As filed with the Securities and Exchange Commission on December 3, 1997
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
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 $29.59 $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>
_______________________________________________________________________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
_______________________________________________________________________________
Subject to Completion, dated December 3, 1997
PROSPECTUS
The Warnaco Group, Inc.
5,340,773 Shares of Class A Common Stock
Par Value $.01 Per Share
_________________________
This Prospectus relates to an aggregate of 5,340,773 shares of Class A
Common Stock, par value $.01 per share (the "Common Stock"), of The Warnaco
Group, Inc., a Delaware corporation ("Warnaco"). All of the Common Stock
offered hereby may be sold from time to time by and for the account of the
Selling Stockholders named in this Prospectus (the "Selling Stockholders"). See
"Selling Stockholders" herein.
The methods of sale of the Common Stock offered hereby, and a description
of certain restrictions on sales by the Selling Stockholders of such Common
Stock, are described under the heading "Plan of Distribution." Warnaco will
receive none of the proceeds from such sales. Warnaco will pay all
registration expenses (other than legal fees of the Selling Stockholders,
underwriting discounts and commissions, selling or placement agent or broker
fees and commissions, and transfer taxes, all of which will be paid by the
Selling Stockholders) incurred in connection with the offering described in
this Prospectus.
The Selling Stockholders and any broker-dealers that participate in the
distribution of the Common Stock offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and any commission or profit on the resale of shares
received by such broker-dealers may be deemed to be underwriting commissions
and discounts under the Securities Act. Upon Warnaco's being notified by the
Selling Stockholders that any material arrangement has been entered into with a
<PAGE>
broker or dealer for the sale of the shares through a secondary distribution,
or a purchase by a broker or dealer, a supplemented Prospectus will be filed,
if required, disclosing among other things the names of such brokers and
dealers, the number of shares involved, the price at which such shares are
being sold and the commissions paid or the discounts or concessions allowed to
such broker-dealers.
The Common Stock of Warnaco is listed on the New York Stock Exchange
(Symbol: WAC). On December 2, 1997, the closing price of the Common Stock was
$30 15/16 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_________________________
The date of this Prospectus is December ___, 1997.
<PAGE>
AVAILABLE INFORMATION
Warnaco is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by Warnaco may be inspected and copied
at the public reference facilities maintained by the Commission, 450 Fifth
Street, N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549; and at
regional offices of the Commission at the Citicorp Center, 500 West Madison,
Suite 1400, Chicago, Illinois 60661 and at 7 World Trade Center, New York,
New York 10048. Copies of such material may be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such material may also be
inspected and copied at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which Warnaco's Common Stock is listed.
In addition, the Commission maintains a site on the World Wide Web portion of
the Internet that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission. The address of such site is http://www.sec.gov.
As permitted by the rules and regulations of the Commission, this
Prospectus omits certain information contained in the Registration Statement
on Form S-3 (the "Registration Statement"), of which this Prospectus is a
part. For further information with respect to Warnaco and the Common Stock,
reference is made to the Registration Statement and the exhibits thereto.
Statements made in this Prospectus as to the contents of any contract,
agreement or other document are not necessarily complete; and while Warnaco
believes the descriptions of the material provisions of such contracts,
agreements and other documents contained in this Prospectus are accurate
summaries of such material provisions, reference is made to such contract,
agreement or other document filed as an exhibit to the Registration Statement
for a more complete description of the matter involved, and each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Warnaco hereby incorporates by reference in this Prospectus the
following documents previously filed with the Commission pursuant to the
Exchange Act: (i) Annual Report of Warnaco on Form 10-K for the fiscal year
ended January 4, 1997; (ii) Quarterly Reports of Warnaco on Form 10-Q for the
fiscal quarters ended April 5, 1997, July 5, 1997 and October 4, 1997; (iii)
Current Reports of Warnaco on Form 8-K filed on October 3, 1997, October 21,
1997, and November 24, 1997; and (iv) Schedule 14A Proxy Statement of Warnaco
filed on November 19, 1997.
