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Exhibit 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement")
made as of April 6, 1997, by and among Xx. Xxxxx Xxxxxx, an individual residing
in the State of New York ("Lauren"), RL Holding, L.P., a Delaware limited
partnership, RL Family, L.P., a Delaware limited partnership, GS Capital
Partners, L.P., a Delaware limited partnership ("GSCP"), GS Capital Partners PRL
Holding I, L.P., a Delaware limited partnership ("Holding I"), GS Capital
Partners PRL Holding II, L.P., a Delaware limited partnership ("Holding II"),
Stone Street Fund 1994, L.P., a Delaware limited partnership ("Stone Street"),
Stone Street 1994 Subsidiary Corp., a Delaware corporation and wholly owned
subsidiary of Stone Street ("Stone Street Sub"), and Bridge Street Fund 1994,
L.P., a Delaware limited partnership ("Xxxxxx Xxxxxx", and together with GSCP,
Holding I, Holding II, Stone Street and Stone Street Sub, collectively the "GS
Group") (collectively, the "Assignors"), and Xxxx Xxxxx Xxxxxx Corporation, a
Delaware corporation (the "Assignee").
W I T N E S S E T H T H A T :
WHEREAS, the Assignors hold interests in one or more of Xxxx Xxxxx
Lauren Enterprises, L.P., a Delaware limited partnership ("Enterprises"), Xxxx
Xxxxx Xxxxxx, L.P., a Delaware limited partnership ("Polo"), The Xxxxx Lauren
Womenswear Company, L.P., a Delaware limited partnership ("Womenswear"), The
Xxxxx Xxxxxx Womenswear Company, Inc., a Delaware corporation ("Womenswear
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Inc."), and RL Fragrances, LLC, a Delaware limited liability company
("Fragrances, LLC") (collectively, the "Polo Entities");
WHEREAS, the Assignors and Assignee have entered into a
Subscription Agreement, dated as of the date hereof (the "Subscription
Agreement"), pursuant to which the Assignee will issue to the Assignors certain
Notes (as defined in the Subscription Agreement) and such number of shares of
Common Stock as is represented by the percentage of total shares of Common Stock
outstanding immediately after the Reorganization (as defined below) represented
by the percentage of Common Stock set forth opposite such Assignor's name in
Schedule 1 hereto, which shares of Common Stock shall be in the form of Common
Stock set forth on Schedule 1 opposite such Assignor's name;
WHEREAS, the shares of Common Stock consist of shares of Class
A Common Stock, $.01 par value per share, of the Assignee (the "Class A Common
Stock"), shares of Class B Common Stock, $.01 par value per share, of the
Assignee (the "Class B Common Stock") and shares of Class C Common Stock, $.01
par value per share, of the Assignee (the "Class C Common Stock") (collectively,
the "Common Stock"), which shares of Common Stock shall be issued prior to the
closing of the underwritten public offering of the Class A Common Stock under a
registration statement on Form S-1 under the Securities Act of 1933, as amended
(the "Offering"); and
WHEREAS, pursuant to the terms of this Agreement and the
Subscription Agreement, each of the Assignors wishes to assign to the Assignee
one hundred percent (100%) of its interest in the Polo Entities, except for
rights to receive allocations and distributions with respect to the earnings of
Fragrances, LLC through
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the Transfer Closing Date as determined for United States Federal income tax
purposes, (collectively, the "Equity Interests") and the Assignee wishes to
accept the same (the "Reorganization");
NOW THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Upon the terms and subject to the conditions set forth
herein, on the Transfer Closing Date (as defined below) each of the Assignors
hereby sells, assigns, transfers, conveys, grants and sets over its Equity
Interests (in accordance with Schedule 1) to the Assignee, free and clear of all
liens, encumbrances and claims. This Assignment includes, without limitation, to
the extent of the Equity Interests conveyed hereunder, the Assignors' right to
receive allocations of income, gain, loss, deduction, credit and similar items
and distributions, by reason of the Assignors' interest in each of the Polo
Entities, excluding rights to receive allocations and distributions with respect
to the earnings of Fragrances, LLC through the Transfer Closing Date as
determined for United States Federal income tax purposes, as well as all of the
Assignors' rights as partners, stockholders or members in each of the Polo
Entities, with the intent that on the date hereof the Assignee shall become a
substitute partner, stockholder or member in each of the Polo Entities, to the
extent of the Equity Interests conveyed. Notwithstanding the foregoing, it is
understood by the parties that the Assignors retain certain rights and
obligations as partners of Enterprises and Polo as set forth in Section 9.2 of
the Stockholders Agreement (as defined below).
