 Duck Head shares from Duck Head six months after the Duck Head
distribution (representing approximately 29.4% of the Duck Head shares expected
to be outstanding immediately after the exercise of that right, if exercised in
full). Coupled with Duck Head's history of operating losses, these factors
could lead to Duck Head's shares trading at prices that are significantly lower
than Duck Head's estimate of their inherent value.
As of the Duck Head distribution date, Duck Head will have outstanding
approximately 2,400,000 shares of common stock. Duck Head believes that
approximately 67.8% of this stock will be beneficially owned by persons who
beneficially own more than 5% of the outstanding shares of Duck Head common
stock and related individuals, and that of this approximately 30.7% of the
outstanding stock will be beneficially owned by institutional investors. If Mr.
Rockey exercised his right to acquire Duck Head shares, this would further
increase the concentration of stock ownership. Sales of substantial amounts of
Duck Head common stock in the public market after the Duck Head distribution by
any of these large holders could adversely affect the market price of the common
stock.
POLITICAL AND ECONOMIC UNCERTAINTY IN COSTA RICA COULD ADVERSELY AFFECT DUCK
HEAD.
Duck Head's primary manufacturing facility is located in Costa Rica. Duck
Head might be adversely affected if economic or legal changes occur in Costa
Rica that affect the way in which Duck Head conducts its business in that
country. For example, a growing economy could lower unemployment which could
increase wage rates or make it difficult to retain employees or employ enough
people to meet demand. The government could also decide to add additional
holidays or change employment law increasing Duck Head's costs to produce.
DUCK HEAD'S RESULTS COULD BE ADVERSELY AFFECTED BY U.S. TRADE REGULATIONS.
The North American Free Trade Agreement (which this document refers to as
"NAFTA"), became effective on January 1, 1994 and has created a free-trade zone
among Canada, Mexico and the United States. NAFTA contains a rule of origin
requirement that products be produced in one of the three countries in order to
benefit from the agreement. NAFTA has phased out all trade restrictions and
tariffs among the three countries on apparel products competitive with those of
Duck Head. At this time, most of Duck Head's internal production of apparel
occurs outside of the NAFTA territory. Therefore, Duck Head is not obtaining
the advantages that NAFTA provides for manufacturing facilities in Mexico.
DUCK HEAD IS HIGHLY DEPENDENT ON ITS TRADEMARKS.
Duck Head relies heavily on the strength of its trademarks. Virtually all
of Duck Head's products are sold under the Duck Head brand. Duck Head has in
the past and may in the future be required to expend significant resources to
protect these trademarks. The loss or limitation of the exclusive right to use
its trademarks could adversely affect Duck Head's sales and results of
operations.
19
<PAGE>
A LOSS OF KEY MANAGEMENT PERSONNEL, PARTICULARLY ROBERT D. ROCKEY, JR., COULD
ADVERSELY AFFECT DUCK HEAD.
Duck Head's success depends upon the talents and efforts of a small number
of key management personnel, particularly Robert D. Rockey, Jr. (Chairman,
President and Chief Executive Officer of Duck Head). The loss or interruption
of the services of these executives could have a material adverse effect on Duck
Head. Mr. Rockey has informed Duck Head that his current intent is to remain in
his current position with Duck Head through at least March 2001, subject to the
Duck Head board's willingness to permit him to do so. Duck Head has no
assurance that it would be able to find replacements for its key management with
equivalent skills or experience in a timely manner or at all.
DUCK HEAD'S RESULTS WILL LIKELY BE CYCLICAL.
Duck Head and the U.S. apparel industry are sensitive to the business cycle
of the national economy. Moreover, the popularity, supply and demand for
particular apparel products can change significantly from year to year based on
prevailing fashion trends and other factors.
Reflecting the cyclical nature of the apparel industry, many apparel
producers tend to increase capacity during years in which sales are strong.
These increases in capacity tend to accelerate a general economic downturn in
the apparel markets when demands weakens.
These factors have contributed historically to fluctuations in Duck Head's
results of operations and these fluctuations are expected to occur in the
future. Duck Head may be unable to compete successfully in any industry
downturn.
DUCK HEAD DEPENDS ON OUTSIDE PRODUCTION FOR MORE THAN ONE-HALF OF ITS
PRODUCTION.
Duck Head currently manufactures less than one-half of its products in its
leased Costa Rican facility, and purchases its remaining product from outside
suppliers, many of which perform their manufacturing in other foreign countries.
Any shortage of supply or significant price increases from Duck Head's suppliers
could adversely affect Duck Head's results of operations.
DUCK HEAD MAY BE ADVERSELY AFFECTED BY THE AMOUNT OF ITS INDEBTEDNESS.
As of January 1, 2000, on a pro forma basis, after giving effect to the
Duck Head distribution, Duck Head's total indebtedness would have been
approximately $5.8 million, and total stockholders' equity would have been
approximately $23 million, resulting in a pro forma ratio of total long-term
debt (including current maturities of long-term debt) to total capitalization
(including current maturities of long-term debt) of 20.4%. In addition, at that
date and after giving effect to the Duck Head distribution, approximately $12.5
million of additional borrowing capacity would have been available (pursuant to
the borrowing base formula) under Duck Head's credit agreement.
Duck Head anticipates that its borrowing needs will be seasonal, with its
greatest borrowing needs to be in the third fiscal quarter. Duck Head is not
certain that the borrowing availability under its credit agreement will be
sufficient to satisfy its borrowing needs, particularly during the periods of
greatest need.
The level of Duck Head's indebtedness could have important consequences,
such as:
(i) a substantial portion of Duck Head's cash flow from operations will be
dedicated to the payment of indebtedness, which will reduce the funds
available to Duck Head for operations and related purposes;
20
<PAGE>
(ii) Duck Head may be more highly leveraged than some of its competitors,
which may place Duck Head at a relative competitive disadvantage, could
limit Duck Head's business opportunities and make Duck Head more vulnerable
to changes in the industry and economic conditions; and
(iii) Duck Head's borrowings under its credit agreement will bear interest
at variable rates, which could result in higher interest expense in the
event of an increase in interest rates.
Duck Head believes, based on current circumstances, that Duck Head's cash
flow, together with available borrowings under its credit agreement, will be
sufficient to permit Duck Head to meet its operating expenses and anticipated
capital expenditures and to service its debt requirements as they become due for
the foreseeable future. Significant assumptions underlie this belief, however,
including, among other matters, that Duck Head will succeed in implementing its
business strategy and that there will be no material adverse developments in the
business, markets, operating performance, liquidity or capital requirements of
Duck Head. Actual future results will be dependent to a large degree on a
number of factors beyond Duck Head's control. If Duck Head is unable to service
its indebtedness, it will be required to adopt alternative strategies, which may
include actions such as reducing or delaying capital expenditures, selling
assets, restructuring or refinancing its indebtedness or seeking additional
equity capital. Duck Head may not be able to implement any of these strategies.
DUCK HEAD'S CREDIT AGREEMENT WILL IMPOSE RESTRICTIONS THAT, IF BREACHED BY DUCK
HEAD, MAY PREVENT IT FROM BORROWING UNDER ITS REVOLVING CREDIT FACILITY AND
RESULT IN THE EXERCISE OF REMEDIES BY THE CREDIT AGREEMENT LENDER.
Duck Head's credit agreement will contain covenants that restrict, among
other things, the ability of Duck Head and its subsidiaries to incur
indebtedness, create liens, consolidate, merge, sell assets or make investments.
The credit agreement also will contain customary representations and warranties,
funding conditions and events of default.
A breach of one or more covenants or any other event of default under the
Duck Head credit agreement could result in an acceleration of Duck Head's
obligations under that agreement, in the foreclosure on any assets subject to
liens in favor of the credit agreement's lenders and in the inability of Duck
Head to borrow additional amounts under the credit agreement.
DUCK HEAD WILL PAY NO DIVIDENDS FOR THE FORESEEABLE FUTURE.
Duck Head anticipates that it will pay no dividends to you or its other
stockholders for the foreseeable future. Duck Head's credit agreement also will
limit Duck Head's ability to pay dividends. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Dividends and
Purchases by Duck Head of its Own Shares".
AFTER THE DUCK HEAD DISTRIBUTION, DUCK HEAD WILL BE REQUIRED TO PERFORM VARIOUS
ADMINISTRATIVE FUNCTIONS THAT WERE PREVIOUSLY PROVIDED BY DELTA WOODSIDE AND AS
TO WHICH DUCK HEAD DOES NOT HAVE EXTENSIVE EXPERIENCE.
Duck Head has historically relied upon Delta Woodside corporate
headquarters for administrative services in areas including financial planning,
SEC reporting, payroll, accounting, internal audit, employee benefits and
services, stockholder services, insurance, treasury, purchasing, management
information services, and tax accounting. After the Duck Head distribution,
Duck Head will be responsible for performing these administrative functions.
Duck Head does not have extensive experience in performing these functions on
its own.
21
<PAGE>
DUCK HEAD MAY BE RESPONSIBLE FOR ANY HISTORICAL TAX LIABILITIES OF DELTA
WOODSIDE AND DELTA APPAREL THAT DELTA WOODSIDE OR DELTA APPAREL DOES NOT PAY.
Prior to the Duck Head distribution, Duck Head has been a member of Delta
Woodside's consolidated group for federal income tax purposes. Each member of a
consolidated group is jointly and severally liable for the federal income tax
liability of the other members of the group. After the Duck Head distribution,
Duck Head, along with Delta Woodside and Delta Apparel, will continue to be
liable for these Delta Woodside liabilities that were incurred for periods
before the Duck Head distribution.
Duck Head, Delta Woodside and Delta Apparel will enter into a tax sharing
agreement. This agreement generally will seek to allocate consolidated federal
income tax liabilities to Delta Woodside for all periods prior to and including
the Duck Head distribution. Under this agreement, Delta Woodside generally
will retain the authority to file returns, respond to inquiries and conduct
proceedings on Duck Head's behalf with respect to consolidated federal
income tax returns for periods beginning before the Duck Head distribution.
In addition, Delta Woodside has the authority to decide all disputes that
arise under the tax sharing agreement. These arrangements may result in
conflicts of interest among Duck Head, Delta Woodside and Delta Apparel.
In addition, if Delta Woodside does not satisfy any of its liabilities
respecting any period prior to the Duck Head distribution, Duck Head could
be responsible for satisfying them, notwithstanding the tax sharing agreement.
DUCK HEAD'S PRINCIPAL STOCKHOLDERS WILL EXERT SUBSTANTIAL INFLUENCE.
As of the Duck Head record date, three members of Duck Head's board of
directors and related individuals had the voting power in Delta Woodside shares
that, immediately after the Duck Head distribution, will result in voting power
with respect to approximately 38.6% of the outstanding Duck Head common stock.
These individuals will exert substantial influence with respect to all matters
submitted to a vote of stockholders, including elections of Duck Head's
directors. If Mr. Rockey exercises his right to acquire Duck Head shares, that
would result in four members of Duck Head's board of directors and related
individuals having voting power with respect to approximately 56.7% of the then
outstanding Duck Head shares.
VARIOUS RESTRICTIONS AND AGREEMENTS COULD HINDER ANY ATTEMPT BY A THIRD PERSON
TO CHANGE CONTROL OF DUCK HEAD.
Duck Head has entered into a rights agreement providing for the issuance of
rights that will cause substantial dilution to any person or group of persons
that acquires 20% or more of the outstanding Duck Head common shares without the
rights having been redeemed by the Duck Head board. In addition, Duck Head's
articles of incorporation and bylaws and the Official Code of Georgia contain
provisions that could delay or prevent a change in control of Duck Head in a
transaction that is not approved by its board of directors. These include
provisions requiring advance notification of stockholder nominations for
director and stockholder proposals, setting forth additional factors to be
considered by the board of directors in evaluating extraordinary transactions,
prohibiting cumulative voting, limiting business combinations with stockholders
that have a significant beneficial ownership in Duck Head shares, and
prohibiting stockholders from calling a special meeting. Moreover, Duck Head's
board of directors has the authority, without further action by the
stockholders, to set the terms of and to issue preferred stock. Issuing
preferred stock could adversely affect the voting power of the owners of Duck
Head common stock, including the loss of voting control to others.
Duck Head's credit agreement also includes restrictions on the ability of
Duck Head and its subsidiaries to pay dividends and make share repurchases. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Dividends and Purchases by Duck Head of its Own Share".
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All of these provisions could deter or prevent an acquirer that is
interested in acquiring Duck Head from doing so. You can find more information
on these provisions under the portions of this documents found under the heading
"Description of Duck Head Capital Stock".
Bettis C. Rainsford, a director and significant stockholder of Delta
Woodside and a director of Duck Head and Delta Apparel, filed with the SEC on
December 14, 1999 an amendment to his Schedule 13D in which, among other
matters, he stated that he was filing the amendment to disclose the fact that he
is considering the possibility of making an offer to purchase those Delta
Woodside shares that he does not currently own. The amendment stated that the
terms and financing for any such offer had not yet been established by Mr.
Rainsford.
Since the filing of this amendment to his Schedule 13D, Mr. Rainsford has
made no proposal to Delta Woodside to acquire Delta Woodside shares. If he were
to make any such proposal, the Delta Woodside board would consider the terms of
the offer in light of the board's views as to the best interests of the holders
of the Delta Woodside shares. If the board concluded that any such offer were
in the Delta Woodside stockholders' best interests, it would redeem the rights
under the Delta Woodside shareholders' rights plan and permit the proposed
transaction to take place. If the board concluded that the offer were not in
the stockholders' best interests, it would not redeem the rights, which would
effectively prevent the proposed transaction from taking place, unless a court
were to order a different result.
In addition to the shareholder rights plan, Delta Woodside's articles of
incorporation and bylaws and the South Carolina code contain provisions that
could delay or prevent a change in control of Delta Woodside in a transaction
not approved by its board of directors. These include provisions in the South
Carolina code limiting business combinations with stockholders that have a
significant beneficial ownership in Delta Woodside shares unless certain
conditions are met and eliminating the voting rights of Delta Woodside shares
acquired by holders of 20% or more of the outstanding voting power of Delta
Woodside common stock unless voting power is approved by Delta Woodside's
stockholders or limited statutory exceptions are satisfied, and provisions
similar to those of Duck Head prohibiting stockholders from calling a special
meeting, setting forth additional factors to be considered by the board of
directors in evaluating extraordinary transactions, and requiring advance
notification of stockholder nominations for director and stockholder proposals.
If the Delta Woodside board were to conclude that any offer by Mr. Rainsford
were not in the stockholders' best interests, it would rely upon these
provisions to oppose Mr. Rainsford's attempts to gain control of additional
Delta Woodside shares.
If Mr. Rainsford were to make any proposal to Duck Head to acquire Duck
Head shares following the Duck Head distribution, the Duck Head board would
consider the terms of the offer in light of the board's views as to the best
interests of the holders of the Duck Head shares. If the board concluded that
any such offer were in the Duck Head stockholders' best interests, it would
redeem the rights under the Duck Head shareholders' rights plan and permit the
proposed transaction to take place. If the board concluded that the offer were
not in the Duck Head stockholders' best interests, it would not redeem the
rights, which would effectively prevent the proposed transaction from taking
place, unless a court were to order a different result.
In addition to the shareholder rights plan, Duck Head's articles of
incorporation and bylaws and the Georgia code contain provisions that could
delay or prevent a change in control of Duck Head in a transaction not approved
by its board of directors. These include provisions in the Georgia code
limiting business combinations with stockholders that have a significant
beneficial ownership in Duck Head shares unless certain conditions are met, and
provisions prohibiting stockholders from calling a special meeting, setting
forth additional factors to be considered by the Duck Head board of directors in
evaluating extraordinary transactions, and requiring advance notification of
stockholder nominations for director and stockholder proposals. If the Duck
Head board were to conclude that any offer by Mr. Rainsford were not in the
stockholders' best interests, it would rely upon these provisions to oppose Mr.
Rainsford's attempts to gain control of additional Duck Head shares.
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The antitakeover provisions applicable to Delta Woodside and Duck Head were
not adopted as a result of Mr. Rainsford's amendment to his Schedule 13D or the
information contained in that amendment or in response to any other takeover
communication.
The antitakeover provisions that are applicable to Duck Head do not
materially differ from the antitakeover provisions that are applicable to Delta
Woodside. The Delta Woodside shareholder rights plan does not contain the
provisions in the Duck Head shareholder rights plan, described under the heading
"Description of Duck Head Capital Stock - Rights Plan", relating to redemptions
and extensions of time requiring the concurrence of a majority of Disinterested
Directors. South Carolina, Delta Woodside's state of incorporation, has a
control share acquisition act that eliminates the voting rights of Delta
Woodside shares acquired by holders of 20% or more of the outstanding voting
power of Delta Woodside's common stock unless voting power is approved by Delta
Woodside's stockholders or limited statutory exceptions are satisfied. Georgia,
Duck Head's state of incorporation, does not have a comparable act. South
Carolina also has a business combinations act analogous, but not identical, to
that of Georgia described under the heading "Description of Duck Head Capital
Stock - Other Provisions Respecting Stockholder Rights and Extraordinary
Transactions - Georgia Business Combinations Statute."
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<PAGE>
THE DUCK HEAD DISTRIBUTION
PARTIES TO THE DISTRIBUTION AGREEMENT
Delta Woodside
---------------
Delta Woodside is a South Carolina corporation with its principal executive
offices located at 233 North Main Street, Suite 200, Greenville, South Carolina
29601 (telephone number: 864-232-8301).
Prior to the Duck Head distribution, Delta Woodside and its subsidiaries
had three operating divisions: Delta Mills Marketing Company, Duck Head Apparel
Company and Delta Apparel Company.
- Delta Mills Marketing Company produces a range of cotton, synthetic
and blended finished and unfinished woven products that are sold for
the ultimate production of apparel, home furnishings and other
products. After the Duck Head distribution and the Delta Apparel
distribution, Delta Mills Marketing Company will remain the only
continuing Delta Woodside operation.
- Pursuant to the Duck Head distribution, Delta Woodside will distribute
to its stockholders all of the outstanding common stock of Duck Head,
which will continue the business formerly conducted by the Duck Head
Apparel Company division of various subsidiaries of Delta Woodside.
For a description of the business of the Duck Head Apparel Company
division, see the information under the heading "Business of Duck
Head".
- Simultaneously with the Duck Head distribution, Delta Woodside will,
pursuant to the Delta Apparel distribution, distribute to its
stockholders all of the outstanding stock of Delta Apparel, which will
continue the business formerly conducted by the Delta Apparel Company
division of various subsidiaries of Delta Woodside. For a description
of the business of the Delta Apparel Company division, see the
information below under the subheading "Delta Apparel".
Duck Head
----------
Duck Head is a Georgia corporation with its principal executive offices
located at 1020 Barrow Industrial Parkway, P.O. Box 688, Winder, Georgia 30096
(telephone number: 770-867-3111).
Delta Apparel
--------------
Delta Apparel is a Georgia corporation with its principal executive offices
located at 3355 Breckinridge Blvd., Suite 100, Duluth, Georgia 30096 (telephone
number: 770-806-6800). Delta Apparel is a vertically integrated supplier of
knit apparel, particularly T-shirts, sportswear and fleece goods and sells its
products to distributors, screen printers and private label accounts.
BACKGROUND OF THE DUCK HEAD DISTRIBUTION
Since the middle of its 1998 fiscal year, Delta Woodside's board of
directors has explored various means, in addition to effectively operating Delta
Woodside's businesses, to enhance stockholder value.
On March 9, 1998, Delta Woodside announced that it was withdrawing from the
circular knit fabrics business, which had operated under the name of Stevcoknit
Fabrics Company, and would be selling or closing and liquidating its two
knitting, dyeing and finishing plants in Wallace, North Carolina, and its yarn
spinning plant in Spartanburg, South Carolina. In the announcement, Delta
Woodside also stated that it had decided to sell its Nautilus International
fitness equipment division, and had retained an investment banking firm to
handle the sale.
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<PAGE>
Delta Woodside completed most of the liquidation and sale of the Stevcoknit
Fabrics Company division during its 1998 fiscal year. The Nautilus
International sale was consummated in January 1999.
On September 15, 1998, Delta Woodside announced that its board of directors
had approved a plan to purchase from time to time up to 2,500,000 outstanding
Delta Woodside common shares at prices and at times at the discretion of Delta
Woodside's top management. The announcement stated that Delta Woodside believed
that, at times, its stock price was undervalued and that these purchases would
enhance stockholder value.
At a meeting on October 9, 1998, the Delta Woodside board of directors made
the decision to sell the Duck Head Apparel Company division. To assist in this
transaction, Delta Woodside hired an investment banking firm.
On January 21, 1999, Delta Woodside announced that it had had discussions
with third parties with respect to a possible sale of the Duck Head Apparel
Company division, and that, based on these discussions, Delta Woodside was
continuing to explore strategic alternatives for the Duck Head Apparel Company
division, but could not be reasonably certain that a transaction on satisfactory
terms would be consummated in the near future. The announcement stated that,
for this reason, Delta Woodside had made the decision to continue to report the
Duck Head Apparel Company division as a part of continuing operations.
At a meeting on February 4, 1999, the Delta Woodside board of directors
approved a plan to effect a major restructuring of Delta Woodside. This
restructuring would have involved the spin-off to the Delta Woodside
stockholders of each of Delta Woodside's two apparel divisions, leaving the
Delta Mills, Inc. subsidiary, and its operating division, Delta Mills Marketing
Company, in Delta Woodside. Simultaneously with the spin-off, Delta Woodside
would have been sold to a third party buyer not yet identified. Under this
plan, the Delta Woodside stockholders would have received, for their shares of
Delta Woodside common stock, shares of each of the new spun-off apparel
companies and cash for their post spin-off Delta Woodside shares. The plan
would have been subject to the approval of the Delta Woodside stockholders. If
the plan had been approved by the requisite stockholder vote, the Rainsford
plant in Edgefield, South Carolina, would have been sold by the Delta Mills,
Inc. subsidiary to the Delta Apparel Company division, the Duck Head Apparel
Company division and the Delta Apparel Company division would have been
separated into two corporations, and the stock of each of the Duck Head
corporation and the Delta Apparel corporation would have been distributed to all
of the Delta Woodside stockholders. The Delta Woodside board of directors
decided that Delta Woodside would promptly begin the process of soliciting
offers for the purchase of the post spin-off Delta Woodside common stock, and
that Delta Woodside would retain an investment banking firm to assist in the
implementation of this restructuring plan.
On March 16, 1999, Delta Woodside announced that Robert Rockey was assuming
the position of chief executive officer of the Duck Head Apparel Company
division, effective immediately. The announcement stated that, after the
planned spin-off of the Duck Head Apparel Company operation, Mr. Rockey would
serve as chairman and chief executive officer of that new separate corporation.
On March 23, 1999, Delta Woodside announced that it had engaged Prudential
Securities Incorporated (which this document refers to as "Prudential
Securities") to advise the Delta Woodside board of directors with respect to the
previously announced plan to sell the portion of Delta Woodside remaining after
the distribution to the Delta Woodside stockholders of the shares of stock of
Delta Woodside's apparel businesses. The announcement also stated that the Duck
Head Apparel Company division was no longer for sale.
Following this announcement, Delta Woodside provided information to
nineteen companies respecting a possible sale of the remaining Delta Woodside.
None of these potential purchasers, however, made an offer for the remaining
Delta Woodside that Delta Woodside considered to be satisfactory.
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<PAGE>
On April 21, 1999, Delta Woodside announced that Robert W. Humphreys was
assuming the position of president and chief executive officer of the Delta
Apparel Company division. The announcement stated that, after the planned
spin-off of the Delta Apparel Company operation, Mr. Humphreys would serve as
the president and chief executive officer of that new separate corporation.
At a meeting on June 24, 1999, the Delta Woodside board of directors
decided to terminate the process of attempting to sell a post-spin-off Delta
Woodside comprised solely of Delta Mills Marketing Company in line with its
previously-announced plan, because it had not received any satisfactory offer
for the business. The Board determined to continue to explore other strategies
to enhance stockholder value, including: (1) the purchase of the Delta Apparel
Company division and the Duck Head Apparel Company division by the Delta Mills,
Inc. subsidiary, or (2) a spin-off/recapitalization in which the apparel
divisions would be spun-off to the Delta Woodside stockholders as separate
public companies, and substantial cash would be paid out to stockholders from
new borrowings by the remaining Delta Woodside.
- Under the purchase of the Duck Head Apparel Company division and the
Delta Apparel Company division by Delta Mills, Inc. scenario, Delta
Woodside, through its wholly-owned subsidiary, Delta Mills, Inc.,
would have continued to own the Duck Head Apparel Company division and
the Delta Apparel Company division. This internal ownership
restructuring could, however, have provided Delta Woodside with
substantial cash, because Delta Mills, Inc. then had a substantial
cash position and its senior note indenture would have permitted it to
use cash for this purpose but not for the purpose of making dividend
payments to its parent company, Delta Woodside. If this purchase
scenario had been adopted, Delta Woodside could have used the cash
provided by Delta Mills, Inc. in the purchase to make acquisitions of
Delta Woodside common stock or other businesses, or for other
purposes.
- Under the spin-off/recapitalization scenario, Delta Woodside
stockholders would have received, for their Delta Woodside common
shares, shares of each of the new spun-off apparel companies, cash and
stock in the remaining Delta Woodside. Also, additional shares of the
remaining Delta Woodside (representing more than 20% of the then
outstanding shares of the remaining Delta Woodside) would have been
sold to members of management of Delta Mills Marketing Company.
Consummation of the spin-off/recapitalization transaction was to be
conditioned upon receiving a favorable vote of the Delta Woodside
stockholders.
Following this announcement, Delta Woodside, with the assistance of
Prudential Securities, explored the possibility of Delta Mills, Inc. refinancing
its existing $150 million of 9-5/8% Senior Notes with a larger issue of
indebtedness in order to effect the proposed recapitalization. During the time
frame of this examination, however, the interest rates payable by issuers of new
senior debt in the textile and apparel industries became higher than were deemed
acceptable by the Delta Woodside board of directors.
On August 20, 1999, Delta Woodside announced that, due to weakness in the
bond market, Delta Woodside believed that its previously announced
recapitalization/spin-off strategy was not feasible at that time. Delta Woodside
further announced that, because Delta Woodside believed that its stockholders
would best be served by separating the operating companies, Delta Woodside did
not plan to pursue the acquisition of the two apparel divisions by its textile
subsidiary, Delta Mills, Inc., at that time. The announcement also stated that
Delta Woodside was continuing to explore strategic alternatives to accomplish
the separation of its operating companies, and would announce specific plans in
the upcoming months.
27
<PAGE>
On October 4, 1999, Delta Woodside announced that it planned to spin off to
the Delta Woodside stockholders its two apparel businesses (Duck Head Apparel
Company and Delta Apparel Company) as two separate publicly-owned corporations.
The announcement further stated that Delta Woodside was in the process of
transferring various corporate functions to its three operating divisions (Delta
Mills Marketing Company, Duck Head Apparel Company and Delta Apparel Company).
The announcement stated that, upon the complete transfer of these functions or
at the time of the spin-offs (as appropriate), the functions then being
performed at the Delta Woodside level would no longer need to be performed at
that level, and the executive officers of Delta Woodside would resign their
positions with Delta Woodside. The announcement stated that, upon consummation
of the spin-offs, Delta Mills Marketing Company would be Delta Woodside's sole
remaining business, and William Garrett, the head of the Delta Mills Marketing
Company division, would become President and Chief Executive Officer of the
remaining Delta Woodside. The announcement stated that, in connection with the
proposed spin-offs, significant equity incentives, in the form of stock options
and incentive stock awards for the new public companies' stock, would be granted
to the managements of the new companies. The announcement stated that Delta
Woodside could not determine at that time whether the receipt of the apparel
companies' stock would, or would not, be taxable to the Delta Woodside
stockholders for Federal income tax purposes, but that, at the time that Delta
Woodside had sufficient information to determine the appropriate Federal income
tax treatment of the spin-offs, it would promptly provide the necessary income
tax information to the Delta Woodside stockholders. The announcement stated
that Delta Woodside believed that, even if the spin-offs were determined to be
taxable for Federal income tax purposes, the spin-offs would still be in the
best interests of Delta Woodside's stockholders.
On December 13, 1999, Delta Woodside announced that its board of directors
had adopted a shareholders rights plan pursuant to which stock purchase rights
have been distributed as a dividend to the Delta Woodside stockholders at a rate
of one right for each Delta Woodside share held of record as of December 22,
1999. Delta Woodside stated that the rights plan is designed to enhance the
Delta Woodside board's ability to prevent any person interested in acquiring
control of Delta Woodside from depriving stockholders of the long-term value of
their investment and to protect shareholders against attempts to acquire Delta
Woodside by means of unfair or abusive takeover tactics. Delta Woodside stated
that its board had adopted the rights plan at that time because the Delta
Woodside shares were trading at their lowest levels in Delta Woodside's history.
At the same time, Delta Woodside announced that its board had approved a
plan to purchase from time to time up to an aggregate of 5,000,000 shares of
Delta Woodside's outstanding stock at prices and at times at the discretion of
Delta Woodside's top management. The announcement stated that this stock
repurchase plan replaces the 2,500,000 stock purchase plan announced by Delta
Woodside in September 1998.
On December 30, 1999, Delta Woodside announced that each of Duck Head and
Delta Apparel had filed a registration statement with the SEC to register the
subsidiary's stock under the Securities Exchange Act of 1934, and that these
filings were pursuant to the previously announced plan of Delta Woodside to spin
off to its stockholders the Delta Apparel Company division and the Duck Head
Apparel Company division as two separate publicly-owned corporations. Delta
Woodside also stated that, following completion of the spin-offs, Delta Woodside
intends to propose to its stockholders the adoption of a new Delta Woodside
stock option plan and a new Delta Woodside incentive stock award plan pursuant
to which significant equity incentives could be granted to the new management of
Delta Woodside.
REASONS FOR THE DUCK HEAD DISTRIBUTION
Since the summer of 1998, Delta Woodside's board of directors has been
engaged in the process of exploring various means to maximize stockholder value.
The alternatives that the Delta Woodside Board has examined have included:
(a) A potential sale of the Duck Head Apparel Company division;
(b) A pro rata tax-free spin-off of Delta Woodside's two apparel
businesses to Delta Woodside's stockholders accompanied by a sale of
the remaining company;
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<PAGE>
(c) A pro rata tax-free spin-off of Delta Woodside's two apparel
businesses to Delta Woodside's stockholders accompanied by a
recapitalization of the remaining company that would involve a cash
distribution to Delta Woodside's stockholders by that remaining
company;
(d) A pro rata tax-free spin-off of Delta Woodside's two apparel
businesses to Delta Woodside's stockholders;
(e) A pro rata taxable spin-off of Delta Woodside's two apparel businesses
to Delta Woodside's stockholders;
(f) A disproportionate tax-free spin-off of one of Delta Woodside's
apparel businesses to one of Delta Woodside's major stockholders
accompanied by a pro rata tax-free spin-off of the other apparel
business to all the other stockholders;
(g) A potential sale of the Delta Apparel Company business or assets;
(h) A purchase by Delta Mills, Inc. of the Duck Head Apparel Company and
the Delta Apparel Company businesses; and
(i) Leaving Delta Woodside's three businesses in Delta Woodside in their
current corporate form.
During the course of this exploration, the Delta Woodside board witnessed
a deterioration of general market conditions in the textile and apparel
industries. This deterioration caused the market's perceived values of textile
and apparel businesses to decline significantly.
This decline, together with the information obtained by Delta Woodside in
the process of exploring the alternatives described above, led the Delta
Woodside board to conclude that:
(i) Any sale or liquidation at this time or in the near future of any of
Delta Woodside's businesses would, more likely than not, be at
depressed and unacceptable prices; and
(ii) Absent a change in circumstances, the interests of Delta Woodside and
its stockholders would be best served by not pursuing the sale or
liquidation of any of Delta Woodside's businesses at this time.
The Delta Woodside Board also determined that the best interests of Delta
Woodside and its stockholders would not be served by pursuing at this time any
of the additional alternatives described above other than a pro rata spin-off of
Delta Woodside's two apparel businesses to Delta Woodside's stockholders. The
major factors that led to this conclusion were the general market condition
deterioration described above and:
(1) Contractual constraints, which added significantly to the costs of
those alternatives that required additional financing to be incurred
by Delta Mills;
(2) Unfavorable debt market conditions, particularly for debt issuances by
textile and apparel companies;
(3) Insufficient buyer interest in any of Delta Woodside's businesses at
prices deemed sufficient by the Delta Woodside board;
(4) The Delta Woodside board's belief in the future enhanced stockholder
value available from separating Delta Woodside's businesses into
separate companies; and
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<PAGE>
(5) The Delta Woodside board's conclusion that the interests of Delta
Woodside and its stockholders would be adversely affected by any
decision of the Delta Woodside board to delay implementing the
separation of its businesses. The Board believes that continuing
uncertainty in the marketplace as to Delta Woodside's strategic plans
is likely to be damaging the relations of one or more of Delta
Woodside's businesses with certain of its respective suppliers and
customers, and that continuing uncertainty by the employees of Delta
Woodside and its subsidiaries as to Delta Woodside's strategic plans
could cause Delta Woodside or its subsidiaries to lose valuable
employees.
The Delta Woodside board, therefore, concluded that the best interests
of Delta Woodside and its stockholders would be furthered by separating
into distinct public companies Delta Woodside's three businesses (Delta Mills
Marketing Company, Delta Apparel Company and Duck Head Apparel Company),
and that the best method to accomplish this separation and thereby enhance
stockholder value that is available to Delta Woodside at this time is to effect
a pro rata spin-off to Delta Woodside's stockholders of each of Delta Woodside's
apparel businesses, whether that spin-off is tax-free or taxable for federal
income tax purposes.
In reaching this determination, the Delta Woodside Board took into account
its belief that the separation of Delta Woodside's three businesses will
further the following objectives, among others, and thereby enhance stockholder
value:
(a) Permit the grant of equity incentives to the separate management of
each business, which incentives would not be affected by the results
of the other businesses and, therefore, would have excellent potential
to align closely the interests of that management with those of the
stockholders;
(b) Permit the elimination of certain existing corporate overhead expenses
that result from the current need to coordinate the operations of
three distinct businesses that have separate modes of operation and
markets;
(c) Eliminate the complaints of certain customers of Delta Mills Marketing
Company (which, as a supplier to those customers, has access to
certain of their competitive information) that a competitor of theirs
(Duck Head Apparel Company) is under common management with Delta
Mills Marketing Company;
(d) Permit each business to obtain, when needed, the best equity and debt
financing possible without being affected by the operational results
of the other businesses;
(e) Permit each business to establish long-range plans geared toward the
expected cyclicality, competitive conditions and market trends in its
own line of business, unaffected by the markets, needs and constraints
of the other businesses;
(f) Promote a more streamlined management structure for each of the three
businesses, better able to respond quickly to customer and market
demands; and
(g) Permit the value of each of the three divisions to be more accurately
reflected in the equity market by separating the results of each
business from the other two businesses.
In reaching its conclusion, the Board also took into account the following
additional factors:
- The opinion delivered to the Delta Woodside board by Houlihan Lokey
Howard & Zukin Financial Advisors, Inc. that is described below;
- The advice provided to the Delta Woodside board by Prudential
Securities that is described below;
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<PAGE>
- The financial information and statements of Duck Head set forth in
this document under the heading, "Unaudited Pro Forma Combined
Financial Statements", and at pages F-1 to F-23;
- The Delta Woodside board's knowledge of the business, operations,
assets and financial condition of Duck Head;
- Duck Head management's assessment of the prospects of Duck Head;
- The current and prospective economic environment in which Duck
Head operates; and
- The terms of the distribution agreement and the tax sharing
agreement.
This discussion of the information and factors considered by the Delta
Woodside board is not meant to be exhaustive but is believed to include the
material factors considered by the Delta Woodside board in authorizing the Duck
Head distribution. The Delta Woodside board did not quantify or attach any
particular weight to the various factors that it considered in reaching its
determination that the Duck Head distribution, the Delta Apparel distribution
and related transactions are advisable and in the best interests of Delta
Woodside and its stockholders. In reaching its determination, the Delta
Woodside board took the various factors into account collectively and the Delta
Woodside board did not perform a factor-by-factor analysis.
