As filed with the Securities and Exchange Commission on December 12, 1997
Registration No. 333-41415
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
THE WARNACO GROUP, INC.
(Exact name of registrant as specified in its charter)
_________________________
Delaware 95-4032739
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
<PAGE>
90 Park Avenue
New York, New York 10016
(212) 661-1300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_________________________
Stanley P. Silverstein, Esq.
Vice President, General Counsel and Secretary
The Warnaco Group, Inc.
90 Park Avenue
New York, New York 10016
(212) 661-1300
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
_________________________
Copies to:
Robert E. Spatt, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3909
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
<PAGE>
effective registration statement number of the earlier effective registration
statement for the same offering. / / _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
_________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Shares Amount to Aggregate Price Aggregate Registration
To Be Registered Be Registered Per Unit<F1> Offering Price<F1> Fee
<S> <C> <C> <C> <C>
Class A Common Stock, par 5,340,773 shares $28.59 $152,692,701 $45,045
value $.01
<FN>
<F1> Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended.
</TABLE>
_________________________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses payable by Warnaco in connection with the
offering described in this Registration Statement are as follows:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee . . . . . . . . . . . . . . . . . . . . $ 45,045
Legal fees and expenses . . . . . . . . . . . . . . . . . 25,000
Accounting fees and expenses . . . . . . . . . . . . . . 5,000
Printing and duplicating expenses . . . . . . . . . . . . 500
Miscellaneous expenses . . . . . . . . . . . . . . . . . 1,000
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . $ 76,545
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Except to the extent indicated below, there is no charter provision,
by-law, contract, arrangement or statute under which any director or officer
of Warnaco is insured or indemnified in any manner against any liability
which he or she may incur in his or her capacity as such.
Article Sixth of the Warnaco Charter contains a provision, permitted by
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"),
limiting the personal monetary liability of directors for breach of fiduciary
duties as a director. The DGCL and the Warnaco Charter provide that such
provision does not eliminate or limit liability (i) for any breach of the
director's duty of loyalty to Warnaco or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an improper
benefit.
Article VIII of the Warnaco Bylaws provides that Warnaco must indemnify
directors and officers to the fullest extent permitted by the DGCL.
Section 145 of the DGCL permits indemnification against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with actions, suits or
proceedings in which an officer, director, employee or agent is a party by
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<PAGE>
reason of the fact that he is or was such a director, officer, employee or
agent, if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. However, in connection with actions by or in the right
of the corporation, such indemnification is not permitted if such person has
been adjudged liable to the corporation unless the court determines that,
under all of the circumstances, such person is nonetheless fairly and
reasonably entitled to indemnity for such expenses as the court deems proper.
Section 145 also permits a corporation to purchase and maintain insurance on
behalf of its directors and officers against any liability which may be
asserted against, or incurred by, such persons in their capacities as
directors or officers of the corporation whether or not Warnaco would have
the power to indemnify such persons against such liabilities under the
provisions of such sections. Warnaco has purchased such insurance. Section
145 further provides that the statutory provision is not exclusive of any
other right to which those seeking indemnification or advancement of expenses
may be entitled under any by-law, agreement, vote of stockholders or
independent directors, or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Item 16. Exhibits.
2.1 - Agreement and Plan of Merger dated as of September 25,
1997, among The Warnaco Group, Inc., WAC Acquisition
Corporation and Designer Holdings Ltd.
2.2 - Stock Exchange Agreement dated as of September 25, 1997,
among The Warnaco Group, Inc., New Rio, L.L.C., and the
members of New Rio, L.L.C. signatory thereto.
2.3 - Amendment to Agreement and Plan of Merger dated as of
December 10, 1997, among The Warnaco Group, Inc., WAC
Acquisition Corporation and Designer Holdings Ltd.
5.1 - Opinion of Simpson Thacher & Bartlett as to the validity
of the Common Stock.
23.1 - Consent of Price Waterhouse LLP.
23.2 - Consent of Ernst & Young LLP.
23.3 - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1).
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected on the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraph (1)(i) and (1)(ii) above do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth in response to Item 15, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
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<PAGE>
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of New York, State of
New York, on December 11, 1997.
THE WARNACO GROUP, INC.