Each document filed by Warnaco pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Common Stock pursuant hereto shall
be deemed to be incorporated by reference in this Prospectus and to be a part
of this Prospectus from the date of filing of such document. Any statement
<PAGE>
contained in this Prospectus or in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified
or superseded for purposes of the Registration Statement and this Prospectus
to the extent that a statement contained in this Prospectus or in any
subsequently filed document that also is or is deemed to be incorporated by
reference in this Prospectus modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
Warnaco will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of any such person,
a copy of any or all of the documents that are incorporated by reference in
this Prospectus, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference into such documents). Requests
should be directed to The Warnaco Group, Inc., Attn: Secretary, 90 Park
Avenue, New York, New York 10016, telephone (212) 661-1300.
THE COMPANY
Warnaco was organized in Delaware in 1986. Warnaco and its subsidiaries
design, manufacture and market a broad line of women's intimate apparel, such
as bras, panties and sleepwear, and men's sportswear, underwear and
accessories, all of which are sold under such internationally recognized
owned and licensed brand names as Warner's (Registered Trademark), Olga
(Registered Trademark), Lejaby (Registered Trademark), Valentino Intimo
(Registered Trademark) and Chaps by Ralph Lauren (Registered Trademark).
Warnaco owns the trademark worldwide for Calvin Klein (Registered Trademark)
men's and women's underwear and sleepwear and licenses the Calvin Klein
trademarks worldwide for men's accessories.
On or about December 12, 1997, Warnaco completed a merger, which resulted
in Designer Holdings Ltd., a Delaware corporation ("Designer Holdings"),
becoming a wholly-owned subsidiary of Warnaco. Designer Holdings develops,
manufactures and markets designer jeanswear and sportswear for men, women,
juniors and petites, and has a 40-year extendable license from Calvin Klein,
Inc. to develop, manufacture and market designer jeanswear and sportswear
collections in North, South and Central America under the Calvin Klein Jeans
(Registered Trademark), CK/Calvin Klein Jeans (Registered Trademark) and
CK/Calvin Klein/Khakis (Registered Trademark) labels.
Warnaco's principal executive offices are located at 90 Park Avenue, New
York, New York 10016, and Warnaco's telephone number is (212) 661-1300.
USE OF PROCEEDS
Warnaco will not receive any of the proceeds from the sale of the Common
Stock offered by the Selling Stockholders.
<PAGE>
SELLING STOCKHOLDERS
Warnaco's Common Stock to which this Prospectus relates is being offered
by the Selling Stockholders. On or about December 12, 1997, WAC Acquisition
Corporation ("WAC"), a wholly owned subsidiary of Warnaco, was merged (the
"Merger") with and into Designer Holdings pursuant to an Agreement and Plan
of Merger dated as of September 25, 1997 (the "Merger Agreement"), among
Warnaco, WAC and Designer Holdings. In connection with the Merger, Warnaco
entered into a Stock Exchange Agreement dated as of September 25, 1997 (the
"Exchange Agreement"), among Warnaco, New Rio, L.L.C. and the members of New
Rio, L.L.C. signatory thereto, pursuant to which, on October 14, 1997,
Warnaco acquired 51.3% of the stock of Designer Holdings in exchange for
shares of Common Stock (the "Exchange"). An aggregate of 5,340,773 shares of
Common Stock were issued to the Selling Stockholders in the Exchange, and all
such shares are being offered hereby. For a description of certain
restrictions on sales by the Selling Stockholders see "Plan of Distribution --
Certain Restrictions on Sales by the Selling Stockholders".
The following table states the number of shares of the outstanding
Common Stock of Warnaco owned by the Selling Stockholders as of December 1,
1997, the number of such shares which may be sold for the account of the
Selling Stockholders, and the number of such shares that will be owned by the
Selling Stockholders assuming the sale of all the shares offered hereby.