Opinion of Houlihan Lokey
----------------------------
Delta Woodside engaged Houlihan Lokey to provide to the Delta Woodside
board and the Duck Head board an opinion as to the solvency of Duck Head as of
the time of the Duck Head distribution. Delta Woodside selected Houlihan Lokey
based on Houlihan Lokey's extensive experience in providing solvency opinions.
In consideration of its services in connection with the opinion described
below and a similar opinion with respect to Delta Apparel, Houlihan Lokey will
be paid a fee of $200,000 plus reasonable out-of-pocket expenses. No portion of
this fee is contingent upon the consummation of the Duck Head distribution or
the Delta Apparel distribution or the conclusions reached in Houlihan Lokey's
opinions. Delta Woodside has also agreed to provide indemnification to Houlihan
Lokey and certain other parties with respect to certain matters. Houlihan Lokey
has had no other material relationship with Delta Woodside or its subsidiaries
during the past two years.
The preparation of a solvency opinion is a complex process and is not
necessarily susceptible to partial analysis or summary description. The
following is a brief summary and general description of the solvency analysis
and valuation methodologies utilized by Houlihan Lokey. Although the summary
sets forth all material facts respecting the opinion of Houlihan Lokey, the
summary does not purport to be a complete statement of the analyses and
procedures applied, the judgments made or the conclusion reached by Houlihan
Lokey or a complete description of its presentation to the Delta Woodside board
or the Duck Head board. Houlihan Lokey believes, and so advised the Delta
Woodside board and the Duck Head board, that its analyses must be considered as
a whole and that selecting portions of its analyses and of the factors
considered by it, without considering all factors and analyses, could create an
incomplete view of the process underlying its analyses and opinions.
The Duck Head distribution and other related transactions disclosed
To Houlihan Lokey are referred to collectively in this summary as the
"Transaction." For purposes of its opinion, Houlihan Lokey assumed that the
third party financing described in "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Liquidity and Capital Resources"
will be entered into on or about the date of the Duck Head distribution and
that, prior to the Duck Head distribution, the intercompany reorganization
described in "Relationships Among Duck Head, Delta Woodside and Delta Apparel -
Distribution Agreement" will be completed.
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<PAGE>
Delta Woodside's board of directors has requested that Houlihan Lokey
render its written opinion to the Delta Woodside board and the Duck Head board
as to whether, assuming the Transaction has been consummated as proposed,
immediately after and giving effect to the Transaction: (a) on a pro forma
basis, the fair value and present fair saleable value of Duck Head would exceed
its respective stated liabilities and identified contingent liabilities, (b)
Duck Head should be able to pay its debts as they become absolute and mature;
(c) the capital remaining in Duck Head after the Transaction would not be
unreasonably small for the business in which Duck Head is engaged, as management
has indicated it is now conducted and is proposed to be conducted following the
consummation of the Transaction; and (d) the financial test for distributions of
the state of incorporation of Duck Head (i.e. Georgia) has been satisfied.
Houlihan Lokey's opinion does not address Delta Woodside's underlying
business decision to effect the Transaction. Houlihan Lokey has not been
requested to, and did not, solicit third party indications of interest in
acquiring all or part of Duck Head.
In connection with the preparation of its opinion, Houlihan Lokey made such
reviews, analyses and inquiries as it deemed necessary and appropriate under the
circumstances. Among other things, Houlihan Lokey:
(i) reviewed Duck Head's annual financial statements for the 1997,
1998 and 1999 fiscal years and year-to-date statements for the
first six months of fiscal year 2000, which Duck Head's and Delta
Woodside's managements have identified as the most current
information available;
(ii) reviewed the proposal from the third party lender to provide Duck
Head revolving credit and term loan facilities;
(iii)spoke with certain members of the senior management of Delta
Woodside and Duck Head to discuss the operations, financial
condition, future prospects and projected operations and
performance of Duck Head;
(iv) reviewed forecasts and projections prepared by Duck Head's
management with respect to the periods ended January 1, 2000
through fiscal year 2004;
(v) reviewed marketing and promotional material relating to Duck
Head;
(vi) reviewed the preliminary registration statement filed with the
SEC for Duck Head;
(vii)reviewed other publicly available financial data for Duck Head
and certain companies that Houlihan Lokey deems comparable to
Duck Head; and
(viii) conducted such other studies, analyses and investigations as
Houlihan Lokey has deemed appropriate.
In assessing the solvency of Duck Head immediately after and giving effect
to the Transaction, Houlihan Lokey:
(i) analyzed the fair value and present fair saleable value of Duck
Head's assets relative to Duck Head's stated liabilities and
identified contingent liabilities on a pro forma basis ("balance
sheet test");
(ii) assessed Duck Head's ability to pay its debts as they become
absolute and mature ("cash flow test"); and
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(iii)assessed the capital remaining in Duck Head after the
Transaction so as not to be unreasonably small ("reasonable
capital test").
Balance Sheet Test
The Balance Sheet Test determines whether or not the fair value and present
fair salable value of Duck Head's assets exceeds its stated liabilities and
identified contingent liabilities after giving effect to the Transaction. This
test requires an analysis of the fair market value of Duck Head as a
going-concern. As part of this analysis, Houlihan Lokey considered, among other
things,
(i) historical and projected financial performance for Duck Head as
prepared by Duck Head;
(ii) the business environment in which Duck Head competes;
(iii) performance of certain publicly traded companies deemed by
Houlihan Lokey to be comparable to Duck Head, in terms of, among
other things: size, profitability, financial leverage and growth;
(iv) capitalization rates ("multiples") for certain publicly traded
companies deemed by Houlihan Lokey to be comparable to Duck Head
(including (a) Enterprise Value ("EV")/Revenue; (b) EV/EBITDA;
and, (c) EV/EBIT);
(v) multiples derived from acquisitions of companies deemed by
Houlihan Lokey to be comparable to Duck Head;
(vi) discounted cash flow approaches;
(vii) the capital structure and debt obligations of Duck Head; and
(viii) non-operating assets and identified contingent liabilities.
In determining the fair value and present fair saleable value of the
aggregate assets of Duck Head, the following three methodologies were employed:
comparable public company, comparable transaction and discounted cash flow.
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Market Multiple Approach. This approach involved the multiplication of
various earnings and cash flow measures by appropriate risk-adjusted multiples.
Multiples were determined through an analysis of: (i) publicly traded companies
that were determined by Houlihan Lokey to be comparable from an investment
standpoint to Duck Head ("Comparable Public Companies"); and, (ii) change of
control transactions involving companies that were determined by Houlihan Lokey
to be comparable to Duck Head from an investment standpoint ("Comparable
Transactions"). Houlihan Lokey selected five publicly traded domestic companies
for comparison to Duck Head. These companies are involved in branded apparel
manufacturing and/or apparel marketing businesses. A comparative risk analysis
between Duck Head and the Comparable Public Companies formed the basis for the
selection of appropriate risk adjusted multiples for Duck Head. The risk
analysis incorporates both quantitative and qualitative risk factors which
relate to, among other things, the nature of the industry in which Duck Head and
the Comparable Public Companies are engaged. The value indications derived from
capitalization of the relevant performance fundamentals for Duck Head were
adjusted to reflect control value indications for Duck Head consistent with the
required standard of value. For the Comparable Transactions, Houlihan Lokey
analyzed apparel industry merger and acquisition transactions between 1998 and
1999 where financial information was publicly disclosed. Market multiples were
developed from sixteen comparable transactions, of which seven were 1999
transactions. From the application of market multiples, indications of value
were developed through the capitalization of the relevant performance
fundamentals of Duck Head. The derived value indications reflect control values
for Duck Head consistent with the fair values present and fair salable value
standard.
Discounted Cash Flow Approach. The Discounted Cash Flow Approach involved
an estimation of the present value of projected cash flows to be generated by
Duck Head. The projected debt-free cash flows were developed from forecasts
prepared by management of Duck Head. In addition to the respective cash flows
for the projected period 2000 to 2004, a determination of terminal values as of
June 30, 2004 was made based on the anticipated fair and salable values of Duck
Head at that time. In this case, the estimation of terminal values involved
using the market multiple approach already described above, where projected
fundamentals were capitalized based on selected multiples. Indications of value
were developed by applying an appropriate discount rate or cost of capital to
the projected cash flows and terminal value. The discount rate reflects the
degree of risk inherent in the assets of Duck Head and their ability to produce
the projected cash flows.
Cash Flow Test
The Cash Flow Test focuses on whether or not Duck Head should be able to
repay its debts as they become absolute and mature (including the debts incurred
in the Transaction). This test involves a two-step analysis of Duck Head's
financial projections, (i) examines the consistency of the projections with
historical performance, current marketing strategies and operating cost
structure; and (ii) tests the sensitivity of the projections to changes in key
variables, including revenue growth, operating margins and capital expenditures.
In testing cash flows, Houlihan Lokey performs sensitivity analyses to determine
the "safety margin" available to deal with unexpected downturns in Duck Head's
ability to generate operating cash flow.
Reasonable Capital Test
The Reasonable Capital Test follows from the Balance Sheet and Cash Flow
Tests. A company may have assets that exceed liabilities, but if the amount is
too small to provide some downside protection, the capital amount may not be
deemed to be adequate and, in such a situation, the business would fail the
Reasonable Capital Test. The determination as to whether the net assets
remaining with Duck Head constitute unreasonably small capital involves an
analysis of various factors, including, (i) the degree of sensitivity
demonstrated in the cash flow test; (ii) historical and expected volatility in
revenues, cash flow and capital expenditures; (iii) the adequacy of working
capital; (iv) historical and expected volatility of going-concern asset values;
(v) the maturity structure and the ability to refinance Duck Head's obligations;
(vi) the magnitude, timing and nature of identified contingent liabilities; and
(vii) the nature of the business and the impact of financial leverage on its
operations.
Solvency
Based upon the foregoing, and in reliance thereon, it is Houlihan Lokey's
opinion as of March 15, 2000 that, assuming the Transaction has been consummated
as proposed, immediately after and giving effect to the Transaction:
(i) on a pro forma basis, the fair value and present fair saleable
value of Duck Head's assets would exceed Duck Head's stated
liabilities and identified contingent liabilities;
(ii) Duck Head should be able to pay its debts as they become absolute
and mature; and
(iii)the capital remaining in Duck Head after the Transaction would
not be unreasonably small for the business in which Duck Head is
engaged, as management has indicated it is now conducted and is
proposed to be conducted following the consummation of the
Transaction.
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Assumptions and Limiting Conditions
Notwithstanding the use of the defined terms "fair value" and "present fair
saleable value", Houlihan Lokey has not been engaged to identify prospective
purchasers or to ascertain the actual prices at which and terms on which Duck
Head can currently be sold, and Houlihan Lokey knows of no such efforts by
others. Because the sale of any business enterprise involves numerous
assumptions and uncertainties, not all of which can be quantified or ascertained
prior to engaging in an actual selling effort, Houlihan Lokey expresses no
opinion as to whether Duck Head would actually be sold for the amount Houlihan
Lokey believes to be its fair value and present fair saleable value.
Houlihan Lokey has relied upon and assumed, without independent
verification, that the financial forecasts and projections provided to it have
been reasonably prepared and reflect the best currently available estimates of
the future financial results and condition of Duck Head, and that there has been
no material adverse change in the assets, financial condition, business or
prospects of Duck Head since the date of the most recent financial statements
made available to Houlihan Lokey.
Houlihan Lokey has not independently verified the accuracy and completeness
of the information supplied to it with respect to Duck Head, and does not assume
any responsibility with respect to it. Houlihan Lokey has not made any physical
inspection or independent appraisal of any of the properties or assets of Duck
Head. Houlihan Lokey's opinion is necessarily based on business, economic,
market and other conditions as they exist and can be evaluated by Houlihan Lokey
at the date of its opinion.
Houlihan Lokey's opinion is furnished solely for the benefit of the Delta
Woodside board and the Duck Head board and may not be relied upon by any other
person without Houlihan Lokey's prior written consent. Houlihan Lokey's opinion
is delivered to each recipient subject to the conditions, scope of engagement,
limitations and understandings set forth in its opinion and Houlihan Lokey's
engagement letter with Delta Woodside.
Advice of Prudential Securities
----------------------------------
Delta Woodside's board of directors received financial advice from
Prudential Securities regarding the issues surrounding the separation of the
apparel and textile fabric businesses. The points described above under the
heading "The Duck Head Distribution - Reasons for the Duck Head Distribution"
include the material factors discussed by Prudential Securities. Prudential
Securities also advised the Delta Woodside board regarding the issues
surrounding various alternatives to the Duck Head distribution and the Delta
Apparel distribution, including a sale of either or both of Duck Head or Delta
Apparel and a liquidation of either or both of Duck Head or Delta Apparel.
Prudential Securities' financial advice was based on its analysis of the trading
prices and trading multiples of approximately 14 textile and apparel companies
which Prudential Securities believed provided relevant comparisons. In addition,
Prudential Securities reviewed recent acquisitions, also deemed to provide
relevant comparisons, in the textile and apparel industries including the prices
paid and multiples of financial performance that those acquisitions implied.
Prudential Securities' advice regarding Delta Woodside's alternatives with
regard to Duck Head was also based on its review and understanding of prevailing
textile and apparel market conditions, as well as its review of Duck Head's
historical market performance.
Prudential Securities was not requested to, and did not, undertake the
types of analyses customary to deliver a financial opinion and did not deliver
any such opinion.
Pursuant to an engagement letter, Prudential Securities has been paid by
Delta Woodside an advisory fee of $500,000 for its services. Delta Woodside has
agreed to indemnify Prudential Securities for certain liabilities relating to or
arising from Prudential Securities' engagement by Delta Woodside. Prudential
Securities has also performed various investment banking services for Delta
Woodside in the past, and has received customary fees for those services.
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Prudential Securities is a nationally recognized investment banking firm
and, as a customary part of its investment banking activities, is regularly
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, private placements, and
valuations for corporate and other purposes. Delta Woodside selected Prudential
Securities because of its expertise, reputation and familiarity with Delta
Woodside. In the ordinary course of business, Prudential Securities and its
affiliates may actively trade or hold the securities and other instruments and
obligations of Delta Woodside for their own account and for the accounts of
customers and, accordingly, may at any time hold long or short positions in such
securities, instruments or obligations.
DESCRIPTION OF THE DUCK HEAD DISTRIBUTION
The distribution agreement among Delta Woodside, Duck Head and Delta
Apparel sets forth the general terms and conditions relating to, and the
relationship of the three corporations after, the Duck Head distribution. For
an extensive description of the distribution agreement, see the section of this
document found under the heading "Relationship Among Duck Head, Delta Woodside
and Delta Apparel--Distribution Agreement".
Delta Woodside plans to effect the Duck Head distribution on or about May
12, 2000 by distributing all of the issued and outstanding shares of Duck Head
common stock to the record holders of Delta Woodside common stock on the record
date for this transaction, which is April 28, 2000. Delta Woodside will
distribute one share of Duck Head common stock to each of those holders for
every ten shares of Delta Woodside common stock owned of record by that holder.
The actual total number of shares of Duck Head common stock that Delta Woodside
will distribute will depend on the number of shares of Delta Woodside common
stock outstanding on the record date. Based upon the one-for-ten Duck Head
distribution ratio, the number of shares of Delta Woodside common stock
outstanding on March 3, 2000 and the number of Delta Woodside shares to be
issued as described in "Interests of Directors and Executive Officers in the
Duck Head Distribution - Payments in Connection with Duck Head Distribution and
Delta Apparel Distribution", Delta Woodside will distribute approximately
2,400,000 shares of Duck Head common stock to holders of Delta Woodside common
stock, which will then constitute all of the outstanding shares of Duck Head
common stock. Duck Head common shares will be fully paid and nonassessable, and
the holders of those shares will not be entitled to preemptive rights. For a
further description of Duck Head common stock and the rights of its holders, see
the portion of this document located under the heading "Description of Duck Head
Capital Stock".
For those holders of Delta Woodside common stock who hold their shares of
Delta Woodside common stock through a stockbroker, bank or other nominee, Delta
Woodside's distribution agent, First Union National Bank, will transfer the
shares of Duck Head common stock to the registered holders of record who will
make arrangements to credit their customers' accounts with Duck Head common
stock. Delta Woodside anticipates that stockbrokers and banks generally will
credit their customers' accounts with Duck Head common stock on or about May 12,
2000.
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If a holder of Delta Woodside common stock owns a number of shares of Delta
Woodside common stock that is not a whole multiple of ten and therefore would be
entitled to receive a fraction of a whole share of Duck Head common stock, that
holder will receive cash instead of a fractional share of Duck Head common
stock. The distribution agent will aggregate into whole shares the fractional
shares to be cashed out and sell them as soon as practicable in the open market
at then prevailing prices on behalf of those registered holders who would
otherwise be entitled to receive less than whole shares. These registered
holders will receive a cash payment in the amount of their pro rata share of the
total proceeds of those sales, less any brokerage commissions. The distribution
agent will pay the net proceeds from sales of fractional shares based upon the
average selling price per share of Duck Head common stock of all of those sales,
less any brokerage commissions. Duck Head expects the distribution agent to
make sales on behalf of holders who would receive a fraction of a whole Duck
Head common share in the Duck Head distribution as soon as practicable after the
Duck Head distribution date. None of Delta Woodside, Duck Head or the
distribution agent guarantees any minimum sale price for those fractional shares
of Duck Head common stock, and no interest will be paid on the sale proceeds of
those shares.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material US federal income tax
consequences generally applicable to a Delta Woodside stockholder who is a US
Holder. The term "US Holder" means a beneficial owner of Delta Woodside shares
that is (i) a citizen or resident of the United States, (ii) a corporation,
partnership (other than certain partnerships as may be provided in the
applicable provisions of the US Treasury Regulations), or other entity created
or organized in or under the laws of the United States or of any political
subdivision thereof, (iii) an estate the income of which is subject to US
federal income taxation regardless of its source, (iv) a trust if (a) a US court
is able to exercise primary supervision over the trust's administration and (b)
one or more US persons have the authority to control all of the trust's
substantial decisions, or (v) otherwise subject to US federal income taxation on
a net income basis in respect of the Delta Woodside shares.
The following description is for general purposes only and is based on the
Internal Revenue Code of 1986, as amended from time to time (the "Code"), US
Treasury Regulations and judicial and administrative interpretations thereof,
all as in effect on the date of this document and all of which are subject to
change, possibly retroactively. The tax treatment of a US Holder may vary
depending upon the holder's particular situation. For instance, certain
holders, including, but not limited to, insurance companies, tax-exempt
organizations, financial institutions, persons subject to the alternative
minimum tax, dealers in securities or currencies, persons that have a
"functional currency" other than the US dollar or as part of a "hedging" or
"conversion" transaction for US federal income tax purposes and persons owning,
directly or indirectly, 5 percent or more of the Delta Woodside shares may be
subject to special rules not discussed below. The following summary is limited
to investors who hold the Delta Woodside shares as "capital assets" within the
meaning of Section 1221 of the Internal Revenue Code. The discussion below does
not address the effect of any other laws (including other federal, state, local
or foreign tax laws) on a US Holder of Delta Woodside shares. As such, the
summary does not discuss US federal estate and gift tax considerations or US
state and local tax considerations.
Delta Woodside has structured the Duck Head distribution and the Delta
Apparel distribution to qualify as tax-free spin offs for federal income tax
purposes under Section 355 of the Internal Revenue Code. Section 355 treats a
spin-off as tax free if the conditions of that statute are satisfied.
Delta Woodside has not sought a ruling from the US Internal Revenue Service
("IRS") regarding the Duck Head distribution or the Delta Apparel distribution,
in part because neither distribution satisfies all the conditions imposed by the
IRS for such a ruling. The fact that Delta Woodside is not eligible to receive a
private letter ruling from the IRS on the issue does not, however, in and of
itself, mean that the distributions do not qualify as tax-free spin-offs under
Section 355. Whether the Duck Head distribution and the Delta Apparel
distribution qualify under Section 355 as tax-free spin-offs will depend on
whether the criteria in Section 355 and the relevant rules and regulations of
the IRS are satisfied.
Delta Woodside has obtained an opinion from KPMG LLP that it is more likely
than not that the each of the Duck Head distribution and the Delta Apparel
distribution qualifies as tax-free under Code Section 355.
Material Federal Income Tax Consequences if the Duck Head Distribution and
---------------------------------------------------------------------------
the Delta Apparel Distribution Qualify as Tax-Free Spin-Offs under Code
---------------------------------------------------------------------------
Section 355
-----------
If the Duck Head distribution and the Delta Apparel distribution qualify as
tax-free spin-offs under Code Section 355, then:
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1. The US Holders of Delta Woodside stock who receive those shares will not
recognize gain upon either of the distributions, except as described
immediately below with respect to fractional shares.
2. Cash, if any, received by a US Holder of Delta Woodside stock instead of a
fractional share of Duck Head common stock or Delta Apparel common stock
will be treated as received in exchange for that fractional share. That US
Holder will recognize gain or loss to the extent of the difference between
his, her or its tax basis in that fractional share and the amount received
for that fractional share, and, provided that fractional share is held as a
capital asset, the gain or loss will be capital gain or loss.
3. Each US Holder of Delta Woodside stock will be required to apportion his,
her or its tax basis in the US Holder's Delta Woodside shares between the
Delta Woodside shares retained and the Duck Head shares and Delta Apparel
shares received, with this apportionment to be made in proportion to the
shares' relative fair market values for federal income tax purposes
immediately after the distributions.
4. The holding period for the Duck Head shares and the Delta Apparel shares
received by a US Holder in the distributions will be the same as the US
Holder's holding period for the Delta Woodside shares with respect to which
the Duck Head distribution and the Delta Apparel distributions are made.
5. No gain or loss will be recognized by Delta Woodside with respect to the
Duck Head distribution or the Delta Apparel distribution, except to the
extent of any excess loss accounts or deferred intercompany gains.
Delta Woodside anticipates that in connection with the distributions
Delta Woodside will recognize gain as a result of deferred intercompany gains,
but that this gain will be offset by Delta Woodside's net operating losses.
US Treasury Regulations Section 1.355-5 requires that each US Holder that
receives Duck Head shares in the Duck Head distribution and Delta Apparel shares
pursuant to the Delta Apparel distribution attach a statement to his, her or its
US federal income tax return for the taxable year in which the distributions
occur, showing the applicability of Code Section 355 to the Duck Head
distribution and the Delta Apparel distribution. US Holders should consult
their own tax advisors regarding these disclosure requirements.
As noted above, Delta Woodside has not sought a ruling from the IRS
regarding the Duck Head distribution or the Delta Apparel distribution. The
fact that no ruling has been sought should not be construed as an indication
that the IRS would necessarily reach a different conclusion regarding the Duck
Head distribution or the Delta Apparel distribution than the conclusion set out
in the opinion of KPMG LLP. The opinion of KPMG LLP referred to in this
description is not binding upon the IRS, any other tax authority or any court,
and no assurance can be given that a position contrary to those expressed in the
opinion of KPMG LLP will be not asserted by the tax authority and ultimately
sustained by a court of law.
Material Federal Income Tax Consequences if the Duck Head Distribution and
---------------------------------------------------------------------------
the Delta Apparel Distribution Do Not Qualify as Tax-Free Spin-Offs under
---------------------------------------------------------------------------
Section 355
-----------
If the Duck Head distribution and the Delta Apparel distribution do not
qualify as tax-free spin-offs under Section 355, then the following are the
material federal income tax consequences to each participating Delta Woodside
stockholder and to Delta Woodside:
1. Each Delta Woodside stockholder will recognize dividend income to the
extent of the lesser of (a) the value of the Duck Head shares and the Delta
Apparel shares received (together with any cash received for any fractional
share) or (b) the stockholder's pro rata share of the accumulated earnings
and profits of Delta Woodside for federal income tax purposes through the
end of fiscal year 2000. This dividend income will not reduce any Delta
Woodside stockholder's basis in his, her or its Delta Woodside shares.
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a. The fair market value for federal income tax purposes of the Duck Head
shares and the Delta Apparel shares received by the Delta Woodside
stockholders in the distributions will depend on the trading prices of
the Duck Head shares and the Delta Apparel shares around the time of
the distribution. Delta Woodside is not able at this time to predict
what those values will be.
b. Delta Woodside's accumulated earnings and profits through fiscal year
1999 were approximately $15.4 million (approximately $0.64 per Delta
Woodside share). The amount, if any, of Delta Woodside's earnings and
profits for fiscal year 2000 cannot be determined at this time.
2. Any value of the Duck Head shares and Delta Apparel shares (together with
any cash received for any fractional share) that exceeds the Delta Woodside
stockholder's pro rata share of Delta Woodside's accumulated earnings and
profits through fiscal year 2000 will constitute a return of capital to
that stockholder (i.e. the stockholder will not be taxed on that value) up
to the stockholder's basis in his, her or its Delta Woodside shares, and
the stockholder's basis in his, her or its Delta Woodside shares will be
reduced accordingly. Any remaining value of the Duck Head shares and Delta
Apparel shares (together with any cash received for any fractional share)
in excess of the Delta Woodside stockholder's basis in his, her or its
Delta Woodside shares will be taxable to the Delta Woodside stockholder as
gain, which will be capital gain if the Delta Woodside stock is held as a
capital asset. This capital gain will be taxable as either long-term or
short-term capital gain, depending upon the stockholder's holding period
for those Delta Woodside shares.
3. The Delta Woodside stockholder's tax basis in the Duck Head shares and the
Delta Apparel shares received in the distributions will be equal to the
fair market value for federal income tax purposes of those shares at the
time of the distributions. The stockholder's holding period for those
shares will begin on the date of the distributions.
4. The Duck Head distribution and the Delta Apparel distribution will also be
taxable as a gain to Delta Woodside, to the extent of the excess of the
value for federal income tax purposes of the Duck Head shares and the Delta
Apparel shares distributed over their tax bases to Delta Woodside. Delta
Woodside believes that any federal income tax liability to it resulting
from the Duck Head distribution and the Delta Apparel distribution will not
be material, because any applicable recognized income will be offset by
Delta Woodside's net operating losses. Any gain recognized by Delta
Woodside on the Duck Head distribution or the Delta Apparel distribution
will increase the fiscal year 2000 earnings and profits. Delta Woodside
cannot at this time calculate the amount of this gain because it is unable
to forecast what the initial trading prices will be for the Duck Head
shares or the Delta Apparel shares, which will be the federal income tax
values of the Duck Head shares and the Delta Apparel shares for purposes of
this calculation.
THE FOREGOING IS A GENERAL DISCUSSION AND IS NOT INTENDED TO SERVE AS
SPECIFIC ADVICE FOR ANY PARTICULAR DELTA WOODSIDE STOCKHOLDER, SINCE THE TAX
CONSEQUENCES OF THE DUCK HEAD DISTRIBUTION AND THE DELTA APPAREL DISTRIBUTION
TO EACH STOCKHOLDER WILL DEPEND UPON THAT STOCKHOLDER'S OWN PARTICULAR
CIRCUMSTANCES. EACH STOCKHOLDER SHOULD CONSULT HIS, HER OR ITS OWN ADVISORS AS
TO THE FEDERAL, FOREIGN, STATE AND LOCAL TAX CONSEQUENCES TO THAT STOCKHOLDER OF
THE DUCK HEAD DISTRIBUTION AND THE DELTA APPAREL DISTRIBUTION.
KPMG LLP is an internationally recognized accounting, tax and consulting
firm and, as a customary part of its tax practice, is regularly engaged to
provide opinions on the federal income tax consequences of merger and
acquisition transactions. Delta Woodside selected KPMG LLP because of its
expertise and its familiarity with Delta Woodside, Duck Head and Delta Apparel.
In the past, KPMG LLP has acted as the independent auditor of Delta Woodside's
financial statements and as its tax advisor. KPMG LLP has also provided various
consulting services to Delta Woodside. KPMG LLP has received customary fees for
those services.
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Pursuant to an engagement letter, Delta Woodside has agreed to pay KPMG LLP
a fee of $250,000 in connection with the preparation and delivery of its opinion
on the federal income tax consequences of the Duck Head and Delta Apparel
distributions. Delta Woodside has agreed to indemnify KPMG LLP for certain
liabilities related to, arising out of or in connection with KPMG LLP's
engagement by Delta Woodside.
Net Operating Loss Carry Forwards
-------------------------------------
As of July 3, 1999, Delta Woodside had net operating loss carry forwards,
for federal income tax purposes, of approximately $68 million. Following the
Duck Head distribution and the Delta Apparel distribution and assuming the
distributions are tax-free pursuant to section 355, approximately $56 million of
this net operating loss carry forward will remain as a tax attribute of Delta
Woodside as of July 3, 1999 ($10 million of which will be subject to limitation
under the separate return limitation rules), approximately $3 million will
be a tax attribute of Duck Head as of July 3, 1999 and approximately $9 million
will be a tax attribute of Delta Apparel as of July 3, 1999. Duck Head's and
Delta Apparel's Federal net operating losses will expire at various dates in
fiscal years 2011 through 2019.
Prior to the Duck Head distribution and the Delta Apparel distribution, the
Duck Head Apparel Company division and the Delta Apparel Company division were
part of the Delta Woodside consolidated group, and the net operating losses of
any member of the Delta Woodside consolidated group were generally available to
reduce the consolidated federal taxable income of the group. For financial
reporting purposes, prior to the Duck Head distribution and the Delta Apparel
distribution each of Duck Head and Delta Apparel carries "deferred tax assets"
on its balance sheet to reflect, among other matters, the financial impact of
their respective hypothetical separate company net operating loss carry
forwards. For federal income tax purposes, however, tax attributes, such as
net operating loss carry forwards, remain with the corporate entity, not the
division, that generated them. Therefore, with the Duck Head distribution and
the Delta Apparel distribution, tax attributes, including the Delta Woodside
consolidated federal net operating loss carry forward, will be allocated among
Delta Woodside, Duck Head and Delta Apparel in accordance with the federal
consolidated return regulations.
The pro forma balance sheet of Duck Head that is included under the heading
"Unaudited Pro Forma Combined Financial Statements" reflects Duck Head's
expected allocable portion of the pre-distribution Delta Woodside consolidated
federal net operating loss carry forward.
ACCOUNTING TREATMENT
The Duck Head distribution and the Delta Apparel distribution will be
accounted for in accordance with United States generally accepted accounting
principles. Accordingly, the Duck Head distribution will be accounted for by
Delta Woodside based on the recorded amounts of the net assets being spun-off.
Delta Woodside will charge directly to equity as a dividend the historical cost
carrying amount of the net assets of Duck Head.
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TRADING MARKET
As of the Duck Head record date, all of the outstanding shares of Duck Head
were owned by an indirect wholly-owned subsidiary of Delta Woodside. As of that
date, there were approximately 2,500 record holders of the common stock of Delta
Woodside. As a result of the Duck Head distribution ratio of one Duck Head
share for ten Delta Woodside shares, Duck Head anticipates that, upon the Duck
Head distribution, there will be approximately 1,500 record holders of Duck Head
shares.
Before the Duck Head distribution, there has been no trading market for
Duck Head common stock, and there can be no assurances that an active trading
market for the Duck Head shares will develop or be sustained in the future.
Before the Duck Head distribution, Duck Head will apply to The American Stock
Exchange to approve shares of Duck Head's common stock for listing, subject to
official notice of issuance. If this application is not approved, Duck Head
expects that the Duck Head shares will trade in the over-the-counter market.
Duck Head also anticipates that a "when-issued" trading market will develop in
its common stock before the Duck Head distribution date.
Duck Head cannot predict the prices at which its common stock may trade,
either before the Duck Head distribution on a "when-issued" basis or after the
Duck Head distribution. Until an orderly market develops, if at all, the
trading prices of that stock may fluctuate significantly. In addition, the
trading prices of the Delta Woodside shares have fluctuated significantly and
Duck Head believes that the trading prices of its shares are likely to be
subject to similar significant fluctuations. The marketplace will determine the
trading prices of Duck Head common stock. Many factors may influence those
prices. These factors may include, among others, the depth and liquidity of the
market for the Duck Head shares, analyst coverage of and interest in the Duck
Head shares, quarter-to-quarter variations in Duck Head's actual or anticipated
financial results, investor perceptions of the apparel industry and general
conditions in the U.S. equity markets. For a description of some of the factors
that may impact the prices at which the Duck Head shares may trade, see the
section of this document found under the heading "Risk Factors".
The Duck Head shares received in the Duck Head distribution will be freely
transferable, except for those shares received by any person who may be deemed
to be a Duck Head "affiliate" within the meaning of Rule 144 under the
Securities Act of 1933. Persons who may be deemed to be Duck Head affiliates
after the Duck Head distribution generally will be individuals or entities that
directly, or indirectly through one or more intermediaries, control, are
controlled by or are under common control with Duck Head. Generally, Duck Head
affiliates may sell their Duck Head shares received in the Duck Head
distribution only under an effective registration statement under the Securities
Act of 1933 or pursuant to Rule 144, which contains volume and manner of sale
limitations on such sales.
At the time of the Duck Head distribution, the only outstanding equity
securities of Duck Head will be the approximately 2,400,000 shares being
distributed. As described below under the heading "Interests of Directors and
Executive Officers in the Duck Head Distribution":
- Robert D. Rockey, Jr. has the right to acquire up to 1,000,000 Duck
Head shares from Duck Head on the date that is six months after the
Duck Head distribution; and
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- Duck Head anticipates that, during the first six months after the Duck
Head distribution, it will grant stock options under its stock option
plan and incentive stock awards under its incentive stock award plan
to its executive officers. Duck Head may grant additional stock
options and incentive stock awards during that period to other
employees of Duck Head and may grant additional stock options and
incentive stock awards in the future to its executive officers and
other employees. Duck Head shares issued upon exercise of stock
options granted under the stock option plan or awards granted under
the incentive stock award plan will be registered on a Registration
Statement on Form S-8 under the Securities Act of 1933 and will
therefore generally be freely transferable under the securities laws,
except by affiliates as described above. See "Interests of Directors
and Executive Officers in the Duck Head Distribution - Receipt of Duck
Head Stock Options and Duck Head Incentive Stock Awards".
Except as described above and except for the rights agreement which is
discussed below under the heading "Description of Duck Head Capital Stock-Rights
Plan", Duck Head will not have any other securities outstanding as of or
immediately after the Duck Head distribution, and Duck Head has not entered into
any agreement or otherwise committed to register any Duck Head shares under the
Securities Act of 1933 for sale by security holders.
42
<PAGE>
RELATIONSHIPS AMONG DUCK HEAD,
DELTA WOODSIDE AND DELTA APPAREL
This section describes the primary agreements among Duck Head, Delta
Woodside and Delta Apparel that will define the ongoing relationships among them
and their respective subsidiaries after the Duck Head distribution and is
expected to provide for the orderly separation of the three companies. The
following description of the distribution agreement and the tax sharing
agreement summarizes the material terms of those agreements. Duck Head has
filed those agreements as exhibits to its Registration Statement on Form 10
filed with the Securities and Exchange Commission. This document is a part of
that registration statement.
DISTRIBUTION AGREEMENT
Duck Head has entered into a distribution agreement with Delta Woodside and
Delta Apparel as of March 15, 2000. The distribution agreement provides for the
procedures for effecting the Duck Head distribution and the Delta Apparel
distribution. For this purpose, as summarized below, the distribution agreement
provides for the principal corporate transactions and procedures for separating
the Duck Head Apparel Company division's business and the Delta Apparel Company
division's business from each other and the rest of Delta Woodside. Also, as
summarized below, the distribution agreement defines the relationships among
Duck Head, Delta Woodside and Delta Apparel after the Duck Head distribution
with respect to, among other things, indemnification arrangements and employee
benefit arrangements.
Intercompany reorganization
----------------------------
The distribution agreement provides, that, no later than the time the Duck
Head distribution occurs, Delta Woodside, Duck Head and Delta Apparel will have
caused the following to have been effected:
(a) Delta Woodside will have contributed, as contributions to capital, all
net debt amounts owed to it by the corporations that currently conduct
the Duck Head Apparel Company division's business and the Delta
Apparel Company division's business. The Duck Head Apparel Company
division's assets are currently owned by Delta Woodside and several of
its wholly-owned subsidiaries. The Delta Apparel Company division's
assets are currently owned by several of Delta Woodside's wholly-owned
subsidiaries.
