AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 28, 1999
REGISTRATION NO. 333-78695
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
---------
WESTPOINT STEVENS INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 2200 36-3498354
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
Incorporation or Organization) Classification Number)
</TABLE>
507 WEST TENTH STREET
WEST POINT, GEORGIA 31833
(706) 645-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CHRISTOPHER N. ZODROW
VICE PRESIDENT AND SECRETARY
WESTPOINT STEVENS INC.
507 WEST TENTH STREET
WEST POINT, GEORGIA 31833
(706) 645-4000
(NAME AND ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Please send copies of communications to:
HOWARD CHATZINOFF, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: AS SOON AS PRACTICABLE 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, AS AMENDED (THE "SECURITIES ACT"), 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 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 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. |_|
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
#526568 v2
<PAGE>
The information in this prospectus is incomplete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
securities, and we are not soliciting offers to buy these securities in any
jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED MAY 28, 1998
1,164,667 Shares
WESTPOINT STEVENS INC.
Common Stock
We are offering 1,164,667 shares of our common stock. Selling stockholders
identified in this prospectus are offering all of the shares from time to time:
o in an underwritten public offering in which one or more underwriters
participate;
o ordinary brokerage transactions;
o purchases by a broker-dealer as principal and resale by that
broker-dealer for its own account;
o in "block" sale transactions;
o in privately negotiated transactions; or
o in a combination of these methods of sale.
We will not receive any of the proceeds from the sale of the common stock
offered by this prospectus.
The selling stockholders and any agents or broker-dealers that participate
with the selling stockholders in the distribution of the shares may be
considered "underwriters" within the meaning of the Securities Act of 1933, and,
in that event, any commissions received by them and any profit on the resale of
the shares may be considered underwriting commissions or discounts under the
Securities Act.
The common stock is traded on the Nasdaq National Market under the symbol
"WPSN." On May 27, 1999, the last sale price of the common stock was $31.4375
per share.
----------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
Consider carefully the "Risk Factors" beginning on page 4
of this prospectus.
----------------------
Prospectus dated May , 1999.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, and, accordingly, file reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
the reports, proxy statements and other information we file with the Commission
at its public reference facilities at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549. You may also obtain information about
us from the following regional offices of the Commission: 5000 West Madison
Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of these materials can be obtained at
prescribed rates. You may obtain information regarding the operation of the
public reference rooms at 1-800-SEC-0330. Our filings with the Commission are
also available on the Commission's home page on the Internet at
http://www.sec.gov. Our common stock is listed on the NASDAQ National Market,
and reports, proxy statements and other information can be inspected at the
offices of NASDAQ at 1735 K Street, N.W., Washington D.C. 20006-1506.
We have filed with the Commission a registration statement on Form S-3.
This prospectus, which is a part of the registration statement, omits certain
information contained in the registration statement. Statements made in this
prospectus as to the contents of any contract, agreement or other document are
not necessarily complete. With respect to each contract, agreement or other
document filed as an exhibit to the registration statement, we refer you to that
exhibit for a more complete description of the matter involved, and each of
those statements is considered to be qualified in its entirety to that
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information we
file with the Commission. This permits us to disclose important information to
you by referencing these filed documents. We incorporate by reference in this
prospectus the following documents which have been filed with the Commission:
(i) our Annual Report on Form 10-K for the fiscal year ended December
31, 1998;
(ii) our Quarterly Report on Form 10-Q for the quarter ended March 31,
1999; and
(iii) the description of our common stock contained in our registration
statement on Form 10, filed with the Commission on July 1, 1993, and
the amendment to the registration statement on Form 10/A filed on
June 2, 1994, including any other amendment or report filed for the
purpose of updating that description
We incorporate by reference all documents filed pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and
prior to the termination of this offering.
We will promptly provide without charge to you, upon written or oral
request, a copy of any or all of the documents incorporated by reference in this
prospectus, other than exhibits to those documents, unless the exhibits are
specifically incorporated by reference in those documents. Requests should be
directed to WestPoint Stevens Inc., 507 West Tenth Street, West Point, Georgia
31833, Attention: Secretary, telephone number (706) 645-4000.
2
<PAGE>
FORWARD-LOOKING STATEMENTS
The statements contained or incorporated by reference in this prospectus
that are not historical facts are "forward-looking statements," as that term is
defined in the Private Securities Litigation Reform Act of 1995. Those
statements are subject to the safe harbor created by that Act. There are several
important factors that could cause actual results to differ materially from
those anticipated by the forward-looking statements contained in those
discussions. Additional information on the risk factors which could affect our
financial results is included in this prospectus and in other documents
incorporated by reference in this prospectus.
WHO WE ARE
We manufacture, market and distribute bed and bath home fashions products
directly and indirectly through our subsidiaries. We manufacture and market home
fashions products for distribution to chain and department stores, mass
merchants and specialty stores. We manufacture and market these products under
our own trademarks and under various licensing agreements.
We estimate that we have the largest market share, approximately 36%, in
the domestic sheet and pillowcase market and the largest market share,
approximately 43%, in the domestic bath towel market. We calculate these
estimates based on United States government data, specifically the United States
Census Bureau Current Industrial Report dated February 8, 1999, publicly
available information about our competitors and information in trade
publications. In addition, according to United States government data, each of
these markets had over $1 billion in annual sales during each of the past five
years.
We manufacture and market a broad range of bed and bath products,
including:
o decorative sheets and towels,
o designer sheets and accessories,
o blankets,
o private label sheets and towels,
o bedskirts, bedspreads, comforters and duvet covers,
o drapes and valances,
o throw pillows, bed pillows and mattress pads, and
o shower curtains and table covers.
These products are made from a variety of fabrics, such as chambray, twill,
sateen, flannel, linen, cotton and cotton blends. They are available in a wide
assortment of colors and patterns. We have positioned ourselves as a
single-source supplier to retailers of bed and bath products, offering a broad
assortment of products across multiple price points. This product and price
point breadth allows us to provide a comprehensive product offering for each
major distribution channel.
We market our products under well-known and firmly established trademarks,
brand names and private labels. We use these trademarks, brand names and private
labels as merchandising tools to assist our customers in coordinating their
product offerings and differentiating their products from those of their
competitors. Our home fashions trademarks include ATELIER MARTEX(R) , MARTEX(R)
, UTICA(R), STEVENS(R), LADY PEPPERELL(R) AND VELLUX(R). In addition, we
manufacture and sell home fashion products under licensing agreements using
designer names that include, among others, Ralph Lauren Home Collection,
Sanderson, Larry Laslo, Joe Boxer, Glynda Turley, Designers Guild, Esprit and
Star Wars.
For a more detailed description of our business, please refer to our Form
10-K.
We are a Delaware corporation with our principal executive offices located
at 507 West Tenth Street, West Point, Georgia 31833. Our telephone number at
that address is (706) 645-4000.