<TABLE>
<CAPTION>
Number of Shares Number of Shares
Number of Shares of Common Stock of Common Stock
Selling Stockholder of Common Stock Owned to be Sold Owned After Sale
- ----------------------------- --------------------- ------------------- -------------------
<S> <C> <C> <C>
New Rio, L.L.C. . . . . . . . 5,267,752 5,267,752 0
Covino Denim Partners . . . . 73,021 73,021 0
____________________
</TABLE>
DESCRIPTION OF WARNACO CAPITAL STOCK
The summary of the terms of the capital stock of Warnaco set forth below
is qualified by reference to the restated certificate of incorporation, as
amended, of Warnaco (the "Warnaco Charter") and the bylaws of Warnaco (the
"Warnaco Bylaws").
<PAGE>
Authorized Capital Stock
Under the Warnaco Charter, Warnaco's authorized capital stock consists
of 130,000,000 shares of Common Stock, par value $0.01 per share, and
10,000,000 shares of preferred stock, par value $0.01 per share.
Warnaco Common Stock
As of December 1, 1997, 57,384,721 shares of Common Stock were issued
and outstanding. In addition, 807,963 shares of Common Stock were held in the
treasury of Warnaco, and 8,457,877 shares of Common Stock were reserved for
issuance pursuant to the Employee Stock Plan, the 1993 Stock Plan for
Non-Employee Directors and the Amended and Restated 1993 Stock Plan.
The holders of Common Stock are entitled to receive ratably, from funds
legally available for the payment therefor, dividends when and as declared by
resolution of the Warnaco Board, subject to any preferential dividend rights
which may be granted to holders of any preferred stock authorized and issued
by the Warnaco Board. In the event of liquidation, each share of Common Stock
is entitled to share pro rata in any distribution of Warnaco's assets after
payment or providing for the payment of liabilities and any liquidation
preference of any preferred stock authorized and issued by the Warnaco Board.
Each holder of Common Stock is entitled to one vote for each share of Common
Stock held of record on the applicable record date on all matters submitted
to a vote of stockholders, including the election of directors.
Holders of Common Stock have no cumulative voting rights or preemptive
rights to purchase or subscribe for any stock or other securities, and there
are no conversion rights or redemption rights or sinking fund provisions with
respect to Common Stock. The outstanding shares of Common Stock are duly
authorized, validly issued, fully paid and nonassessable.
Warnaco Preferred Stock
As of December 1, 1997, no shares of preferred stock were issued or
outstanding. Under the Warnaco Charter, the Warnaco Board has the authority,
without further stockholder approval, to create one or more series of
preferred stock, to issue shares of preferred stock in such series up to the
maximum number of shares of the relevant class of preferred stock authorized,
and to determine the preferences, rights, privileges and restrictions of any
such series, including the dividend rights, voting rights, rights and terms
of redemption, liquidation preferences, the number of shares constituting any
such series and the designation of such series. Pursuant to this authority,
the Warnaco Board could create and issue a series of preferred stock with
rights, privileges or restrictions, and adopt a stockholder rights plan,
having the effect of discriminating against an existing or prospective holder
of such securities as a result of such security holder beneficially owning or
commencing a tender offer for a substantial amount of Common Stock. One of
the effects of authorized but unissued and unreserved shares of capital stock
may be to render more difficult or discourage an attempt by a potential
acquiror to obtain control of Warnaco by means of a merger, tender offer,
proxy contest or otherwise, and thereby protect the continuity of Warnaco's
management. The issuance of such shares of capital stock may have the effect
<PAGE>
of delaying, deferring or preventing a change in control of Warnaco without
any further action by the stockholders of Warnaco. Warnaco has no present
intention to adopt a shareholder rights plan, but could do so without
shareholder approval at any future time.
Transfer Agent and Registrar
ChaseMellon Shareholder Services, L.L.C. is the transfer agent and
registrar for the Common Stock.