(b) All the assets used in the operations of the Duck Head Apparel Company
division's business will have been transferred to Duck Head or a
subsidiary of Duck Head to the extent not already owned by Duck Head
or its subsidiaries.
(c) Duck Head will have assumed all of the liabilities of the Duck Head
Apparel Company division of Delta Woodside, and will have caused all
holders of indebtedness for borrowed money that are part of the
assumed Duck Head liabilities and all lessors of leases that are part
of the assumed Duck Head liabilities to agree to look only to Duck
Head or a subsidiary of Duck Head for payment of that indebtedness or
lease (except where Delta Woodside or Delta Apparel, as applicable,
consents to not being released from the obligations).
(d) All the assets used in the operations of the Delta Apparel Company
division's business will have been transferred to Delta Apparel or a
subsidiary of Delta Apparel to the extent not already owned by Delta
Apparel or its subsidiaries. This transfer will include the sale by
Delta Mills to Delta Apparel of the Rainsford Plant, located in
Edgefield, SC.
43
<PAGE>
(e) Delta Apparel will have assumed all of the liabilities of the Delta
Apparel Company division of Delta Woodside, and will have caused all
holders of indebtedness for borrowed money that are part of the
assumed Delta Apparel liabilities and all lessors of leases that are
part of the assumed Delta Apparel liabilities to agree to look only to
Delta Apparel or a subsidiary of Delta Apparel for payment of that
indebtedness or lease (except where Delta Woodside or Duck Head, as
applicable, consents to not being released from the obligations).
(f) Delta Woodside will have caused all holders of indebtedness for
borrowed money and all lessors of leases that are not part of the
liabilities assumed by Duck Head or the liabilities assumed by Delta
Apparel to agree to look only to Delta Woodside or a remaining
subsidiary of Delta Woodside for payment of that indebtedness or lease
(except where Duck Head or Delta Apparel, as applicable, consents to
not being released from the obligations).
Indemnification
---------------
Each of Delta Woodside, Duck Head and Delta Apparel has agreed to indemnify
each other and their respective directors, officers, employees and agents
against any and all liabilities and expenses incurred or suffered that arise out
of or pertain to:
(a) any breach of the representations and warranties made by it in the
distribution agreement;
(b) any breach by it of any obligation under the distribution agreement;
(c) the liabilities assumed or retained by it under the distribution
agreement; or
(d) any untrue statement or alleged untrue statement of a material fact or
omission or alleged omission of a material fact contained in any of
its disclosure documents filed by it with the SEC, except insofar as
the misstatement or omission was based upon information furnished to
the indemnifying party by the indemnified party.
Employee Matters
-----------------
Delta Woodside will cause the employees of the Duck Head Apparel Company
division to become employees of Duck Head, Duck Head will assume the accrued
employee benefits of these employees and Delta Woodside will cause the account
balance of each of these employees in any and all of Delta Woodside's employee
benefit plans (other than the Delta Woodside stock option plan) to be
transferred to a comparable employee benefit plan of Duck Head.
Intercompany Accounts
----------------------
Other than any amounts owed under the tax sharing agreement and except as
provided in the distribution agreement, generally all intercompany receivable,
payable and loan balances existing as of the time of the Duck Head distribution
between Duck Head, on the one hand, and Delta Apparel or Delta Woodside, on the
other hand, will be deemed to have been paid in full by the party or parties
owing the relevant obligation.
Transaction Expenses
---------------------
44
<PAGE>
Generally, all costs and expenses incurred in connection with the Duck Head
distribution, the Delta Apparel distribution and related transactions shall be
paid by Delta Woodside, Duck Head and Delta Apparel proportionately in
accordance with the respective benefits received by Delta Woodside, Duck Head
and Delta Apparel as determined in good faith by the parties; provided that the
holders of the Delta Woodside shares shall pay their own expenses, if any,
incurred in connection with the Duck Head distribution and the Delta Apparel
distribution.
TAX SHARING AGREEMENT
Duck Head will enter into a tax sharing agreement with Delta Woodside and
Delta Apparel that will describe, among other things, each company's rights and
obligations relating to tax payments and refunds for periods before and after
the Duck Head distribution and related matters like the filing of tax returns
and the handling of audits and other tax proceedings. The tax sharing agreement
also describes the indemnification arrangements with respect to tax matters
among Duck Head and its subsidiaries (which this document refers to as the Duck
Head tax group), Delta Woodside and its subsidiaries after the Duck Head
distribution and the Delta Apparel distribution (which this document refers to
as the Delta Woodside tax group) and Delta Apparel and its subsidiaries (which
this document refers to as the Delta Apparel tax group).
Under the tax sharing agreement, the allocation of tax liabilities and
benefits is generally as follows:
- With respect to federal income taxes:
(a) For each taxable year that ends prior to the Duck Head
distribution, Delta Woodside shall be responsible for paying any
increase in federal income taxes, and shall be entitled to
receive the benefit of any refund of or saving in federal income
taxes, that results from any tax proceeding with respect to any
returns relating to federal income taxes of the Delta Woodside
consolidated federal income tax group.
(b) For the taxable period ending on the date of the Duck Head
distribution, Delta Woodside shall be responsible for paying any
federal income taxes, and shall be entitled to any refund of or
saving in federal income taxes, with respect to the Delta
Woodside consolidated federal income tax group.
- With respect to state income, franchise or similar taxes, for each
taxable period that ends prior to or on the date of the Duck Head
distribution, each corporation that is a member of the Delta Woodside
tax group, the Delta Apparel tax group or the Duck Head tax group
shall be responsible for paying any of those state taxes, and any
increase in those state taxes, and shall be entitled to receive the
benefit of any refund of or saving in those state taxes, with respect
to that corporation (or any predecessor by merger of that corporation)
or that results from any tax proceeding with respect to any returns
relating to those state taxes of that corporation (or any predecessor
by merger of that corporation).
- With respect to federal employment taxes:
(a) Delta Woodside shall be responsible for the federal employment
taxes payable with respect to the compensation paid, whether
before, on or after the date of the Duck Head distribution, by
any member of the Delta Woodside federal income tax consolidated
group for any period ending prior to or on the date of the Duck
Head distribution or by any member of the Delta Woodside tax
group for any period after that date to all individuals who are
past or present employees of any business of Delta Woodside other
than the business of Duck Head or the business of Delta Apparel.
45
<PAGE>
(b) Delta Apparel shall be responsible for the federal employment
taxes payable with respect to the compensation paid, whether
before, on or after the date of the Delta Apparel distribution,
by any member of the Delta Woodside federal income tax
consolidated group for any period ending prior to or on the date
of the Delta Apparel distribution or by any member of the Delta
Apparel tax group for any period after that date to all
individuals who are past or present employees of the business of
Delta Apparel.
(c) Duck Head shall be responsible for the federal employment taxes
payable with respect to the compensation paid, whether before, on
or after the date of the Duck Head distribution, by any member of
the Delta Woodside federal income tax consolidated group for any
period ending prior to or on the date of the Duck Head
distribution or by any member of the Duck Head tax group for any
period after that date to all individuals who are past or present
employees of the business of Duck Head.
- With respect to any taxes, other than federal employment taxes,
federal income taxes and state income, franchise or similar taxes:
(a) Delta Woodside shall be responsible for any of these taxes,
regardless of the time period or circumstance with respect to
which the taxes are payable, arising from or attributable to any
business of Delta Woodside other than the business of Duck Head
or the business of Delta Apparel;
(b) Delta Apparel shall be responsible for any of these taxes,
regardless of the time period or circumstance with respect to
which the taxes are payable, arising from or attributable to the
business of Delta Apparel; and
(c) Duck Head shall be responsible for any of these taxes, regardless
of the time period or circumstance with respect to which the
taxes are payable, arising from or attributable to the business
of Duck Head.
- The Delta Woodside tax group shall be responsible for all taxes, and
shall receive the benefit of all tax items, of any member of the Delta
Woodside tax group that relate to any taxable period after the Duck
Head distribution. The Delta Apparel tax group shall be responsible
for all taxes, and shall receive the benefit of all tax items, of any
member of the Delta Apparel tax group that relate to any taxable
period after the Delta Apparel distribution. The Duck Head tax group
shall be responsible for all taxes, and shall receive the benefit of
all tax items, of any member of the Duck Head tax group that relate to
any taxable period after the Duck Head distribution.
Under the tax sharing agreement, the Duck Head tax group and the Delta
Apparel tax group have irrevocably designated Delta Woodside as their agent for
purposes of taking a broad range of actions in connection with taxes for
pre-distribution periods. Those actions include the settlement of tax audits and
other tax proceedings. In addition, the tax sharing agreement provides that all
disagreements and disputes relating to the agreement are to be resolved by Delta
Woodside. These arrangements may result in conflicts of interest among duck
head, Delta Woodside and Delta Apparel concerning such matters as whether a tax
relates to the business of Delta Woodside, Duck Head or Delta Apparel. Delta
Woodside might determine that a tax was a liability of duck head even though
duck head disagreed with that determination.
Under the tax sharing agreement, the Duck Head tax group, the Delta
Woodside tax group and the Delta Apparel tax group have agreed to indemnify one
another against various tax liabilities, generally in accordance with the
allocation of tax liabilities and benefits described above.
46
<PAGE>
OTHER RELATIONSHIPS
Boards of Directors of Duck Head, Delta Woodside and Delta Apparel
---------------------------------------------------------------------------
The following directors of Duck Head are also directors of Delta Woodside
and Delta Apparel: William F. Garrett, C. C. Guy, Dr. James F. Kane, Dr. Max
Lennon, E. Erwin Maddrey, II, Buck A. Mickel and Bettis C. Rainsford. In the
event that any material issue were to arise between Duck Head, on the one hand,
and either Delta Woodside or Delta Apparel, on the other hand, these directors
could be deemed to have a conflict of interest with respect to that issue. In
that circumstance, Duck Head anticipates that it will proceed in a manner that
is determined by a majority of those members of Duck Head's board of directors
who are not also members of the board of directors of Delta Woodside or the
board of directors of Delta Apparel (as applicable).
Principal Stockholders
-----------------------
The Duck Head shares will be distributed in the Duck Head distribution, and
the Delta Apparel shares will be distributed in the Delta Apparel distribution,
to the Delta Woodside stockholders proportionately among the Delta Woodside
shares. Therefore, immediately following the Duck Head distribution, Delta
Woodside's principal stockholders will be the same individuals and entities as
Duck Head's and Delta Apparel's principal stockholders, and those principal
stockholders will have the same respective percentages of outstanding beneficial
ownership in each of Delta Woodside, Duck Head and Delta Apparel (assuming no
acquisitions or dispositions of shares by those stockholders between the record
date for the Duck Head distribution or the Delta Apparel distribution and the
completion of either distribution). See "Security Ownership of Significant
Beneficial Owners and Management".
Sales to and Purchases from Delta Woodside or Delta Apparel of Goods or
- --------------------------------------------------------------------------------
Manufacturing Services
- -----------------------
In the ordinary course of Duck Head's business, Duck Head has produced
T-shirts for Delta Apparel, purchased T-shirts from Delta Apparel and purchased
fabrics from Delta Mills. The following table shows these transactions for the
last three fiscal years and for the first six months of fiscal year 2000:
<TABLE>
<CAPTION>
(in thousands of dollars)
Fiscal year First six months
------------------ ----------------
of
1997 1998 1999 Fiscal year 2000
----- ----- ---- ----------------
<S> <C> <C> <C> <C>
Sold to Delta Apparel 653 132 -- --
Purchased from Delta Apparel 403 156 481 6
Purchased from Delta Mills 3,338 1,824 662 --
</TABLE>
All of these T-shirt and fabric sales were made at prices deemed by Duck
Head to approximate market value.
Duck Head anticipates that any future sales or purchases to or from Delta
Woodside or Delta Apparel in the future will not be material.
Management Services
--------------------
47
<PAGE>
Delta Woodside has provided various services to the operating divisions of
its subsidiaries, including the Delta Mills Marketing Company, Duck Head Apparel
Company and Delta Apparel Company divisions. These services include financial
planning, SEC reporting, payroll, accounting, internal audit, employee benefits
and services, stockholder services, insurance, treasury, purchasing, management
information services and tax accounting. These services have been charged on
the basis of Delta Woodside's cost and allocated to the various divisions based
on employee headcount, computer time, projected sales and other criteria.
During fiscal years 1997, 1998, and 1999, Delta Woodside charged the Duck
Head Apparel Company division $772,000, $882,000 and $777,000, respectively, for
these services. During the first six months of fiscal year 2000, Delta Woodside
charged the Duck Head Apparel Company division $0 for these services.
Other
-----
For further information on transactions with affiliates by Duck Head, see
Notes 2 and 8 to the Combined Financial Statements of Duck Head under "Index to
Combined Financial Statements" in this document, which information is
incorporated into this section by reference.
Any transaction entered into between Duck Head and any officer, director,
principal stockholder or any of their affiliates has been on terms that Duck
Head believes are comparable to those that would be available to Duck Head from
non-affiliated persons.
48
<PAGE>
CAPITALIZATION
The following table sets forth at January 1, 2000: (1) the capitalization
of Duck Head, and (2) the pro forma capitalization of Duck Head to give effect
to the transactions described under the portion of this document found under the
heading "The Duck Head Distribution". You should read this table in conjunction
with the information located under the heading "Unaudited Pro Forma Combined
Financial Statements" and the condensed combined financial statements of Duck
Head and related notes as of January 1, 2000 and for the six months ended
January 1, 2000, included on pages 50-55 and F-19 - F-23, respectively, of this
document.
<TABLE>
<CAPTION>
As of
JANUARY 1, 2000
------------------------
Actual Pro Forma
------------ ----------
<S> <C> <C>
Long-term debt, including current maturities:
Capital lease obligations $ 84 84
Mortgage loan payable 6,289 5,760
Due to parent and affiliates 115,517 ---
------------ ----------
Total long-term debt 121,890 5,844
(including current maturities)
Less current maturities (98,684) (1,016)
------------ ----------
Total long-term debt 23,206 4,828
(excluding current maturities)
Stockholders' equity
(deficit):
Preferred stock, 2,000,000 shares authorized; none issued
and outstanding --- ---
Common stock, $0.01 par value; 9,000,000 shares authorized;
2,400,000 shares issued and outstanding on a pro forma basis --- 24
Additional paid-in capital --- 22,748
Divisional deficit (96,610) ---
------------ ----------
Total stockholders'
equity (deficit) (96,610) 22,772
------------ ----------
Total capitalization $ (73,404) 27,600
============ ==========
</TABLE>
49
<PAGE>
UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
The following unaudited pro forma combined financial information has been
prepared from and should be read in conjunction with the historical financial
statements and the notes to those statements of Duck Head included in this
document at pages F-1 to F-23.
The unaudited pro forma combined balance sheet has been prepared to give
effect to the following transactions as if they occurred on January 1, 2000:
- The contribution to equity of the intercompany debt owed by Duck Head
to Delta Woodside and subsidiaries and the distribution of Duck Head
common stock to the existing Delta Woodside stockholders;
- The incurrence of new financing; and
- The contribution of $6.8 million of cash by Delta Woodside to Duck
Head to fund the repayment of Duck Head's existing mortgage debt.
The unaudited pro forma combined statements of operations for the year
ended July 3, 1999 and for the six months ended January 1, 2000 give effect to
the following transactions as if they had occurred at the beginning of the
fiscal year ended July 3, 1999:
- The decreased interest expense attributable to the contribution to
equity of the intercompany debt and borrowings utilizing outside
financing;
- The elimination of the intercompany management fees and the incurrence
by Duck Head of costs to replace services previously performed by
Delta Woodside; and
- The distribution of Duck Head common stock to the existing Delta
Woodside stockholders.
Duck Head believes that the assumptions used provide a reasonable basis on
which to present the unaudited pro forma combined financial statements. Duck
Head is providing the unaudited pro forma combined financial statements to you
for informational purposes only. You should not construe them to be indicative
of Duck Head's results of operations or financial position had the transactions
and events described above been consummated on the dates assumed. These pro
forma combined financial statements also do not project the results of
operations or financial position for any future period or date.
50
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JANUARY 1, 2000
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS AS ADJUSTED
------------ --------------- ------------
(IN THOUSANDS, EXCEPT FOR SHARE DATA)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash $ 179 6,300 (1)(3) 6,479
Accounts receivable 3,995 3,995
Affiliate receivables 3,198 (3,198)(2) ---
Inventories 16,211 16,211
Prepaid expenses and other current assets 256 256
Total current assets 23,839 3,102 26,941
Property, plant and equipment, net 9,948 9,948
------------ --------------- ------------
$ 33,787 3,102 36,889
============ =============== ============
LIABILITIES AND STOCKHOLDERS'/DIVISIONAL EQUITY (DEFICIT)
Current liabilities:
Accounts payable $ 2,692 2,692
Accrued expenses 3,944 3,944
Current portion of long-term debt 6,289 (5,329)(1)(3) 960
Current portion of capital leases 56 56
Due to Parent and affiliates 92,339 (92,339)(2) ---
Income taxes payable 1,081 (234)(4) 847
------------ --------------- ------------
Total current liabilities 106,401 (97,902) 8,499
Long-term debt --- 4,800 (3) 4,800
Long-term portion of capital leases 28 28
Due to Parent 23,178 (23,178)(2) ---
Other liabilities 790 790
------------ --------------- ------------
Total liabilities 130,397 (116,280) 14,117
STOCKHOLDERS'/DIVISIONAL EQUITY (DEFICIT)
Preferred stock, 2,000,000 shares authorized; none
issued and outstanding --- ---
Common stock, $0.01 par value; 9,000,000
shares authorized; 2,400,000 issued and
outstanding --- 24(2) 24
Additional paid in capital --- 22,748(2) 22,748
Divisional deficit (96,610) 96,610(2) --
------------ --------------- ------------
Total stockholders'/divisional equity (deficit) (96,610) 119,382 22,772
------------ --------------- ------------
LIABILITIES AND STOCKHOLDERS'/DIVISIONAL EQUITY
(DEFICIT) $ 33,787 3,102 36,889
============ =============== ============
</TABLE>
See notes to unaudited pro forma combined financial statements.
51
<PAGE>
NOTES TO UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JANUARY 1, 2000
(in thousands of dollars, unless otherwise noted)
The following is a summary of the adjustments reflected in the unaudited pro
forma combined balance sheet:
1) To reflect the receipt of the contribution of cash by Delta Woodside to
Duck Head of $6.8 million of which $6.3 million is used to fund the
repayment of its existing mortgage debt of 6.3 million.
2) To reflect the contribution to equity of net intercompany debt owed by Duck
Head to Delta Woodside and subsidiaries totaling $112,319 and the
distribution of 2,400,000 Duck Head common shares to Delta Woodside's
existing stockholders.
3) To reflect the incurrence of the term loan of $5.8 million under Duck
Head's new credit facility.
4) To reflect estimated tax liability.
5) Duck Head has a commitment from a financial institution lender to obtain a
term loan at an interest rate similar to the Duck Head's bank mortgage loan
on its Winder, Georgia office and distribution center that was outstanding
on January 1, 2000.
52
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE FISCAL YEAR ENDED JULY 3, 1999
PROFORMA PRO FORMA
HISTORICAL ADJUSTMENTS AS ADJUSTED
------------ ------------ ------------------
(IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
<S> <C> <C> <C>
Net sales $ 70,642 70,642
Cost of goods sold (62,468) (62,468)
------------ ------------------
Gross Profit 8,174 8,174
Selling, general and administrative expenses (34,005) (34,005)
Intercompany management fees (777) 179(2) (598)
Impairment charges (13,650) (13,650)
Royalty and other income 1,027 1,027
------------ ------------ ------------------
Operating loss (39,231) 179 (39,052)
Interest income (expense):
Interest expense, net (960) (945)(1) (1,905)
Intercompany interest expense (7,262) 7,262(1) ---
------------ ------------ ------------------
(8,222) 6,317 (1,905) (1,905)
------------ ------------ ------------------
Loss before taxes (47,453) 6,496 (40,957)
Income tax benefit (261) (261)
------------ ------------ ------------------
Net loss (47,714) 6,496 (41,218)
============ ============ ==================
Basic and diluted net loss per share $ (17.17)
==================
Weighted average shares outstanding used in basic
and diluted per share calculation (4) 2,400,000
==================
</TABLE>
See notes to unaudited pro forma combined financial statements.
53
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JANUARY 1, 2000
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS AS ADJUSTED
------------ -------- -----------
(IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
<S> <C> <C> <C>
Net sales $ 28,993 28,993
Cost of goods sold (20,030) (20,030)
------------ -----------
Gross profit 8,963 8,963
Selling, general and administrative expenses (10,351) (172)(2) (10,523)
Royalty and other income 1,166 1,166
------------ -------- -----------
Operating income (loss) (222) (172) (394)
------------ -------- -----------
Interest income (expense):
Interest expense, net (338) (633)(1) (971)
Intercompany interest expense (3,869) 3,869 (1) ---
------------ -------- -----------
(4,207) 3,236 (971)
------------ -------- -----------
Loss before taxes (4,429) 3,064 (1,365)
------------ -------- -----------
Income tax expense (benefit) 234 (234)(3) ---
Net (loss) $ (4,663) 3,298 (1,365)
============ ======== ===========
Basic and diluted net loss per share $ (0.57)
===========
Weighted average shares outstanding used in
basic and diluted per share calculation (4) 2,400,000
===========
</TABLE>
See notes to unaudited pro forma combined financial statements.
54
<PAGE>
NOTES TO UNAUDITED PRO FORMA COMBINED STATEMENTS OF OPERATIONS
FOR THE FISCAL YEAR ENDED JULY 3, 1999 AND THE SIX MONTHS ENDED JANUARY 1, 2000
(in thousands of dollars, unless otherwise noted)
The following is a summary of the adjustments reflected in the unaudited pro
forma combined statements of operations:
1) To reflect interest expense on new borrowings committed to by a
financial institution lender of $945 and $971 for the fiscal year
ended July 3, 1999 and the six months ended January 1, 2000,
respectively, at an assumed interest rate of 10%. Also, to reflect the
elimination of intercompany interest expense totaling $7,262 and
$3,869 on the intercompany debt owed by Duck Head to Delta Woodside
for the fiscal year ended July 3, 1999 and the six months ended
January 1, 2000, respectively. The effect of a 1/8 percent variance in
the interest rate on the new third party borrowing would be a $11
variance and a $10 variance in interest expense for the fiscal year
ended July 3, 1999 and the six months ended January 2, 1000,
respectively.
2) To eliminate intercompany management fees of $777 charged by Delta
Woodside for the fiscal year ended July 3, 1999 and $0 for the six
months ended January 1, 2000. Also to reflect the replacement of Delta
Woodside's management fees with outside fees for financial software,
audit, legal, tax consulting, internal audit and payroll processing,
board of directors expenses, and stock and stockholder related
expenses. These expenses would approximate $598 for the fiscal year
ended July 3, 1999, and $294 (an increase of $172 over the actual
incurred expenses of this type of $122) for the six months ended
January 1, 2000.
3) To reflect estimated tax liability.
4) To reflect earnings per share based on the weighted-average shares
outstanding assuming a distribution of one Duck Head share for every
ten Delta Woodside shares outstanding on the record date.
55
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
You should read the following discussion in conjunction with Duck Head's
historical financial statements and the notes to those statements, both included
elsewhere in this document.
The following discussion contains various "forward-looking statements".
Please refer to "Forward-Looking Statements May Not Be Accurate" for a
description of the uncertainties and risks associated with forward-looking
statements.
OVERVIEW OF RESULTS OF OPERATIONS
Since 1990, Duck Head has experienced significant swings in its historical
operating performance. Sales increased rapidly between 1990 and 1992. From
1993 through 1996, the business introduced several classes of new products, such
as women's and juniors' product lines. Duck Head believes, however, that the
business' infrastructure was inadequate to handle the planned growth and that
the business strategy was not supported by a wide base of Duck Head's retail
accounts. Consequently, the business failed to make timely deliveries, produced
products of an uneven quality, inadequately controlled its sourcing, disrupted
sales relationships which in some cases led to expensive litigation, and built
excessive inventories. These matters led to significant operating losses in
several of these years.
During fiscal years 1997, 1998 and 1999, Duck Head began developing twelve
fashion product deliveries per fiscal year. This resulted in fashion goods
constituting a much larger percentage of the total product offering. Prior to
this change, fashion goods made up approximately 37% of the total product
offering. During fiscal years 1997, 1998 and 1999, fashion goods made up
between approximately 47% and 50% of the total product offering.
In addition, during fiscal years 1997 through 1999, in-store fixtures were
rapidly installed at major retailers, which secured good retail floor space for
Duck Head's products. Gross margin support agreements, however, were entered
into with major customers, which resulted in much higher return and allowance
charges, mostly related to poor margins at retail on fashion goods. Selling,
general and administrative costs, primarily in product development and
marketing, and inventory levels were expanded based on planned sales volume
increases which were not achieved.
Duck Head has recently devoted considerable effort to resolving these
issues, and believes that the business is now positioned for growth. During the
third quarter of fiscal 1999, Robert D. Rockey, Jr., who has extensive
experience in the apparel industry, joined the Duck Head Apparel Company
division as its new President and Chief Executive Officer. Since his arrival,
the management team has commenced planning for or implementation of the
following actions:
- Duck Head is in the process of instituting more effective quality
controls.
- Duck Head has moved substantially all of its manufacturing operations
off-shore, and has begun more cost-effective utilization of its leased
facility in Costa Rica. Inventory acquisition costs from United States
sources has been reduced to approximately 9% of total inventory
acquisition costs during the first six months of fiscal year 2000 as
compared to approximately 22% during fiscal year 1999. The United
States component currently consists of contract fabric cutting and
garment repairs, while in previous years it also consisted of garment
sewing. This lower level of United States manufacturing is expected to
continue.
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<PAGE>
- Duck Head is in the process of developing a cost-effective
full-package sourcing operation to procure more of its product from a
variety of suppliers around the world. Under a full-package sourcing
operation, the supplier furnishes a finished garment with the purchase
commitment normally secured under a letter of credit arrangement in
favor of the supplier. The supplier owns the inventory until it is
delivered to the designated shipping point. Previously, most of Duck
Head's product was made either through its own manufacturing
facilities or through third party sewing contractors. Under this
approach, Duck Head acquired rolls of fabric from outside vendors, cut
the fabric in its own facilities and then sewed the garments in its
own manufacturing facilities in the United States or Costa Rica or had
the garments sewn in third party contractor facilities mostly in
Mexico or the Caribbean basin. This sourcing method required Duck Head
to procure the raw materials and to own the work-in-process
inventories, which resulted in inventory ownership covering the six to
ten weeks of the production process.
- Duck Head is seeking to develop a higher quality retail customer
distribution network. This would significantly reduce or eliminate
sales to several heavily promotional, lower-end retailers, which have
been the primary distribution network for Duck Head's excess core and
close-out fashion and fashion basic product. Sales to such lower-end
retailers for the first six months of fiscal year 2000 were 10% of
total sales, as close-out fashion and fashion basic and excess core
inventories are being liquidated. Future sales to these channels are
anticipated to be below 5% of total net sales after the liquidation of
current close-out and excess inventories has been completed.
- Duck Head has adopted the strategy of targeting the male consumer from
ages 18 to 24 years as Duck Head's primary focus in product
development and marketing.
- Duck Head is in the process of reducing its recent emphasis on fashion
product by increasing the core and fashion basic portion of its
product offering, lessening the fashion portion of its product mix and
reducing the number of fashion product deliveries per year. During the
first six months of fiscal year 2000, the product mix consisted of 43%
core, 30% fashion basics and 27% fashion.
- Duck Head is seeking to reduce margin support commitments by either
eliminating or negotiating downward the level of support given to the
retail customers benefitting from these commitments. During the first
six months of fiscal year 2000, the percentage of goods shipped under
margin support agreements was 43%, down from 48% in fiscal 1999. In
addition, Duck Head has successfully negotiated downward the level of
support resulting in an average decrease in the level of support of
two gross margin points in the first six months of fiscal year 2000 as
compared to fiscal year 1999.
- Duck Head has reduced its selling, general and administrative costs.
The primary components of this reduction are significantly lower
product development costs, more cost-effective marketing programs and
better utilization of distribution capacity through the provision of
distribution services to third parties. Duck Head is currently
utilizing approximately 35% of its distribution capacity. Duck Head
has made arrangements to begin contract distribution for a third party
which should increase the current volume in Duck Head's distribution
facility by 30%. Duck Head continues to search for additional third
party distribution opportunities to further increase the utilization
of its distribution capacity.
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- Duck Head has begun implementation of a vendor managed inventory
system with its largest customer, which Duck Head believes will yield
significant sales growth as consumer sales are more rapidly
replenished. Under the vendor managed inventory system, Duck Head
maintains detail inventory levels and model stock levels that it
wishes to maintain at each individual store of the customer. Weekly
sales transactions are electronically sent by the customer to Duck
Head. Duck Head's system then determines the amount of inventory that
should be replenished to each store of the customer and generates
pre-authorized orders to replenish the stock based on the previous
week's sales and any adjustment to the model stock levels that Duck
Head determines are appropriate. Prior to the implementation of the
vendor-managed inventory system, the retailer determined when and if a
replenishment order was required. This process led to delays and
stock-outs which resulted in lost sales.
- Duck Head has implemented a more stringent inventory control process
to avoid building unnecessarily high inventory levels and to more
rapidly dispose of excess inventory.
- Duck Head has begun the development of distribution outside the eleven
Southeastern states where the Duck Head brand has historically had
stronger consumer acceptance.
- Duck Head is in the process of negotiating with two major accounts for
additional new markets outside of the Southeastern United States, with
the aim of completing these negotiations in the fourth quarter of
fiscal 2000.
FIRST SIX MONTHS OF FISCAL YEAR 2000 VERSUS FIRST SIX MONTHS OF FISCAL YEAR 1999
Net Sales.
Consolidated net sales for the six months ended January 1, 2000 totaled
$29.0 million, as compared to $38.3 million for the six months ended December
26, 1998, a decrease of 24.3%. A summary of Duck Head's net sales for the six
months ended January 1, 2000 and December 26, 1998 follows:
Net Sales (in millions)
<TABLE>
<CAPTION>
Wholesale Retail Total
---------- ------- -------
<S> <C> <C> <C>
Fiscal year 2000 ($) 20.6 8.4 29.0
Fiscal year 1999 ($) 28.4 9.9 38.3
(Decrease) ($) (7.8) (1.5) (9.3)
Percent (decrease) (27.3%) (15.1%) (24.3%)
</TABLE>
The decrease in wholesale sales dollars reflected a decrease in unit
shipments, which was due to the loss of three key accounts, reduced volume at
other accounts and the exit from certain segments of Duck Head's private label
business. The loss of key accounts was the result of the closure of Uptons, Inc.
(a subsidiary of American Retail Group, Inc.) and the acquisition of Mercantile
Stores Company, Inc. by other key accounts, including Dillard's, Inc.
Dillard's, Inc. made the decision to discontinue from its merchandise mix any
brands (such as the Duck Head brand) that are prominently featured by certain
of Dillard's, Inc.'s competitors. During the six months ended January 1, 2000
there were no sales to Uptons, Inc., Mercantile Stores Company, Inc. or
Dillard's, Inc., while sales during the six months ended December 26, 1998 to
these three accounts were $2.5 million. Reduced volume at other accounts was
due to inventory levels at several key accounts being reduced. These reductions
reflected a change in merchandise mix, including a reduction in fashion
inventory which is delivered in one-shot deliveries and an increase in basic
replenishment inventory which requires lower in-stock levels on the retail
floor. Reduced volume at other accounts was also due to sales during the first
six months of fiscal 1999 including the initial shipments into several new Duck
Head "shops" within major retailers. Shipments to these same "shop" locations
continued through the first six months of fiscal 2000; however, they were $0.3
million lower as compared to the higher levels in the initial shop set up.
Private label sales decreased by $1.7 million during the first six months of
fiscal year 2000 as compared with fiscal year 1999 as certain unprofitable
segments of the private label business were discontinued.
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The decreases in Duck Head retail store sales resulted from a combination
of fewer stores being open during the six months ended January 1, 2000 as
compared with the six months ended December 26, 1998 and a comparable store
sales decrease of 6%. The comparable store sales decrease accounted for $0.5
million and lower sales due to fewer stores being open accounted for $1.0
million of the total retail store sales decrease during the six months ended
January 1, 2000, as compared to the six months ended December 26, 1998. During
the six months ended January 1, 2000 Duck Head opened 1 store and did not close
any stores, and at January 1, 2000 Duck Head operated 25 retail outlet stores
versus 27 stores at December 26, 1998. Duck Head believes that the number of
stores currently open is an appropriate number given the geographic distribution
of the "Duck Head" brand through its current wholesale channels. Duck Head's
strategy continues to include closing poor performing stores, the investigation
of new store openings in better outlet malls in the Southeastern United States,
and the geographic expansion of retail stores to the extent that wholesale
distribution expands outside the Southeastern United States.
Gross Profit.
Consolidated gross profit and gross profit margin for the six months ended
January 1, 2000 were $9.0 million and 30.9%, respectively, as compared to $10.2
million and 26.5%, respectively, for the six months ended December 26, 1998, a
decrease in consolidated gross profit of 11.8%. Included in gross profit are
provisions for potentially obsolete or slow-moving inventory. Inventory is
evaluated for potentially obsolete or slow-moving items based on management's
analysis of inventory levels, sales forecasts and historical sales trends, and
additions to cost of sales are recorded as required.
Gross profit was $5.4 million and gross profit margin was 25.9% on
wholesale sales for the six months ended January 1, 2000, as compared to $6.2
million and 21.8%, respectively, for the six months ended December 26, 1998.
The $0.8 million decrease in gross profit was primarily due to lower sales,
partially offset by the higher gross profit margin. Included in gross profit
were provisions for potentially obsolete or slow-moving inventory of $0.4
million for the six months ended January 1, 2000 and $1.9 million for the six
months ended December 26, 1998, respectively. The increase in gross profit
margin was primarily due to lower provisions for potentially obsolete or
slow-moving inventory taken during the six months ended January 1, 2000, as
compared to the six months ended December 26, 1998, due to lower levels of
unsold fashion products remaining at season end.
Gross profit was $3.6 million and gross profit margin was 43.2% on retail
sales for the six months ended January 1, 2000 as compared to $4.0 million and
39.8%, respectively, for the six months ended December 26, 1998. This $0.4
million decrease in gross profit was primarily due to lower sales, partially
offset by the higher gross profit margin. The increase in gross profit margin
was primarily due to the percentage of goods purchased from Duck Head licensees,
which are generally sold at lower gross profit margins, being a lower percentage
of the total sales during the first six months ended January 1, 2000 than they
were in the six months ended December 26, 1998 and due to the six months ended
December 26, 1998 sales including the closure of a large clearance store which
generated poor gross margins as its inventory was liquidated during this closing
process.
Selling General and Administrative Expenses.
During the six months ended January 1, 2000, selling, general and
administrative expenses were $10.4 million, as compared to $12.7 million during
the six months ended December 26, 1998, a decrease of 18.1%. For the six months
ended January 1, 2000, expenses in this category were 35.7% of net sales as
compared to 33.1% of net sales for the six months ended December 26, 1998.
Sales decreased at a higher rate than did selling, general and administrative
expenses, due to the fixed nature of many of these items, resulting in selling,
general and administrative expenses as a percentage of sales being higher in the
most recent six months.
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<PAGE>
Wholesale selling, general and administrative expenses for the six months
ended January 1, 2000 decreased by $1.8 million as compared to the six months
ended December 26, 1998. The dollar decrease was due to reductions in all
selling, general and administrative expense categories. Duck Head expects this
lower selling, general and administrative expense level to continue.
Retail selling, general and administrative expenses for the six months
ended January 1, 2000 declined by $0.5 million as compared to the six months
ended December 26, 1998. The decrease was primarily due to fewer stores being
open in the six months ended January 1, 2000 as compared to the six months ended
December 26, 1998 and lower home office costs. Duck Head expects this lower
selling, general and administrative expense level to continue.
Operating Losses.
Operating losses for the six months ended January 1, 2000 were $0.2
million, as compared to $1.9 million operating losses for the six months ended
December 26, 1998.