3
<PAGE>
RISK FACTORS
An investment in our common stock involves risks. You should read and
carefully consider the following risk factors in addition to all other
information in this prospectus before making an investment in the common stock.
WE ARE SUBSTANTIALLY LEVERAGED, WHICH COULD REDUCE OUR CASH FLOWS.
We are substantially leveraged. This could have important consequences to
you, including without limitation, the following:
(1) our ability to obtain additional financing in the future for
working capital, capital expenditures, acquisitions, general corporate purposes
or other purposes could be restricted;
(2) a significant portion of our cash flow from operations must be
dedicated to the payment of interest on our indebtedness, which will reduce the
funds available to us for our operations;
(3) our bank borrowings are, and will continue to be, at variable rates
of interest, which could result in higher interest expense in the event of an
increase in interest rates; and
(4) our indebtedness contains financial and restrictive covenants, the
failure to comply with which may result in an event of default, which, if not
cured or waived, could have a material adverse effect on our company.
The degree to which we are leveraged could also affect our ability to
compete effectively and could limit our business opportunities. If our cash flow
and capital resources are insufficient to fund our debt service obligations, we
may be forced to reduce or delay capital expenditures, sell assets or seek to
obtain additional equity capital or to refinance or restructure our
indebtedness.
We currently have significant annual cash interest expense in connection
with our obligations under our long-term indebtedness. At March 31, 1999, we had
total long-term indebtedness of $1,275 million and a ratio of total long-term
indebtedness to total capitalization of 1.64 to 1.00.
OUR DEBT INSTRUMENTS IMPOSE OPERATING AND FINANCIAL RESTRICTIONS ON OUR COMPANY
THAT COULD LIMIT OUR ABILITY TO RESPOND TO CHANGING ECONOMIC OR BUSINESS
CONDITIONS.
Our senior credit facility and our indentures relating to our public
indebtedness impose operating and financial restrictions on our company and our
subsidiaries. These restrictions, combined with our substantially leveraged
position, could limit our ability to respond to changing business or economic
conditions or adverse developments affecting our operating results. These
restrictions include, without limitation, limitations on indebtedness, liens,
sale/leaseback transactions, asset sales, transactions with affiliates,
operating leases, acquisitions and investments. In addition, we are required
under our senior credit facility to maintain specified financial ratios and
levels, including a minimum consolidated net worth (as defined in our senior
credit facility), current ratio and ratio of EBITDA to interest expense.
THE HOME FASHIONS INDUSTRY IS CYCLICAL AND SEASONAL.
The home fashions industry is both cyclical and seasonal, which affects our
performance. Traditionally, the home fashions industry is seasonal, with peak
sales seasons in the summer and fall. In response to this seasonality, we
increase our inventory levels during the first six months of the year to meet
customer demands for the peak summer and fall seasons. In addition, the home
fashions industry is traditionally cyclical and our performance may be
negatively affected by downturns in consumer spending.
4
<PAGE>
SIX OF OUR CUSTOMERS ACCOUNT FOR MORE THAN HALF OF OUR NET SALES. THE LOSS OF
ANY OF OUR LARGE CUSTOMERS COULD HAVE AN ADVERSE EFFECT ON OUR BUSINESS.
Our products are sold to mass merchants, chain stores, department stores,
specialty stores and apparel manufacturers. Six of the largest home fashions
customers accounted for approximately 53% of the net sales of our home fashions
business during the fiscal year ended December 31, 1998. In 1998, sales to
Dayton Hudson Corporation were 13% of our net sales and sales to Kmart
Corporation were 11% of our net sales. Although we have no reason to believe
that we will lose the business of any of our largest customers, the loss of any
of our largest accounts, or a material portion of such an account, would have an
adverse effect on our business.
A PORTION OF OUR SALES ARE DERIVED FROM LICENSED DESIGNER BRANDS. THE LOSS OF A
SIGNIFICANT LICENSE COULD HAVE AN ADVERSE EFFECT ON OUR BUSINESS.
A portion of our sales are derived from licensed designer brands. The loss
of a significant license could have a material adverse effect on our business.
The license agreements are generally for a term of two to three years; some of
the licenses are automatically renewed for additional periods, assuming that
sales thresholds established by each agreement have been met. No single license
has accounted for more than 11% of our total sales volume during any of the past
five fiscal years.
A SHORTAGE OF THE PRINCIPAL RAW MATERIALS WE USE TO MANUFACTURE OUR PRODUCTS
COULD FORCE US TO PAY MORE FOR THOSE MATERIALS AND, POSSIBLY, CAUSE US TO
INCREASE OUR PRICES, WHICH COULD HAVE AN ADVERSE EFFECT ON OUR OPERATIONS.
Any shortage in the raw materials we use to manufacture our products could
adversely affect our operations. The principal raw materials that we use in the
manufacture of our products are cotton of various grades and staple lengths and
polyester in staple and filament form. Although we have been able to acquire
sufficient quantities of cotton for our operations in the past, any shortage in
the cotton supply by reason of weather, disease or other factors, or a
significant increase in the price of cotton, could adversely affect our
operations. The price of man-made fibers, such as polyester, is influenced by
demand, manufacturing capacity and costs, petroleum prices, cotton prices and
the cost of polymers used in producing these fibers. Any significant prolonged
petrochemical shortages could significantly decrease the availability of
man-made fibers and could cause a substantial increase in demand for cotton.
This could result in decreased availability of cotton and, possible, increased
prices and could adversely affect our operations.
OUR INDUSTRY IS VERY COMPETITIVE AND OUR SUCCESS DEPENDS ON OUR ABILITY TO
COMPETE EFFECTIVELY IN THE MARKET.
The home fashions industry is highly competitive. Our future success will
depend on a large extent on our ability to remain the low-cost producer and to
remain competitive. We compete with both foreign and domestic companies on the
basis of price, quality and customer service, among other factors. In the sheet
and towel markets, we compete primarily with Fieldcrest Cannon, Inc., a
wholly-owned subsidiary of Pillowtex Corporation, and Springs Industries, Inc.
In the other bedding and accessories markets, we compete with many companies,
some of which are smaller than us. Our future success depends on our ability to
remain competitive in the areas of marketing, product development, price,
quality, brand names, manufacturing capabilities, distribution and order
processing. We cannot assure you of our ability to compete effectively in any of
these areas. Any failure to compete effectively could adversely affect our sales
and, accordingly, our operations.
5
<PAGE>
WE ARE SUBJECT TO VARIOUS FEDERAL, STATE AND LOCAL ENVIRONMENTAL LAWS AND
REGULATIONS. IF WE DO NOT COMPLY WITH THESE REGULATIONS, WE MAY INCUR
SIGNIFICANT COSTS IN THE FUTURE TO BECOME COMPLIANT.