PLAN OF DISTRIBUTION
Warnaco has been advised that the distribution of the Common Stock by
the Selling Stockholders may be effected from time to time in one or more
transactions (which may involve block transactions) (i) on the New York Stock
Exchange or such other national security exchanges on which Warnaco's Common
Stock is listed, in transactions that may include special offerings and
exchange distributions pursuant to and in accordance with the rules of such
exchanges, (ii) in the over-the-counter market or (iii) in transactions
otherwise than on such exchanges or in the over-the-counter market, or in a
combination of any such transactions. Such transactions may be effected by
the Selling Stockholders at market prices prevailing at the time of sale, at
prices related to such prevailing market prices, at negotiated prices or at
fixed prices. The Selling Stockholders may effect such transactions by
selling the Common Stock to or through broker-dealers and such broker-dealers
will receive compensation in the form of discounts or commissions from the
Selling Stockholders and may receive commissions from the purchasers of the
Common Stock for whom they may act as agent (which discounts or commissions
from the Selling Stockholders or such purchasers will not exceed those
customary in the type of transactions involved).
Any broker-dealers that participate with the Selling Stockholders in the
distribution of the Common Stock may be deemed to be "underwriters" within
the meaning of the Securities Act, and any commissions or discounts received
by such broker-dealers and any profit on the resale of the Common Stock by
such broker-dealers might be deemed to be underwriting discounts and
commissions under such act.
Upon Warnaco's being notified by the Selling Stockholders that any
material arrangement has been entered into with a broker or dealer for the
sale of the Common Stock through a secondary distribution, or a purchase by a
broker or dealer, a supplemented Prospectus will be filed, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing (a) the names of
such broker-dealers, (b) the number of shares involved, (c) the price at
which such shares are being sold, (d) the commission paid or the discounts or
concessions allowed to such broker-dealers, (e) where applicable, that such
broker-dealers did not conduct any investigation to verify the information
set out or incorporated by reference in this Prospectus, as supplemented, and
(f) other facts material to the transaction.
<PAGE>
Certain Restrictions on Sales by the Selling Stockholders
Under the Exchange Agreement, the Selling Stockholders have agreed, among
other things, not to offer, sell, transfer or otherwise dispose of any shares
of the Common Stock until the earlier of (i) such time at or after the
effective time of the Merger that is no earlier than the time when the holders
of Designer Holdings' common stock can sell their shares of Common Stock
issued in to the Merger (without giving effect to any restrictions under
applicable securities laws) and (ii) the termination of the Merger Agreement
in accordance with its terms (such earlier time the "Release Date"). The
Selling Stockholders have also agreed not to sell, transfer or otherwise
dispose of more than 80% of the shares of Common Stock owned by them in the
aggregate for a period of one year following the effective time of the Merger,
subject to certain limited exceptions.
In connection with the proposed settlement of certain stockholder
litigation naming as defendants Designer Holdings, its board of directors,
New Rio, L.L.C. and Warnaco, Charterhouse Equity Partners II, L.P. ("CEP II"),
which beneficially owns 2,602,951 shares of Warnaco's Common Stock, has
agreed that during the 14-day period following the Release Date, but in no
event extending past December 31, 1997, it will not sell, transfer or otherwise
dispose of any shares of Common Stock unless the closing price for the Common
Stock on the New York Stock Exchange Composite Transactions Tape (the "Tape")
on any day within such 14-day period is more than 15% above or below such
closing price on the trading day immediately preceding the effective time of
the Merger. Based on the closing price on the Tape of $_______ on December __,
1997, CEP II may not sell shares of Warnaco's Common Stock unless the closing
price on the Tape is greater than $______ or less than $_______ during such
14-day period. It is expected that the Release Date will be on or about
December 12, 1997.
LEGAL MATTERS
Certain legal matters in connection with the Common Stock covered by
this Prospectus are being passed upon by Simpson Thacher & Bartlett, New
York, New York, special counsel to Warnaco.
EXPERTS
The consolidated financial statements of The Warnaco Group, Inc. and its
subsidiaries incorporated in this Registration Statement on Form S-3 by
reference to its Annual Report on Form 10-K for the year ended January 4,
1997, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, as of and for each of the two years in the
period ended January 4, 1997, and the report of Ernst & Young LLP,
independent auditors, for the one year period ended January 7, 1995, given on
the authority of said firms as experts in auditing and accounting.