Wholesale operating losses for the six months ended January 1, 2000 were
$0.8 million, as compared to operating losses of $2.3 million for the six months
ended December 26, 1998. Included in the wholesale operating losses for the
six months ended January 1, 2000 was $1.2 million of other income primarily
related to royalty income on license agreements and a $0.3 million gain on an
insurance settlement. Other income for the six months ended December 26, 1998
was $1.0 million which was primarily related to royalty income on license
agreements.
As a result of the factors described above, retail operating income for the six
months ended January 1, 2000 was $0.6 million, as compared to $0.4 million of
operating income for the six months ended December 26, 1998.
Net Interest Expense. For the six months ended January 1, 2000 net
interest expense was $4.2 million, as compared to $3.7 million for six months
ended December 26, 1998. The increase in interest expense was primarily a
result of the higher average principal balance outstanding on affiliated debt.
Taxes. The effective tax rate was (5.3)% for the six months ended January
1, 2000 as compared to the effective tax rate for the six months ended December
26, 1998 of (0.5)%. Although both periods reflected a pretax loss, during the
six months ended January 1, 2000 Duck Head incurred more state income taxes than
during the six months ended December 26, 1998.
Net Loss. Net loss for the six months ended January 1, 2000 was $4.7
million, as compared to $5.6 million for the six months ended December 26,
1998. The decreased loss was due to the factors described above.
Inventories. Inventories decreased to $16.2 million at January 1, 2000
from $24.7 million at July 3, 1999, a decrease of $8.5 million or 34.4%. The
net decrease in inventories reflects decreases in all categories of inventory.
This decrease was due to Duck Head's inventory control strategy which has
included aggressive sales of close-out inventories and reductions in the
production levels at Duck Head's own sewing facility and in the levels of
product acquired from outside contractors and package goods vendors.
Capital Expenditures. Capital expenditures of $0.3 million were made in
the six months ended January 1, 2000, as compared to $2.0 million of capital
expenditures during the first six months of the prior year.
Order Backlog.
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Duck Head's order backlog at January 1, 2000 was $7.2 million, a 47%
decrease from the $13.7 million order backlog at December 26, 1998. The
decrease is due to a general decline in sales, the loss of three key customers
and a shift in product mix to a higher percentage of core and basic products and
a lower percentage of fashion products. At December 26, 1998, the order backlog
for the three key accounts that are no longer Duck Head accounts was $1.1
million. There was no backlog for these accounts at January 1, 2000. Orders
for core products are normally shipped under replenishment programs where goods
are ordered for immediate shipment as compared to fashion products for which
orders are received several months prior to the requested ship date.
Duck Head believes that, although backlog orders can give a general
indication of future sales, the change of its customers' order patterns to a
heavier emphasis on core and basic merchandise, which are ordered closer to the
desired ship date, and a lower emphasis on fashion merchandise, which are
ordered several months in advance, may have caused a reduction in backlog that
is not indicative of a reduction in sales trend.
FISCAL YEAR 1999 VERSUS FISCAL YEAR 1998
Net Sales.
Consolidated net sales for the year ended July 3, 1999 totaled $70.6
million, as compared to $84.0 million for the year ended June 27, 1998, a
decrease of 16%. A summary of Duck Head's net sales for the years ended July 3,
1999 and June 27, 1998 follows:
Net Sales (in millions)
<TABLE>
<CAPTION>
Wholesale Retail Total
---------- ------- -------
<S> <C> <C> <C>
Fiscal year 1999 ($) 54.1 16.5 70.6
Fiscal year 1998 ($) 64.0 20.0 84.0
(Decrease) ($) (9.9) (3.5) (13.4)
(Decrease) (%) (15.5%) (17.5%) (16.0%)
</TABLE>
The decrease in wholesale sales dollars reflected a decrease in unit
shipments and was primarily due to the loss of two key accounts and higher
returns and allowances. The loss of key accounts was the result of the
acquisition of Mercantile Stores Company, Inc. by other key accounts, including
Dillard's, Inc. Dillard's, Inc. made the decision to discontinue from its
merchandise mix any brands (such as the Duck Head brand) that are prominently
featured by certain of Dillard's, Inc.'s competitors. Sales in fiscal year 1999
to Mercantile Stores Company, Inc. and Dillard's, Inc. were $2.6 million
compared to fiscal 1998 sales of $8.4 million Higher returns and allowances
were due to increased levels of returns primarily related to arrangements with
several customers to return basic pants and replace them with basic shorts
during the spring season and to return basic shorts and replace them with basic
pants during the fall season, deductions taken by customers due to not adhering
to customer routing guide instructions and gross margin assistance given to
customers under gross margin support agreements. The majority of the gross
margin assistance was related to poor retail margins on Duck Head fashion
products.
The decreases in Duck Head retail store sales resulted from a combination
of a comparable store sales decrease of 2% and fewer stores being open in Duck
Head's fiscal year 1999 as compared with its fiscal year 1998. The comparable
store sales decrease accounted for $0.4 million and lower sales due to fewer
stores being open accounted for $3.1 million, respectively, of the total retail
store sales decrease during fiscal year 1999 as compared to fiscal year 1998.
During 1999, Duck Head opened 2 stores and closed 7 stores. At July 3, 1999,
Duck Head operated 24 retail outlet stores. The net reduction in the number of
stores was the result of the continuation of Duck Head's strategy to close
unprofitable stores, to reduce the total number of outlet stores and to open new
stores in better outlet centers.
Gross Profit.
Consolidated gross profit and gross profit margin for the year ended July
3, 1999 were $8.2 million and 11.6%, respectively, as compared to $26.9 million
and 32.0%, respectively, for the year ended June 27, 1998, a decrease in
consolidated gross profit of 69.5%.
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Gross profit and gross profit margin on wholesale sales for the year ended
July 3, 1999 were $1.8 million and 3.3% respectively, as compared to $18.8
million and 29.3%, respectively, for the year ended June 27, 1998. The $17.0
million decrease in gross profit was primarily due to provisions for potentially
obsolete or slow-moving inventory of $10.2 million being recorded for the year
ended July 3, 1999 as compared to $0.7 million being recorded for the year ended
June 27, 1998, lower sales volume, higher returns and allowances and charges
totaling $1.5 million to reduce production capacity including the closure of one
manufacturing facility and the downsizing of another. The increase in the
provision for potentially obsolete or slow-moving inventory was due primarily to
higher levels of unsold fashion goods remaining at 1999 fiscal year end than at
1998 fiscal year end. The reduction in production capacity was due to reduced
sales levels and shifts in product sourcing strategy to take advantage of more
favorable product costs available through outside contractors versus producing
in Duck Head's own facilities. Fiscal year 1998 included a $0.6 million charge
related to the closing of two of Duck Head's sewing facilities in Costa Rica.
The decrease in gross profit margin was primarily due to the higher provision
for potentially obsolete or slow-moving inventory, higher returns and allowances
and charges taken to reduce production capacity.
Gross profit and gross profit margin on retail sales for the year ended
July 3, 1999 were $6.4 million and 38.7% respectively, as compared to $8.1
million and 40.6%, respectively, for the year ended June 27, 1998. This $3.4
million decrease in gross profit was due to lower sales and a decrease in gross
profit margin. The decrease in gross profit margin was due to the percentage of
goods purchased from Duck Head licensees, which are generally sold at lower
gross profit margins, being a higher percentage of total sales in fiscal 1999
than they were in fiscal 1998 and a $0.2 million provision taken on potentially
slow-moving inventory.
Selling General and Administrative Expenses.
During the year ended July 3, 1999, consolidated selling, general and
administrative expenses were $34.0 million, as compared to $29.0 million during
the year ended June 27, 1998, an increase of 17%. For the year ended July 3,
1999, expenses in this category were 48.1% of net sales as compared to 34.5% of
net sales for the year ended June 27, 1998.
Wholesale selling, general and administrative expenses for the year ended
July 3, 1999 increased by $7.9 million as compared to the year ended June 27,
1998. This increase was primarily due to $3.9 million of increased marketing
expenses, $1.6 million of additional amortization of in-store shops and of
certain computer equipment as a result of the shortening of the expected future
useful lives of these assets to reflect business conditions and technological
changes, a $1.2 million charge to write-off fixtures that were abandoned or no
longer in service primarily due to lost accounts, and increased administrative
costs. The increase in marketing expenses was primarily the result of a heavy
consumer marketing campaign. The results of this advertising campaign were not
considered successful and Duck Head has since reduced its expenditures of this
nature to a level it considers more reasonable based on current sales levels.
Duck Head has also reduced selling, general and administrative expenses in other
categories which Duck Head believes will result in expenses of this nature in
the foreseeable future being lower than the fiscal year 1999 or fiscal 1998
levels.
Retail selling, general and administrative expenses for the year ended July 3,
1999 declined by $2.9 million as compared to the year ended June 27, 1998. The
decrease was primarily due to the closing of several stores during fiscal years
1998 and 1999. The stores that were closed generally had higher selling,
general and administrative expenses as a percentage of sales than the stores
that have remained opened. The year ended June 27, 1998 included $0.9 million of
charges related primarily to the closing of retail outlet stores.
Impairment Charges.
Wholesale operations recognized impairment charges of $13.7 million during
the year ended July 3, 1999, of which $12.6 million related to the impairment of
goodwill and $1.1 million related to store fixtures taken out of service. No
impairment charges were recorded during the year ended June 27, 1998.
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<PAGE>
During fiscal year 1999 Duck Head experienced an adverse change in its
business climate. Net sales declined significantly, mainly due to the loss of
two major accounts. At fiscal year end there were excessive levels of unsold
fashion goods, which resulted in a $7.3 million inventory write-down. In
October 1998, the Duck Head Apparel Company division was put up for sale by
Delta Woodside, which generated offers significantly below the net book value of
the business. Due to the diminished fair value of Duck Head, Delta Woodside
suspended its efforts to sell the business and hired new senior management to
develop a new business plan and restructure its operations. As a result, Duck
Head determined that an impairment loss should be recognized. Based upon the
business plan for fiscal year end 2000 and cash flow projections, Duck Head
determined that its goodwill was impaired by $12.6 million and, accordingly,
recognized the impairment loss. The store fixtures taken out of service during
fiscal 1999 related primarily to the loss of two major accounts.
Operating Losses.
Consolidated operating losses for the year ended July 3, 1999 were $39.2
million, as compared to $1.3 million of operating losses for the year ended June
27, 1998.
Wholesale operating losses for the year ended July 3, 1999 were $38.5
million, as compared to $0.1 million of operating losses for the year ended June
27, 1998. The wholesale operating losses include other income of $1.0 million
in fiscal year 1999 and $1.7 million in fiscal year 1998, respectively,
primarily related to royalties on the license of the Duck Head brand. The
decrease in royalty income was due to fewer licenses being active in fiscal year
1999 and reduced royalties from one licensee due to the licensee's filing for
protection under the US bankruptcy code during fiscal year 1999.
As a result of the factors described above, retail operating losses for the
year ended July 3, 1999 were $0.7 million, as compared to $1.2 million of
operating losses for the year ended June 27, 1998.
Net Interest Expense. For the year ended July 3, 1999, net interest
expense was $8.2 million, as compared to $7.0 million for the year ended June
27, 1998. The increase in interest expense was primarily a result of the
higher average principal balance outstanding on affiliated debt. Prior to the
effective date of the spin-off of Duck Head, the affiliated debt will be
contributed to equity and replaced with significantly lower levels of third
party debt. See "Capitalization", "Unaudited Pro Forma Combined Financial
Statements".
Taxes. The effective tax rate for the year ended July 3, 1999 was (0.6)%
as compared to (1.9)% effective tax rate for the year ended June 27, 1998. The
higher tax rate for fiscal 1998 was primarily due to the different effects that
permanent non-deductible tax items had on the pre-tax losses in fiscal 1998, as
compared to the effect on pre-tax losses in fiscal 1999.
Net Loss. Net loss for the year ended July 3, 1999, was $47.7 million, as
compared to $8.4 million for the year ended June 27, 1998. The decrease was due
to the factors described above.
Inventories. Inventories decreased to $24.7 million at the end of fiscal
year 1999, from $28.3 million at the end of fiscal year 1998, a decrease of $3.6
million. This net decrease in inventories is primarily due to the following:
- A $5.0 million increase in inventory reserves, primarily due to higher
levels of fashion goods in excess of anticipated in-season sales;
- A $2.9 million decrease in older obsolete inventory (primarily fashion
goods from fiscal year 1997 and earlier) from $3.7 million at the end
of fiscal year 1998 to $0.8 million at the end of fiscal year 1999;
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- A $1.9 million decrease in inventory in Duck Head's retail stores from
$3.9 million at the end of fiscal year 1998 to $2.0 million at the end
of fiscal year 1999; this decrease was due to fewer stores being open
at the end of fiscal year 1999 than there were at the end of fiscal
year 1998 and to lower inventory levels in the stores that were open
at the end of fiscal year 1999; and
- A $1.0 million decrease in work in process inventory from $3.6 million
at the end of fiscal year 1999 to $2.5 million at the end of fiscal
year 1998, which reduction is related to lower production levels as
part of the inventory reduction program;
partially offset by the following:
- A $6.5 million increase in both recent season closeouts and in active
inventory from $20.7 million at the end of fiscal year 1998 to $27.3
million at the end of fiscal year 1999; and
- An increase in raw materials of $.8 million.
Capital Expenditures. Capital expenditures were $2.4 million and $8.0
million for fiscal years 1999 and 1998, respectively. The expenditures were
primarily for fixtures for in-store shops and focal areas placed in major
retailers and hardware and software related to Duck Head's information
technology programs. Fiscal 1998 capital expenditures contained the primary
rollout of the in-store fixture program.
FISCAL YEAR 1998 VERSUS FISCAL YEAR 1997
Net Sales.
Consolidated net sales for the year ended June 27, 1998 totaled $84.0
million, as compared to $79.6 million for the year ended June 28, 1997, an
increase of 5.5%. A summary of Duck Head's net sales for the years ended July 3,
1999 and June 27, 1998 follows:
Net Sales (in millions)
<TABLE>
<CAPTION>
Wholesale Retail Total
---------- ------- ------
<S> <C> <C> <C>
Fiscal year 1998 ($) 64.0 20.0 84.0
Fiscal year 1997 ($) 57.3 22.3 79.6
Increase (decrease) ($) 6.7 (2.3) 4.4
Increase (decrease) (%) 11.7% (10.3%) 5.5%
</TABLE>
The increase in wholesale sales dollars in fiscal 1998 versus fiscal 1997
reflects an increase in unit shipments and was primarily due to increased sales
of the "Duck Head" brand to the same customers and increases in private label
sales, mostly to new customers. Sales of "Duck Head" branded goods to the same
customers increased by $4.8 million or 9.8% in fiscal 1998 as compared to fiscal
1997, while private label sales increased by $2.0 million or 128% in fiscal 1998
as compared to fiscal 1997.
The decrease in Duck Head retail store sales resulted from a combination of
a comparable store sales decrease of 1% and fewer stores being open in Duck
Head's fiscal year 1998 as compared with its fiscal year 1997. The comparable
store sales decrease accounted for $0.1 million and lower sales due to fewer
stores being open accounted for $2.2 million, respectively, of the total retail
store sales decrease during fiscal year 1998 as compared to fiscal year 1997.
During fiscal year 1998, Duck Head opened 5 stores and closed 7 stores as part
of a strategy to close unprofitable stores and open stores in better outlet
centers. At June 27, 1998, Duck Head operated 29 retail outlet stores.
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Gross Profit.
Consolidated gross profit and gross profit margin for the year ended June
27, 1998 were $26.9 million and 32.0%, respectively, as compared to $26.3
million and 33.0%, respectively, for the year ended June 28, 1997, an increase
in consolidated gross profit of 2.3%.
Gross profit and gross profit margin on wholesale sales for the year ended
June 27, 1998 were $18.8 million and 29.3% respectively, as compared to $16.3
million and 28.4%, respectively, for the year ended June 28, 1997. This $2.5
million increase in gross profit was primarily due to higher sales volume
partially offset by a $0.6 million charge in fiscal 1998 related to the closing
of two of Duck Head's sewing facilities in Costa Rica. The increase in gross
profit margin was primarily due to lower returns and allowances.
Gross profit and gross profit margin on retail sales for the year ended
June 27, 1998 were $8.1 million and 40.6% respectively, as compared to $10.0
million and 44.9%, respectively, for the year ended June 28, 1997. This $1.9
million decrease in gross profit and the decline in gross profit margin were
primarily due to the closing of several stores during fiscal 1998.
Selling General and Administrative Expenses.
During the year ended June 27, 1998, selling, general and administrative
expenses were $28.9 million, as compared to $25.6 million during the year ended
June 28, 1997, an increase of $3.3 million or 12.9%. For the year ended June
27, 1998, expenses in this category were 34.5% of net sales as compared to 32.2%
of net sales for the year ended June 28, 1997.
Wholesale selling, general and administrative expenses for the year ended
June 27, 1998 increased by $3.9 million as compared to the year ended June 28,
1997. The dollar increase was primarily due to increased marketing and
merchandising expenses.
Retail selling, general and administrative expenses for the year ended June 27,
1998 declined by $0.6 million as compared to the year ended June 28, 1997. The
decrease was primarily due to the closing of several stores during fiscal year
1998. The stores that were closed generally had higher selling, general and
administrative expenses as a percentage of sales than the stores that remained
opened. The year ended June 27, 1998 included $0.9 million of charges related
primarily to the closing of retail outlet stores.
Operating Income/Losses.
As a result of the factors described above, Duck Head's operating losses
for the year ended June 27, 1998 were $1.3 million, as compared to $1.3 million
of operating income for the year ended June 28, 1997.
Wholesale operating losses for the year ended June 27, 1998 were $0.1
million, as compared to $2.0 million of operating income for the year ended June
28, 1997. Included in the fiscal year 1998 wholesale operating losses is $1.7
million of other income. The other income is primarily due to royalty income
on license agreements for the Duck Head brand. Other income in fiscal year
ended June 28, 1997, which was also primarily related to royalty income, was
$1.4 million.
As a result of the factors described above, retail operating losses for the year
ended June 27, 1998 were $1.2 million, as compared to $0.7 million of operating
losses for the year ended June 28, 1997.
Net Interest Expense. For the year ended June 27, 1998, net interest
expense was $7.0 million, as compared to $6.2 million for the year ended June
28, 1997. The increase in interest expense was primarily a result of the
higher average principal balance outstanding on affiliated debt.
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Taxes. The effective tax rate for the year ended June 27, 1998 was (1.9)%
as compared to 6.9% effective tax rate for the year ended June 28, 1997.
Although both years reflected a pretax loss, fiscal year 1998 had tax expense
recognized due to an increased valuation allowance on the deferred tax benefit
generated by current year net operating losses.
Net Loss. Net loss for the year ended June 27, 1998 was $8.4 million, as
compared to $4.5 million for the year ended June 28, 1997. The increased loss
was due to the factors described above.
Inventories. Inventories decreased $8.6 million during fiscal year 1998,
resulting from a reduction of older obsolete inventory and lower levels of core
inventory and recent season close-outs.
Capital Expenditures. Higher capital expenditures of $8.0 million during
fiscal year 1998 were primarily for in-store shops and focal areas placed in
major retailers.
LIQUIDITY AND CAPITAL RESOURCES
Historical
In the first six months of fiscal year 2000 and in each of fiscal years
1999, 1998 and 1997, Duck Head's source of liquidity and capital has been the
informal borrowing arrangement it has had with its parent company, Delta
Woodside. As funds were needed, the affiliated debt was increased, and as funds
were generated, the affiliated debt was decreased.
Duck Head's operating activities resulted in $6.0 million of cash provided
in the first six months of fiscal 2000 compared with $7.2 million of cash used
in the first six months of fiscal 1999. Duck Head's operating activities
resulted in a use of cash of $16.0 million, $5.8 million and $1.0 million in
fiscal years 1999, 1998 and 1997, respectively. The cash provided in the first
six months of fiscal year 2000 was primarily the result of reductions in
inventories and receivables and was after the charge of interest due to Delta
Woodside on affiliated debt of $3.9 million in the first six months of fiscal
year 2000. The uses of cash in each of the fiscal years 1999, 1998 and 1997
and the first six months of fiscal year 1999 were primarily associated
with net losses incurred in each of these years. These net losses included
interest charges on the affiliated debt of $7.3 million, $6.3 million,
$6.0 million and $3.2 million, respectively.
Capital expenditures were $2.4 million in the year ended July 3, 1999 and
$8.0 million in the year ended June 27, 1998. Capital expenditures in both
these years were primarily related to the installation of in-store shops at
major retailers. Duck Head expects fiscal 2000 capital expenditures, primarily
for new in-store shops, to approximate $0.9 million to support anticipated
growth outside the Southeastern United States.
Pro Forma
In connection with the Duck Head distribution, Delta Woodside will
contribute, as contributions to capital, all net debt amounts owed to it by the
corporations that previously had conducted the Duck Head Apparel Company
division's business and the Delta Apparel Company division's business. As a
result of this action, Duck Head will no longer owe any amounts to Delta
Woodside, other than as specifically provided in the distribution agreement or
the tax sharing agreement.
Also in connection with the Duck Head distribution, Duck Head will enter
into the following financing arrangements:
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- Duck Head will enter into a credit agreement with a lending
institution, under which the lender will provide Duck Head with a term
loan in the approximate amount of $5.8 million and a 3-year $15
million revolving credit facility. All loans under the credit
agreement will bear interest at rates based on an adjusted LIBOR rate
plus an applicable margin or a bank's prime rate plus an applicable
margin. Duck Head will grant the lender a first mortgage lien on or
security interest in substantially all of its assets.
- The credit agreement will contain limitations on, or prohibitions of,
cash dividends, stock purchases, related party transactions, mergers,
acquisitions, sales of assets, indebtedness and investments.
- Principal of the term loan will be repaid in monthly installments of
principal based on a 72 month amortization, with payment of all
outstanding principal and interest required upon earlier termination
of the credit facility.
- Under the revolving credit facility, Duck Head will be able to borrow
up to $15 million (including a $10 million letter of credit
subfacility) subject to borrowing base limitations based on accounts
receivable and inventory levels.
The pro forma statements included in this document under the heading
"Unaudited Pro Forma Combined Financial Statements" assume that these capital
contributions had occurred and these new debt facilities were in place as of
January 1, 2000 (for purposes of the pro forma balance sheet) or the beginning
of the 1999 fiscal year (for purposes of the pro forma income statements).
Using the same assumptions as are in these pro forma income statements, if the
Duck Head distribution had taken place at the beginning of fiscal year 1999, the
use of cash in operating activities during fiscal year 1999 would have been
approximately $8.4 million ($7.6 million less than the actual use of cash from
operations). The lower use of cash would have been due to $7.4 million less
interest expense and $0.2 million net reduction in the management fee charged by
Delta Woodside as compared to the estimated cost of replacing those services.
Using the same assumptions as are in the pro forma income statements, if
the Duck Head distribution had taken place at the beginning of fiscal year 1999,
cash provided by operating activities during the first six months of fiscal year
2000 would have been approximately $9.2 million. This $3.1 million increase in
cash provided by operations would have been due to lower interest payments on
third party debt as compared to the actual interest charged on the affiliated
debt.
The pro forma balance sheet assumes that Delta Woodside contributes cash of
$6.3 million to Duck Head to fund the repayment of Duck Head's existing mortgage
debt, which came due and was paid on January 10, 2000.
Typically, Duck Head's peak borrowing needs are in the third fiscal
quarter. Duck Head anticipates that at the time it enters into its new credit
facility, it will owe amounts to the lender on Delta Woodside's existing credit
facility for borrowings made to fund Duck Head's working capital needs after
January 1, 2000. Any such borrowings will be refinanced by proceeds of Duck
Head's new credit facility.
As Duck Head shifts its sourcing strategy to more package goods and less
internally manufactured and contracted goods, Duck Head will be required to
provide its suppliers with more letters of credit. Duck Head expects that its
peak borrowing needs for working capital purposes, including use of its
credit facility for letters of credit, will be approximately $7.5 million.
Approximately forty percent of the face amount of outstanding documentary
letters of credit will reduce the amount available under the revolving credit
facility for working capital loans.
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Based on these expectations, Duck Head believes that its $15 million
revolving credit facility should be sufficient to satisfy its foreseeable
working capital needs, and that the cash flow generated by its operations and
funds available under its revolving credit line should be sufficient to service
its debt payment requirements, to satisfy its day-to-day working capital needs
and to fund its planned capital expenditures. Any material deterioration in
Duck Head's results of operations, however, may result in Duck Head losing its
ability to borrow under its revolving credit facility and to issue letters of
credit to suppliers or may cause the borrowing availability under that facility
not to be sufficient for Duck Head's needs.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest Rate Sensitivity
Duck Head's credit agreement will provide that the interest rate on
outstanding amounts owed shall bear interest at variable rates. An interest
rate increase would have a negative impact on Duck Head to the extent that it
has borrowings outstanding under either its term loan or its revolving line of
credit. Based on the assumptions used in preparing the pro forma statements of
operations contained under the heading "Unaudited Pro Forma Combined Financial
Statements", if the interest rate on Duck Head 's outstanding indebtedness had
been increased by 1% of the debt's average outstanding principal balance, Duck
Head's pro forma interest expense would have been approximately $0.1 million
higher in the fiscal year ended July 3, 1999 and approximately $0.1 million
higher in the six months ended January 1, 2000. The actual increase in interest
expense resulting from a change in interest rates would depend on the magnitude
of the increase in rates and the average principal balance outstanding.
YEAR 2000 COMPLIANCE
The Year 2000 computer problem refers to the potential for system and
processing failures of date-related data as a result of computer-controlled
systems using two digits rather than four to define the applicable year. For
example, software programs that have time sensitive components may recognize a
date represented as "00" as the year 1900 rather than the year 2000.
To date, Duck Head has spent approximately $0.6 million on Year 2000
compliance issues, including the purchase of hardware and the cost of a third
party consultant. Based on management's current assessment, Duck Head does not
anticipate incurring any material additional costs associated with the Year 2000
issue.
Duck Head has not suffered any material adverse effect as a result of the
year 2000 problem.
DIVIDENDS AND PURCHASES BY DUCK HEAD OF ITS OWN SHARES
Duck Head's ability to pay cash dividends or purchase its own shares will
largely be dependent on its future results of operations and compliance with its
loan covenants. Duck Head's credit agreement will permit the payment of cash
dividends in an amount up to 25% of cumulative net income (excluding
extraordinary or unusual non-cash items), provided that no event of default
exists or would result from that payment and after the payment at least $6.0
million remains available under the revolving credit facility. Duck Head's
credit agreement will also permit up to an aggregate of $3.0 million of
purchases by Duck Head of its own stock provided that no event of default exists
or would result from that action and after the purchase at least $6.0 million
remains available under the revolving credit facility.
Duck Head currently anticipates that it will pay no cash dividends to its
stockholders for the foreseeable future. If Duck Head's board of directors
determines at any time that the purchase of its own stock is in the best
interests of its stockholders and that the purchase complies with its loan
covenants, Duck Head may purchase its own shares in the market or in privately
negotiated transactions.
In general, any future cash dividend payments will depend upon Duck Head's
earnings, financial condition, capital requirements, compliance with loan
covenants and other relevant factors.
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BUSINESS OF DUCK HEAD
The following discussion contains various "forward-looking statements".
Please refer to "Forward-Looking Statements May Not Be Accurate" for a
description of the uncertainties and risks associated with forward-looking
statements.
Duck Head is a Georgia corporation with its principal executive offices
located at 1020 Barrow Industrial Parkway, Winder, Georgia 30680 (telephone
number: 770-867-3111). Duck Head was incorporated in 1999.
The following information under this heading, "Business of Duck Head",
describes Duck Head as if the transactions contemplated by the distribution
agreement had been consummated at the beginning of the periods described. All
references in this document to Duck Head refer to Duck Head Apparel Company,
Inc., together with its subsidiaries.
BUSINESS
Duck Head designs, sources, produces, markets and distributes boys' and
men's value-oriented casual sportswear predominantly under the 134-year-old
nationally recognized "Duck Head" (Reg. Trademark) label. Duck Head's
collections are centered around its core khaki trouser. Duck Head sells its
apparel primarily in the Southeastern United States to national and regional
department store chains and large specialty apparel retailers. In addition, Duck
Head operates 25 retail apparel outlet stores that sell primarily closeout and
irregular "Duck Head" products. Duck Head also licenses the use of the "Duck
Head" trademark for the manufacture and sale of certain apparel items and
accessories. Duck Head has operations in 9 states and Costa Rica, and at October
2, 1999 had approximately 500 employees.
Products, Marketing and Manufacturing
----------------------------------------
Duck Head produces collections of men's and boys' casual apparel sold under
the "Duck Head" (Reg. Trademark) label, primarily pants, shorts and shirts. The
main products sold by Duck Head are long and short pants and long and short
sleeve, knitted and woven, shirts. In addition, Duck Head sells a relatively
small amount of men's and boys' woven uniforms, sportswear and casual wear under
the private labels of its customers.
The "Duck Head" (Reg. Trademark) label has been associated with apparel
since 1865 and has been historically distributed in the Southeastern United
States. To market its products more effectively, Duck Head has recently
expanded its marketing efforts in department stores through the use of in-store
shops. In-store shops enable the business to maintain prime retail floor space
year-round. Duck Head believes that these in-store shops enhance brand-name
recognition, permit more complete merchandising of Duck Head's lines and
differentiate the presentation of its products from those of other producers.
The "shop" display format of the Duck Head line utilizes dedicated retail floor
space in the sportswear department that is positioned with other national
brands. Typically, Duck Head pays for the associated capital expenditures.
Duck Head opened its first in-store Duck Head shop in April 1997 and now has in
place over 400 men's and 200 boys' shops in major department stores. Currently,
approximately one-third of the stores in which Duck Head products are sold have
Duck Head in-store shops.
Duck Head has entered into gross margin support agreements with several of
its major customers. Under these agreements, the retailer is entitled to reduce
the amount payable to Duck Head for any retail gross margin shortfall below the
target gross margin. In connection with these agreements, Duck Head and the
customer agree upon a markdown schedule that is largely determined by the number
of days the product remains on the floor.
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Duck Head licenses the use of the "Duck Head" (Reg. Trademark) label to
third party licensees for the manufacture and sale of products that Duck Head
does not sell, including children's wear (ages 0 to 7), footwear, luggage,
hosiery and accessories. These arrangements require that the licensee pay Duck
Head a royalty fee for the use of the Duck Head trademark.
"Duck Head" labeled products are primarily marketed by an employed sales
staff to regional and national retailers, predominantly in the Southeastern
United States. Duck Head also uses independent sales representatives, primarily
with respect to sales to specialty stores. Duck Head's marketing office is
based in Winder, Georgia, with sales personnel located throughout the country.
Duck Head has a sales office in New York City.
During the first six months of fiscal year 2000 and fiscal 1999, 1998 and
1997, approximately 26%, 24%, 21% and 17%, respectively, of Duck Head's sales
were to J. C. Penney, Inc. No other customer accounted for 10% or more of Duck
Head's sales during any of those periods. Sales to five customers accounted for
over 47 % of Duck Head's net sales in the first six months of fiscal 2000 and in
fiscal year 1999, over 45% in fiscal year 1998 and over 41% in fiscal year 1997.
Duck Head operates a distribution facility and a small manufacturing repair
unit in Winder, Georgia and a leased sewing and finishing plant in Costa Rica.
At 1999, 1998 and 1997 fiscal year ends, Duck Head's long-lived assets in Costa
Rica comprised 4.3%, 6.3% and 10.3%, respectively, of Duck Head's total net
property, plant and equipment.
"Duck Head" core basic labeled apparel items are generally required to be
inventoried to permit replenishment shipments and to level production schedules.
Customer private label apparel items are generally made only to order. Duck
Head's products are manufactured primarily from 100% cotton.
Duck Head purchases the fabrics used in its products from several
producers, the loss of any of which would not be expected to have a material
adverse effect on Duck Head. Approximately 30% of its garments are sewed in
Duck Head's own facilities. Duck Head acquires the remainder of its finished
products from third party contractors throughout the world that operate in
accordance with Duck Head's design, specification and production schedules.
This outside production takes the form of cutting and sewing with fabric and
patterns supplied by Duck Head, or providing finished garments made to Duck Head
specifications. Duck Head maintains a staff of quality specialists who
consistently monitor work in process at outside companies. Duck Head has
long-term relationships with a number of international contractors for these
services. Duck Head believes that there is ample capacity among outside
contractors worldwide to meet its future production requirements.
Duck Head's distribution facility has the capacity, with a relatively small
amount of capital expenditures, to handle at least two times the current sales
volume. All products are warehoused in Duck Head's facilities and shipped to
customers using common carriers.
Duck Head has an extensive quality control effort. The success of this
effort contributed to the business being awarded the J. C. Penney, Inc. Supplier
of the Year award in 1997. During the past few years, Duck Head has worked with
its vendors to implement its quality standards in all of its vendors'
facilities.
Duck Head acquires a substantial quantity of its knit and a small quantity
of woven shirts from an unrelated third party contractor with facilities in
various countries and a sales office in Duck Head's building in Winder, Georgia.
Duck Head purchases goods from this contractor based on favorable prices and
delivery experience. Duck Head does not have a long-term product supply
contract with this company. Duck Head believes that there is ample production
capacity available through other outside vendors, that this third party
contractor could be replaced with similar production at prices that are
competitive and that the loss of this producer would not have a material adverse
effect. Duck Head recently entered into a four-year licensing contract with
this third party (with an option by the licensee to renew for an additional
three years) whereby the third party will manufacture and sell children's wear
under the "Duck Head"7 label. Duck Head has also recently made arrangements to
begin contract distribution for this third party which should increase the
current volume in Duck Head's distribution facility by 30%.
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Shipments by the wholesale segment of Duck Head's business are generally
highest in the third and fourth fiscal quarters, coinciding with the season of
strongest demand for Duck Head shorts and shipments to retailers for the strong
back-to-school selling season. Duck Head retail store sales typically peak
during the first and second fiscal quarters, coinciding with the back-to-school
and Christmas seasons. The offsetting peak quarters of the two segments help to
reduce any significant seasonality impact on overall sales. Seasonality does
affect cash flow as cash flow is generally weakest in the third fiscal quarter
when retail segment sales are the weakest and accounts receivable on wholesale
sales are at their peak.
Duck Head has 25 outlet stores located in 9 Southeastern states. These
stores, which are located primarily in outlet malls in suburban locations, sell
principally closeout and irregular "Duck Head" products. They also sell a small
amount of apparel and accessory items manufactured by Duck Head licensees.
Business Strategy
------------------
Duck Head believes that its trademarks have considerable consumer
acceptance and that it may have more flexibility than some of its larger
competitors to respond to shifts in market demand. Duck Head has recently
initiated a strategy that it believes will capitalize on these strengths. This
strategy includes the following components:
- Position its products in department stores on the main floor men's
area adjacent to other mid-price brands such as Chaps, Dockers and
Savanne. Duck Head believes that it currently enjoys the ability to
deliver excellent retail margins to its customers due to its
distribution strategy of selling primarily to better department and
specialty stores and the national chain stores.
- Develop a significant presence outside of the Southeastern United
States, particularly through arrangements with a limited number of
department store retailers and chain stores.
- Increase the focus on a relatively small range of core basic products,
while continuing to produce fashion basics and fashion products. The
target assortment is 50% basic, 30% fashion basic and 20% fashion.
- Target the male consumer from ages 18 to 24 years as Duck Head's
primary focus in product development and marketing.
- Continue to emphasize in-store shops in department stores.
- Continue aggressively to develop lower cost sources of product,
including more arrangements with third party producers.
- Provide industry-leading customer service in terms of on-time
delivery, replenishment and order fulfillment rate.
- Eliminate or negotiate more favorable margin support agreements with
its retailer customers.
- Focus on reducing selling, general and administrative expenses as a
percentage of gross revenues.
- Seek opportunities to obtain profitable private label business from a
small number of retailers. During the six months of fiscal year 2000,
less than 2% of Duck Head's sales were private label sales.
- Improve the management of inventory.
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Duck Head's management believes that this strategy will take advantage of
the following market trends:
- Continued implementation in the workplace of a more casual dress code.
- Growth in the casual pants market, largely at the expense in recent
years of the denim business.