We are subject to various laws and regulations governing, among other
things, the discharge, storage, handling and disposal of a variety of hazardous
and non-hazardous substances and wastes used in, or resulting from, our
operations, including potential remediation obligations under those laws and
regulations. Our operations are also governed by laws and regulations relating
to employee safety and health which, among other things, establish exposure
limitations for cotton dust, formaldehyde, asbestos and noise, and which
regulate chemical and ergonomic hazards in the workplace. Although we do not
expect that compliance with any of these laws and regulations will adversely
affect our operations, we cannot assure you that regulatory requirements will
not become more stringent in the future or that we will not incur significant
costs to comply with those requirements.
OUR PRINCIPAL STOCKHOLDER HAS THE ABILITY TO EXERT SIGNIFICANT INFLUENCE ON OUR
COMPANY AND ON MATTERS SUBJECT TO THE VOTE OF OUR STOCKHOLDERS.
As of April 30, 1999, Holcombe T. Green, Jr., the Chairman of the Board and
Chief Executive Officer, beneficially owned 18,684,277 shares of common stock,
constituting approximately 33.4% of the outstanding common stock. These shares
included 17,408,306 shares held directly by WPS Investors, L.P., of which HTG
Corp., a company owned by Mr. Green, is general partner. As a result of his
beneficial ownership of common stock and his positions in our company, Mr. Green
will continue to be able to have significant influence on our company and on
matters subject to the vote of our stockholders.
THE MARKET PRICE OF OUR SHARES MAY DECREASE IF A LARGE NUMBER OF SHARES ARE
SOLD FOLLOWING THIS OFFERING.
As of April 30, 1999, we had outstanding 55,683,442 shares of common stock.
Of these shares, 38,055,088 shares, including 1,124,667 of the shares offered by
this prospectus, will be freely tradeable without restriction under the
Securities Act upon completion of the sale of the shares, unless purchased by
our "affiliates," as that term is defined in the Securities Act. The remaining
17,628,354 shares of common stock may not be sold unless they are registered
under the Securities Act, or unless an exemption from registration, such as Rule
144 under the Securities Act, is available.
We cannot predict the effect, if any, that market sales of shares or the
availability of shares for future sale will have on the market price of shares
of common stock from time to time. Sales of substantial amounts of common stock
in the public market could adversely affect the market price of the common
stock.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of common
stock. All of the shares of common stock being offered are beneficially owned by
the selling stockholders named in this prospectus.
6
<PAGE>
SELLING STOCKHOLDERS
The shares of common stock offered by this prospectus are owned of record,
as of the date of this prospectus, by the selling stockholders identified below.
Mr. McCall and Ms. Dwyer, each a director of WestPoint Stevens Inc., are
each registering 20,000 shares of common stock issuable upon the exercise of
options granted to each of them outside of WestPoint's non-employee director
stock option plan. These shares were not previously registered in connection
with any of our stock option plans.
Immediately prior to the effectiveness of the registration statement of
which this prospectus is a part, WPS Investors will transfer 1,124,667 of the
shares of common stock offered by this prospectus, other than the shares already
owned by Mr. McCall and Ms. Dwyer, to Green Capital IV, L.P., a limited partner
of WPS Investors. Green Capital Investors will in turn immediately transfer the
shares to the selling stockholders who are limited partners of Green Capital IV.
HTG Corp. is the general partner of a limited partnership that is the general
partner of Green Capital IV. None of the shares of common stock offered by this
prospectus are being sold by, or for the account of, Mr. Green, HTG Corp., Green
Capital IV or WPS Investors.
The following table provides the names of, and the number of shares of
common stock being sold by, each selling stockholder as of April 30, 1999. The
information excludes all shares of common stock owned by WPS Investors with
respect to which the selling stockholders are not considered to have beneficial
ownership. Except as described in the table, no selling stockholder beneficially
owns any shares of common stock. Since the selling stockholders may sell all,
some or none of their shares, no estimate can be made of the aggregate number of
shares that are to be offered by this prospectus or that will be owned for the
direct or indirect account of each selling stockholder upon completion of the
offering to which this prospectus relates. The shares are being registered to
permit public secondary trading of the shares, and the selling stockholders may
offer the shares for sale from time to time. See "Plan of Distribution."
7
<PAGE>
<TABLE>
<CAPTION>
APRIL 30, 1999 (1)
------------------
SHARES OF
COMMON STOCK
COMMON STOCK PERCENTAGE COVERED BY
NAME OF SELLING BENEFICIALLY OF TOTAL THIS
STOCKHOLDER OWNED VOTING POWER PROSPECTUS
- ----------- ----- ------------ ----------
<S> <C> <C> <C>
Melvin L. Adler (2)............ 146,131 * 46,131
J.D. Bryan (2)................. 305,872 * 305,872
The Trust for School Reform (2) 305,872 * 305,872
Susan Mathis (2)............... 92,262 * 92,262
M. Katherine Dwyer(3).......... 35,000 * 20,000
Charles W. McCall (4).......... 181,262 * 112,262
O. Miles Pollard (2)........... 142,994 * 142,994
Walton Corporation (2)......... 139,274 * 139,274
</TABLE>
- ---------------------
* Less than one percent.
(1) Excludes remaining shares of common stock held by WPS Investors, with
respect to which the selling stockholders are not considered to have
beneficial ownership.
(2) Each of the selling stockholders listed, other than Ms. Dwyer, is a
limited partner of Green Capital IV, L.P.
(3) Ms. Dwyer is a director of WestPoint Stevens Inc. Includes 35,000 shares
as to which Ms. Dwyer holds currently exercisable options. The shares
being offered for sale under this prospectus relate to shares subject to
issuance upon the exercise of options.
(4) Mr. McCall is a director of WestPoint Stevens Inc. Includes 112,262 shares
held directly, 4,000 shares held indirectly by nieces and nephews and
65,000 shares as to which Mr. McCall holds currently exercisable options.
Mr. McCall disclaims beneficial ownership of the 4,000 shares held by
nieces and nephews. The shares being offered for sale under this
prospectus relate to shares subject to issuance upon the exercise of
options.
8
<PAGE>
PLAN OF DISTRIBUTION
We have been advised that the selling stockholders, including their donees
or pledgees, may effect sales of the shares directly, or indirectly by or
through underwriters, agents or broker-dealers, and that the shares may be sold
by one or more of the following methods:
(1) an underwritten public offering in which one or more underwriters
participate;
(2) ordinary brokerage transactions;
(3) purchases by a broker-dealer as principal and resale by that
broker-dealer for its own account;
(4) in "block" sale transactions; and
(5) in privately negotiated transactions.
The shares will be sold at prices and on terms then prevailing in the
market, at prices related to the then-current market price of the shares, or at
negotiated prices. At the time that a particular offer is made, a prospectus
supplement , if required, will be distributed that describes the name or names
of underwriters, agents or broker-dealers, any discounts, commissions and other
terms constituting selling compensation and any other required information.