<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
II-1
<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.
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
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<PAGE>
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.
II-4
<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
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 2, 1997.
THE WARNACO GROUP, INC.
By: /s/ Linda J. Wachner
Linda J. Wachner
Chairman of the Board, President
and Chief Executive Officer
The registrant and each person whose signature appears below constitutes
and appoints Linda J. Wachner, William S. Finkelstein and Stanley P.
Silverstein, or any of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to this
registration statement, with all exhibits thereto, and other documents in
connection therewith, and (ii) a registration statement, and any and all
amendments thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act of 1933, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite
or necessary to be done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Linda J. Wachner Chairman of the Board, December 2, 1997
Linda J. Wachner President and Chief Executive
Officer (Principal Executive
Officer)
II-5
<PAGE>
/s/William S. Finkelstein Senior Vice President and December 2, 1997
William S. Finkelstein Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
/s/Joseph A. Califano, Jr. Director December 2, 1997
Joseph A. Califano, Jr.
/s/Joseph H. Flom Director December 2, 1997
Joseph H. Flom
/s/Andrew G. Galef Director December 2, 1997
Andrew G. Galef
/s/Walter F. Loeb Director December 2, 1997
Walter F. Loeb
/s/Stewart A. Resnick Director December 2, 1997
Stewart A. Resnick
/s/James R. Jones Director December 2, 1997
James R. Jones
II-6
<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.
(incorporated by reference to Exhibit 2.1 of the
Current Report on Form 8-K of The Warnaco Group,
Inc. filed on October 3, 1997).
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. (incorporated by reference to Exhibit 2.2
of the Current Report on Form 8-K of The Warnaco
Group, Inc. filed on October 3, 1997).
5.1 - Opinion of Simpson Thacher & Bartlett as to the 19
validity of the Common Stock.
23.1 - Consent of Price Waterhouse, LLP 21
23.2 - Consent of Ernst & Young LLP 22
23.3 - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1)
EXHIBIT 5.1
[Letterhead of Simpson Thacher & Bartlett]
December 2, 1997
The Warnaco Group, Inc.
90 Park Avenue
New York, New York 10016
Ladies and Gentlemen:
We have acted as your counsel in connection with the Registration
Statement on Form S-3 (the "Registration Statement") of The Warnaco Group,
Inc., a Delaware corporation (the "Company"), which the Company intends to
file with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act"), relating to, among other things, 5,340,773 shares
of the Company's class A common stock, par value of $.01 per share (the
"Shares"), issued pursuant to a Stock Exchange Agreement dated as of September
25, 1997 among the Company, New Rio, L.L.C. and the members of New Rio, L.L.C.
signatory thereto.
We have examined a copy of the Registration Statement (including the
exhibits thereto) and originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, documents or other
instruments of the Company and have made such other and further
investigations as we deemed necessary to enable us to express the opinion
hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as photostatic copies, and the authenticity of the
originals of such documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that the Shares have been
duly authorized by the Company and are validly issued, fully paid and
nonassessable.
<PAGE>
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State
of New York, and the federal law of the United States of America and the
Delaware General Corporation Law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference of this firm appearing in the
Registration Statement under the caption "Legal Matters".
Very truly yours,
SIMPSON THACHER & BARTLETT
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of The Warnaco
Group, Inc. of our report dated February 18, 1997
appearing on page F-1 of The Warnaco Group, Inc.'s Annual Report on Form 10-K
for the year ended January 4, 1997. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule, which appears on
page S-1 of such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE, LLP
New York, New York
December 2, 1997
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of The Warnaco
Group, Inc., for the registration of 5,340,773 shares of its class A common
stock and to the incorporation by reference therein of our report dated
February 23, 1995, with respect to the consolidated financial statements
and schedule of The Warnaco Group, Inc. included in its Annual Report
(Form 10-K) of The Warnaco Group, Inc.'s for the year ended January 4,
1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
December 1, 1997