- The aging of the population, which supports the trend toward casual
clothing.
- Significant consolidation among department store retailers, which has
led to more purchasing being done by national retailers and those
national retailers focusing more of their purchasing on brands with a
national exposure.
- Increased coordination, including electronic data interchange, between
producers and retailers.
- Compression of the supply chain, with retailers monitoring sales on a
weekly or daily basis, carrying less inventory, demanding quicker
response times from producers and requiring producers to keep the
retailers' model inventories stocked for quick delivery.
- Increasing brand and product sameness between retailers in the same
locale, which has caused retailers to seek ways to differentiate
themselves with the consumer, such as through successful private label
brands.
- Because of the retailers' focus on cost reduction and enhancing narrow
margins, virtually all productive capacity has gone off shore.
- Increased consumer focus on the price-to-value relationship of
products.
Competition
-----------
The cyclical nature of the apparel industry, characterized by rapid shifts
in fashion, consumer demand and competitive pressures, results in both price and
demand volatility. The demand for any particular product varies from time to
time based largely upon changes in consumer preferences and general economic
conditions affecting the apparel industry, such as consumer expenditures for
non-durable goods. The apparel industry is also cyclical because the supply of
particular products changes as competitors enter or leave the market.
Duck Head competes in the value-oriented men's and boys' apparel market,
primarily in the Southeast United States. Duck Head competes with numerous
domestic and foreign manufacturers of branded and private label apparel,
including companies significantly greater in size and financial resources than
Duck Head. Retail specialty stores, such as the GAP and Abercrombie & Fitch,
are Duck Head's principal competitors in the boys' and young men's markets.
Major brands, such as Dockers, Farrah, Haager, and Savane, and certain
department and chain store private labels, are Duck Head's principal competitors
in the men's market. The principal competitive factors in the portion of the
apparel industry in which Duck Head competes are product styling and
differentiation, brand recognition, quality, price, manufacturing flexibility,
delivery time and customer service. The relative importance of these factors
varies with the needs of particular customers and the specific product offering.
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To varying degrees, in recent years Duck Head's competitive position has
been negatively affected by its financial performance, poor track record of
delivery credibility, lack of a clearly defined strategy, personnel turn-over,
uncertainties with respect to the future ownership of the business and the
largely regional basis of its business. Duck Head believes that some of these
negative factors have been reduced as a result of the recent efforts described
above under "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and should be reduced by implementation of the business
strategy described above under this heading "Business of Duck Head".
Duck Head believes that its competitive strengths include the long history
of its brand with the consumer, its demonstrated ability to produce enhanced
margins for its customers as compared to certain national brands, its relatively
low sourcing costs, its relatively small size, which makes supply chain issues
less difficult to fix, and its excellent information technology systems support.
Duck Head also believes that its flexible production operations are a
significant competitive advantage. The business has a distribution facility
that has capacity for considerable growth. By coordinating operations between
its leased Costa Rica facility and third party contractors, Duck Head believes
that it can take advantage of the lower costs of offshore production.
Foreign competition has been an increasingly significant factor in the
apparel manufacturing industry, particularly with respect to items that require
labor-intensive production, such as shirts and jackets, and high cost luxury
items. Although domestic apparel companies must compete to some extent on a
price basis with foreign competition, Duck Head's management believes that
domestic apparel companies can best compete by selling branded products, by
manufacturing off-shore, by offering product flexibility, by responding quickly
to changes in consumer demand and by providing more timely deliveries. The
latter characteristics permit retailers in turn to reduce their inventory cost
and lower the risk that product availability will not match consumer demand.
Duck Head is focused on supplying its customers with all of these competitive
advantages.
Employees
---------
At January 1, 2000, Duck Head had approximately 500 employees. Duck Head's
employees are not represented by unions. Duck Head believes that its relations
with its employees are good.
Environmental and Regulatory Matters
---------------------------------------
Duck Head is subject to various federal, state and local environmental laws
and regulations concerning, among other things, wastewater discharges, storm
water flows, air emissions, ozone depletion and solid waste disposal. Duck
Head's facilities generate very small quantities of hazardous waste which are
either recycled or disposed of off-site. Most of its facilities are required to
possess one or more discharge permits.
Duck Head believes that it is in compliance in all material respects with
federal, state, and local environmental statutes and requirements.
Generally, the environmental rules applicable to Duck Head are becoming
increasingly stringent. Duck Head incurs capital and other expenditures in each
year that are aimed at achieving compliance with current and future
environmental standards.
Duck Head does not expect that the amount of these expenditures in the
future will have a material adverse effect on its operations or financial
condition. There can be no assurance, however, that future changes in federal,
state or local regulations, interpretations of existing regulations or the
discovery of currently unknown problems or conditions will not require
substantial additional expenditures. Similarly, the extent of Duck Head's
liability, if any, for past failures to comply with laws, regulations and
permits applicable to its operations cannot be determined.
Trademarks
----------
Duck Head has several trademarks material to its business registered with
the United States Patent and Trademark Office, including marks covering the name
"Duck Head" and several logos used by the business. The name "Duck Head" has
been subject to a registered trademark since 1866. Duck Head is not aware of
any challenge to its rights in any of the trademarks material to its business.
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Legal Proceedings
------------------
All litigation to which Duck Head is a party is ordinary routine product
liability litigation or contract breach litigation incident to its business that
does not depart from the normal kind of such actions. Duck Head believes that
none of these actions, if adversely decided, would have a material adverse
effect on its results of operations or financial condition taken as a whole.
PROPERTIES
The following table provides a description of Duck Head's principal
production and warehouse facilities.
<TABLE>
<CAPTION>
Approximate
Square
Location Utilization Footage Owned/Leased
- ------------------------------- ----------- -------------- -------------
<S> <C> <C> <C>
San Jose Plant,
San Jose, Costa Rica sew 60,000 Leased(1)
Winder Distribution Center, administrative
Winder, GA offices,
warehouse,
embroidery,
repair unit 230,000 Owned
Various (2) stores (2) (2)
- -------------------------------
<FN>
(1) The San Jose plant is leased on a month-to-month basis. Duck Head believes
that, as long as it pays the rent, it should be able to continue to use this
facility indefinitely.
(2) The "Duck Head" outlet stores operation leases 25 facilities in 9 states,
which leased space is approximately 82,000 square feet. These leases expire at
various dates through 2006.
</TABLE>
In addition, a sales office is leased in New York City, with the lease
expiring in December 2000.
Duck Head's accounts receivable and inventory, and certain other intangible
property, currently secure Delta Woodside's credit facility. In connection with
the Duck Head distribution, these liens on the assets of Duck Head will be
terminated or released and new liens on substantially all of Duck Head's assets
will be granted to Duck Head's credit agreement lender.
Various factors affect the relative use by Duck Head of its own facilities
and outside contractors in the various apparel production phases. Duck Head is
not currently using the majority of its internal leased production capacity.
Duck Head believes that its equipment and facilities are generally adequate
to allow it to remain competitive with its principal competitors.
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MANAGEMENT OF DUCK HEAD
DIRECTORS
The following eight persons are the members of Duck Head's board of
directors. Their term runs until the next annual meeting of stockholders of
Duck Head or until their successors are duly elected and qualified. Each
director is a citizen of the United States. There are no family relationships
among the directors and the executive officers of Duck Head.
NAME AND AGE PRINCIPAL OCCUPATION DIRECTOR
SINCE
William F. Garrett (59) President of Delta Mills Marketing 1998(1)
Company, a division of a subsidiary
of Delta Woodside (2)
C. C. Guy (67) Retired Businessman 1984(1)
Shelby, North Carolina (3) (10) (11)
Dr. James F. Kane (68) Dean Emeritus of the College of 1986(1)
Business Administration of the
University of South Carolina
Columbia, South Carolina (4)(10)(11)(12)
Dr. Max Lennon (59) President of Mars Hill College 1986(1)
Mars Hill, North Carolina
(5) (10) (11)(12)
E. Erwin Maddrey, II (59) President and Chief Executive 1984(1)
Officer of Delta Woodside (6)
Buck A. Mickel (44) President and Chief Executive 1984(1)
Officer of RSI Holdings, Inc.
Greenville, South Carolina (7) (11)
Bettis C. Rainsford (48) President of The Rainsford 1984(1)
Development Corporation
Edgefield, South Carolina (8)
Robert D. Rockey, Jr. (58) Chairman of the Board, President 1999
and Chief Executive Officer of
Duck Head (9)
______________________
(1) Includes service as a director of Delta Woodside and Delta Woodside's
predecessor by merger, Delta Woodside Industries, Inc., a Delaware corporation
(which this documents refers to as "Old Delta Woodside"), or any predecessor
company to Old Delta Woodside.
75
<PAGE>
(2) William F. Garrett served as a divisional Vice President of J. P.
Stevens & Company, Inc. from 1982 to 1984, and as a divisional President of J.
P. Stevens & Company, Inc. from 1984 until 1986, at which time the Delta Mills
Marketing Company division was acquired by a predecessor of Old Delta Woodside.
From 1986 until the present he has served as the President of Delta Mills
Marketing Company, a division of a subsidiary of Delta Woodside. Upon
consummation of the Duck Head distribution, Mr. Garrett will become President
and Chief Executive Officer of Delta Woodside. Mr. Garrett also serves as a
director of Delta Woodside and Delta Apparel.
(3) C. C. Guy served as Chairman of the Board of Old Delta Woodside or its
predecessors from the founding of Old Delta Woodside's predecessors in 1984
until November 1989. Since before the November 15, 1989 merger (which this
document refers to as the "RSI Merger") of Old Delta Woodside into RSI
Corporation, a South Carolina corporation which changed its name to Delta
Woodside Industries, Inc. and is now Delta Woodside, he has been a director of
RSI Holdings, Inc., and from before the RSI Merger until January 1995 he also
served as President of RSI Holdings, Inc. RSI Holdings, Inc. until 1992 was
engaged in the sale of outdoor power equipment, until 1994 was engaged in the
sale of turf care products, until January 2000 was engaged in the consumer
finance business and is currently evaluating other business opportunities.
Prior to November 15, 1989, RSI Holdings, Inc. was a subsidiary of RSI
Corporation. Mr. Guy served from October 1979 until November 1989 as President,
Treasurer and a director of RSI Corporation. Prior to the RSI Merger, RSI
Corporation owned approximately 40% of the outstanding shares of common stock of
Old Delta Woodside and, among other matters, was engaged in the office supply
business, as well as the businesses of selling outdoor power equipment and turf
care products. Mr. Guy also serves as a director of Delta Woodside and Delta
Apparel.
(4) Dr. James F. Kane is Dean Emeritus of the College of Business
Administration of the University of South Carolina, having retired in 1993 as
Dean, in which capacity he had served since 1967. He also serves as a director
of Delta Woodside, Delta Apparel and Glassmaster Company.
(5) Dr. Max Lennon was President of Clemson University from March 1986
until August 1994. He was President and Chief Executive Officer of Eastern
Foods, Inc., which was engaged in the business of manufacturing and distributing
food products, from August 1994 until March 1996. He commenced service in March
1996 as President of Mars Hill College. He also serves as a director of Delta
Woodside, Delta Apparel and Duke Power Company.
(6) E. Erwin Maddrey, II was President and Chief Executive Officer of Old
Delta Woodside or its predecessors from the founding of Old Delta Woodside's
predecessors in 1984 until the RSI Merger and he has served in these positions
with Delta Woodside since the RSI Merger. Upon consummation of the Duck Head
distribution, Mr. Maddrey will retire from his officer positions with Delta
Woodside. He also serves as a director of Delta Woodside, Delta Apparel and
Kemet Corporation.
(7) Buck A. Mickel was a Vice President of Old Delta Woodside or its
predecessors from the founding of Old Delta Woodside's predecessors until
November 1989, Secretary of Old Delta Woodside from November 1986 to March 1987,
and Assistant Secretary of Old Delta Woodside from March 1987 to November 1988.
He served as Vice President and a director of RSI Holdings, Inc. from before the
RSI Merger until January 1995 and as Vice President of RSI Holdings, Inc. from
September 1996 until July 1998 and has served as President, Chief Executive
Officer and a director of RSI Holdings, Inc. from July 1998 to the present. He
served as Vice President of RSI Corporation from October 1983 until November
1989. Mr. Mickel also serves as a director of Delta Woodside and Delta Apparel.
(8) Bettis C. Rainsford was Executive Vice President and Chief Financial
Officer of Old Delta Woodside or its predecessors from the founding of Old Delta
Woodside's predecessors in 1984 until the RSI Merger and served in these
positions with Delta Woodside from the RSI Merger until October 1, 1999. Mr.
Rainsford served as Treasurer of Old Delta Woodside or its predecessors or Delta
Woodside from 1984 to 1986, from August 1988 to November 1988 and from November
1990 to October 1, 1999. He is President of The Rainsford Development
Corporation which is engaged in general business development activities in
Edgefield, South Carolina. Mr. Rainsford also serves as a director of Delta
Woodside, Delta Apparel and Martin Color-Fi, Inc. and is a member of the
managing entity of Mount Vintage Plantation Golf Club, LLC.
76
<PAGE>
(9) Robert D. Rockey, Jr. has served as the chief executive officer of the
Duck Head Apparel Company division of a subsidiary of Delta Woodside since
March 1999, and was elected Chairman of the Board, President and Chief Executive
Officer of Duck Head in December 1999. Mr. Rockey served for nearly twenty
years with Levi Strauss & Co. From May 1993 until June 1997, he was President
of Levi Strauss North America, the company's largest operating business. From
June 1997 to March 1999, Mr. Rockey ran his own consulting business, serving the
retail, textile and apparel industries.
(10) Member of Audit Committee.
(11) Member of Compensation Committee.
(12) Member of Compensation Grants Committee.
EXECUTIVE OFFICERS
The following provides information regarding the executive officers of Duck
Head
<TABLE>
<CAPTION>
NAME AND AGE POSITION AND EXPERIENCE
<S> <C>
Robert D. Rockey, Jr. (58) Chairman of the Board, President and Chief Executive Officer (1)
Michael H. Prendergast (54) Senior Vice President of Sales (2)
K. Scott Grassmyer (39) Senior Vice President, Chief Financial Officer, Secretary and Treasurer (3)
William B. Mattison, Jr. (56) Senior Vice President of Merchandising (4)
______________________
<FN>
(1) See information under the subheading "Directors."
(2) Mr. Prendergast was elected as Duck Head's Senior Vice President of
Sales in December 1999. He was elected in July 1997 to serve as Senior Vice
President of Sales and Marketing of the Duck Head Apparel Company division.
Prior to joining the Duck Head Apparel Company division, Mr. Prendergast was
Senior Vice President-Sales at Bugle Boy Industries (an apparel producer) from
1994 to 1997.
(3) Mr. Grassmyer was elected as Duck Head's Senior Vice President, Chief
Financial Officer, Secretary and Treasurer in December 1999. He was elected in
February 1998 to serve as Senior Vice President and Chief Financial Officer of
the Duck Head Apparel Company division. Prior to that time, he was Chief
Financial Officer of the Duck Head Apparel Company division from August 1992 to
February 1998.
(4) Mr. Mattison was elected Senior Vice President of Merchandising for
Duck Head in December 1999. He was elected in July 1999 to serve as Senior Vice
President of Merchandising of the Duck Head Apparel Company division. Prior to
joining the Duck Head Apparel Company division, Mr. Mattison was Vice President
of merchandising at Hagale Industries (an apparel producer) from 1995 to 1999.
Prior to that, Mr. Mattison served for nearly 12 years with River City Trading
Company (an apparel producer), serving as President from 1992 to 1995.
</TABLE>
Duck Head's executive officers are appointed by Duck Head's board of
directors and serve at the pleasure of Duck Head's Board.
77
<PAGE>
MANAGEMENT COMPENSATION
Summary Compensation Table
----------------------------
The following table sets forth information for the fiscal year ended July
3, 1999 respecting the compensation from Delta Woodside or any of its
subsidiaries that was earned by Duck Head's current Chief Executive Officer and
by the other two current executive officers of Duck Head who earned salary and
bonus in fiscal 1999 from Delta Woodside or any of its subsidiaries in excess of
$100,000 (whom this document refers to collectively as the "Named Executives").
Each individual listed in the table worked exclusively for the Duck Head Apparel
Company division during fiscal year 1999 to the extent that individual was
employed during that period by any member of the Delta Woodside group of
corporations.
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term
---------------------------- ----------
Compensation
----------
Awards
Other ---------
Annual Securities
Compen- Underlying All Other
Fiscal Salary Bonus sation Options Compen-
Name and Principal Position Year ($) (a) ($) (a)(b) ($) (c) (#) (d) sation ($)
- -------------------------------- ---- ------- ---------- ------- ---------- -------------
<S> <C> <C> <C> <C> <C> <C>
Robert D. Rockey, Jr. (e) 1999 153,848 81,731 0 0 0
President and Chief
Executive Officer of Duck
Head Apparel Company
division
Michael H. Prendergast 1999 217,266 7,500 4,106 0 8,001(g)(i)
Senior Vice President of
Sales and Marketing of Duck
Head Apparel Company
division
K. Scott Grassmyer 1999 120,914 15,000 1,123 12,000 (f) 5,239(h)(i)
Senior Vice President and
Chief Financial Officer of
Duck Head Apparel Company
division
- --------------------------------
<FN>
(a) The amounts shown in the column include sums the receipt of which has
been deferred pursuant to the Delta Woodside Savings and Investment Plan (the
"Delta Woodside 401(k) Plan") or the Delta Woodside deferred compensation plan.
(b) Amounts in this column are cash bonuses paid to reward performance.
78
<PAGE>
(c) The amounts in this column were paid by Delta Woodside in connection
with the vesting of awards under the Delta Woodside Incentive Stock Award Plan
and were in each case approximately sufficient, after the payment of all
applicable income taxes, to pay the participant's federal and state income taxes
attributable to the vesting of the award.
(d) For purposes of this table, awards under the Delta Woodside Incentive
Stock Award Plan are treated as options.
(e) Mr. Rockey was not employed by Delta Woodside or any of its
subsidiaries until his appointment as President and Chief Executive Officer of
the Duck Head Apparel Company division in March 1999. For a description of the
compensation that Delta Woodside has agreed to pay Mr. Rockey for his service as
President and chief executive officer of Duck Head, see the material under the
sub-heading below, "Robert D. Rockey, Jr. Employment Contract". Duck Head will
assume Delta Woodside's obligations under this agreement in connection with the
Duck Head distribution.
(f) During fiscal 1999, Mr. Grassmyer was granted an award covering 12,000
shares under the Delta Woodside Stock Option Plan.
(g) The fiscal 1999 amount represents $666 Delta Woodside contribution
allocated to Mr. Prendergast's account in the Delta Woodside 401(k) Plan, $240
contributed by Delta Woodside to the Delta Woodside deferred compensation plan
as payment for the amount of Delta Woodside contributions to the Delta Woodside
401(k) Plan for fiscal year 1998 that were not made for Mr. Prendergast because
of Internal Revenue Code contribution limitations, $1,506 contributed by Delta
Woodside to the Delta Woodside 401(k) Plan for Mr. Prendergast with respect to
his compensation deferred under the Delta Woodside 401(k) Plan, and $8 earned on
Mr. Prendergast's deferred compensation at a rate in excess of 120% of the
Federal mid-term rate. In addition, Delta Woodside paid $5,581 in fiscal 1999
for expenses related to Mr. Prendergast's relocation, including amounts
approximately sufficient, after the payment of all applicable income taxes, to
pay his federal and state income taxes attributable to these relocation
expenses.
(h) The fiscal 1999 amount represents $502 Delta Woodside contribution
allocated to Mr. Grassmyer's account in the Delta Woodside 401(k) Plan, $1,451
contributed by Delta Woodside to the Delta Woodside 401(k) Plan for Mr.
Grassmyer with respect to his compensation deferred under the Delta Woodside
401(k) Plan, $236 contributed to Delta Woodside's deferred compensation plan by
Delta Woodside for Mr. Grassmyer with respect to his compensation deferred under
Delta Woodside's deferred compensation plan and $3,050 earned on Mr. Grassmyer's
deferred compensation at a rate in excess of 120% of the Federal mid-term rate.
(i) The Delta Woodside 401(k) Plan allocation shown for the fiscal year was
allocated to the participant's account during that fiscal year, although all or
part of the allocation may have been determined in whole or in part on the basis
of the participant's compensation during the prior fiscal year.
The amounts shown in the table above do not include the value of the
provision by Delta Woodside or its subsidiaries of an apartment, an automobile
or other property for the benefit of any of the Named Executives. The
non-business personal benefit to any Named Executive of these amounts does not
exceed 10% of the Named Executive's total salary and bonus.
</TABLE>
79
<PAGE>
Option Grants in the Last Fiscal Year
-------------------------------------------
The following table provides information respecting the grant to a Named
Executive during fiscal 1999 of options under the Delta Woodside Stock Option
Plan.
<TABLE>
<CAPTION>
OPTION GRANTS IN LAST FISCAL YEAR
Individual Grants
---------------------------------------------- Potential Realizable Value
Number of % of Total at Assumed Annual Rates
Securities Options Market of Stock
Underlying Granted To Exercise Price on Appreciation for Option
Term (b)
Options Duck Head or Base Date of -------------------------
Granted Employees in Price Grant Expiration 0% 5% 10%
Name (#)(a) Fiscal Year ($/Sh) ($/Sh) Date ($) ($) ($)
- ----------------------- ---------- ------------ -------- ---------- ---------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
K. Scott
Grassmyer 12,000 (a) 71% 2.47 4.94 8/2003 29,640 46,018 65,831
<FN>
(a) These represent shares covered by an option granted during fiscal 1999
under Delta Woodside's Stock Option Plan, pursuant to which a participant
is granted the right to acquire shares of Delta Woodside's common stock for
an exercise price per share which will be not less than one-half of the
fair market value on the date of the grant. Each option granted under the
plan sets forth the circumstances under which all or part of the option can
be exercised. The expiration date set forth in the table is the termination
date for the option.
This option was granted to Mr. Grassmyer on August 6, 1998, and became
exercisable with respect to 25% of the shares covered by the option on
August 6, 1999. Under the original terms of the option, it was scheduled to
become exercisable with respect to an additional 25% of the shares covered
by the option on each subsequent anniversary of August 6, 1998, if he
remained as an employee of Delta Woodside on each of the relevant dates.
The option also set forth additional terms and conditions relating to the
exercise of options if Mr. Grassmyer's employment terminated early by
reason of death, retirement or permanent disability. Pursuant to the terms
of the distribution agreement, each participant in the Delta Woodside stock
option plan has been given the opportunity to enter into an agreement
amending the participant's stock option agreement, pursuant to which
amendment all of the unexercisable options shall become immediately
exercisable in full. Mr. Grassmyer entered into this amendment agreement
with Delta Woodside. See "Interests of Directors and Executive Officers in
the Duck Head Distribution - Early Exercisability of Delta Woodside Stock
Options."
(b) Based on annual compounding of assumed appreciation rate until termination
date.
</TABLE>
80
<PAGE>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
- --------------------------------------------------------------------------------
VALUES
- ------
The following table provides information respecting the exercise by any
named executive during fiscal 1999 of awards granted under Delta Woodside's
incentive stock award plan and options granted under Delta Woodside's stock
option plan, and the fiscal year end value of any unexercised outstanding awards
and options. For purposes of this table, awards under Delta Woodside's
incentive stock award plan are treated as options.
<TABLE>
<CAPTION>
AGGREGATED OPTION EXERCISES IN LAST
FISCAL YEAR AND FY-END OPTION VALUES
Shares
Acquired
On Value Number Of Securities Value Of Unexercised
Exercise Realized Underlying Unexercised In-The-Money Options
Name (#) ($) Options At Fy-End (#) At Fy-End ($)(A)
- ----------- -------- -------- -------------------------- --------------------------
exercisable unexercisable exercisable unexercisable
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
MICHAEL H.
PRENDERGAST 4,200 18,918 0 9,000 0 26,978
K. SCOTT
GRASSMYER 3,400 6,137 0 12,000 0 41,610
- -------------------------
<FN>
(A) Based on the closing sales price of $5.9375 per delta woodside share on
July 2, 1999.
</TABLE>
Director Compensation
----------------------
Duck Head will pay each current director who is not an officer of Duck Head
a fee of $6,667 per year, plus will provide each of these directors
approximately $3,333 annually with which shares of Duck Head's common stock will
be purchased. These Duck Head shares may be newly issued or acquired in the
open market for this purpose. Each non-officer director will also be paid $500
($750 for the committee chair) for each committee meeting attended, $250 for
each telephonic board and committee meeting in which the director participates
and $500 for each board meeting attended in addition to 4 quarterly board
meetings. Each director will also be reimbursed for reasonable travel expenses
in attending each meeting.
Duck Head anticipates that any non-officer director subsequently added to
the Duck Head Board will be paid a fee of $13,334 per year, plus be provided
approximately $6,666 per year with which shares of Duck Head's common stock will
be purchased. Each of these additional directors will be paid the same meeting
fees as payable to Duck Head's current directors. Duck Head anticipates that
the fees payable to Duck Head's existing directors will increase over a five
year period to be the same as the fees payable to any additional directors.
Robert D. Rockey, Jr. Employment Contract.
----------------------------------------------
Robert D. Rockey, Jr. joined the Duck Head Apparel Company division in
March 1999 under the terms of a letter dated March 15, 1999 which was amended on
October 19, 1999 and as of March 15, 2000. Under the letters:
81
<PAGE>
- Mr. Rockey serves as Chairman and Chief Executive Officer of Duck
Head.
- Duck Head has granted to Mr. Rockey the right to purchase from Duck
Head up to 1,000,000 Duck Head shares on the date that is six months
after the Duck Head distribution. If the right is exercised, the price
for the shares will be the average daily closing stock price for the
Duck Head common stock for the six-month period following the Duck
Head distribution.
- Mr. Rockey's salary is $500,000 per year. In addition, he was
guaranteed a fiscal year 1999 bonus at the annualized rate of
$500,000. Until the first anniversary of the Duck Head distribution,
he will continue to receive a guaranteed bonus at the annualized rate
of $500,000. Any bonus plan for any subsequent period will be set by
the Duck Head board of directors.
- Duck Head will pay up to $100,000 per year for the costs of an
automobile, an apartment in the Winder, Georgia area and commuting.
- Mr. Rockey will be granted incentive stock awards under the Duck Head
incentive stock award plan covering the lesser of (a) 75,000 Duck Head
shares or (b) Duck Head shares with a value on the date of grant of
$200,000. These awards will vest to the extent of 60% of the shares
covered thereby on March 8, 2001 if he is still then employed by Duck
Head and to the extent of the remaining 40% of the shares covered
thereby if specified performance criteria through March 8, 2001 are
satisfied. If the number of Duck Head shares covered by the award have
a value less than $200,000 on the date of grant, the difference
between that value and $200,000, plus a gross-up income tax amount,
will be paid in cash by Duck Head to Mr. Rockey.
- An aggregate of 125,000 Duck Head shares will be reserved for options
to be granted to Mr. Rockey under the Duck Head stock option plan. Mr.
Rockey will vest in the stock option over a period ending March 8,
2001.
- Mr. Rockey will be the beneficiary of $1.0 million life insurance
policy paid for by Duck Head.
Duck Head will assume Delta Woodside's obligations under these letters in
connection with the Duck Head distribution.
Duck Head Stock Option Plan
-------------------------------
Under the Duck Head stock option plan, the compensation committee (or, in
the case of the Named Executives, the compensation grants committee) of the Duck
Head board of directors will have the discretion to grant options for up to an
aggregate maximum of 500,000 Duck Head shares.
The purpose of the Duck Head option plan is to promote the growth and
profitability of Duck Head and its subsidiaries by increasing the personal
participation of key and middle level executives in the performance of Duck Head
and its subsidiaries, by enabling Duck Head and its subsidiaries to attract and
retain key and middle level executives of outstanding competence and by
providing these key and middle level executives with an equity opportunity in
Duck Head. The compensation committee (or, in the case of the Named Executives,
the compensation grants committee) of the Duck Head board of directors will
administer the Duck Head option plan.
82
<PAGE>
Participation in the Duck Head option plan is determined by the applicable
committee and is limited to those key and middle level executives, who may or
may not be officers or members of the Duck Head board of directors, of Duck Head
or one of its subsidiaries who have the greatest impact on Duck Head's long-term
performance. In making any determination as to the key and middle level
executives to whom options will be granted and the number of shares that will be
subject to each option, the applicable committee is to take into account, in
each case, the level and responsibility of the executive's position, the
executive's performance, the executive's level of compensation, the assessed
potential of the executive and those other factors that the applicable committee
deems relevant to the accomplishment of the purposes of the plan. Directors who
are not also employees of Duck Head are not eligible to participate in the Duck
Head option plan. The Duck Head option plan provides that no more than 125,000
Duck Head shares may be covered by grants made under the plan in any fiscal year
to any particular employee.
In the discretion of the applicable committee, options granted under the
Duck Head option plan may be "incentive stock options" for federal income tax
purposes. Duck Head is not allowed a deduction at any time in connection with,
and the participant is not taxed upon either the grant or the exercise of, an
"incentive stock option." The difference between the exercise price of an
incentive stock option and the market value of the shares of common stock at the
date of exercise, however, constitutes a tax preference item for the participant
in the year of exercise for alternative minimum tax purposes. Among other
requirements, the stock acquired by the participant must be held for at least
two years after the option is granted and for at least one year after the option
is exercised for the option to qualify as an incentive stock option. If the
participant satisfies these holding period requirements, the participant will be
taxed only upon any gain realized upon disposition of the stock. The
participant's gain will be equal to the difference between the sales price of
the stock and the exercise price. If an incentive stock option is exercised
after the death of the employee by the estate of the decedent, or by a person
who acquired the right to exercise the option by bequest or inheritance or by
reason of the death of the decedent, none of the holding period requirements
apply.
If the participant fails to satisfy the holding period requirements, the
option will be treated in a manner similar to options that are not incentive
stock options. The participant is generally not taxed upon the grant of an
option that is not an incentive stock option. Upon exercise of any the option,
however, the participant recognizes ordinary income equal to the difference
between the fair market value of the shares acquired on the date of exercise and
the exercise price. Subject to Section 162(m) of the Internal Revenue Code
(relating to limitations on corporate income tax deduction of certain executive
compensation in excess of $1 million), generally Duck Head receives a deduction
for the amount the participant reports as ordinary income arising from the
exercise of the option. Upon a subsequent sale or disposition of the stock, the
holder would be taxable on any excess of the selling price over the fair market
value of the stock at the date of exercise. If the participant fails to satisfy
the holding period requirements with respect to an option that would otherwise
qualify as an incentive stock option, (i) ordinary income to the participant
and, subject to Section 162(m) of the Internal Revenue Code, the deduction for
Duck Head will arise at the time of the early disposition of the stock and will
equal the excess of (a) the lower of the fair market value of the shares at the
time of exercise or the sales price of the shares at the time of disposition
over (b) the exercise price, and (ii) if the sales price of the stock at the
time of the early disposition exceeds the fair market value of the shares at the
time of exercise, the participant will also recognize capital gain income equal
to that excess.
Duck Head will attempt, to the maximum extent possible, to structure grants
under the Duck Head option plan to the Named Executives in a manner that
satisfies the deductibility requirements of Section 162(m) of the Internal
Revenue Code.
The term of each option will be established by the applicable committee,
but will not exceed ten years (or five years in the case of an incentive stock
option recipient who owns stock having more than ten percent of the total
combined voting power of all classes of stock of Duck Head), and the option will
be exercisable according to the schedule that the applicable committee may
determine. The recipient of an option will not pay Duck Head any amount at
the time the option is granted. If an option expires or terminates for any
reason without having been fully exercised, the unpurchased shares subject to
the option will again be available for the purposes of the Duck Head option
plan.
83
<PAGE>
Under the Duck Head option plan, the applicable committee determines the
period of time (up to three months), if any, during which an option may be
exercised after the participant's termination of employment with Duck Head.
However, if a participant dies while in the employ of Duck Head or (if so
determined by the applicable committee at the date of grant) within three-months
after termination of employment or if a participant's employment is terminated
by reason of having become permanently and totally disabled, the option may be
exercised during the one-year period after the participant's death or
termination of employment due to disability. In no event, however, may an option
be exercised after the expiration of its fixed term.
The price per share at which each option granted under the Duck Head option
plan may be exercised will be the price set by the applicable committee at the
time of grant based on the criteria adopted by the applicable committee in good
faith; provided, however, in the case of an option intended to qualify as an
incentive stock option, the price per share will not be less than the fair
market value of the stock at the time the option is granted (or 110% of fair
market value if the recipient of an incentive stock option owns stock having
more than ten percent of the total combined voting power of all classes of stock
of Duck Head). The Duck Head option plan provides that in no event will the
exercise price per share of an option be less than 50% of the fair market value
per share of Duck Head's common stock on the date of the option grant.
Options may be exercised by the participant tendering to Duck Head payment
in cash in full of the exercise price for the shares as to which the option is
exercised. The applicable committee may determine at the time of grant that the
recipient will be permitted to pay the exercise price in Duck Head shares rather
than in cash.
The Duck Head option plan may be terminated or amended by the board of
directors (or committee of the Board), except that stockholder approval would be
required in the event an amendment were to increase the number of Duck Head
shares issuable under the plan (other than an increase pursuant to the
antidilution provisions of the plan).
The Duck Head option plan provides that it will terminate on the close of
business on February 14, 2010, and no options will be granted under the plan
thereafter, but termination will not affect any option granted under the plan
before the termination date.
As described in "Interests of Directors and Executive Officers in the Duck
Head Distribution - Receipt of Duck Head Stock Options and Duck Head Incentive
Stock Awards", the compensation grants committee or the compensation committee
of the Duck Head board of directors currently expects to grant, within the first
six months after the Duck Head distribution, stock options under the Duck Head
option plan to the executive officers of Duck Head.
Duck Head Incentive Stock Award Plan
-----------------------------------------
Under the Duck Head incentive stock award plan, the compensation committee
(or, in the case of the Named Executives, the compensation grants committee) of
the Duck Head board of directors has the discretion to grant awards for up to an
aggregate maximum of 200,000 Duck Head shares.
The purposes of the Duck Head incentive stock award plan are to establish
or increase the equitable ownership in Duck Head by key and middle level
management employees of Duck Head and its subsidiaries and to provide incentives
to key and middle level management employees of the Duck Head and its
subsidiaries through the prospect of stock ownership.
84
<PAGE>
The Duck Head incentive stock award plan authorizes the applicable
committee to grant to officers or other key management employees or middle level
management employees of Duck Head or any of its subsidiaries rights to acquire
Duck Head shares at a cash purchase price of $.01 per share. Awards may be made
to reward past performance or to induce exceptional future performance. The
applicable committee will administer the Duck Head incentive stock award plan
and determine the officers or key or middle level management employees to whom
awards will be granted and the number of shares to be covered by any award.
Directors who are not also employees are not eligible to participate in the
plan. The Duck Head incentive stock award plan provides that no more than
75,000 Duck Head shares may be covered by awards granted under the plan in any
fiscal year to any particular employee.
A participant may receive an incentive stock award only upon execution of
an incentive stock award agreement with Duck Head. The incentive stock award
agreement sets forth the circumstances under which the award (or portion of the
award) is forfeited. These circumstances may include (i) the termination of
employment of the participant with Duck Head or any of its subsidiaries, for any
reason other than death, retirement or permanent total disability, prior to the
vesting date for the award (or portion of the award), and (ii) those additional
circumstances (which could include the failure by Duck Head to meet specified
performance criteria) that may be deemed appropriate by the applicable
committee. The forfeiture circumstances may vary among the shares covered by an
award. In the event an award (or portion of the award) is forfeited pursuant to
the terms of the applicable incentive stock award agreement, the participant
will immediately have no further rights under the award (or portion of the
award) or in the shares covered thereby, and the shares will again become
available for purposes of the Duck Head incentive stock award plan.
Each incentive stock award agreement sets forth the circumstances under
which the award (or portion of the award) will vest. These circumstances may
include (i) the participant being an employee with Duck Head or any subsidiary
on the date set forth in the incentive stock award agreement and (ii) those
additional circumstances (which could include Duck Head having met specified
performance criteria) that may be deemed appropriate by the applicable
committee. The vesting circumstances may vary among the shares covered by an
award. In the event an award (or portion of the award) vests pursuant to the
terms of the applicable incentive stock award agreement, Duck Head will issue
and deliver, or cause to be issued and delivered, to the participant or his or
her legal representative, certificate(s) for the number of shares covered by the
vested portion of the award, subject to receipt by Duck Head of the $.01 per
share cash purchase price.