Moreover, in effecting sales, broker-dealers engaged by any selling stockholder
and/or the purchasers of the shares may arrange for other broker-dealers to
participate in the sale process. Broker-dealers will receive discounts or
commissions from the selling stockholders and/or the purchasers of the shares in
amounts that be negotiated prior to the time of sale. Sales will be made only
through broker-dealers properly registered in a subject jurisdiction or in
transactions exempt from registration. Any of these underwriters, broker-dealers
or agents may perform services for us or our affiliates in the ordinary course
of business. We have not been advised of any definitive selling arrangement at
the date of this prospectus between any selling stockholder and any underwriter,
broker-dealer or agent.
Selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 of the Securities Act, provided
that they meet the criteria and conform to the requirements of such rule.
Under the terms of a Registration Agreement between us and the selling
stockholders, we have agreed to indemnify the selling stockholders for certain
matters, and they have severally agreed to indemnify us as to the accuracy of
some of the information contained in this prospectus.
When shares are to be sold to underwriters, unless otherwise described in
the applicable prospectus supplement, the obligations of the underwriters to
purchase the shares will be subject to conditions precedent but the underwriters
will be obligated to purchase all of the shares if any are purchased. The shares
will be acquired by the underwriters for their own account and may be resold by
the underwriters, either directly to the public or to securities dealers, from
time to time in one or more transactions, including negotiated transactions.
These sales can occur either at fixed public offering prices or at varying
prices determined at the time of sale. The initial public offering price, if
any, and any concessions allowed or reallowed to dealers, may be changed from
time to time. Those underwriters may be entitled, under agreements with us, to
indemnification from us against certain civil liabilities, including liabilities
under the Securities Act, or to contribution by us to payments that they may be
required to make in respect of those civil liabilities.
9
<PAGE>
Any broker or dealer participating in any distribution of shares of common
stock in connection with the offering made by this prospectus may be considered
to be an "underwriter" within the meaning of the Securities Act and may be
required to deliver a copy of this prospectus, including a prospectus
supplement, if required, to any person who purchases any of the common stock
from or through that broker or dealer.
We will not receive any of the proceeds from the sales of the common stock
by the selling stockholders. Green Capital IV has agreed to reimburse us for the
costs of registering the shares of common stock under the Securities Act,
including the registration fee under the Securities Act, reasonable fees and
disbursements of our counsel, accounting fees and printing fees. The selling
stockholders will bear all other expenses in connection with this offering,
including brokerage commissions.
LEGAL MATTERS
The validity of the shares of common stock being offered by this prospectus
will be passed upon for us by our counsel.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report given on their authority as experts in
accounting and auditing.
10
<PAGE>
================================================================================
NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST
NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS IS
AN OFFER TO SELL ONLY THE SECURITIES OFFERED HEREBY, BUT ONLY UNDER
CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE INFORMATION
CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY AS OF ITS DATE.
---------------
TABLE OF CONTENTS
Page
----
Where You Can Find More
Information....................................2
Incorporation of Certain Documents
by Reference...................................2
Forward-Looking Statements.........................3
Who We Are.........................................3
Risk Factors.......................................4
Use of Proceeds....................................6
Selling Stockholders...............................7
Plan of Distribution...............................9
Legal Matters.....................................10
Experts...........................................10
================================================================================
================================================================================
1,164,667 Shares
WESTPOINT STEVENS INC.
Common Stock
PROSPECTUS
________, 1999
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table describes the expenses we expect to incur in connection
with the registration of the shares of common stock described in this
registration statement. All amounts, except the SEC registration fee, are
estimated.
SEC registration fee................................. $13,235
Legal fees and expenses.............................. 25,000
Accounting fees and expenses......................... 20,000
Miscellaneous........................................ 1,765
-------
Total ............................................... $60,000
=======
- --------------
Green Capital, on behalf of the selling stockholders, has agreed to bear
all of the costs of registering the shares of common stock under the Securities
Act, including the registration fee under the Securities Act, all other
registration and filing fees, all fees and disbursements of counsel and
accountants we retain and all other expenses incurred by us. These costs, or
estimates of these costs, have been stated above. The selling stockholders will
bear other costs relating to the registration of the shares of common stock
under the Securities Act, including all underwriting discounts and commissions,
transfer taxes and all costs of any separate legal counsel or other advisors
retained by the selling stockholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(1) Section 145 of Delaware General Corporation Law. Section 145 of the
Delaware General Corporation Law ("DGCL") provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with that
action, suit, or proceeding 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. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon
plea of nolo contendere or its equivalent, shall not, in and of itself, create a
presumption that his conduct was unlawful.
Section 145 of the DGCL also provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of that action or
suit 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 except that no
indemnification shall be made in respect of any claim, issue or matter as to
which that person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of Delaware or the
II-1
<PAGE>
court in which the action or suit was brought shall determine upon adjudication
that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for his
expenses which the Court of Chancery of Delaware or other court shall deem
proper.
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter in the action, suit or proceeding, that person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
that person in connection with the action, suit or proceedings.
Any indemnification (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because that person has met the applicable standard of conduct
described above. This determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding or
(2) if the quorum discussed in clause (i) is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
(3) by the stockholders.
Section 145 of the DGCL permits a Delaware business corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against that person and incurred by him in any of those
capacities, or arising out of his status as director, officer, employee or
agent, whether or not the corporation would have the power to indemnify that
person.
(2) By-law Provisions on Indemnity. Article V of our Amended and Restated
By-laws, as the same may be amended from time to time, provide the extent to
which our directors and officers may be indemnified by us against liabilities
which they may incur while serving as a director or officer. Article V generally
provides that we shall indemnify our directors and officers who are or were a
party to any threatened, pending, or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was our director or officer or director or officer of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
that capacity, against expenses (including attorneys' fees and disbursements),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred in connection with the action, provided that the applicable standard of
conduct set forth in Section 145 of DGCL was met and, provided further, that the
indemnification shall be limited to expenses (including attorneys' fees and
disbursements) actually and reasonably incurred in the case of an action or suit
by or in the right of our company to procure a judgment in our favor. Subject to
the procedures for indemnification of directors and officers set forth in the
By-laws, the indemnification of our directors and officers provided for in the
By-laws is in all other respects substantially similar to that provided for in
Section 145 of the DGCL. This indemnification shall continue as to a person who
has ceased to be our director or officer and shall inure to the benefit of the
heirs, executors, and administrators of that person.
(3) Indemnification Agreements. In addition, each of our directors and the
executive officers are entitled to indemnification from us under separate
agreements between us and those persons.
II-2
<PAGE>
We have in effect insurance policies covering all of our directors and
officers in instances where by law they may not be indemnified by us.