By: *
Linda J. Wachner
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
* Chairman of the Board, December 11, 1997
Linda J. Wachner President and Chief Executive
Officer (Principal Executive
Officer)
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<PAGE>
* Senior Vice President and December 11, 1997
William S. Finkelstein Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
* Director December 11, 1997
Joseph A. Califano, Jr.
* Director December 11, 1997
Joseph H. Flom
* Director December 11, 1997
Andrew G. Galef
* Director December 11, 1997
Walter F. Loeb
* Director December 11, 1997
Stewart A. Resnick
* Director December 11, 1997
James R. Jones
* /s/Stanley P. Silverstein Attorney-in Fact December 11, 1997
Stanley P. Silverstein
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<PAGE>
INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit Pages
Number Description of Exhibits
* 2.1 - Agreement and Plan of Merger dated as of September
25, 1997, among The Warnaco Group, Inc., WAC
Acquisition Corporation and Designer Holdings Ltd.
* 2.2 - Stock Exchange Agreement dated as of September 25,
1997, among The Warnaco Group, Inc., New Rio,
L.L.C., and the members of New Rio, L.L.C. signatory
thereto.
2.3 - Amendment to Agreement and Plan of Merger dated
December 10, 1997, among The Warnaco Group, Inc.,
WAC Acquisition Corporation and Designer Holdings Ltd.
* 5.1 - Opinion of Simpson Thacher & Bartlett as to the
validity of the Common Stock.
* 23.1 - Consent of Price Waterhouse LLP
* 23.2 - Consent of Ernst & Young LLP
* 23.3 - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1)
_____________________
* Previously filed.
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT (this "Amendment"), dated as of December 10, 1997, among
THE WARNACO GROUP, INC., a Delaware corporation ("Parent"), WAC ACQUISITION
CORPORATION, a Delaware corporation ("Sub"), and DESIGNER HOLDINGS LTD., a
Delaware corporation (the "Company"), to the AGREEMENT AND PLAN OF MERGER
dated as of September 25, 1997 (the "Merger Agreement"), among Parent, Sub
and the Company.
Preliminary Statements
WHEREAS, shortly after the announcement of a proposed transaction
between the Company and Parent, three stockholders of the Company filed
lawsuits in the Delaware Court of Chancery challenging such transaction,
which lawsuits were later consolidated and captioned as In re Designer
Holdings Ltd. Shareholders Litigation, Consolidated Civil Action 15942 (the
"Litigation");
WHEREAS, on November 13, 1997, the parties to the Litigation
reached an agreement in principle to settle the Litigation (the
"Settlement"), subject to court approval;
WHEREAS, pursuant to the terms of the Settlement, Parent, Sub and
the Company have each agreed, among other things, to reduce the termination
fee payable by the Company to Parent pursuant to Section 5.08 of the Merger
Agreement in certain circumstances from $12.5 million to $6.5 million; and
WHEREAS, in order to effectuate the foregoing, the parties hereto
each desire to amend the Merger Agreement as set forth herein.
Agreement
In consideration of the mutual covenants contained in this
Amendment and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, pursuant to Section 7.03 of the
Merger Agreement, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized
terms used herein are used as defined in the Merger Agreement.
2. Amendment. Section 5.08(b) of the Merger Agreement is hereby
amended to delete the reference to "$12,500,000" and insert in its place the
figure "$6,500,000".
3. Continuing Effect; Amendment Limited. This Amendment is
limited as specified and shall not constitute a modification, acceptance or
waiver of any other provision of the Merger Agreement. From and after the
date of the effectiveness of this Amendment, all references in the Merger
Agreement to the "Agreement" shall be deemed to be references to the Merger
Agreement after giving effect to this Amendment.
4. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which counterparts when executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
<PAGE>
5. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF DELAWARE.
6. Effectiveness. This Amendment shall become effective on the
date on which each of Parent, Sub and the Company shall have signed a copy
hereof (whether the same or different copies) and shall have delivered the
same to Parent.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have each caused this
Amendment to be executed by a duly authorized officer as of the date set
forth above.
THE WARNACO GROUP, INC.
By: /s/ Stanley P. Silverstein
Its: Vice President, General Counsel
and Secretary
WAC ACQUISITION CORPORATION
By: /s/ Stanley P. Silverstein
Its: Vice President
DESIGNER HOLDINGS LTD.
By: /s/William S. Finkelstein
Its: Vice President