The recipient of an award will not pay Duck Head any amount at the time of
the receipt of the award. Ordinarily, the holder of an award will realize
taxable income, for federal income tax purposes, when the award (or portion of
the award) vests in an amount equal to the excess of the fair market value of
the covered shares on the date the award (or portion of the award) vests over
the $.01 per share cash purchase price. At the same time, subject to Section
162(m) of the Internal Revenue Code, Duck Head should generally be allowed a tax
deduction equivalent to the holder's taxable income arising from that vesting.
The Duck Head incentive stock award plan provides that, at or about the time the
award (or portion of the award) vests, Duck Head will pay the participant cash
sufficient to pay the participant's income tax liability associated with the
vesting and receipt of that cash. This cash payment would be taxable as income
to the participant and, subject to Section 162(m), generally deductible by Duck
Head.
The portion of any Duck Head incentive stock award that vests based on a
participant being an employee at specified dates will not satisfy the
requirements of Section 162(m) of the Internal Revenue Code. Duck Head will
attempt, however, to the maximum extent possible, to structure the portion of
incentive stock awards made to the Named Executives that vests in accordance
with performance criteria in a manner that satisfies the deductibility
requirements of Section 162(m). Duck Head anticipates that all compensation
payable pursuant to the plan, except to Robert D. Rockey, Jr., will be
deductible by Duck Head because, with the exception of Mr. Rockey, no Named
Executive is expected to receive in any fiscal year aggregate compensation that
Counts against the Section 162(m) in excess of $1 million. Duck Head
anticipates that Mr. Rockey will receive more than $1 million in any fiscal year
in aggregate compensation that counts against the $1 million deductibility cap
of Section 162(m). Accordingly, none of the compensation to Mr. Rockey that is
attributable to the vesting of incentive stock awards based on his being an
employee at specified dates will be deductible by Duck Head. Duck Head expects,
however, that the grants that are expected to be made to Mr. Rockey under the
plan that will vest in accordance with performance criteria will probably
satisfy the requirements of Section 162(m).
Until the issuance and delivery to the participant of certificate(s) for
shares pursuant to the vesting of an award, the participant has none of the
rights of a stockholder with respect to those shares.
85
<PAGE>
The Duck Head incentive stock award plan provides that the board of
directors (or committee of the Board) may terminate or amend the plan, except
that stockholder approval is required in the event any amendment would increase
the total number of Duck Head shares covered by the plan (except in connection
with the antidilution provisions of the plan).
As described in "Interests of Directors and Executive Officers in the Duck
Head Distribution - Receipt of Duck Head Stock Options and Duck Head Incentive
Stock Awards", the compensation grants committee or the compensation committee
of the Duck Head board of directors currently expects to grant, within the first
six months after the Duck Head distribution, incentive stock awards to the
executive officers of Duck Head.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The following directors will serve on the Compensation Committee of Duck
Head's board of directors: C.C. Guy, Dr. James F. Kane, Dr. Max Lennon and Buck
A. Mickel.
The following directors will serve on the Compensation Grants Committee of
Duck Head's board of directors: Dr. James F. Kane and Dr. Max Lennon.
C.C. Guy served as Chairman of the Board of Delta Woodside or its
predecessors (and their respective subsidiaries) from the founding of Delta
Woodside's predecessors in 1984 until November 1989. Buck A. Mickel was a Vice
President of Delta Woodside or its predecessors (and their respective
subsidiaries) from the founding of Delta Woodside's predecessors until November
1989, Secretary of Delta Woodside or its predecessors (and their respective
subsidiaries) from November 1986 to March 1987, and Assistant Secretary of Delta
Woodside or its predecessors (and their respective subsidiaries) from March 1987
to November 1988.
86
<PAGE>
SECURITY OWNERSHIP OF SIGNIFICANT BENEFICIAL OWNERS
AND MANAGEMENT
Based on the beneficial ownership of Delta Woodside shares as of March 3,
2000, the following table sets forth what the beneficial ownership of Duck
Head's common stock would be immediately following the Duck Head distribution by
(i) any person that would beneficially own more than five percent of the
outstanding common stock of Duck Head, (ii) the directors of Duck Head, (iii)
the Named Executives of Duck Head, and (iv) all directors and executive officers
of Duck Head as a group. Unless otherwise stated in the notes to the table,
Duck Head believes that the persons named in the table would have sole voting
and investment power with respect to all shares of common stock of Duck Head
shown as beneficially owned by them. On March 3, 2000, 23,307,645 Delta
Woodside shares were outstanding, corresponding to 2,330,764 Duck Head shares.
The table does not include Duck Head shares that may be issued under the right
granted to Robert D. Rockey to acquire Duck Head shares six months after the
Duck Head distribution or Duck Head shares that would be covered by stock
options that may be granted under Duck Head's stock option plan or incentive
stock awards that may be granted under Duck Head's incentive stock award plan.
See "Interests of Directors and Executive Officers in the Duck Head Distribution
- - Receipt of Duck Head Stock Options and Duck Head Incentive Stock Awards".
<TABLE>
<CAPTION>
Shares
------
Beneficially
------
Beneficial Owner Owned Percentage
- --------------------------------------------- ------- -----------
<S> <C> <C>
Robert D. Rockey, Jr. (1) 0 0.0%
13101 Preston Road #312
Dallas, Texas 75240
Reich & Tang Asset Management L. P. (2) 317,060 13.6%
600 Fifth Avenue
New York, New York 10020
Franklin Resources, Inc. (3) 224,000 9.6%
Franklin Advisory Services, LLC
Charles B. Johnson
Rupert H. Johnson, Jr.
777 Mariners Island Boulevard
San Mateo, California 94404
Dimensional Fund Advisors Inc. (4) 195,322 8.4%
1299 Ocean Avenue, 11th Floor
Santa Monica, California 90401
E. Erwin Maddrey, II (5)(21) 347,593 14.8%
233 North Main Street
Suite 200
Greenville, SC 29601
Bettis C. Rainsford (6)(21) 334,220 14.2%
108-1/2 Courthouse Square
Post Office Box 388
Edgefield, SC 29824
87
<PAGE>
Buck A. Mickel (7) (8)(21) 158,743 6.8%
Post Office Box 6721
Greenville, SC 29606
Micco Corporation (8) 124,063 5.3%
Post Office Box 795
Greenville, SC 29602
Minor H. Mickel (8) (9)(21) 157,804 6.8%
415 Crescent Avenue
Greenville, SC 29605
Minor M. Shaw (8) (10) 152,008 6.5%
Post Office Box 795
Greenville, SC 29602
Charles C. Mickel (8) (11) 149,694 6.4%
Post Office Box 6721
Greenville, SC 29606
William F. Garrett (12)(21) 27,173 1.2%
C. C. Guy (13)(21) 3,849 (20)
Dr. James F. Kane (14)(21) 4,055 (20)
Dr. Max Lennon (15)(21) 2,882 (20)
Michael H. Prendergast (16) 1,020 (20)
K. Scott Grassmyer (17) 1,970 (20)
William B. Mattison, Jr. (18) 0 (20)
All current directors and executive officers
as a group (11 Persons) (19)(21) 880,605 36.9%
</TABLE>
88
<PAGE>
(1) Mr. Rockey is Chairman of the Board, President and Chief Executive
Officer of Duck Head. Mr. Rockey has the right to acquire up to 1,000,000 Duck
Head shares from Duck Head on the date that is six months after the Duck Head
distribution at a purchase price equal to the average daily closing stock price
for the Duck Head common stock for the six-month period following the Duck Head
distribution. If Mr. Rockey exercises this right for the full amount of the
shares subject thereto, he would be the beneficial owned of approximately 29.4%
of the then outstanding Duck Head shares causing all directors and executive
officers as a group beneficially to own approximately 55.3% of the then
outstanding Duck Head shares. The table does not include any shares that may be
covered by incentive stock awards and stock options that the compensation grants
committee of the Duck Head board of directors may grant to Mr. Rockey. Under
the letter agreement pursuant to which Mr. Rockey became Chairman, President and
Chief Executive Officer of Duck Head, an aggregate of 125,000 Duck Head shares
will be reserved for options to be granted to him under the Duck Head stock
option plan and he will be granted incentive stock awards under the Duck Head
incentive stock award plan covering the lesser of 75,000 Duck Head shares or
Duck Head shares valued at $200,000. See "Management of Duck Head - Management
Compensation"; "Interests of Directors and Executive Officers in the Duck Head
Distribution - Right of Robert D. Rockey, Jr. to Acquire Duck Head Shares" and
"- Receipt of Duck Head Stock Options and Duck Head Incentive Stock Awards."
(2) This information is based on an amendment dated February 14, 2000 to
Schedule 13G that was filed with the Securities and Exchange Commission by Reich
& Tang Asset Management L. P. (which this document refers to as "Reich & Tang")
with respect to Delta Woodside's common stock. In the amendment, Reich & Tang
reported that, with respect to Delta Woodside's common stock, it had shared
voting power and shared dispositive power with respect to all of the shares
shown. The amendment reported that the shares of Delta Woodside's common stock
were held on behalf of certain accounts for which Reich & Tang provides
investment advice and as to which Reich & Tang has full voting and dispositive
power for as long as it retains management of the assets. According to the
amendment, each account has the right to receive and the power to direct the
receipt of dividends from, or the proceeds from the sale of, the Delta Woodside
shares. The amendment reported that none of such accounts has an interest with
respect to more than 5% of the outstanding shares of Delta Woodside's common
stock.
(3) This information is based on an amendment dated January 19, 2000 to
Schedule 13G that was filed with the Securities and Exchange Commission by
Franklin Resources, Inc. (which this document refers to as "FRI") with respect
to Delta Woodside's common stock. In the amendment, FRI reported that, with
respect to Delta Woodside's common stock, the shares shown in the table above
were beneficially owned by one or more investment companies or other managed
accounts that are advised by one or more direct and indirect investment advisory
subsidiaries of FRI. The amendment reported that the advisory contracts grant to
the applicable investment advisory subsidiary(ies) all investment and/or voting
power over the securities owned by their investment advisory clients.
Accordingly, such subsidiary(ies) may be deemed to be the beneficial owner of
the shares shown in the table. The amendment reported that Charles B. Johnson
and Rupert H. Johnson, Jr. (whom this document refers to as the "FRI Principal
Shareholders") (each of whom has the same business address as FRI) each own in
excess of 10% of the outstanding common stock and are the principal shareholders
of FRI and may be deemed to be the beneficial owners of securities held by
persons and entities advised by FRI subsidiaries. The amendment reported that
one of the investment advisory subsidiaries, Franklin Advisory Services, LLC
(whose address is One Parker Plaza, Sixteenth Floor, Fort Lee, New Jersey
07024), has sole voting and dispositive power with respect to all of the shares
shown. FRI, the FRI Principal Shareholders and the investment advisory
subsidiaries disclaim any economic interest or beneficial ownership in the
shares shown in the table above and are of the view that they are not acting as
a "group" for purposes of the Securities Exchange Act of 1934, as amended. The
amendment reported that Franklin Balance Sheet Investment Fund, a series of
Franklin Value Investors Trust, a company registered under the Investment
Company Act of 1940, has an interest in more than 5% of the class of securities
reported in the amendment.
(4) This information is based on an amendment to Schedule 13G dated
February 4, 2000 that was filed with the Securities and Exchange Commission by
Dimensional Fund Advisors Inc. (which this document refers to as "Dimensional")
with respect to Delta Woodside's common stock. Dimensional reported that it
had sole voting power and sole dispositive power with respect to all of the
shares shown. The amendment reports that Dimensional furnishes investment
advice to four investment companies and serves as investment manager to
certain other commingled group trusts and separate accounts, that all of the
shares of Delta Woodside's common stock were owned by such investment companies,
trusts or accounts, that in its role as investment adviser or manager
Dimensional possesses voting and/or investment power over the Delta
Woodside shares reported, that Dimensional disclaims beneficial ownership of
such securities and that, to the knowledge of Dimensional, no such
investment company, trust or account client owned more than 5% of the
outstanding shares of Delta Woodside's common stock.
89
<PAGE>
(5) Mr. Maddrey is a director of Duck Head. He is the President and Chief
Executive Officer (from which officer positions he will resign in connection
with the Duck Head distribution and the Delta Apparel distribution) and a
director of Delta Woodside and a director of Delta Apparel. The number of
shares shown as beneficially owned by Mr. Maddrey includes approximately 33,493
Delta Woodside shares (3,349 Duck Head shares) allocated to Mr. Maddrey's
account in Delta Woodside's Employee Stock Purchase Plan, 431,470 Delta Woodside
shares (43,147 Duck Head shares) held by the E. Erwin and Nancy B. Maddrey, II
Foundation, a charitable trust, as to which shares Mr. Maddrey holds sole voting
and investment power but disclaims beneficial ownership, and approximately 1,074
Delta Woodside shares (107 Duck Head shares) allocated to the account of Mr.
Maddrey in the Delta Woodside 401(k) Plan. Mr. Maddrey is fully vested in the
shares allocated to his account in the Delta Woodside 401(k) Plan.
(6) Mr. Rainsford is a director of Duck Head. He is also a director of
Delta Woodside and Delta Apparel. The number of shares shown as beneficially
owned by Mr. Rainsford includes 47,945 Delta Woodside shares (4,794 Duck Head
shares) held by The Edgefield County Foundation, a charitable trust, as to which
shares Mr. Rainsford holds sole voting and investment power but disclaims
beneficial ownership, and approximately 167 Delta Woodside shares (16 Duck Head
shares) allocated to the account of Mr. Rainsford in the Delta Woodside 401(k)
Plan. Mr. Rainsford is fully vested in the shares allocated to his account in
the Delta Woodside 401(k) Plan.
On December 14, 1999, Mr. Rainsford filed an amendment to his Schedule 13D
in which he stated that he was filing the amendment to disclose the fact that he
is considering the possibility of making an offer to purchase those Delta
Woodside shares that he does not currently own. The amendment stated that the
terms and financing for any such offer have not yet been established by Mr.
Rainsford. The amendment stated that Mr. Rainsford was considering making this
offer because of his strong disagreement with the recently announced decision by
the Delta Woodside board of directors to spin-off Delta Apparel Company and Duck
Head Apparel Company. The amendment stated that Mr. Rainsford has significant
concerns regarding the tax ramifications to Delta Woodside's shareholders of the
recently announced spin-offs as well as significant concerns regarding the value
and liquidity of the spun-off shares after the spin-off. The amendment stated
that Mr. Rainsford strongly objected to the adoption on December 9, 1999 by the
Delta Woodside board of directors of new Bylaws containing anti-takeover
provisions and an anti-takeover Shareholder Rights Plan. The amendment stated
that, in his capacity as an officer, director and significant shareholder of
Delta Woodside, Mr. Rainsford has discussed and proposed a variety of
alternatives as to how best to restructure Delta Woodside. The amendment stated
that, if certain alternatives proposed by Mr. Rainsford were pursued and
consummated, such a transaction could result in a substantial change in Delta
Woodside's corporate organization and operations, including particularly the
possible sale of the Delta Apparel Company and/or the Duck Head Apparel Company
divisions. The amendment stated that Mr. Rainsford may modify or change his
intentions based upon developments in Delta Woodside's business, discussions
with Delta Woodside, actions of management or a change in market or other
conditions or other factors. The amendment stated that Mr. Rainsford will
continually consider modifications of his position, or may take other steps,
change his intentions, or trade in Delta Woodside's securities at any time, or
from time to time.
(7) Buck A. Mickel is a director of Duck Head. He is also a director of
Delta Woodside and Delta Apparel. The number of shares shown as beneficially
owned by Buck A. Mickel includes 330,851 Delta Woodside shares (33,085 Duck Head
shares) directly owned by him, all of the 1,240,634 Delta Woodside shares
(124,063 Duck Head shares) owned by Micco Corporation, and 2,871 Delta Woodside
shares (287 Duck Head shares) held by him as custodian for a minor. See Note
(8).
90
<PAGE>
(8) Micco Corporation owns 1,240,634 shares of Delta Woodside's common
stock (124,063 Duck Head shares). The shares of common stock of Micco
Corporation are owned in equal parts by Minor H. Mickel, Buck A. Mickel (a
director of Duck Head), Minor M. Shaw and Charles C. Mickel. Buck A. Mickel,
Minor M. Shaw and Charles C. Mickel are the children of Minor H. Mickel. Minor
H. Mickel, Buck A. Mickel, Minor M. Shaw and Charles C. Mickel are officers and
directors of Micco Corporation. Each of Minor H. Mickel, Buck A. Mickel, Minor
M. Shaw and Charles C. Mickel disclaims beneficial ownership of three quarters
of the shares of Delta Woodside's common stock and Duck Head shares owned by
Micco Corporation. Minor H. Mickel directly owns 116,854 shares of Delta
Woodside's common stock (11,685 Duck Head shares) and as personal representative
of her husband's estate owns 207,750 shares of Delta Woodside's common stock
(20,775 Duck Head shares). Buck A. Mickel, directly or as custodian for a
minor, owns 333,722 shares of Delta Woodside's common stock (33,372 Duck Head
shares). Charles C. Mickel, directly or as custodian for his children, owns
256,210 shares of Delta Woodside's common stock (25,621 Duck Head shares).
Minor M. Shaw, directly or as custodian for her children, owns 264,978 shares of
Delta Woodside's common stock (26,497 Duck Head shares). Minor M. Shaw's
husband, through an individual retirement account and as custodian for their
children, beneficially owns approximately 14,474 shares of Delta Woodside's
common stock (1,447 Duck Head shares), as to which shares Minor M. Shaw may also
be deemed a beneficial owner. Minor M. Shaw disclaims beneficial ownership with
respect to these shares and with respect to the 2,748 shares of Delta Woodside's
common stock (274 Duck Head shares) held by her as custodian for her children.
The spouse of Charles C. Mickel owns 100 shares of Delta Woodside's common stock
(10 Duck Head shares), as to which shares Charles C. Mickel may also be deemed a
beneficial owner. Charles C. Mickel disclaims beneficial ownership with respect
to these shares and with respect to the 3,510 shares of Delta Woodside's common
stock (351 Duck Head shares) held by him as custodian for his children. Buck A.
Mickel disclaims beneficial ownership with respect to the 2,871 shares of Delta
Woodside's common stock (287 Duck Head shares) held by him as custodian for a
minor.
(9) The number of shares shown as beneficially owned by Minor H. Mickel
includes 116,854 Delta Woodside shares (11,685 Duck Head shares) directly owned
by her, 207,750 Delta Woodside shares (20,775 Duck Head shares) owned by her as
personal representative of her husband's estate and all of the 1,240,634 Delta
Woodside shares (124,063 Duck Head shares) owned by Micco Corporation. See Note
(8).
(10) The number of shares shown as beneficially owned by Minor M. Shaw
includes 264,978 Delta Woodside shares (26,497 Duck Head shares) owned by her
directly or as custodian for her children, approximately 14,474 Delta Woodside
shares (1,447 Duck Head shares) beneficially owned by her husband through an
individual retirement account or as custodian for their children, and all of the
1,240,634 Delta Woodside shares (124,063 Duck Head shares) owned by Micco
Corporation. See Note (8).
(11) The number of shares shown as beneficially owned by Charles C. Mickel
includes 256,210 Delta Woodside shares (25,621 Duck Head shares) owned by him
directly or as custodian for his children, 100 Delta Woodside shares (10 Duck
Head shares) owned by his wife and all of the 1,240,634 Delta Woodside shares
(124,063 Duck Head shares) owned by Micco Corporation. See Note (8).
(12) William F. Garrett is a director of Duck Head. He is also a director
of Delta Woodside and Delta Apparel. The number of shares shown as beneficially
owned by Mr. Garrett includes approximately 598 Delta Woodside shares (59 Duck
Head shares) that are held in two dividend reinvestment accounts, one of which
has approximately 78 Delta Woodside shares (7 Duck Head shares) and is
registered in the names of William Garrett and Ann Garrett, though Mr. Garrett
has sole voting and dispositive power of these shares. It also includes
approximately 2,088 Delta Woodside shares (208 Duck Head shares) allocated to
Mr. Garrett's account in the Delta Woodside 401(k) Plan. Mr. Garrett is fully
vested in the shares allocated to his account in the Delta Woodside 401(k) Plan.
The number of shares shown in the table includes an aggregate of 95,000 unissued
Delta Woodside shares (9,500 Duck Head shares) subject to employee stock options
under Delta Woodside's stock option plan. Not all of these options will become
exercisable within 60 days or less under the current provisions of the Delta
Woodside stock option plan and the pertinent grants; however, it is expected
that Mr. Garrett will enter into an amendment to his options pursuant to which
all of his options will become exercisable prior to the Duck Head distribution,
and it is likely that such an amendment would become effective within the next
60 days. Consequently, all of Mr. Garrett's outstanding options are included in
the table. See, "Interests of Directors and Executive Officers in the Duck Head
Distribution -- Early Exercisability of Delta Woodside Stock Options."
(13) C. C. Guy is a director of Duck Head. He is also a director of Delta
Woodside and Delta Apparel. The number of shares shown as beneficially owned by
C. C. Guy includes 18,968 Delta Woodside shares (1,896 Duck Head shares) owned
by his wife, as to which shares Mr. Guy disclaims beneficial ownership.
(14) Dr. James F. Kane is a director of Duck Head. He is also a director
of Delta Woodside and Delta Apparel.
(15) Dr. Max Lennon is a director of Duck Head. He is also a director of Delta
Woodside and Delta Apparel.
91
<PAGE>
(16) Michael H. Prendergast is Senior Vice President of Sales of Duck
Head. The number of shares shown as beneficially owned by Mr. Prendergast
includes an aggregate of 9,000 unissued Delta Woodside shares (900 Duck Head
shares) subject to employee stock options under Delta Woodside's stock option
plan. Not all of these options will become exercisable within 60 days or less
under the current provisions of the Delta Woodside stock option plan and the
pertinent grants; however, it is expected that Mr. Prendergast will enter into
an amendment to his options pursuant to which all of his options will become
exercisable prior to the Duck Head distribution, and it is likely that such an
amendment would become effective within the next 60 days. Consequently, all of
Mr. Prendergast's outstanding options are included in the table. See,
"Interests of Directors and Executive Officers in the Duck Head Distribution --
Early Exercisability of Delta Woodside Stock Options."
(17) K. Scott Grassmyer is Senior Vice President, Chief Financial Officer,
Treasurer and Secretary of Duck Head. The number of shares shown as
beneficially owned by Mr. Grassmyer includes 219 Delta Woodside shares (21 Duck
Head shares) allocated to Mr. Grassmyer's account in the Delta Woodside 401(k)
Plan. Mr. Grassmyer is fully vested in the shares allocated to his account in
the Delta Woodside 401(k) Plan. It also includes 2,585 Delta Woodside shares
(258 Duck Head shares) allocated to Mr. Grassmyer's account in Delta Woodside's
Employee Stock Purchase Plan. The number of shares shown in the table includes
an aggregate of 12,000 unissued Delta Woodside shares (1,200 Duck Head shares)
subject to employee stock options under Delta Woodside's stock option plan. Not
all of these options will become exercisable within 60 days or less under the
current provisions of the Delta Woodside stock option plan and the pertinent
grants; however, it is expected that Mr. Grassmyer will enter into an amendment
to his options pursuant to which all of his options will become exercisable
prior to the Duck Head distribution, and it is likely that such an amendment
would become effective within the next 60 days. Consequently, all of Mr.
Grassmyer's outstanding options are included in the table. See, "Interests of
Directors and Executive Officers in the Duck Head Distribution -- Early
Exercisability of Delta Woodside Stock Options."
(18) William B. Mattison, Jr. is Senior Vice President of Merchandising of
Duck Head.
(19) Includes all shares deemed to be beneficially owned by any current
director or executive officer. Includes 3,548 Delta Woodside shares (354 Duck
Head shares) of Delta Woodside's common stock held for the executive officers on
March 3, 2000 by the Delta Woodside 401(k) Plan. Each participant in the Delta
Woodside 401(k) Plan has the right to direct the manner in which the trustee of
the Plan votes the shares held by the Delta Woodside 401(k) Plan that are
allocated to that participant's account. Except for shares as to which such a
direction is made, the shares held by the Delta Woodside 401(k) Plan are not
voted. Also includes 36,078 Delta Woodside shares (3,607 Duck Head shares)
allocated to directors' and executive officers' accounts in Delta Woodside's
employee stock purchase plan. The number of shares shown in the table includes
an aggregate of 116,000 unissued Delta Woodside shares (11,600 Duck Head shares)
subject to employee stock options under Delta Woodside's stock option plan held
by directors and executive officers. Not all of these options will become
exercisable within 60 days or less under the current provisions of the Delta
Woodside stock option plan and the pertinent grants; however, it is expected
that all directors and executive officers with outstanding options will enter
into an amendment to their options pursuant to which all of their options will
become exercisable prior to the Duck Head distribution, and it is likely that
such amendments would become effective within the next 60 days. Consequently,
all of such persons' outstanding options are included in the table. See,
"Interests of Directors and Executive Officers in the Duck Head Distribution --
Early Exercisability of Delta Woodside Stock Options."
(20) Less than one percent.
(21) Includes the Duck Head shares attributable to the Delta Woodside
shares that the Delta Woodside board of directors anticipates paying to certain
directors and key executives prior to the record date for the Duck Head
distribution and the Delta Apparel distribution, as described under "Interests
of Directors and Executive Officers in the Duck Head Distribution - Payments in
Connection with Duck Head Distribution and Delta Apparel Distribution." The
prior notes to the table do not include these Duck Head shares.
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<PAGE>
INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS IN
THE DUCK HEAD DISTRIBUTION
One or more executive officers of Duck Head and one or more members of the
Duck Head board of directors will receive economic benefits as a result of the
Duck Head distribution and the Delta Apparel distribution and may have other
interests in the Duck Head distribution and the Delta Apparel distribution in
addition to their interests as Delta Woodside stockholders. Some of these
executive officers and directors will also be the beneficial owners of more than
5% of the outstanding shares of common stock of Duck Head immediately following
the Duck Head distribution. See "Security Ownership of Significant Beneficial
Owners and Management." The Delta Woodside board of directors was aware of
these interests and considered them along with the other matters described above
under "The Duck Head Distribution -- Background of the Duck Head Distribution"
and "The Duck Head Distribution -- Reasons for the Duck Head Distribution."
RIGHT OF ROBERT D. ROCKEY, JR. TO ACQUIRE DUCK HEAD SHARES
Pursuant to the letter agreement pursuant to which Robert D. Rockey, Jr.
became Chairman, President and Chief Executive Officer of Duck Head, he has the
right to acquire from Duck Head up to 1,000,000 Duck Head shares on the date
that is six months after the Duck Head distribution. If this right is
exercised, the price for the shares will be the average daily closing stock
price for the Duck Head common stock for the six-month period following the Duck
Head distribution. By reason of Section 162(m) of the Internal Revenue Code
(which limits the corporate income tax deduction of certain compensation paid to
an executive officer in excess of $1 million), Duck Head does not believe that
it will be able to deduct any expense attributable to this right for federal
income tax purposes. See "Management of Duck Head - Management Compensation".
RECEIPT OF DUCK HEAD STOCK OPTIONS AND DUCK HEAD INCENTIVE STOCK AWARDS
The compensation grants committee of the Duck Head board of directors
anticipates that, during the first six months following the Duck Head
distribution, grants under the Duck Head stock option plan covering an aggregate
of approximately 202,500 Duck Head shares will be made and awards under the Duck
Head incentive stock award plan covering up to an aggregate of approximately
111,750 Duck Head shares will be made, including the following anticipated
option and award grants to the following executive officers of Duck Head:
<TABLE>
<CAPTION>
Name and position Shares Covered by Options(1) Shares Covered by Awards(2)
- ---------------------------------------- ---------------------------- ---------------------------
<S> <C> <C>
Robert D. Rockey, Jr. 125,000 (3)
Chairman, President and Chief
Executive Officer
Michael H. Prendergast 20,000 10,000
Senior Vice President-Sales
K. Scott Grassmyer 20,000 10,000
Senior Vice President, Chief Financial
Officer, Secretary and Treasurer
William B. Mattison, Jr. 20,000 10,000
Senior Vice President-Merchandising
<FN>
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(1) The compensation grants committee of the Duck Head board of directors
anticipates that the stock options will be granted at various dates during
the six month period. The exercise price for any option will be the stock's
closing market value at the date of grant. The compensation grants
committee anticipates that the options, other than the options anticipated
to be granted to Mr. Rockey, will vest over a four year period. The
compensation grants committee anticipates that the options granted to Mr.
Rockey will vest over a period ending March 8, 2001.
(2) The compensation grants committee of the Duck Head board of directors
anticipates that, except for the anticipated award to Mr. Rockey, 20% of
each award will vest at the end of each of fiscal year 2000, fiscal year
2001 and fiscal year 2002 and up to the remaining 40% will vest at the end
of fiscal year 2002 to the extent that certain performance criteria based
on cumulative earnings before interest and taxes are met.
(3) The compensation grants committee anticipates that Mr. Rockey will be
granted incentive stock awards under the Duck Head incentive stock award
plan covering the lesser of (a) 75,000 Duck Head shares or (b) Duck Head
shares with a value on the date of grant of $200,000. These awards would
vest to the extent of 60% of the shares covered thereby on March 8, 2001 if
he is still then employed by Duck Head and to the extent of up to the
remaining 40% of the shares covered thereby if specified performance
criteria based on cumulative earnings before interest and taxes through
March 8, 2001 are satisfied. The compensation committee of the Duck Head
board of directors anticipates that, if the number of Duck Head shares
covered by the award have a value less than $200,000 on the date of grant,
the difference between that value and $200,000, plus a gross-up income tax
amount, would be paid in cash by Duck Head to Mr. Rockey.
</TABLE>
For a description of the Duck Head stock option plan and the Duck Head
incentive stock award plan and the anticipated treatment under Section 162(m) of
the Internal Revenue Code of grants of options and awards under these plans, see
"Management of Duck Head - Management Compensation".
PAYMENTS IN CONNECTION WITH DUCK HEAD DISTRIBUTION AND DELTA APPAREL
DISTRIBUTION
In 1997, the Delta Woodside board of directors adopted and the Delta
Woodside stockholders approved the Delta Woodside long term incentive plan.
Under that plan, grants could have been made to key executives and non-employee
directors of Delta Woodside that, depending on the attainment of certain
performance measurement goals over a three-year period, might have translated
into stock options for Delta Woodside shares being awarded to participants in
the plan. No grants complying with the terms of the plan, however, were made,
although the individuals who were Delta Woodside's intended participants in the
plan, and the target awards for those individuals, were identified.
In consideration of the identified participants giving up any rights they
may have under or in connection with the long term incentive plan and in
consideration of the efforts of the key executives and directors on behalf of
Delta Woodside leading up to the Duck Head distribution and the Delta Apparel
distribution, Delta Woodside's board (based on the recommendation of its
compensation committee) has decided that, if the Duck Head distribution and the
Delta Apparel distribution occur, Delta Woodside shares shall be issued prior to
the Duck Head and Delta Apparel record date, in amounts that have been
determined by the Board (on the basis of the recommendation of the compensation
committee), and cash shall be paid, in amounts that have been determined by the
Board (on the basis of the recommendation of the compensation committee), to
those individuals who were intended participants in the plan. The table below
sets forth the Delta Woodside shares that would thereby be issued and the cash
that would thereby be paid to the individuals who are directors or executive
officers of Duck Head. In determining the number of Delta Woodside shares to be
issued to each participant, the Delta Woodside board (and the Delta Woodside
compensation committee) used the closing sale price of the Delta Woodside common
stock on March 15, 2000 ($1.50 per share). The Delta Woodside board anticipates
that these Delta Woodside shares would be issued and this cash would be paid
prior to the record date for the Duck Head distribution and the Delta Apparel
distribution.
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<TABLE>
<CAPTION>
Name Delta Woodside Shares(#) Cash ($)
- -------------------- ------------------------ --------
<S> <C> <C>
William F. Garrett 126,480 116,280
C.C. Guy 13,485 12,398
Dr. James F. Kane 13,485 12,398
Dr. Max Lennon 13,330 12,255
E. Erwin Maddrey, II 206,667 190,000
Buck A. Mickel 13,072 12,018
Bettis C. Rainsford 148,800 136,800
</TABLE>
Shares would also be issued and cash would also be paid to the estate of Buck
Mickel (father of Buck A. Mickel), a member of the Delta Woodside board of
directors until his death in 1998, who participated in the early stages of that
board's strategic planning.
E. Erwin Maddrey, II is a participant in Delta Woodside's severance plan.
Upon the termination of Mr. Maddrey's services with Delta Woodside (which is
anticipated to occur on or about the time of the Duck Head distribution and the
Delta Apparel distribution), Delta Woodside will pay Mr. Maddrey $147,115 of
severance in accordance with the normal provisions of this plan.
EARLY EXERCISABILITY OF DELTA WOODSIDE STOCK OPTIONS
Pursuant to the distribution agreement, Delta Woodside has provided the
holders of outstanding options granted under the Delta Woodside stock option
plan, whether or not those options were then exercisable, with the opportunity
to amend the terms of their Delta Woodside stock options. The amendment offered
to each holder provided that:
(i) all unexercisable portions of the holder's Delta Woodside stock options
became immediately exercisable in full five (5) business days prior to the
Duck Head record date, which permitted the holder to exercise all or part
of the holder's Delta Woodside stock option prior to the Duck Head record
date (and thereby receive Duck Head shares in the Duck Head distribution
and Delta Apparel shares in the Delta Apparel distribution); and
(ii) any Delta Woodside stock options that remained unexercised as of the
Duck Head record date remain exercisable for only Delta Woodside common
shares, and for the same number of Delta Woodside common shares at the same
exercise price, after the Duck Head distribution and the Delta Apparel
distribution as before the Duck Head distribution and the Delta Apparel
distribution (and not for a combination of Delta Woodside shares, Duck Head
shares and Delta Apparel shares).
All holders of outstanding options under the Delta Woodside stock option
plan entered into the proposed amendment.
As a result of these amendments, options for Delta Woodside shares became
exercisable earlier than they otherwise would have for the following Named
Executives and members of the Duck Head board of directors for the following
number of shares of Delta Woodside common stock:
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Name Number of Delta Woodside common shares covered by portion of stock
- ---- ------------------------------------------------------------------
options the exercisability of which was accelerated
---------------------------------------------------------
William F. Garrett 37,500
Michael H. Prendergast 6,000
K. Scott Grassmyer 8,000
LEASE TERMINATIONS
Delta Woodside has leased its principal corporate office space and space
for its benefits department, purchasing department and financial accounting
department from a corporation (Hammond Square, Ltd.), one-half of the stock of
which is owned by each of E. Erwin Maddrey, II (a director and significant
stockholder of Duck Head and Delta Apparel and President and Chief Executive
Officer (from which officer positions he will resign in connection with the Duck
Head distribution and the Delta Apparel distribution) and a director and
significant stockholder of Delta Woodside) and Jane H. Greer (Vice President and
Secretary of Delta Woodside (from which officer positions she will resign in
connection with the Duck Head distribution and the Delta Apparel distribution)).
Mr. Maddrey and Ms. Greer are also the directors and executive officers of
Hammond Square, Ltd. The lease of this space was executed effective September
1, 1998, covers approximately 9,662 square feet at a rental rate of $13.50 per
square foot per year (plus certain other expenses) and had an expiration date of
August 2003. In connection with the Duck Head distribution and the Delta
Apparel distribution, Hammond Square, Ltd. and Delta Woodside have agreed that
this lease will terminate on the Duck Head and Delta Apparel distribution date
in exchange for the payment by Delta Woodside to Hammond Square, Ltd. of
$135,268. Following the Duck Head and Delta Apparel distribution date, Delta
Woodside may continue to use the space on an as needed month-to-month basis at
the rental rate of $14.00 per square foot per year (plus certain other
expenses).
Delta Woodside has leased office space in Edgefield, South Carolina from
The Rainsford Development Corporation, a corporation wholly owned by Bettis C.