The above discussion of our By-Laws and of the Indemnification Agreements
and of Section 145 of the Delaware Code is not intended to be exhaustive and is
qualified in its entirety by the By-Laws, Indemnification Agreements and the
Delaware Code.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling our company as
disclosed above, we have been informed that in the opinion of the Securities and
Exchange Commission the indemnification is against public policy as expressed in
the Act and is therefore unenforceable.
ITEM 16. EXHIBITS AND FINANCIAL SCHEDULES
(a) Exhibits:
Exhibit
Number Description of Exhibit
- ------ ----------------------
3.1 Restated Certificate of Incorporation of WestPoint Stevens Inc.,
as currently in effect, incorporated by reference to Exhibit 3(a)
to the Registration Statement on Form S-4 (Commission File No.
333-59817) filed with the Commission on July 24, 1998.
3.2 Amended and Restated By-Laws of WestPoint Stevens Inc., as
currently in effect, incorporated by reference to Exhibit 3.4 of
the Post-Effective Amendment No. 1 to Registration Statement on
Form S-1 (Commission File No. 33-77726) filed with the Commission
on May 19, 1994.
4.1 Form 15 (Commission File No. 0-21496) filed with the Commission
on May 25, 1995.
4.2 Form of Registration Agreement.**
5 Opinion of Company Counsel with respect to the legality of the
shares.*
23.1 Consent of Ernst & Young LLP, independent auditors.**
23.2 Consent of Company Counsel (included in the opinion filed as
Exhibit 5).
24.1 Power of Attorney (included on the signature page to the
registration statement).*
- --------------------------
* Previously filed
** Filed herewith
ITEM 17. UNDERTAKINGS
(a) 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 to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each 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.
II-3
<PAGE>
(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.
(4) 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 Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report to
Section 15(d) of the Securities 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.
(5) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of Prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
offered, 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 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, 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 the Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in New York,
New York, on this 28th day of May 1999.
WESTPOINT STEVENS INC.
By: /s/ Christopher N. Zodrow
--------------------------------------
Name: Christopher N. Zodrow
Title: Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board and Chief Executive May 28, 1999
- ------------------------------------ Officer (Principal Executive Officer)
Holcombe T. Green, Jr.
* President and Chief Operating Officer May 28, 1999
- ------------------------------------
Thomas J. Ward
* Executive Vice President/Finance and May 28, 1999
- ------------------------------------
Morgan M. Schuessler Chief Financial Officer (Principal
Financial Officer)
<PAGE>
Signature Title Date
--------- ----- ----
* Controller (Principal Accounting Officer) May 28, 1999
- ---------------------------------------
J. Nelson Griffith
* Director May 28, 1999
- ---------------------------------------
Hugh M. Chapman
* Director May 28, 1999
- ---------------------------------------
M. Katherine Dwyer
* Director May 28, 1999
- ---------------------------------------
John G. Hudson
* Director May 28, 1999
- ---------------------------------------
Gerald B. Mitchell
* Director May 28, 1999
- ---------------------------------------
John F. Sorte
* Director May 28, 1999
- ---------------------------------------
Charles W. McCall
* /s/ Christopher N. Zodrow
------------------------------------
Attorney-In-Fact
Christopher N. Zodrow
</TABLE>
<PAGE>
DESCRIPTION OF EXHIBITS
Exhibit
Number Description of Exhibit
- ------ ----------------------
3.1 Restated Certificate of Incorporation of WestPoint Stevens Inc.,
as currently in effect, incorporated by reference to Exhibit 3(a)
to the Registration Statement on Form S-4 (Commission File No.
333-59817) filed with the Commission on July 24, 1998.
3.2 Amended and Restated By-Laws of WestPoint Stevens Inc., as
currently in effect, incorporated by reference to Exhibit 3.4 of
the Post-Effective Amendment No. 1 to Registration Statement on
Form S-1 (Commission File No. 33-77726) filed with the Commission
on May 19, 1994.
4.1 Form 15 (Commission File No. 0-21496) filed with the Commission
on May 25, 1995.
4.2 Form of Registration Agreement.**
5 Opinion of Company Counsel with respect to the legality of the
shares.*
23.1 Consent of Ernst & Young LLP, independent auditors.**
23.2 Consent of Company Counsel (included in the opinion filed as
Exhibit 5).
24.1 Power of Attorney (included on the signature page to the
registration statement).*
- --------------------------
* Previously filed
** Filed herewith
Exhibit 4.2
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is entered into as of
May 27, 1999 by and among WestPoint Stevens Inc., a Delaware corporation (the
"Company"), Green Capital IV, L.P., a Georgia limited partnership ("GCIV") and
each of the persons listed on the signature page hereto (the "Sellers").
Capitalized terms that are used herein but not otherwise defined herein are
defined in Section 1.1.
RECITALS
WHEREAS, GCIV intends to distribute shares of common stock, par
value $0.01 per share, of the Company (the "Common Stock") in redemption of
certain limited partnership interests in GCIV (the "Redemption");
WHEREAS, as a result of the Redemption, the Sellers will receive an
aggregate of 1,164,667 shares of Common Stock (the "Shares");
WHEREAS, the Company has filed a registration statement relating to
the resale of the Shares under the Securities Act; and
WHEREAS, the Company, GCIV and the Seller desire to enter into an
agreement with respect to the registration of the Shares for resale by the
Sellers;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is acknowledged by the parties, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 As used in this Agreement, the following terms have the following meanings:
(a) "Commission" means the Securities and Exchange Commission;
(b) "Exchange Act" means the federal Securities Exchange Act of
1934, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in
effect at any particular time;
(c) "holder of Registrable Securities" means any of the Sellers
which at the relevant time is the holder of record of
Registrable Securities;
-1-
<PAGE>
(d) "Common Stock" means the common stock, par value $0.01 per
share, of the Company;
(e) "Person" means a corporation, association, joint venture,
partnership, trust, business, individual, government or
political subdivision thereof, or any governmental agency;
(f) "Register", "registered" and "registration" refer to a
registration of the Common Stock effected by preparing and
filing a Registration Statement in compliance with the
Securities Act and the declaration or ordering of the
effectiveness of such Registration Statement;
(g) "Registrable Securities" means the Shares;
(h) "Registration Period" has the meaning set forth in Section 2.3
hereof;
(i) "Registration Expenses" means all expenses incurred by the
Company in complying with Section 2.1 and Section 2.3 hereof,
including, without limitation, all registration and filing
fees; printing expenses; messenger, telephone and delivery
charges; fees and expenses of counsel for the Company and
GCIV; state "blue sky" fees and expenses; and accountants'
expenses, including without limitation any special audits
incident to or required by any such registration; but
excluding any fees and expenses of counsel for the Sellers
which fees and expenses will be borne by the Sellers;
(j) "Registration Statement" means, the Registration Statement on
Form S-3 (File No. 333-78695) under the Securities Act
covering the Registrable Securities and all amendments,
supplements, exhibits, prospectuses, and qualifications and
compliances thereto (including, without limitation, in
connection with applicable blue sky or other state securities
laws in connection therewith designated by the underwriter
selected under Section 2.1(b));
(k) "Securities Act" means the federal Securities Act of 1933, as
amended, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at
any particular time;
(l) "Underwriting Costs" means, in respect of any underwriting
agreement or any agreement with any broker, dealer or other
agent with respect to the sale of Registrable Securities, all
fees, commissions, discounts and other expenses payable to or
deductible from payments by the underwriter, broker, dealer or
other agent under such agreement (including, without
limitation, discounts in respect of the price paid by the
underwriter for the Registrable Securities).
