AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT (this "Amendment"), dated as of December 10, 1997, among
THE WARNACO GROUP, INC., a Delaware corporation ("Parent"), WAC ACQUISITION
CORPORATION, a Delaware corporation ("Sub"), and DESIGNER HOLDINGS LTD., a
Delaware corporation (the "Company"), to the AGREEMENT AND PLAN OF MERGER
dated as of September 25, 1997 (the "Merger Agreement"), among Parent, Sub
and the Company.
Preliminary Statements
WHEREAS, shortly after the announcement of a proposed transaction
between the Company and Parent, three stockholders of the Company filed
lawsuits in the Delaware Court of Chancery challenging such transaction,
which lawsuits were later consolidated and captioned as In re Designer
Holdings Ltd. Shareholders Litigation, Consolidated Civil Action 15942 (the
"Litigation");
WHEREAS, on November 13, 1997, the parties to the Litigation
reached an agreement in principle to settle the Litigation (the
"Settlement"), subject to court approval;
WHEREAS, pursuant to the terms of the Settlement, Parent, Sub and
the Company have each agreed, among other things, to reduce the termination
fee payable by the Company to Parent pursuant to Section 5.08 of the Merger
Agreement in certain circumstances from $12.5 million to $6.5 million; and
WHEREAS, in order to effectuate the foregoing, the parties hereto
each desire to amend the Merger Agreement as set forth herein.
Agreement
In consideration of the mutual covenants contained in this
Amendment and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, pursuant to Section 7.03 of the
Merger Agreement, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized
terms used herein are used as defined in the Merger Agreement.
2. Amendment. Section 5.08(b) of the Merger Agreement is hereby
amended to delete the reference to "$12,500,000" and insert in its place the
figure "$6,500,000".
3. Continuing Effect; Amendment Limited. This Amendment is
limited as specified and shall not constitute a modification, acceptance or
waiver of any other provision of the Merger Agreement. From and after the
date of the effectiveness of this Amendment, all references in the Merger
Agreement to the "Agreement" shall be deemed to be references to the Merger
Agreement after giving effect to this Amendment.
4. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which counterparts when executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
5. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF DELAWARE.
6. Effectiveness. This Amendment shall become effective on the
date on which each of Parent, Sub and the Company shall have signed a copy
hereof (whether the same or different copies) and shall have delivered the
same to Parent.
IN WITNESS WHEREOF, the parties hereto have each caused this
Amendment to be executed by a duly authorized officer as of the date set
forth above.
THE WARNACO GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Its: Vice President, General Counsel
and Secretary
WAC ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Its: Vice President
DESIGNER HOLDINGS LTD.
By: /s/Xxxxxxx X. Xxxxxxxxxxx
Its: Vice President