Rainsford (a director and significant stockholder of Duck Head, Delta Apparel
and Delta Woodside). Mr. Rainsford is a director and executive officer and
Brenda L. Jones (Assistant Secretary of Delta Woodside (from which officer
position she will resign in connection with the Duck Head distribution and the
Delta Apparel distribution)) is an executive officer of The Rainsford
Development Corporation. In connection with the Duck Head distribution and the
Delta Apparel distribution, The Rainsford Development Corporation and Delta
Woodside have agreed that this lease will terminate on the Duck Head and Delta
Apparel distribution date in exchange for the payment by Delta Woodside to The
Rainsford Development Corporation of $33,299.08.
LEASE OF STORE IN EDGEFIELD, SOUTH CAROLINA
Duck Head leases a building in Edgefield, South Carolina from Bettis C.
Rainsford (a director and significant stockholder of Duck Head, Delta Apparel
and Delta Woodside) pursuant to an agreement involving rental payments equal to
3% of gross sales of the Edgefield store, plus 1% of gross sales of the store
for utilities. Under this lease agreement, $9,944, $11,076 and $10,947 were
paid to Mr. Rainsford during fiscal 1997, 1998 and 1999, respectively.
TRANSFERS OF LIFE INSURANCE POLICIES
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In February 1991, each of E. Erwin Maddrey, II (a director and significant
stockholder of Duck Head and Delta Apparel and President and Chief Executive
Officer (from which officer positions Mr. Maddrey will resign in connection with
the Duck Head distribution and the Delta Apparel distribution) and a director
and significant stockholder of Delta Woodside) and Bettis C. Rainsford (a
director and significant stockholder of Duck Head, Delta Apparel and Delta
Woodside) entered into a stock transfer restrictions and right of first refusal
agreement (which this document refers to as a "First Refusal Agreement") with
Delta Woodside. Pursuant to each First Refusal Agreement, Mr. Maddrey or Mr.
Rainsford, as the case may be, granted Delta Woodside a specified right of first
refusal with respect to any sale of that individual's Delta Woodside shares
owned at death for five years after the individual's death. In connection with
the First Refusal Agreements, life insurance policies were established on the
lives of Mr. Maddrey and Mr. Rainsford. Under the life insurance policies on
the life of each of them, $30 million is payable to Delta Woodside and $10
million is payable to the beneficiary or beneficiaries chosen by the individual.
Nothing in either First Refusal Agreement restricts the freedom of Mr. Maddrey
or Mr. Rainsford to sell or otherwise dispose of any or all of his Delta
Woodside shares at any time prior to his death or prevents Delta Woodside from
canceling the life insurance policies payable to it for $30 million on either
Mr. Maddrey's or Mr. Rainsford's life. A First Refusal Agreement terminates if
the life insurance policies payable to the applicable individual's beneficiaries
for $10 million are canceled by reason of Delta Woodside's failure to pay the
premiums on those policies.
In connection with the Duck Head distribution and the Delta Apparel
distribution, Delta Woodside has agreed with each of Mr. Maddrey and Mr.
Rainsford that, EFFECTIVE AS OF A DATE ON OR ABOUT THE DATE THE DUCK HEAD
DISTRIBUTION AND THE DELTA APPAREL DISTRIBUTION OCCUR, THAT INDIVIDUAL'S FIRST
REFUSAL AGREEMENT WILL TERMINATE AND, IF THE INDIVIDUAL DESIRES, Delta Woodside
will transfer to the individual the $10 million life insurance policies on his
life the proceeds of which are payable to the beneficiary or beneficiaries he
selects. After this transfer, the recipient individual will be responsible for
payment the premiums on these life insurance policies. Delta Woodside will
allow the remaining $30 million of life insurance payable to Delta Woodside to
lapse.
EMPLOYEE BENEFIT SERVICES
On or about the date of the Duck Head distribution, Duck Head anticipates
engaging Carolina Benefits Services, Inc. to provide payroll processing and
401(k) plan administration services for Duck Head. Carolina Benefits Services,
Inc. is owned by E. Erwin Maddrey, II (a director and significant stockholder of
Duck Head and Delta Apparel and President and Chief Executive Officer (from
which officer positions Mr. Maddrey will resign in connection with the Duck Head
distribution and the Delta Apparel distribution) and a director and significant
stockholder of Delta Woodside) and Jane H. Greer (Vice President and Secretary
of Delta Woodside (from which officer positions she will resign in connection
with the Duck Head distribution and the Delta Apparel distribution)). Ms. Greer
is also an executive officer of Carolina Benefits Services, Inc.
For the services to be provided by Carolina Benefits Services, Duck Head
anticipates paying fees based on the numbers of employees, 401(k) plan
participants and plan transactions and other items. Duck Head anticipates that
on an annual basis these fees will be approximately $46,000. Duck Head elected
to engage Carolina Benefits Services to provide these services after receiving
proposals from other providers of similar services and determining that Carolina
Benefits Services' proposal was Duck Head's least costly alternative.
97
<PAGE>
DESCRIPTION OF DUCK HEAD CAPITAL STOCK
Duck Head has authorized common stock of 9,000,000 shares, par value $.01
per share, and "blank check" preferred stock of 2,000,000 shares, par value of
$.01 per share. All of the outstanding shares of Duck Head common stock are,
and all the shares of Duck Head common stock to be distributed to the Delta
Woodside stockholders in the Duck Head distribution will be, fully paid and
nonassessable. The shares of Duck Head common stock have no preference,
conversion, exchange or cumulative voting rights.
Upon consummation of the Duck Head distribution, the transfer agent for
Duck Head common stock will be First Union National Bank.
VOTING RIGHTS
Each share of Duck Head common stock is entitled to one vote. Because Duck
Head's stockholders do not have cumulative voting rights, the holders of a
majority of the shares voting for the election of directors may elect all the
directors and minority representation on the board of directors may be
prevented. The voting rights of shares of any class or series of Duck Head
blank check preferred stock to be issued will be determined by the Duck Head
board of directors in the resolutions creating that class or series and will be
set forth in a certificate of designation filed with the Georgia Secretary of
State.
RIGHTS PLAN
Common Stock Purchase Right Dividend
Prior to the Duck Head distribution, the board of directors of Duck Head
declared a dividend distribution of one Duck Head common stock purchase right
(which this document refers to as a Right) for each then outstanding share of
Duck Head common stock. Each Right entitles the registered holder to purchase
from Duck Head one quarter share of its common stock, at a cash exercise price
of $10.00- per quarter share (equivalent to $40.00 per whole share), subject to
adjustment. The description and terms of the Rights are set forth in a
Shareholder Rights Agreement (which this document refers to as the rights
agreement) between Duck Head and First Union National Bank, as rights agent.
The number of Rights outstanding is equal to the number of shares of the Duck
Head common stock outstanding.
A copy of the rights agreement has been included as an exhibit to the
Registration Statement on Form 10 of which this Information Statement is a part.
You can access the Registration Statement on the Securities and Exchange
Commission's web site at www.sec.gov by searching the Edgar Archives on the
SEC's web site. You can also get a copy free of charge by calling or writing to
Duck Head at the telephone number or address stated under "Summary -- Duck
Head."
Certificates; Separation of Rights from Common Stock
Initially, the Rights will not be exercisable, will be attached to all
outstanding shares of Duck Head common stock, and no separate Right certificates
will be distributed. The Rights will separate from the Duck Head common stock
and a "Distribution Date" will occur upon the earliest of (i) 10 days following
a public announcement that a person or group of affiliated or associated persons
(which this document refers to as an Acquiring Person) (other than an Exempt
Person as defined in the rights agreement) has acquired beneficial ownership of
20% or more of the outstanding shares of Duck Head common stock (which date of
announcement this document refers to as the Share Acquisition Date) and (ii) 10
business days following the commencement of a tender offer or exchange offer
that would result in a person or group owning 20% or more of the outstanding
shares of Duck Head common stock.
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<PAGE>
Robert D. Rockey, Jr. has the right to purchase from Duck Head up to
1,000,000 Duck Head shares on the date that is six months after the Duck Head
distribution. The rights agreement provides that any acquisition of Duck Head
shares by Mr. Rockey upon exercise of this right will not, in and of itself,
cause him to become an Acquiring Person. The rights agreement provides that Mr.
Rockey will become an Acquiring Person only if he shall also become the
beneficial owner of more than 10% of the Duck Head shares outstanding after the
exercise of his right, in addition to the Duck Head shares acquired upon
exercise of that right. See "Management of Duck Head -- Management Compensation
- -- Robert D. Rockey, Jr. Employment Contract".
Until the Distribution Date (or earlier redemption or expiration of the
Rights), (a) the Rights will be evidenced by the Duck Head common stock
certificates and will be transferred with and only with the Duck Head common
stock certificates, (b) Duck Head common stock certificates will contain a
notation incorporating the rights agreement by reference, and (c) the surrender
for transfer of any certificates for Duck Head common stock will also constitute
the transfer of the Rights associated with the Duck Head common stock
represented by the certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on January 20, 2010 unless previously redeemed or
exchanged for Duck Head common stock by Duck Head as described below.
As soon as practicable after the Distribution Date, Right certificates will
be mailed to holders of record of Duck Head common stock as of the close of
business on the Distribution Date and, thereafter, the separate Right
Certificates alone will represent the Rights. Except as otherwise determined by
the Duck Head board of directors, only shares of Duck Head common stock issued
prior to the Distribution Date will be issued with Rights.
Flip-In Rights
In the event that (i) a person becomes an Acquiring Person, (ii) Duck Head
is the surviving corporation in a merger with an Acquiring Person or any
affiliate or associate of an Acquiring Person and the Duck Head common stock is
not changed or exchanged, (iii) an Acquiring Person engages in one of a number
of self-dealing transactions specified in the rights agreement, or (iv) an event
occurs that results in an Acquiring Person's ownership interest being increased
by more than 1%, proper provision will be made so that each holder of a Right
will thereafter have the right to receive upon exercise of the Right at the then
current exercise price, that number of shares of Duck Head common stock (or in
certain circumstances, cash, property, or other securities of Duck Head) having
a market value of two times that exercise price. However, the Rights are not
exercisable following the occurrence of any of the events set forth above
until the time the Rights are no longer redeemable as set forth below.
Notwithstanding any of the foregoing, upon any of the events set forth above,
Rights that are or were beneficially owned by an Acquiring Person will become
null and void.
Flip-Over Rights
In the event that, at any time following the Share Acquisition Date, (i)
Duck Head is acquired in a merger or other business combination transaction or
(ii) 50% or more of Duck Head's assets or earning power is sold, each holder of
a Right will thereafter have the right to receive, upon exercise, common stock
of the acquiring company having a market value equal to two times the exercise
price of the Right.
Exchange of Common Stock for Rights at Option of the Board
At any time after any person becomes an Acquiring Person and prior to the
time that person, together with its affiliates and associates, becomes the
beneficial owner of 50% or more of the outstanding Duck Head common stock, the
board of directors of Duck Head may exchange the Rights (other than Rights that
have become void), in whole or in part, at the exchange rate of one quarter
share of Duck Head common stock per Right, subject to adjustment as provided in
the rights agreement.
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Adjustment of Exercise Price and Underlying Shares in Certain Events
The exercise price payable, and the number of shares of Duck Head common
stock or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Duck Head common stock, (ii) if all holders of the Duck Head common stock are
granted certain rights or warrants to subscribe for Duck Head common stock or
securities convertible into Duck Head common stock at less than the current
market price of the Duck Head common stock, or (iii) upon the distribution to
all holders of the Duck Head common stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustment in the exercise price will be
required until cumulative adjustments amount to at least 1% of the exercise
price. No fractional shares of Duck Head common stock will be issued upon
exercise of a Right and, in lieu of a fractional share, a payment, in cash will
be made based on the fair market value of the Duck Head common stock on the last
trading date prior to the date of exercise.
Redemption of Rights
The Rights may be redeemed in whole, but not in part, at a price of $.001
per Right (payable in cash, Duck Head common stock or other consideration deemed
appropriate by the Duck Head board of directors) by the Duck Head board of
directors at any time prior to the close of business on the tenth day after the
Share Acquisition Date or the final expiration date of the Rights (whichever is
earlier); provided that, under certain circumstances, the Rights may not be
redeemed unless there are Disinterested Directors (as defined in the rights
agreement) in office and the redemption is approved by a majority of the
Disinterested Directors. After the redemption period has expired, Duck Head's
right of redemption may be reinstated upon the approval of the Duck Head board
of directors if an Acquiring Person reduces his beneficial ownership to 10% or
less of the outstanding shares of Duck Head common stock in a transaction or
series of transactions not involving Duck Head and there are no other Acquiring
Persons. Immediately upon the action of the Duck Head board of directors
ordering redemption of the Rights and without any notice, the Rights will
terminate and thereafter the only right of the holders of Rights will be to
receive the redemption price.
No Rights of Stockholder Until Exercise
Until a Right is exercised, the holder will have no rights as a stockholder
of Duck Head (beyond those as an existing stockholder), including the right to
vote or to receive dividends.
Material Federal Income Tax Consequences of Rights Plan
Although the distribution of the Rights will not be taxable to stockholders
or to Duck Head, stockholders may, depending upon the circumstances, recognize
taxable income in the event that the Rights become exercisable for Duck Head
common stock (or other consideration) or for common stock of an acquiring
company as described above or in the event the Rights are redeemed by Duck Head.
Amendment of Rights Agreement
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Any of the provisions of the rights agreement may be amended by the board
of directors of Duck Head prior to the Distribution Date. After the
Distribution Date, the provisions of the rights agreement, other than those
relating to the principal economic terms of the Rights, may be amended by the
Duck Head board of directors to cure any ambiguity, defect or inconsistency, to
make changes that do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person), or to shorten or lengthen any
time period under the rights agreement. Amendments adjusting time periods may,
under certain circumstances, require the approval of a majority of Disinterested
Directors, or otherwise be limited.
OTHER PROVISIONS RESPECTING STOCKHOLDER RIGHTS AND EXTRAORDINARY TRANSACTIONS
Set forth below is a brief summary of some of the provisions of Duck Head's
articles of incorporation and bylaws respecting stockholder rights and
extraordinary transactions that will govern your rights as a holder of Duck Head
common stock after the Duck Head distribution. Some of these provisions may
deter takeovers of Duck Head that you may consider to be in your best interests.
Those takeovers could include offers for Duck Head common stock for a premium
over the market price of the stock.
General
Duck Head is a Georgia corporation that is subject to the provisions of the
Official Code of Georgia. The rights of Duck Head's stockholders are governed
by its articles of incorporation and bylaws, in addition to Georgia law.
Authorized Capital
Duck Head's authorized capital stock consists of 9,000,000 common shares
and 2,000,000 shares of "blank check" preferred stock.
Under Duck Head's articles of incorporation, its board of directors could
issue additional authorized but unissued common stock or could designate and
issue one or more classes or series of preferred stock. One of the effects of
authorized but unissued and unreserved shares of common stock and blank check
preferred stock may be to render more difficult or to discourage an attempt by a
potential acquiror to obtain control of Duck Head by means of a merger, tender
offer, proxy contest or otherwise, and thereby protect the continuity of Duck
Head's management and board of directors. The issuance of those shares of common
stock and/or preferred stock may have the effect of delaying, deferring or
preventing a change in control of Duck Head without any further action by its
stockholders. Duck Head's articles of incorporation authorize its board of
directors to determine the preferences, limitations and relative rights granted
to and imposed upon each class and series of Duck Head's preferred stock.
Amendment of the Articles of Incorporation
Except for certain primarily ministerial amendments that may be authorized
by the Duck Head board of directors alone to amend Duck Head's articles of
incorporation, the following is required to amend Duck Head's articles of
incorporation: (1) an authorization by the Duck Head board of directors;
followed by (2) a vote of the majority of all outstanding voting stock.
Amendments of the Bylaws
Duck Head's bylaws may be amended, adopted or repealed by:
- approval of holders of two-thirds of each class entitled to vote; or
- approval by two-thirds of the directors then in office.
Number of Directors
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The number of directors must be no less than 2 and no more than 15, with
the actual number to be determined by Duck Head's board of directors from time
to time. This provision gives Duck Head's board of directors the power to
increase the size of the board of directors within this range. In the event of
an increase or decrease in the size of the board of directors, each director
then serving nevertheless continues as a director until the expiration of his
current term or his prior death, retirement, resignation or until a successor is
appointed.
Vacancies on Duck Head's Board of Directors
Any vacancy that occurs during the year or that occurs as a result of
death, resignation, removal, an increase in the size of Duck Head's board of
directors or otherwise, may be filled by a vote of majority of the directors
remaining in office or by the sole remaining director.
Nominations of Directors
Any nomination for a director that is made by a stockholder must be made
in writing by personal delivery or by United States mail, postage pre-paid, to
Duck Head's corporate secretary by the following deadlines:
- in the case of annual meetings of stockholders, at least 120 days
before the anniversary date of the immediately preceding annual
stockholder meeting; and
- in the case of special meetings, the close of business on the seventh
day following the date that notice of the meeting was first given to
stockholders.
A stockholder's nomination for director must include:
- the name and address of the stockholder, the class and number of
shares beneficially owned by the stockholder as of any record date for
the meeting and as of the date of the notice of the meeting and the
name in which those shares are registered;
- a representation that the stockholder intends to appear in person or
by proxy at the meeting to make the nomination;
- a description of all arrangements and understandings between the
stockholder and each nominee and any other person pursuant to which
the nominations are to be made;
- other information that must be disclosed in proxy solicitations;
- the written consent of each nominee to serve as a director of Duck
Head if so elected; and
- any other information that Duck Head may reasonably request.
Depending on the circumstances, these timing and notice requirements may
preclude or deter some stockholders from making nominations for directors at a
meeting of stockholders.
Limitation on Liability of Directors
Under the Official Code of Georgia, a corporation may adopt provisions to
its articles of incorporation limiting the personal liability of its directors
to the corporation or any of its stockholders for monetary damage as a result of
breaches of duty of care or other duty as a director, provided that the
provision may not eliminate or limit the liability of a director: (i) for any
appropriation in violation of the director's duties to Duck Head or its
stockholders, (ii) for acts or omissions that involve intentional misconduct or
a knowing violation of law, (iii) for any willful or negligent payment of an
unlawful dividend, or (iv) for any transaction from which the director derived
an improper personal benefit. Duck Head's articles of incorporation contains a
provision that limits the personal liability of directors "to the fullest extent
permitted" by the Official Code of Georgia.
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This exculpation provision may have the effect of reducing the likelihood
of derivative litigation against Duck Head's directors and may discourage or
deter stockholders or Duck Head from bringing a lawsuit against its directors
for breach of their fiduciary duties as directors. However, the provision does
not affect the availability of equitable remedies like an injunction or
rescission.
The foregoing liability and the indemnification provisions described below
may be materially more liberal with respect to directors than available under
the corporate laws of many other states.
Indemnification of Directors
Duck Head's bylaws provide that Duck Head shall indemnify its directors and
officers (and each person who at its request served as an officer or director of
another entity) to the fullest extent permitted by Georgia law. This right to
indemnification also includes the right to be paid by Duck Head the expenses
incurred in connection with a proceeding in advance of its final disposition to
the fullest extent authorized by Georgia law.
Duck Head's bylaws provide that it may purchase and maintain insurance on
behalf of any person who is or was one of its directors, officers, employees or
agents, or is or was serving at Duck Head's request as a director, officer,
employee or agent of another entity, against any liability asserted against him
or her and incurred by him or her in that capacity, or arising out of his or her
status as such, whether or not Duck Head would have the power or the obligation
to indemnify him or her against that liability under the provisions of Duck
Head's bylaws.
The indemnification and advancement of expenses provisions described above
are set forth in Duck Head's bylaws as a contractual right of Duck Head's
directors and officers.
Annual Meeting of Stockholders
The annual meeting of stockholders must be held on a date and at a place
fixed by Duck Head's board of directors.
Special Meetings of Stockholders
Special meetings of stockholders may be called at any time and for any
purpose by:
- the chairman of Duck Head's board of directors;
- Duck Head's president; or
- a committee of the board of directors that has been duly designated by
the board of directors and whose powers and authority provided in a
resolution of the board of directors or in the bylaws include the
power to call those meetings.
Under Duck Head's bylaws, stockholders may not call a special meeting and
no action may be taken by stockholders of Duck Head except at an annual or
special meeting of stockholders or by unanimous written consent. The fact that
holders of Duck Head voting stock are unable to call a special meeting or to
take action without a meeting except by unanimous written consent may make it
more difficult for stockholders to take action opposed by Duck Head's board of
directors.
103
<PAGE>
Stockholder Proposals
A stockholder wishing to bring business before an annual meeting of
stockholders must provide written notice of the business by personal delivery or
by United States mail, postage pre-paid, to Duck Head's corporate secretary at
its principal executive offices. The notice must be received by the earlier of
the following dates:
- at least 120 days prior to the anniversary date of the immediately
preceding annual meeting; or
- at least 10 days after notice or public disclosure of the date of the
annual meeting was made or given to the stockholders.
The notice must include:
- a description of the item of business and the reasons for conducting
it at the meeting and, if the item of business includes a proposal to
amend the articles of incorporation or bylaws, the text of the
proposed amendment;
- the name and address of the stockholder, the class and number of
shares beneficially owned and represented by proxy by the stockholder
as of any record date for the meeting, and as of the date of the
notice of the meeting;
- a representation that the stockholder intends to appear in person or
by proxy at the meeting to propose the item of business;
- any material interest of the stockholder in the item of business;
- a description of all arrangements and understandings between the
stockholder and any other person or persons (with the name of the
persons) pursuant to which the proposal is made by the stockholder;
and
- such other information as Duck Head may reasonably request.
Depending on the circumstances, these timing and notice requirements may
preclude or deter some stockholders from bringing matters before an annual
meeting.
Preemptive Rights
In general, preemptive rights allow stockholders whose dividend rights or
voting rights would be adversely affected by issuing new stock to purchase, on
terms and conditions set by the board of directors, that proportion of the new
issue that would preserve the relative dividend or voting rights of those
stockholders. As permitted by Georgia law, Duck Head's articles of incorporation
do not grant its stockholders preemptive rights.
Stockholder Action Without Meeting
Duck Head's articles of incorporation provide that no action required or
permitted to be taken at an annual or special meeting of stockholders may be
taken without a meeting unless the action is taken by the unanimous written
consent of all of the stockholders in lieu of a meeting. This restriction on
stockholders' ability to act by written consent may make it more difficult for
stockholders to take action opposed by Duck Head's board of directors.
104
<PAGE>
Dividends, Distributions and Liquidations
Subject to the provisions of any outstanding blank check preferred stock,
the holders of Duck Head common stock are entitled to receive whatever
dividends, if any, may be declared from time to time by the Duck Head board of
directors in its discretion from funds legally available for that purpose.
Under Georgia law, a corporation generally may pay dividends or make
distributions on its common stock; provided, however, that no distribution may
be made if, after giving it effect, either (i) the corporation would be unable
to pay its debts when due in the ordinary course of business or (ii) the
corporation's total liabilities would exceed the sum of its total assets, plus
the total dissolution preferences of any senior classes of stock. For a
description of some of the restrictions placed on Duck Head's ability to pay
dividends or make distributions, see the portion of this document found under
the heading "Management's Discussion and Analysis of Financial Condition and
Results of Operations - Dividends and Purchases of its Own Shares by Duck Head".
The holders of Duck Head common stock are entitled to share on a pro rata basis
in any distribution to stockholders upon liquidation, dissolution or winding up
of Duck Head, subject to the provisions of any outstanding blank check preferred
stock.
Approval of and Special Rights with Respect to Mergers or Consolidations
and Other Transactions
Under Georgia law, although articles of incorporation may require a higher
stockholder vote, the holders of a majority of the outstanding voting common
shares must approve a plan adopted by the board of directors in order to
authorize mergers, consolidations, share exchanges or the transfer of all or
substantially all of the corporation's assets. Duck Head's articles of
incorporation do not require a higher vote to approve any of those
transactions.
Georgia Business Combinations Statute
Duck Head is also subject to Section 14-2-1131 et seq. of the Official Code
of Georgia. In general, this section prohibits a Georgia corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of five years after the date the stockholder becomes an "interested
stockholder", unless:
- before that date the board of directors of that corporation approves
either the "business combination" or the transaction that resulted in
the stockholder becoming an "interested stockholder";
- in the transaction that resulted in the stockholder becoming an
"interested stockholder", the "interested stockholder" owned at least
90% of the voting stock of the corporation outstanding at the time
that the transaction commenced, excluding, for purposes of determining
the number of shares outstanding, shares owned by any of the following
persons (which this document refers to as the persons excluded from
the voting calculation):
- persons who are directors or officers, their affiliates and
associates;
- subsidiaries of the corporation, and
- employee stock plans that do not provide employees with the right to
determine confidentially the extent to which shares held subject to
the plan will be tendered in a tender or exchange offer; or
- after becoming an "interested stockholder", the stockholder:
- acquired additional shares resulting in the "interested stockholder"
being the beneficial owner of at least 90% of the outstanding voting
stock of the corporation, excluding, for purposes of determining the
number of shares outstanding, shares owned by the persons excluded
from the voting calculation; and
105
<PAGE>
- the business combination was approved at an annual or special meeting
of stockholders by the holders of a majority of the voting stock
entitled to vote, excluding the voting stock beneficially owned by the
"interested stockholder" and the persons excluded from the voting
calculation.
A "business combination" includes:
- a merger, consolidation or share exchange of the corporation or any
subsidiary with any interested stockholder or an affiliate of any
interested stockholder;
- a sale, lease, transfer or other disposition (other than in the
ordinary course of business) in one or a series of transactions to any
interested stockholder or an affiliate or associate of an interested
stockholder of any assets of the corporation or any of its
subsidiaries with an aggregate book value of 10% or more of the
corporation's net assets;
- an issuance or transfer by the corporation or its subsidiaries to any
interested stockholder or its affiliates or associates in one
transaction or a series of transactions of equity securities of the
corporation that have an aggregate market value of 5% or more of the
total market value of the outstanding common and preferred stock of
the corporation (except pursuant to the exercise of rights granted
proportionately to other stockholders and for convertible or
exercisable rights outstanding prior to the time that the person
became an interested stockholder);
- the adoption of any plan or proposal for the liquidation or
dissolution of the corporation;
- any reclassification of securities or merger or consolidation of the
corporation or its subsidiaries that has the effect of increasing by
5% or more the proportionate amount of equity securities of the
corporation or its subsidiaries beneficially owned by the interested
stockholder or its affiliates; and
- any other transaction (other than in the ordinary course of business)
resulting in a disproportionate financial benefit to the "interested
stockholder" or its affiliates or associates.
Under this statute, an "interested stockholder" is a person who
beneficially owns 10% or more of the corporation's outstanding voting stock or
is an affiliate of the corporation and within the two prior years beneficially
owned 10% or more of the corporation's then outstanding stock.
The restrictions imposed by this section will not apply to a corporation
unless its bylaws specifically provide for coverage under the statute. In its
bylaws Duck Head has opted into the statute. Accordingly, the restrictions
outlined above will apply to Duck Head.
"Relevant Factors" Provision
The articles of incorporation expressly requires the Duck Head board of
directors, when evaluating any proposed tender offer, exchange offer or plan of
merger, consolidation, sale of assets or stock exchange, to consider not only
the consideration being offered in relation to the then current market price for
Duck Head's outstanding shares of capital stock, but also in relation to the
then current value of Duck Head in a freely negotiated transaction and in
relation to the Duck Head board of directors' estimate of the future value of
Duck Head (including the unrealized value of its properties and assets) as an
independent going concern, as well as any other factors that the Duck Head board
of directors deems relevant.
106
<PAGE>
Effect of Provisions on Extraordinary Transactions
The provisions respecting tender offers and similar transactions may tend
to discourage attempts by third parties to acquire Duck Head in a hostile
takeover effort, and may adversely affect the price that a potential purchaser
would be willing to pay for the stock of Duck Head. The provisions may also
make the removal of incumbent management more difficult. The Duck Head board of
directors believes that these provisions are in the long-term interests of Duck
Head and its stockholders because they may encourage persons seeking to acquire
control of Duck Head to consult first with Duck Head's board of directors and
permit the board to consider factors other than the relationship of the price
offered to recent market prices. Duck Head believes that any takeover attempt
or business combination in which Duck Head is involved should be thoroughly
studied by Duck Head's board of directors and that the Duck Head stockholders
should have the benefit of the Duck Head board's recommendation. Nonetheless,
Duck Head's stockholders should be aware that these provisions could reduce the
market value of Duck Head common stock.
RECENT SALES OF UNREGISTERED SECURITIES
Following Duck Head's incorporation on December 10, 1999, Duck Head issued
100 shares of its common stock for aggregate consideration of $100 to its parent
corporation, Duck Head Apparel Company, Inc., a Tennessee corporation which is
an indirect wholly-owned subsidiary of Delta Woodside, in a transaction that was
not registered under the Securities Act of 1933 because of the exemption from
registration provided by Section 4(2) of that Act. Prior to the Duck Head
distribution, Duck Head's parent corporation will merge into its immediate
parent corporation, which in turn will merge into Delta Woodside, and Duck Head
will issue as a stock dividend to Delta Woodside, in a transaction that does not
constitute a sale under the Securities Act of 1933, the number of additional
Duck Head shares needed so that the Duck Head distribution can be effected. The
Rights described above will be attached to the shares of common stock.
107
<PAGE>
2000 ANNUAL MEETING OF DUCK HEAD STOCKHOLDERS
Duck Head plans to hold an annual meeting of its stockholders in the fall
of 2000.
Any stockholder of Duck Head who desires to present a proposal at the 2000
annual meeting of stockholders of Duck Head for inclusion in the proxy statement
and form of proxy relating to that meeting must submit the proposal to Duck Head
at its principal executive offices on or before June 5, 2000. If a stockholder
of Duck Head desires to present a proposal at the 2000 annual meeting of
stockholders of Duck Head that will not be included in Duck Head's proxy
statement and form of proxy relating to that meeting, the proposal must be
submitted to Duck Head at its principal executive offices by the earlier of July
7, 2000 or ten days after notice or public disclosure of the date of the meeting
is made or given to stockholders. After that date, the proposal will not be
considered timely. Stockholders submitting proposals for inclusion in the proxy
statement and form of proxy must comply with the Exchange Act and all
stockholders submitting proposals or nominations for director must comply with
the bylaw requirements described under the headings "Description of Duck Head
Capital Stock B Nominations of Directors" and "Description of Duck Head Capital
Stock B Stockholder Proposals".
FORWARD-LOOKING STATEMENTS MAY NOT BE ACCURATE
This document, particularly the material under the headings "Risk Factors",
"Trading Market", "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and "Business of Duck Head", contains
"forward-looking statements". All statements, other than statements of
historical fact, that address activities, events or developments that Duck Head
expects or anticipates will or may occur in the future are forward-looking
statements. Examples are statements that concern future revenues, future costs,
future capital expenditures, business strategy, competitive strengths,
competitive weaknesses, goals, plans, references to future success or
difficulties and other similar information. The words "estimate", "project",
"forecast", "anticipate", "expect", "intend", "believe" and similar expressions,
and discussions of strategy or intentions, are intended to identify
forward-looking statements.
The forward-looking statements in this document are based on Duck Head's
expectations and are necessarily dependent upon assumptions, estimates and data
that Duck Head believes are reasonable and accurate but may be incorrect,
incomplete or imprecise. Forward-looking statements are also subject to a
number of business risks and uncertainties, any of which could cause actual
results to differ materially from those set forth in or implied by the
forward-looking statements. Many of these risks and uncertainties are described
under the heading "Risk Factors" and are beyond Duck Head's control.
Accordingly, any forward-looking statements do not purport to be predictions of
future events or circumstances and may not be realized.
Duck Head does not undertake publicly to update or revise the
forward-looking statements even if it becomes clear that any projected results
will not be realized.
INDEPENDENT AUDITORS
Duck Head's board of directors has appointed KPMG LLP as its independent
auditors to audit its financial statements for fiscal year 2000. KPMG LLP also
serves as tax advisors to Duck Head.
ADDITIONAL INFORMATION
Duck Head has filed a Registration Statement on Form 10 with the SEC under
the Securities Exchange Act of 1934 with respect to the Duck Head common stock.
This document does not contain all of the information set forth in the
Registration Statement and the related exhibits to which this document refers.
108
<PAGE>
You may inspect and copy the Registration Statement and the related
exhibits filed by Duck Head with the SEC at the public reference facilities that
the SEC maintains at Room 1024, 450 Fifth Street, N.W., Washington, DC 20549, as
well as at the Regional Offices of the Commission at Northwest Atrium Center,
500 West Madison, Suite 1400, Chicago, Illinois 60661, and 7 World Trade Center,
13th floor, New York, New York 10048. You can obtain copies of that information
by mail from the Public Reference Branch of the Commission at 450 Fifth Street,
N.W., Washington, DC 20549 at prescribed rates. You may also access that
material electronically through the SEC's home page on the Internet at
http://www.sec.gov.
109
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
INDEX TO COMBINED FINANCIAL STATEMENTS
<S> <C>
Financial Statements:
Report of Independent Public Accountants F-1
Combined Balance Sheets as of July 3, 1999
and June 27, 1998 F-2
Combined Statements of Operations and Accumulated
Divisional Deficit for the Years ended July 3, 1999,
June 27, 1998 and June 28, 1997 F-3
Combined Statements of Cash Flows for the Years
ended July 3, 1999, June 27, 1998 and June 28, 1997 F-4
Notes to Combined Financial Statements F-5
Condensed Combined Balance Sheet as of
January 1, 2000 (unaudited) F-18
Condensed Combined Statements of Operations and
Accumulated Divisional Deficit for the Six Months
Ended January 1, 2000 and December 26, 1998 (unaudited) F-19
Condensed Combined Statements of Cash Flows for the
Six Months ended January 1, 2000 and
December 26, 1998 (unaudited) F-20
Notes to Unaudited Condensed Combined Financial
Statements (unaudited) F-21
</TABLE>
<PAGE>
INDEPENDENT AUDITORS' REPORT
Duck Head Apparel Company:
We have audited the accompanying combined balance sheets of Duck Head Apparel
Company (the "Company"), as described in note 1, as of July 3, 1999 and June 27,
1998, and the related statements of operations and accumulated divisional
deficit and cash flows for each of the years in the three-year period ended July
3, 1999. In connection with our audit of the combined financial statements, we
also have audited the schedule of valuation and qualifying accounts for each of
the years in the three year period ended July 3, 1999. These combined financial
statements and financial statement schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
combined financial statements and financial statement schedule based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the financial position of Duck Head Apparel
Company as of July 3, 1999 and June 27, 1998, and the results of its operations
and its cash flows for each of the years in the three-year period ended July 3,
1999, in conformity with generally accepted accounting principles. Also in our
opinion, the related financial statement schedule, when considered in relation
to the basic combined financial statements taken as a whole, presents fairly, in
all material respects, the information set forth therein.
KPMG LLP
Atlanta, Georgia
August 13, 1999
F-1
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
(as described in Note 1)
Combined Balance Sheets
(Amounts in thousands)
JULY 3, JUNE 27,
ASSETS 1999 1998
--------- ---------
<S> <C> <C>
Current assets:
Cash $ 236 274
Accounts receivable, less allowances of
$1,618 in 1999 and $1,136 in 1998 6,780 10,942
Affiliate receivables (note 8) 2,564 501
Inventories (notes 3 and 8) 24,721 28,252
Prepaid expenses and other current assets 174 1,605
--------- ---------
Total current assets 34,475 41,574
Property, plant and equipment, net (note 4) 11,919 20,728
Goodwill, less accumulated amortization of $4,419 in 1998 (note 2) -- 13,066
Other assets -- 15
--------- ---------
$ 46,394 75,383
========= =========
LIABILITIES AND DIVISIONAL DEFICIT
Current liabilities:
Accounts payable $ 3,849 5,609
Accrued expenses (note 5) 5,602 3,810
Current portion of long-term debt (note 6) 6,415 292
Current portion of capital leases (note 9) 56 117
Due to Parent and affiliates (note 8) 98,190 79,176
Income taxes payable 261 141
--------- ---------
Total current liabilities 114,373 89,145
Long-term debt (note 6) --- 6,420
Long-term portion of capital leases (note 9) 58 103
Due to Parent (note 8) 23,178 23,178
Other liabilities 732 770
--------- ---------
Total liabilities 138,341 119,616
Divisional deficit (91,947) (44,233)
Commitments (notes 9, 10 and 11)
--------- ---------
$ 46,394 75,383
========= =========
</TABLE>
See accompanying notes to combined financial statements.