-2-
<PAGE>
ARTICLE II
REGISTRATION PROVISIONS
2.1 Registration.
(a) Filing of Registration Statement. As soon as practicable after
the date hereof the Company shall use its reasonable efforts on behalf of each
of the Sellers, to cause the Registration Statement to become effective to
permit the offer, sale and distribution as described in the Registration
Statement relating to the Registrable Securities of the Registrable Securities
by each of the Sellers.
(b) Underwriting. In respect of the registration of the Registrable
Securities, the Sellers may elect to sell such securities in an underwritten
offering in which case the underwriter shall be selected by the Company, subject
to the approval of the Sellers, which approval shall not be unreasonably
withheld. The Company and the holders of Registrable Securities which are
included in the registration shall enter into any underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting.
2.2 Registration Expenses. All Registration Expenses incurred by the
Company in connection with any registration, qualification, or compliance
pursuant to this Agreement, shall be borne by GCIV. All other costs incurred by
the Sellers in connection with the Registration Statement, including without
limitation all Underwriting Costs and the fees and disbursements of the Sellers'
respective counsels and fees and disbursements of the underwriters and their
counsel, shall be borne by the Sellers of the securities sold, pro rata on the
basis of the number of their shares so sold in the case of an underwritten
offering and otherwise by each Seller with respect to the securities sold by
such Seller.
2.3 Registration Procedures. (a) The Company shall keep each holder
of Registrable Securities advised as to the initiation, progress, and effective
date of the Registration Statement and, the Company shall:
(i) subject to Section 2.3(b) below, keep the Registration
Statement, effective for the lesser of (A) a period of
60 days (plus any number of days that the holders of
Registrable Securities are unable to use a prospectus
pursuant to Section 2.3(b) below) or (B) a period until
each such holder shall have completed the distribution
described in the Registration Statement (the lesser of
(A) and (B) being herein referred to as the
"Registration Period");
(ii) furnish such number of prospectuses (including
preliminary prospectuses) and other documents filed with
the Commission as part of the Registration Statement as
such holders from time to time may reasonably request;
(iii) advise each underwriter under Section 2.1(b) and holder
of Registrable Securities (A) when prior to the
termination of the offering by such
-3-
<PAGE>
underwriter or holder, any amendment to any Registration
Statement shall have been filed or become effective, (B)
of any request by the Commission for any amendment or
supplement to any Registration Statement for any
additional information, (C) of the issuance by the
Commission of any stop order suspending the
effectiveness of any Registration Statement or the
threatening of any proceeding for that purpose and (D)
the receipt by the Company of any notification with
respect to the suspension of the qualification of any
shares of Common Stock for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose;
(iv) if a stop-order is threatened, use its reasonable
efforts to prevent the issuance of any stop order in
respect of any Registration Statement and, if issued, to
obtain as soon as possible the withdrawal thereof; and
(v) make generally available to its security holders an
earnings statement or statements of the Company and its
subsidiaries in accordance with Section 11(a) of the
Securities Act and Rule 158 of the Securities Act.
(b) (i) If, within the Registration Period, there occurs any
development or any event which makes any statement in the Registration Statement
or any post-effective amendment thereto, or any document incorporated therein by
reference, untrue in any material respect or which requires the making of any
changes in the Registration Statement or post-effective amendment thereto or
prospectus or amendment or supplement thereto, so that they will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein (in the case of
any prospectus, in the light of the circumstances under which they were made)
not misleading, the Company shall immediately notify each holder of Registrable
Securities included in such registration of the occurrence thereof and, as soon
as reasonably practicable, prepare and furnish to each such holder, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall not
contain an 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
the light of the circumstances under which they were made, not misleading. Each
holder of Registrable Securities agrees that, upon receipt of any notice from
the Company pursuant to this Section 2.3(b), such holder shall forthwith
discontinue disposition of Registrable Securities until it shall have received
copies of such amended or supplemented prospectus, and, if so directed by the
Company, shall deliver to the Company all copies, other than permanent file
copies, then in its possession of the prospectus covering Registrable Securities
at the time of receipt of such notice.
(ii) In addition, and without limiting the provisions of
Subparagraph 2.3(b)(i), each holder of Registrable Securities agrees, if so
requested by the Company, not to effect any sale of Registrable Securities
pursuant to the Registration Statement for any period deemed necessary (A) by
the Company or any underwriter in connection with the offering of Common Stock
pursuant to an underwritten offering pursuant to demand registration rights
granted to any person or (B) by the Company in connection with any proposal or
plan by the Company to engage in any financing or material acquisition or
disposition by the Company or any subsidiary thereof of the capital stock or
substantially all the assets of any other person (other than in the ordinary
course of business), any
-4-
<PAGE>
tender offer or any merger, consolidation, corporate reorganization or
restructuring or other similar transaction material to the Company and its
subsidiaries taken as a whole. The Company agrees that the effective period in
respect of the Registration Statement shall be extended by a period which is not
less than the aggregate number of days included in the periods during which
holders suspended sales or shares of Common Stock pursuant to the Registration
Statement at the Company's request. Any period within the effective period
during which the Company does not keep the Registration Statement effective and
usable for resales of Registrable Securities is hereafter referred to as a
"Suspension Period." A Suspension Period shall commence on and include the date
on which the Company provides notice to the holders of Registerable Securities
that the Registration Statement is no longer effective or that the prospectus
included in the Registration Statement is no longer usable for resales of shares
of Common Stock and shall end on the date when each holder of Registrable
Securities covered by the Registration Statement either receives copies of the
supplemented or amended prospectus or is advised in writing by the Company that
use of the prospectus may be resumed. If one or more Suspension Periods occur,
the effective period for the Registration Statement shall be extended by a
period which is not less than the aggregate number of days included in all
Suspension Periods. The Company agrees that all Suspension Periods, in the
aggregate, shall not exceed 90 days.