F-2
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
(as described in Note 1)
Combined Statements of Operations and Accumulated Divisional Deficit
(Amounts in thousands, except per share amounts)
YEAR ENDED
---------------------------------
JULY 3, JUNE 27, JUNE 28,
----------- --------- ---------
1999 1998 1997
----------- --------- ---------
<S> <C> <C> <C>
Net sales $ 70,642 83,953 79,642
Cost of goods sold 62,468 57,088 53,391
----------- --------- ---------
Gross profit 8,174 26,865 26,251
Selling, general and administrative expenses 34,005 28,980 25,624
Intercompany management fees (note 8) 777 882 772
Impairment charges (note 2) 13,650 --- ---
Royalty and other income (1,027) (1,746) (1,439)
----------- --------- ---------
Operating (loss) income (39,231) (1,251) 1,294
----------- --------- ---------
Interest (income) expense:
Interest expense, net 960 616 225
Intercompany interest expense (note 8) 7,262 6,335 5,958
----------- --------- ---------
8,222 6,951 6,183
----------- --------- ---------
Loss before income taxes (47,453) (8,202) (4,889)
Income tax expense (benefit) - (note 7) 261 159 (337)
----------- --------- ---------
Net loss (47,714) (8,361) (4,552)
Accumulated divisional deficit, beginning of year (44,233) (35,872) (31,320)
----------- --------- ---------
Accumulated divisional deficit, end of year $ (91,947) (44,233) (35,872)
=========== ========= =========
Unaudited pro forma net loss per share:
(note 2(k)):
Basic and diluted $ (19.88)
===========
Basic and diluted weighted-average common shares outstanding $2,400,000
===========
</TABLE>
See accompanying notes to combined financial statements.
F-3
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
(as described in Note 1)
Combined Statements of Cash Flows
(Amounts in thousands)
YEAR ENDED
-------------------------------
JULY 3, JUNE 27, JUNE 28,
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Operating activities:
Net loss $(47,714) (8,361) (4,552)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation 7,087 3,498 2,875
Amortization 485 621 773
Impairment charges 13,650 --- 400
Loss on sale of property and equipment 1,257 68 60
Provision for losses on accounts receivable 482 75 (256)
Changes in operating assets and liabilities:
Trade accounts receivable 3,680 (1,052) (1,468)
Inventories 3,531 8,617 (5,309)
Prepaid expenses and other current assets 1,431 (1,115) 48
Other noncurrent assets 15 18 (7)
Accounts payable (1,760) (659) (751)
Accrued expenses 1,792 (936) (3,023)
Income taxes payable 120 (6,664) 10,275
Other liabilities (39) 121 (20)
--------- --------- ---------
Net cash used in operating activities (15,983) (5,769) (955)
--------- --------- ---------
Investing activities:
Purchases of property, plant and equipment (2,445) (8,042) (3,086)
Proceeds from sale of property, plant and equipment 1,841 140 1,043
--------- --------- ---------
Net cash used in investing activities (604) (7,902) (2,043)
--------- --------- ---------
Financing activities:
Change in obligations under capital leases, net (106) 85 132
Proceeds from issuance of long-term debt --- --- 7,037
Principal payments on long-term debt (297) (325) ---
Change in due to Parent and affiliates, net 16,952 13,883 (4,588)
--------- --------- ---------
Net cash provided by financing activities 16,549 13,643 2,581
--------- --------- ---------
Decrease in cash (38) (28) (417)
Cash at beginning of year 274 302 719
--------- --------- ---------
Cash at end of year $ 236 274 302
========= ========= =========
Supplemental disclosure of cash flow information -
interest paid $ 723 721 241
========= ========= =========
</TABLE>
See accompanying notes to combined financial statements.
F-4
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
(1) BASIS OF PRESENTATION
The accompanying combined financial statements for the three years ended
July 3, 1999 include the operations and accounts of Duck Head Apparel, Duck
Head Outlet Stores, International Apparel Marketing Corporation and Duck
Head Marketing Company (all of which are owned by Delta Woodside
Industries, Inc. or its subsidiaries). These operations are combined and
referred to herein as the "Company." Duck Head Apparel Company, Inc. is
owned by Alchem Capital Corporation, a wholly owned subsidiary of Delta
Woodside Industries, Inc. ("DWI" or the "Parent").
The accompanying combined financial statements have been prepared for
purposes of depicting the financial position and results of operations of
the Company on a historical cost basis.
All balances and transactions among the combining entities have been
eliminated in combination. Balances and transactions with other affiliates
have not been eliminated in the combination and are reflected as affiliate
balances and transactions.
(2) SIGNIFICANT ACCOUNTING POLICIES
(a) DESCRIPTION OF BUSINESS
The Company produces woven and knit apparel, including the "Duck Head"
line of casual wear marketed primarily in the Southeastern United
States to department stores and specialty apparel retailers. The
Company operates a distribution facility in the Southeast United
States and manufacturing facilities in Central America. The Company
also operates retail apparel outlet stores that sell primarily
closeout and irregular "Duck Head" products. In addition, the Company
licenses various categories of apparel and accessories.
(b) FISCAL YEAR
The Company's operations are based upon a fifty-two or fifty-three
week fiscal year ending on the Saturday closest to June 30.
Fiscal years 1998 and 1997 each consisted of 52 weeks. Fiscal year
1999 consisted of 53 weeks.
(c) INVENTORIES
Inventories are stated at the lower of cost (first-in, first out) or
market. The Company evaluates inventory for potentially obsolete or
slow-moving items based on management's analysis of inventory levels,
sales forecasts and historical sales trends, and records provisions to
cost of sales as required.
The Company adopted the first-in, first-out (FIFO) method of
determining the cost of inventories. The Company had previously
recorded such inventories using the last-in, first-out (LIFO) method.
The Company has experienced a significant decline in prices and level
of finished goods recently, the majority of the manufacturing
component of inventory has moved to lower cost off-shore facilities,
and the Company's inventory mix is shifting more to purchased matches
current costs with current revenues in periods of price-level
decreases. LIFO inventory made up 56% and 69% of the inventories at
July 3, 1999 and June 27, 1998, respectively. All periods presented
have been restated to reflect the retroactive application of this
accounting change as provided by the special exemption for an initial
public distribution in APB Opinion 20, "Accounting Changes". The
accounting change increased the net loss by $38, $465 and $90 in
fiscal 1999, 1998, and 1997, respectively.
F-5 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
(d) PROPERTY, PLANT, AND EQUIPMENT
Property, plant, and equipment are stated at cost. Depreciation and
amortization is provided for using the straight-line method over
estimated useful lives of 2 to 20 years. Leasehold improvements are
amortized over the shorter of the lease term or the estimated useful
life of the improvements.
At the beginning of 1999, the Company revised its estimate of the
useful lives of certain active store fixtures from five years to two
years and computer equipment from seven years to three years and the
salvage values related to these assets. The reduction in the useful
life of the active store fixtures was based on the actual time these
assets are expected to be deployed in the stores. The reduction in the
salvage value of the store fixtures was to reflect actual losses the
Company was experiencing on store fixtures that were either returned,
damaged or disposed of by customers. The reduction in the useful life
of the computer equipment was to reflect current technological
changes. These changes had the effect of increasing the operating loss
for 1999 by $3,926 or $1.64 per share.
(e) IMPAIRMENT OF LONG-LIVED ASSETS
Long-lived assets and certain identifiable intangibles are reviewed
for impairment whenever events or changes in circumstances indicate
that the carrying amount of an asset may not be recoverable.
Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows
expected to be generated by the asset. If such assets are considered
to be impaired, the impairment to be recognized is measured by the
amount by which the carrying amount of the asset exceeds the fair
value of the assets. Assets to be disposed of are reported at the
lower of the carrying amount or fair value less costs to sell.
In 1999, the Company recorded an impairment charge of $1,069, which is
reflected in impairment charges in the combined statements of
operations and accumulated divisional deficit, relating to store
fixtures that were abandoned due to the loss of two of the Company's
major accounts. The loss was determined based on the estimated salvage
value of the store fixtures. This loss was reflected in the Company's
wholesale operations segment.
(f) GOODWILL
Goodwill, which represents the excess purchase price over net assets
originally acquired, is amortized on a straight-line basis over 40
years. Each year, the Company assesses the recoverability of this
intangible asset by determining whether the amortization of the
goodwill balance over its remaining life can be recovered through
undiscounted estimated future operating cash flows of the Company.
During 1999, the Company experienced an adverse change in its business
climate; net sales declined significantly mainly due to the loss of
two major accounts. At fiscal year end there were excessive levels of
unsold fashion goods which resulted in an additional $7.3 million
inventory write-down. Total inventory write-downs for the fiscal year
were $10.4 million. In October 1998, the Company was put up for sale
by its Parent, which indicated value significantly below the net book
value of the Company. Due to the diminished fair value of the Company,
the Parent suspended its efforts to sell the Company and hired new
senior management to develop a new business plan and restructure its
operations. As a result, the Company determined that an impairment
loss should be recognized. Based upon the Company's business plan for
fiscal year end 2000 and cash flow projections, the Company determined
that the goodwill was impaired by $12,581 and accordingly, recognized
the impairment loss. The Company projected future cash flows for the
next ten years using its business plan for fiscal 2000 and 2001 that
was approved by DWI's Board of Directors. The cash flow projections
for fiscal 2002 through 2009 were based on the Company's business plan
for fiscal 2000 and 2001, assuming a 5% growth rate, which management
believes to be reasonable.
F-6 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
(g) REVENUE RECOGNITION
Sales of goods are recognized upon shipment of the goods to the
customer. The Company estimates merchandise returns based on
historical returns as a percentage of sales applied to current
accounts receivable and provides allowances for markdowns based on
actual margins being incurred by customers.
(h) RELATED PARTY TRANSACTIONS
The Company participates in a cash management system maintained by
DWI. Under this system, excess cash is forwarded to DWI each day,
reducing the due to Parent, and cash requirements are funded daily by
DWI, increasing the current due to Parent. Interest is charged on loan
payable to DWI balances based on the weighted average cost of DWI's
borrowings. In addition, the Company incurs management fees from DWI
for various corporate services including management, treasury,
computer, benefits, payroll, auditing, accounting and tax services.
For these services, DWI charges actual cost based on relative usage
and other factors which, in the opinion of management, represents a
reasonable and appropriate method of allocation.
(i) INCOME TAXES
Income taxes are accounted for under the asset and liability method.
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and
their respective tax bases and operating loss and tax credit
carryforwards. Deferred tax assets and liabilities are measured using
enacted tax rates expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or
settled. The effect on deferred tax assets and liabilities of a change
in tax rates is recognized in income in the period that includes the
enactment date.
The Company's operations are included in the consolidated Federal tax
return of DWI. Under the consolidated tax sharing arrangement, the
Company's tax receivable or payable is calculated as if the Company
separately filed a Federal tax return. Any tax settlement due to or
from the Parent is settled when the Parent receives or pays taxes to
the government.
(j) ADVERTISING COSTS
Advertising costs are expensed as incurred. Advertising costs amounted
to $7,128, $3,229 and $3,644 in fiscal 1999, 1998 and 1997,
respectively.
(k) COMPUTATION OF UNAUDITED PRO FORMA NET LOSS PER SHARE
The Company has presented the unaudited historical pro forma net loss
per share pursuant to SFAS 128, Earnings per Share. Pursuant to SFAS
128, unvested stock is excluded from basic earnings per share and
included in diluted earnings per share if dilutive. The unaudited
historical pro forma net loss per share is calculated by dividing the
historical net loss by the unaudited pro forma weighted-average common
shares outstanding. The unaudited pro forma weighted-average common
shares outstanding was determined assuming a distribution of one share
of Duck Head Apparel common stock for every ten shares of DWI stock
outstanding on the record date. The weighted-average shares do not
include securities that would be anti-dilutive for each of the periods
presented.
F-7 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
(l) USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could differ
from those estimates.
(m) RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, SFAS 130, Reporting Comprehensive Income, was issued and
was adopted by the Company as of July 1, 1998. SFAS 130 establishes
standards for reporting and display of comprehensive income and its
components in a full set of general-purpose financial statements. This
statement requires that an enterprise (a) classify items of other
comprehensive income by their nature in financial statements and (b)
display the accumulated balance of other comprehensive income
separately from accumulated deficit and additional paid-in capital in
the equity section of statements of financial position. Comprehensive
income is defined as the change in equity during the financial
reporting period of a business enterprise resulting from non-owner
sources. Comprehensive income approximates the net loss for all
periods presented.
In June 1997, the FASB issued SFAS 131, Disclosures about Segments of
an Enterprise with Related Information. SFAS 131 establishes standards
for the way public business enterprises report information about
operating segments in annual financial statements and requires those
enterprises to report selected information about operating segments in
interim financial reports issued to stockholders. SFAS 131 is
effective for financial statements for fiscal years beginning after
December 31, 1997. The Company has adopted SFAS 131 for fiscal
year-end July 3, 1999 and has applied it for all periods presented.
In June 1998, the FASB issued SFAS 133, Accounting for Derivative
Instruments and Hedging Activities, which was subsequently deferred by
SFAS 137. SFAS 133 establishes accounting and reporting standards for
derivative instruments, including derivative instruments embedded in
other contracts, and for hedging activities. SFAS 133 is effective for
all fiscal years beginning after June 15, 2000. The Company will
determine the applicability of SFAS 133 and apply it if necessary.
(3) INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
JULY 3, JUNE 27,
1999 1998
-------- --------
<S> <C> <C>
Raw materials $ 1,370 1,425
Work in process 2,548 3,579
Finished goods 20,803 23,131
Supplies and miscellaneous - 117
-------- --------
$ 24,721 28,252
======== ========
</TABLE>
F-8 (Continued)
<PAGE>
(4) PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following:
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
<TABLE>
<CAPTION>
ESTIMATED JULY 3, JUNE 27,
USEFUL LIFE 1999 1998
----------- --------- ---------
<S> <C> <C> <C>
Land and land improvements N/A 970 1,136
Buildings 20 years 9,950 11,330
Machinery and equipment 10-15 years 6,904 7,531
Computers and software 3 years 5,021 5,134
Furniture and fixtures 2-7 years 7,920 7,855
Leasehold improvements 3-10 years 1,168 1,188
Automobiles 5 years 148 52
Construction in progress N/A 158 1,706
-------- ----------
32,239 35,932
Less accumulated depreciation and
amortization (20,320) (15,204)
--------- ---------
$ 11,919 20,728
========= =========
</TABLE>
(5) ACCRUED EXPENSES
Accrued expenses consist of the following:
<TABLE>
<CAPTION>
JULY 3, JUNE 27,
1999 1998
-------- --------
<S> <C> <C>
Accrued employee compensation and benefits $ 2,243 628
Taxes accrued and withheld 413 616
Accrued insurance 359 324
Accrued legal 539 ---
Store closing reserve 626 971
Accrued advertising 702 724
Other 720 547
-------- --------
$ 5,602 3,810
======== ========
</TABLE>
F-9 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
(6) LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
JULY 3, JUNE 27,
1999 1998
========= ========
<S> <C> <C>
Bank loan, interest at 8.75%, payable monthly,
principal payable in 34 installments of $75,
with final payment due January 10, 2000 $ 6,415 6,712
Less current installments 6,415 292
--------- ---------
Long-term debt, excluding current
installments $ -- 6,420
========= =========
</TABLE>
The loan is secured by a $500 certificate of deposit held by the Company's
Parent and the property and fixtures at the Company's distribution center.
(7) INCOME TAXES
The Company's operations are included in the consolidated Federal tax
return of DWI. The Federal income tax obligation or refund under the
corporate tax sharing arrangement allocated to the Company is substantially
determined as if the Company was filing a separate Federal income tax
return. The Company's Federal tax liability or receivable is paid to or is
received from DWI.
Federal and state income tax expense (benefit) was as follows:
<TABLE>
<CAPTION>
YEAR ENDED
----------------------------
JULY 3, JUNE 27, JUNE 28,
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Current:
Federal $ --- --- (263)
State 261 159 (74)
-------- -------- --------
Total current 261 159 (337)
-------- -------- --------
Deferred:
Federal --- --- ---
State --- --- ---
-------- -------- --------
Total deferred --- --- ---
-------- -------- --------
Income tax expense (benefit) $ 261 159 (337)
======== ======== ========
</TABLE>
F-10 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
A reconciliation between actual income tax expense (benefit) and the income tax
expense (benefit) computed using the Federal statutory income tax rate of 35% is
as follows
<TABLE>
<CAPTION>
YEAR ENDED
-------------------------------
JULY 3, JUNE 27, JUNE 28,
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Income tax benefit at the statutory rate $(16,609) (2,902) (1,690)
State income tax expense (benefit), net of Federal
income taxes 170 103 (48)
Valuation allowance adjustments 12,652 3,212 1,755
Foreign subsidiary adjustment 208 206 129
Non-deductible amortization and other permanent
differences 4,566 - -
Other (726) (460) (483)
--------- --------- ---------
Income tax expense (benefit) $ 261 159 (337)
========= ========= =========
</TABLE>
Significant components of the Company's deferred tax assets and liabilities
computed under the corporate tax sharing arrangement are as follows:
<TABLE>
<CAPTION>
JULY 3, JUNE 27,
1999 1998
--------- ---------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards $ 28,898 21,048
Inventories 4,883 2,500
Depreciation 1,481 -
Currently nondeductible accruals 1,546 1,355
--------- ---------
Gross deferred tax assets 36,808 24,903
Less valuation allowance (36,764) (24,112)
--------- ---------
Net deferred tax assets 44 791
--------- ---------
Deferred tax liabilities:
Depreciation --- (549)
Other (44) (242)
--------- ---------
Deferred tax liabilities (44) (791)
--------- ---------
Net deferred tax liability $ --- ---
========= =========
</TABLE>
F-11 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
The valuation allowance for deferred tax assets as of July 3, 1999 and June
27, 1998 was $36,764 and $24,112, respectively. The net change in the total
valuation allowance for the years ended July 3, 1999 and June 27, 1998 was
an increase of $12,652 and $3,212, respectively. In assessing the
realizability of deferred tax assets, management considers whether it is
more likely than not that some portion or all of the deferred tax assets
would be realized if the Company were filing a separate Federal income tax
return. Management considers the scheduled reversal of deferred tax
liabilities, projected future taxable income, and tax planning strategies
in making this assessment. Based upon the level of historical taxable
income and projections for future taxable income over the periods during
which the deferred tax assets are deductible, management believes it is
more likely than not the Company will realize the benefits of these
deductible differences, net of the existing valuation allowances at July 3,
1999. The amount of the deferred tax assets considered realizable, however,
could be reduced in the near term if estimates of future taxable income
during the carryforward period are reduced.
As of July 3, 1999, the Company had regular tax loss carryforwards of
approximately $67.8 million for Federal purposes as calculated under the
corporate tax sharing arrangement. The Company also has state net operating
loss carryforwards of approximately $80.5 million calculated under the
corporate tax-sharing arrangement. These carryforwards expire at various
intervals through 2019. If the Company were to leave its current
consolidated group, these carryovers may not be available for future use.
(8) AFFILIATED PARTY TRANSACTIONS
Due to (from) related parties consists of the following:
<TABLE>
<CAPTION>
JULY 3, JUNE 27,
1999 1998
-------- --------
<S> <C> <C>
Delta Woodside Industries, Inc. $118,719 101,601
Stevcoknit Fabrics Company, a
division of Delta Mills, Inc. - 30
Delta Apparel Company 85 35
Delta Mills Marketing, a division
of Delta Mills, Inc. - 187
-------- --------
$118,804 101,853
======== ========
</TABLE>
The Company had inventory purchases from related parties totaling $1,143,
$1,980, and $3,741 in fiscal 1999, 1998, and 1997, respectively. In
addition, the Company had sales to related parties of $0, $132 and $653 in
fiscal 1999, 1998 and 1997, respectively.
F-12 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
In May 1998, DWI obtained a $30 million revolving credit facility (subject
to borrowing base limitations) which is due in December 1999. This credit
facility is backed by certain accounts receivable and inventory, as defined
in the credit agreement, of the Company and another division of DWI.
(9) LEASES
The Company is obligated under various capital leases for machinery and
equipment that expire at various dates during the next three years. The
Company also has several noncancelable operating leases relating to
buildings, office equipment, machinery and equipment, and computer systems.
Future minimum lease payments under noncancelable operating and capital
leases as of July 3, 1999 were as follows:
<TABLE>
<CAPTION>
OPERATING CAPITAL
FISCAL YEAR LEASES LEASES
- ----------- --------- -------
<S> <C> <C>
2000 $ 1,893 56
2001 1,737 44
2002 1,414 14
2003 532 -
2004 and thereafter 268 -
--------- -------
5,844 114
=========
Less current portion of
obligations under capital leases 56
-------
Obligations under capital leases,
excluding current installments $ 58
=======
</TABLE>
Rent expense for all operating leases was approximately $2,005, $2,181, and
$2,634 for fiscal years 1999, 1998 and 1997, respectively.
(10) EMPLOYEE BENEFIT PLANS
The Company participates in the Delta Woodside Industries, Inc. Retirement
and 401(k) Plans. On September 27, 1997, the Delta Woodside Industries
Employee Retirement Plan ("Retirement Plan") merged into the Delta Woodside
Employee Savings and Investment Plan ("401(k) Plan"). In the 401(k) Plan,
employees may elect to convert DWI stock to other funds, but may not
increase the amount of DWI stock in their account. Each participant has the
right to direct the trustee as to the manner in which DWI shares held are
to be voted. The Retirement Plan qualified as an Employee Stock Ownership
Plan ("ESOP") under the Internal Revenue Code as a defined contribution
plan. The Company contributed approximately $152, $84, and $128 to the
401(k) Plan during fiscal 1999, 1998, and 1997, respectively. The Company
contributed approximately $0, $28, and $31 to the Retirement Plan and/or
the 401(k) Plan during fiscal 1999, 1998 and 1997, respectively.
F-13 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
The Company also participates in a 501(c)(9) trust, the Delta Woodside
Employee Benefit Plan and Trust ("Trust"). The Trust collects both employer
and employee contributions from the Company and makes disbursements for
health claims and other qualified benefits.
The Company participates in a Deferred Compensation Plan, managed by DWI,
which permits certain management employees to defer a portion of their
compensation. Deferred compensation accounts are credited with interest and
are distributed after retirement, disability or employment termination. As
of July 3, 1999 and June 27, 1998, the Company's liability was
approximately $733 and $736, respectively. The Company contributed
approximately $2 to the Deferred Compensation Plan during fiscal 1999,
1998, and 1997.
The Company also participates in the Delta Woodside Industries, Inc.
Incentive Stock Award Plan and Stock Option Plan. Under both Plans, the
Company recognized expenses of approximately $190, $108, and $78 for fiscal
years 1999, 1998, and 1997, respectively.
(11) EMPLOYMENT AGREEMENT
The Company has an Employment Agreement ("Agreement") with an officer of
the Company that provides for the officer's salary and bonus through one
year after the spin-off. In addition, the Agreement provides that the post
spin-off Duck Head Apparel Company will establish an Incentive Stock Plan
similar to the one in place at the parent company that grants the officer
incentive shares valued at $200 of the new Duck Head Apparel Company. The
shares vest through March 8, 2001 B 60% in each year for service and 40%
for performance.
The new Duck Head Apparel Company will establish a Stock Option Plan,
covering a total of 500 shares; 25% of these shares are to be reserved for
the officer. Under a separate agreement, the new Duck Head Apparel Company
will grant the officer an option to purchase up to 1,000 shares of the new
company at the average price for which these shares trade over the first
six months after the Duck Head distribution.
F-14 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
(12) FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company uses financial instruments in the normal course of its
business. The carrying values approximate fair values for financial
instruments that are short-term in nature, such as cash, accounts
receivable, accounts payable and accrued expenses. The Company estimates
that the carrying value of the Company's long-term debt approximates fair
value based on the current rates offered to the Company for debt of the
same remaining maturities.
(13) OPERATING SEGMENTS
In June 1997, SFAS No. 131, Disclosures about Segments of an Enterprise and
Related Information, was issued effective for fiscal years ending after
December 15, 1998.
The Company has two reportable segments: Wholesale and Outlet Retail. The
Company's reportable segments are strategic business units that offer
similar products through different distribution channels. The Wholesale
segment designs, markets, manufactures, sources and distributes casual wear
and sportswear for men and boys and licenses the Company's trademarks for
specified products. The Outlet Retail segment operates the Company's outlet
and clearance stores. The accounting policies of the reportable segments
are the same as those described in the summary of accounting policies.
Segment operating income (loss) is based on net earnings (loss) before
interest and tax. Financial information for the Company's reportable
segments is as follows:
<TABLE>
<CAPTION>
WHOLESALE OUTLET RETAIL TOTAL
----------- -------------- --------
<S> <C> <C> <C>
1999
Revenues $ 54,094 16,548 70,642
Impairment charges 13,650 - 13,650
Operating (loss) (38,495) (736) (39,231)
Total assets 43,482 2,912 46,394
Capital expenditures 2,067 378 2,445
Depreciation and amortization 7,047 525 7,572
1998
Revenues $ 64,016 19,937 83,953
Operating (loss) (99) (1,152) (1,251)
Total assets 69,631 5,752 75,383
Capital expenditures 7,591 451 8,042
Depreciation and amortization 3,570 549 4,119
1997
Revenues $ 57,331 22,311 79,642
Operating income (loss) 1,969 (675) 1,294
Total assets 69,067 7,261 76,328
Capital expenditures 3,015 71 3,086
Depreciation and amortization 2,720 928 3,648
</TABLE>
F-15 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
(14) CUSTOMER CONCENTRATION
During the fiscal years ended 1999, 1998, and 1997, approximately 24%, 21%,
and 17%, respectively, of the Company's sales were to one customer. In
addition, during the same fiscal years, 46%, 45%, and 41%, respectively, of
the Company's sales were made to its five largest customers.
(15) QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
Presented below is a summary of the unaudited combined quarterly financial
information for the years ended July 3, 1999 and June 27, 1998:
<TABLE>
<CAPTION>
1999 QUARTER ENDED
----------------------------------------------
SEPTEMBER 26 DECEMBER 26 MARCH 27 JULY 3
------------- ----------- -------- --------
<S> <C> <C> <C> <C>
Net sales $ 21,888 16,418 15,680 16,656
Gross profit 7,014 3,132 3,533 (5,505)
Operating income (loss) 1,544 (3,420) (4,050) (33,305)
Net loss (316) (5,308) (5,940) (36,150)
</TABLE>
<TABLE>
<CAPTION>
1998 QUARTER ENDED
----------------------------------------------
SEPTEMBER 27 DECEMBER 27 MARCH 28 JUNE 27
------------- ----------- -------- --------
<S> <C> <C> <C> <C>
Net sales $ 22,821 17,343 20,975 22,814
Gross profit 7,685 6,901 5,728 6,551
Operating income (loss) 868 361 (2,544) 64
Net loss (427) (824) (2,513) (4,597)
</TABLE>
During the fourth quarter of fiscal 1999, the Company recognized impairment
charges of $12,581 related to goodwill and $1,069 related to store fixtures
taken out of service.
F-16 (Continued)
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Combined Financial Statements
Three Years ended July 3, 1999
(Amounts in thousands)
During the third quarter of fiscal 1998, management adopted a plan to close
several retail outlet stores and to close two plants in Costa Rica. The closure
of the retail outlet stores was completed in the third quarter of fiscal 1999.
The closure of the plants in Costa Rica was completed during the first quarter
of fiscal 1999. Accordingly, during the third quarter of fiscal 1998, the
Company recognized restructuring charges of $1,400. The charge for the retail
and outlet stores of approximately $900 includes the remaining lease payments
for the stores and severance payments. The charge for the Costa Rica facilities
of approximately $500 was to cover the expected loss on the disposal of the
land, buildings, equipment and machinery and for severance payments.
F-17
<PAGE>
DUCK HEAD APPAREL COMPANY
Condensed Combined Balance Sheet
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
JANUARY 1,
ASSETS 2000
------------
<S> <C>
Current assets:
Cash $ 179
Accounts receivable, less allowances of $1,594 3,995
Affiliate receivables 3,198
Inventories 16,211
Prepaid expenses and other current assets 256
------------
Total current assets 23,839
Property, plant and equipment, net 9,948
------------
$ 33,787
============
LIABILITIES AND DIVISIONAL DEFICIT
Current liabilities:
Accounts payable $ 2,692
Accrued expenses 3,944
Current portion of long-term debt 6,289
Current portion of capital leases 56
Due to Parent and affiliates 92,339
Income taxes payable 1,081
------------
Total current liabilities 106,401
Long-term portion of capital leases 28
Due to Parent 23,178
Other liabilities 790
------------
Total liabilities 130,397
Divisional deficit (96,610)
------------
$ 33,787
============
</TABLE>
See accompanying notes to condensed combined financial statements.
F-18
<PAGE>
DUCK HEAD APPAREL COMPANY
Condensed Combined Statements of Operations andd Accumulated Divisional Deficit
(Amounts in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED
-----------------------------
JANUARY 1, DECEMBER 26,
2000 1998
-------------- -------------
<S> <C> <C>
Net sales $ 28,993 38,306
Cost of goods sold 20,030 28,160
-------------- -------------
Gross profit 8,963 10,146
Selling, general and administrative expenses 10,351 12,690
Intercompany management fees - 377
Royalty and other income (1,166) (1,045)
-------------- -------------
Operating loss (222) (1,876)
-------------- -------------
Interest (income) expense:
Interest expense, net 338 502
Intercompany interest expense, net 3,869 3,215
-------------- -------------
4,207 3,717
-------------- -------------
Loss before income taxes (4,429) (5,593)
Income tax expense (benefit) 234 31
-------------- -------------
Net loss (4,663) (5,624)
Accumulated divisional deficit, beginning of period (91,947) (44,233)
-------------- -------------
Accumulated divisional deficit, end of period $ (96,610) (49,857)
============== =============
Pro forma net loss per share:
(Note 5):
Basic and diluted $ (1.94)
==============
Basic and diluted weighted-average common shares outstanding 2,400,000
==============
</TABLE>
See accompanying notes to condensed combined financial statements.
F-19
<PAGE>
<TABLE>
<CAPTION>
DUCK HEAD APPAREL COMPANY
Condensed Combined Statements of Cash Flows
(Amounts in thousands)
(unaudited)
FOR THE SIX MONTHS ENDED
-----------------------------
JANUARY 1, DECEMBER 26,
2000 1998
-------------- -------------
<S> <C> <C>
Operating activities:
Net loss $ (4,663) (5,624)
Adjustments to reconcile net loss to net cash
provided by (used in) operating activities:
Depreciation 1,579 1,874
Amortization - 229
(Gain) Loss on sale of property and equipment (58) 31
Provision for losses on accounts receivable (24) 121
Changes in operating assets and liabilities:
Trade accounts receivable 2,809 2,175
Inventories 8,510 (1,971)
Prepaids and other current assets (83) (2,616)
Accounts payable (1,157) (1,188)
Accrued expenses (1,770) (300)
Income taxes payable 820 (423)
Other liabilities 58 528
-------------- -------------
Net cash provided by (used in) operating activities 6,021 (7,164)
-------------- -------------
Investing activities:
Purchases of property, plant and equipment (251) (1,983)
Proceeds from sale of property, plant and equipment 813 582
-------------- -------------
Net cash provided by (used in) investing activities 562 (1,401)
-------------- -------------
Financing activities:
Change in obligations under capital leases, net (29) (114)
Principal payments on long-term debt (126) (63)
Change in due to Parent and affiliates, net (6,485) 8,602
-------------- -------------
Net cash (used in) provided by financing activities (6,640) 8,425
-------------- -------------
Decrease in cash (57) (140)
Cash at beginning of period 236 272
-------------- -------------
Cash at end of period $ 179 132
============== =============
Supplemental disclosure of cash flow information - interest paid
$ 338 503
============== =============
</TABLE>
See accompanying notes to condensed combined financial statements.
F-20
<PAGE>
DUCK HEAD APPAREL COMPANY
Notes to Condensed Combined Financial Statements
(Amounts in thousands)
(unaudited)
(1) BASIS OF PRESENTATION
The accompanying unaudited condensed combined financial statements for the
six months ended January 1, 2000 and December 26, 1998 include the
operations and accounts of Duck Head Apparel, Duck Head Outlet Stores,
International Apparel Marketing Corporation and Duck Head Marketing Company
(all of which are owned by Delta Woodside Industries, Inc. or its
subsidiaries). These condensed combined financial statements have been
prepared pursuant to the rules and regulations of the Securities and
Exchange Commission. Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to
such rules and regulations relating to interim financial statements. In the
opinion of management, the accompanying unaudited interim condensed
combined financial statements reflect all adjustments, consisting of only
normal, recurring adjustments, necessary to present fairly the financial
position of the Company at January 1, 2000, and the results of its
operations and its cash flows for the six months ended January 1, 2000 and
December 26, 1998, respectively. The results for the six months ended
January 1, 2000 are not necessarily indicative of the expected results for
the full year or any future period. The unaudited condensed combined
financial statements included herein should be read in conjunction with the
combined financial statements and notes thereto included in this filing.
(2) INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out) or
market. The Company evaluates inventory for potentially obsolete or
slow-moving items based on management's analysis of inventory levels, sales
forecasts and historical sales trends, and records provisions to cost of
sales as required.
INVENTORIES CONSIST OF THE FOLLOWING:
<TABLE>
<CAPTION>
JANUARY 1,
2000
----------
<S> <C>
Raw materials $ 654
Work in process 1,546
Finished goods 14,011
----------
$ 16,211
==========
</TABLE>
F-21
<PAGE>
(3) OPERATING SEGMENTS
The Company has two reportable segments: Wholesale and Outlet Retail. The
Company's reportable segments are strategic business units that offer
similar products through different distribution channels. The Wholesale
segment designs, markets, manufactures, sources and distributes casual wear
and sportswear for men and boys and licenses the Company's trademark for
specified products. The Outlet Retail segment operates the Company's outlet
and clearance stores.
Summarized segment information as of January 1, 2000 and December 26, 1998
and for the six months ended January 1, 2000 and December 26, 1998 is
presented below.
<TABLE>
<CAPTION>
WHOLESALE OUTLET RETAIL TOTAL
--------- ------------- -------
<S> <C> <C> <C>
SIX MONTHS ENDED JANUARY 1, 2000
Revenues $ 20,615 8,378 28,993
Operating income (loss) (779) 557 (222)
Total assets 30,888 2,899 33,787
Capital expenditures 334 (83) 251
Depreciation and amortization 1,466 113 1,579
SIX MONTHS ENDED DECEMBER 26, 1998
Revenues $ 28,357 9,949 38,306
Operating income (loss) (2,260) 384 (1,876)
Total assets 75,946 4,449 80,395
Capital expenditures 1,859 124 1,983
Depreciation and amortization 1,899 204 2,103
</TABLE>
(4) CUSTOMER CONCENTRATION
During the six months ended January 1, 2000 and December 26, 1998
approximately 25.8% and 24.6% of the Company's sales were to one customer.
In addition, during the same six month periods 47.0% and 45.1% of the
Company's sales were made to its five largest customers.
F-22
<PAGE>
(5) COMPUTATION OF PRO FORMA NET LOSS PER SHARE
The Company has presented the unaudited historical pro forma net loss per
share pursuant to SFAS 128, Earnings per Share. Pursuant to SFAS 128,
unvested stock is excluded from basic earnings per share and included in
diluted earnings per share if dilutive. The unaudited historical pro forma
net loss per share is calculated by dividing the historical net loss by the
unaudited pro forma weighted-average common shares outstanding. The
unaudited pro forma weighted-average common shares outstanding was
determined assuming a distribution of one share of Duck Head Apparel common
stock for every ten shares of DWI stock outstanding on the record date.
The weighted average shares do not include securities that would be
anti-dilutive for each of the periods presented.
F-23
<PAGE>