(c) If requested by the underwriters for any underwritten offering
of Registrable Securities under Section 2.1(b), the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to contain such representations and warranties by the Company and such other
terms and provisions (including without limitation, provisions with respect to
indemnification and contribution) as are customarily contained in underwriting
agreements with respect to secondary distributions, and providing for delivery
of an opinion and letter regarding negative assurances of counsel for the
Company dated the date of each closing under the underwriting agreement, and
providing that the Company shall use its best efforts to furnish a "cold
comfort" letter signed by independent public accountants who have audited the
Company's financial statements included in such registration statement,
respectively, in each such case covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of securities
and such other matters as the underwriters reasonably request and, in the case
of such accountants' letter, with respect to events subsequent to the date of
such financial statements. The holders of Registrable Securities, on whose
behalf the Registrable Securities are to be distributed by such underwriters
and/or from which the underwriters shall acquire the Registrable Securities,
shall be parties to and comply with the provisions of any such underwriting
agreement.
(d) In connection with the preparation and filing of amendments and
supplements to the Registration Statement under the Securities Act, the Company
will give the underwriters, if any, and their counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of the Company with its officers and the independent
public accountants who have certified the Company's financial statements as
shall be necessary, in the opinion of such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
2.4 Indemnification. (a) With respect to the Registration Statement,
the Company shall indemnify GCIV and each holder of Registrable Securities whose
securities are included therein,
-5-
<PAGE>
and their respective its directors, officers and partners, and each Person who
controls (within the meaning of the Securities Act) any of GCIV or such holder
(such Persons being collectively referred to as "affiliated indemnitee"), from
and against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement;
(ii) any omission (or alleged omission) to state therein 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;
or
(iii) any violation by the Company of the Securities Act or
the Exchange Act or any rule or regulation promulgated
thereunder applicable to the Company, or any blue sky or
state securities laws or any rule or regulation
promulgated thereunder applicable to the Company,
in each case, relating to action or inaction required of the Company in
connection with any such Registration Statement, and will reimburse each such
Person entitled to indemnity hereunder for any legal and other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; provided that, the foregoing indemnity
and reimbursement obligation shall not be applicable to the extent that any such
claim, loss, damage or liability arises out of or is based on any untrue
statement (or alleged untrue statement) or omission (or alleged omission) made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such a holder specifically for use in such
prospectus, offering circular or other document; and further provided that, with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this Section 2.4(a) shall not inure to the benefit of any holder or its
affiliated indemnitees to the extent that any such losses, claims, damages or
liabilities of such holder or its affiliated indemnitees result from the fact
that there was not sent or given to any person who purchased Registrable
Securities in connection with such registration, at or prior to the written
confirmation of the sale of Registrable Securities to such person, a copy of the
prospectus relating to such registration, as then amended or supplemented
(exclusive of material incorporated by reference), if the Company had previously
furnished copies thereof to such holder.
(b) Each holder of Registrable Securities which are included in the
Registration Statement shall indemnify the Company, its directors and officers,
each other holder of Registerable Securities included in the Registration
Statement and each Person who controls (within the meaning of the Securities
Act) the Company or any such other holder from and against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on
(i) any untrue statement (or alleged untrue statement) of a
material fact contained in any Registration Statement;
-6-
<PAGE>
(ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary
to make the statements therein not misleading; or
(iii) any violation by such holder of the Securities Act or
any rule or regulation promulgated thereunder applicable
to such holder, or of any blue sky or other state
securities law or any rule or regulation promulgated
thereunder applicable to such holder,
in each case, relating to action or inaction required of such holder in
connection with any Registration Statement, and will reimburse each such Person
entitled to indemnity hereunder for any legal and other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, expense, liability or action, but in each case only to the extent that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company or on behalf of such holder specifically for use therein. The liability
of each holder of Registrable Securities pursuant to the foregoing agreement as
to indemnification shall be limited to the value of any Registrable Securities
then held by such holder plus the net proceeds previously received by such
holder from the sale of any Registrable Securities.
(c) Each party entitled to indemnification under this Section 2.4
(an "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after the Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that
(i) counsel for the Indemnifying Party who shall conduct the
defense of any such claim or any litigation shall be
approved by the Indemnified Party (such approval not to
be unreasonably withheld);
(ii) the Indemnified Party may participate in such defense at
the Indemnified Party's expense (provided that the
Indemnified Party or Indemnified Parties shall have the
right to employ one counsel to represent it or them if,
in the reasonable judgment of the Indemnified Party or
Indemnified Parties, it is advisable for it or them to
be represented by separate counsel by reason of having
legal defenses which are different from or in addition
to those available to the Indemnifying Party, and in
that event the fees and expenses of such one counsel
shall be paid by the Indemnifying Party); and
(iii) failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 2.4 except to the
extent the Indemnifying Party is prejudiced thereby.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party (which consent may not be
unreasonably withheld), consent to entry of any
-7-
<PAGE>
judgment or enter into any settlement (which judgment or settlement would be
adverse to and binding upon such Indemnified Party) of any claim for which such
Indemnified Party may seek indemnification hereunder. Notwithstanding the
foregoing, an Indemnifying Party in defense of any such claim or litigation may
consent to entry of any such judgment or enter any settlement if such judgment
or settlement (i) includes an unconditional release of each Indemnified Party
from all liability arising out of such claim or litigation and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any Indemnified Party.
(d) If the indemnification provided for in this Section 2.4 shall
for any reason be unavailable to an Indemnified Party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
herein, then each Indemnifying Party shall in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party on the one hand or the Indemnified Party on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. In
no event however, shall a holder of Registrable Securities be required to
contribute in excess of the amount of the net proceeds received by such holder
in connection with the sale of Registrable Securities in the offering which is
the subject of such loss, claim, damage or liability. The amount paid or payable
by an Indemnified Party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this paragraph shall be deemed
to include, for purposes of this paragraph, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act))
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
2.5 Information by Holders. If Registrable Securities of a holder
are to be included in any registration, such holder shall use its reasonable
best efforts diligently to furnish to the Company such information and cause the
underwriter to furnish to the Company such information, regarding itself and the
distribution proposed by such holder as the Company may reasonably request and
as shall be required in connection with any Registration Statement. For purposes
of this Section 2.5, each holder of Registrable Securities has furnished the
plan of distribution set forth in Exhibit B hereto and subject to any applicable
legal requirements, the Company shall include such plan of distribution in the
Registration Statement; provided that the holders will furnish any proposed
changes to the plan of distribution (including those required by applicable law)
to the Company in writing immediately upon deciding to make such proposed change
in a manner that allows the Company to include such information in the
Registration Statement and to take other appropriate action, including, without
limitation, the negotiation and execution of any underwriting agreements.
-8-
<PAGE>
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents, warrants and covenants to GCIV and
the Sellers as follows:
(a) It is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware.
(b) It has the corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Agreement and the
consummation by it of the transactions contemplated hereby.
(c) Neither the execution and delivery by it of this Agreement and
the consummation by it of the transactions contemplated hereby nor the
compliance by it with the terms and provisions hereof
(i) violates any applicable law, regulation, order,
determination or decree;
(ii) conflicts with or results in any breach of any term,
condition or provision of, or constitutes or will
constitute (with due notice or lapse of time or both) a
default under, or pursuant to the terms of, any
mortgage, deed of trust or other agreement or instrument
to which it is a party or by which it or any of its
properties is bound; or
(iii) conflicts with its by-laws, certificate of incorporation
or other charter documents.
(d) (i) No consents of, filings with, authorizations or
other actions of, any governmental authority are
required to be received, made or filed by, or taken on
behalf of, it for its execution, delivery and
performance of this Agreement, other than in respect of
the registration of the Common Stock.
(ii) This Agreement has been duly authorized by it and this
Agreement has been duly executed and delivered by it
and, assuming due authorization (other than by the other
parties hereto who are natural persons), execution and
delivery by the other parties hereto and that such other
parties have full power, authority and legal right to
enter into and perform their obligations hereunder,
constitutes a legal, valid and binding obligation of it
enforceable against it in accordance with its terms,
except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and
-9-
<PAGE>
general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS and GCIV
5.1 The Sellers. Each Seller, severally and not jointly, represents
and warrants as follows:
(a) Such Seller has full right, power and authority to enter into
this Agreement to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by such
Seller and, assuming due authorization (other than by the other parties hereto
who are natural persons), execution and delivery by the other parties hereto and
that such other parties have full power, authority and legal right to enter into
and perform their obligations hereunder, this Agreement constitutes a legal,
valid and binding obligation of such Seller enforceable against it in accordance
with its terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and general principles
of equity (regardless of whether considered in a proceeding in equity or at
law).
(c) Such Seller has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in manipulation of the price of
any security of the Company to facilitate the sale or resale of the Registrable
Securities.
5.2 GCIV. GCIV represents and warrants to the Company as follows:
(a) GCIV is a limited partnership validly existing under the laws of
the state of Georgia.
(b) GCIV has the corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby and has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement
and the consummation by it of the transactions contemplated hereby.
-10-
<PAGE>
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices and other communications hereunder shall be
in writing and shall be sent by registered or certified mail (return receipt
requested), facsimile or express courier or delivered in person to the address
set forth below:
(a) in the case of the Sellers and GCIV at:
Green Capital IV, L.P.
Atlanta Financial Center
3343 Peachtree Road, N.E.
Suite 1420
Atlanta, Georgia 30326
Attention: Holcombe T. Green, Jr.
Telecopier: (404) 266-8677
with a copy to Jones, Day, Reavis & Pogue:
Suite 3500
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: John E. Zamer, Esq.
Telecopier: (404) 581-8330
(b) in the case of the Company at:
1185 Avenue of the Americas
New York, New York 10036
Attention: Tom Ward
Telecopier: (212) 930-3898
with a copy to Weil, Gotshal & Manges LLP:
767 Fifth Avenue
New York, New York 10153
Attention: Howard Chatzinoff, Esq.
Telecopier: 212-310-8007
(c) in the case of the Sellers at the addresses as set forth on
Schedule I hereto.
6.2 Non-Waiver of Remedies and Actions By Holders. No course of
dealing between the Company or the holder of any Registrable Securities or any
delay on the part of such
-11-
<PAGE>
holder or the Company in exercising any rights available to such holder shall
operate as a waiver of any right of such holder, except to the extent expressly
waived in writing by such holder.
6.3 Headings. The headings in this Agreement are for purposes of
reference only and shall not be considered in construing this Agreement.
6.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall constitute an
original and all together shall constitute one Agreement.
6.5 Successors and Assigns. This Agreement shall bind and inure to
the benefit of the Indemnified Parties (as defined in Section 2.4(e)), each
holder of Registrable Securities, their respective successors and assigns,
provided that no rights or obligations hereunder may be transferred or assigned
without the prior written consent of the other parties hereto and any assignment
or transfer in violation of this Section 6.5 shall be null and void.
6.6 Enforceability. If any term or provision of this Agreement, or
the application thereof to any Person or circumstance, shall, to any extent, be
invalid or unenforceable, the remaining terms and provisions of this Agreement
or application to other Persons and circumstances shall not be invalidated
thereby, and each term and provision hereof shall be construed with all other
remaining terms and provisions hereof to effect the intent of the parties hereto
to the fullest extent permitted by law.
6.7 Law Governing. This Agreement shall be construed and enforced in
accordance with and shall be governed by the laws of the State of New York
applicable to contracts executed in and to be fully performed in that state.
6.8 Entire Agreement. This Agreement constitutes the entire
agreement of the parties as to its subject matter and supersedes and cancels all
prior agreements, understandings and negotiations in connection with it.
-12-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
WESTPOINT STEVENS INC.
By:
--------------------------------------
Name:
Title:
GREEN CAPITAL IV, L.P.
By: HTG Corp., General Partner
By:
--------------------------------------
Holcombe T. Green, Jr.
President
-13-
<PAGE>
Signature Pages to Registration Agreement
SELLERS:
--------------------------------------
Melvin L. Adler
--------------------------------------
J. D. Bryan
The Trust for School Reform
By:
--------------------------------------
Susan Mathis
--------------------------------------
Charles W. McCall
--------------------------------------
O. Miles Pollard
--------------------------------------
Walton Corporation
-14-
<PAGE>
--------------------------------------
M. Katherine Dwyer
-15-
<PAGE>
Schedule I
Melvin L. Adler 46,131
The Gates - 10
2525 Peachtree Road
Atlanta, Georgia 30305
John D. Bryan 305,872
P. O. Box 1929
15-262 S.W. Boone Way
Lake Oswego, Oregon 97035
The Trust for School Reform 305,872
c/o John D. Bryan
P. O. Box 1929
15-262 S.W. Boone Way
Lake Oswego, Oregon 97035
Susan Mathis 92,262
20 Cherokee Road
Atlanta, Georgia 30305
Charles W. McCall 112,262
1004 Cherbury Lane
Alpharetta, Georgia 30202
O. Miles Pollard 142,994
P. O. Box 64509 (zip code 70896)
460 Florida Boulevard, Suite 16
Baton Rouge, Louisiana 70821
Walton Corporation 139,274
c/o Jonathan M. Rather
Goelet Corporation
425 Park Avenue, 28th Floor
New York, New York 10022
M. Katherine Dwyer 20,000
625 Madison Avenue
7th Floor
New York, New York 10002
-16-
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related prospectus of WestPoint Stevens
Inc. for the registration of 1,164,667 shares of its common stock and to the
incorporation by reference therein of our report dated February 9, 1999 with
respect to the consolidated financial statements and schedule of WestPoint
Stevens Inc. included in its Annual Report (Form 10-K ) for the year ended
December 31, 1998 filed with the Securities and Exchange Commission.
Ernst & Young LLP
/s/ Ernst & Young LLP
Columbus, Georgia
May 28, 1999