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2. Upon the terms and subject to the conditions set forth
herein, on the Transfer Closing Date the Assignee hereby: (a) accepts, assumes,
takes over and succeeds to all of the Assignors' rights, title and interest in
the Equity Interests and assumes and agrees to perform and discharge in full,
when due, all of the obligations and commitments of the Assignors related
thereto pursuant to the terms of the Limited Partnership Agreement of
Enterprises, dated October 31, 1994 (the "Enterprises Agreement"), the Limited
Partnership Agreement of Polo, dated October 31, 1994 (the "Polo Agreement"),
the Limited Partnership Agreement of Womenswear, dated October 16, 1995 (the
"Womenswear Agreement") and the Limited Liability Company Agreement of
Fragrances, LLC, dated April 2, 1997 ("Fragrances LLC Agreement") (collectively,
the "Polo Agreements"), and to be bound by all of the provisions of the Polo
Agreements (including, without limitation, the obligations under the Enterprises
Agreement and the Polo Agreement set forth in Section 9.2 of the Stockholders
Agreement (as defined below), and (b) agrees to indemnify and hold harmless each
of the Assignors and their successors and assigns, against any and all costs,
expenses, losses or damages (including without limitation reasonable attorneys'
fees and expenses) arising on or after the closing of the transactions
contemplated herein by reason of the Assignee's ownership of the interest
assigned hereby, all to the extent of the Equity Interests hereby conveyed.
3. The Assignee represents and warrants to the Assignors that,
on the date hereof and as of the closing of the Transfer Closing Date, that:
(a) the Assignee has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware;
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(b) the Assignee has all requisite power and
authority (corporate or otherwise) to enter into this Agreement;
(c) the compliance by the Assignee with all
provisions of this Agreement will not conflict with or result in a
breach of violation of any understanding or agreement to which the
Assignee is bound or subject and will not result in any violation of
the Certificate of Incorporation or By-laws of the Assignee or any
statute, order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Assignee or any of its properties
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the consummation by the Assignee of the transactions
contemplated in this Agreement; and
(d) upon the consummation of the transactions
contemplated by this Agreement, Assignee will own, directly or
indirectly, all of the partnership interests in Enterprises, Polo and
Womenswear and all of the interests in Fragrances LLC.
4.
4.1 Each Assignor hereby represents and warrants,
severally but not jointly, on the date hereof and as of the closing of the
Transfer Closing Date, that:
(a) this Agreement has been duly authorized,
executed and delivered by such Assignor and (assuming the due
authorization, execution and delivery hereof, by all of the other
Assignors and the Assignee) constitutes the valid and binding
obligation of such Assignor, enforceable in accordance
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with its terms, subject as to enforcement, to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and to general principles of equity
(regardless of whether enforcement is sought at a proceeding at law or
equity). Such Assignor is not subject to or obligated under any
contract, license, franchise or permit, or, subject to any order or
decree, which would be breached, violated, or exceeded by the execution
and performance of this Agreement by such Assignor; and
(b) such Assignor is the legal, beneficial
and record owner of the Equity Interests opposite its name on Schedule
1, free and clear of any liens, claims, charges, security interests,
options or other legal or equitable interests.
4.2 Xxxxxx, XX Holding, L.P. and RL Family, L.P. (the
"RL Assignors") represent and warrant, severally but not jointly, on
the date hereof and as of the Transfer Closing Date, that, except as
set forth on Schedule 4(c) and except for stock or other interests held
for investment purposes only, and except, in the case of Lauren,
Lauren's right to use as trademarks "Xxxxx Xxxxxx", "Double RL" and
"RRL" in connection with beef and other agricultural and food products,
such RL Assignor does not own any capital stock or other proprietary
interest, directly or indirectly, in any company, association, trust
partnership, joint venture or other entity which engages in any
business similar to that conducted by any of the Polo Entities or any
of their subsidiaries and which after giving effect to the transactions
contemplated by this Agreement will not be owned by the Assignee.
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5. The parties mutually covenant and agree to cooperate with
each other and promptly to take such other action and to execute and deliver, or
cause to be executed or delivered, such other and further documents as may be
reasonable and necessary to give effect to this Agreement and to the
Reorganization as described in the draft preliminary prospectus provided to the
parties hereto prior to the execution of this Agreement and prepared in
connection with the Offering (the "Draft Preliminary Prospectus"), including,
but not limited to, any amendments to any partnership agreement necessary to
provide for the admission of the Assignee as a general partner or limited
partner thereof, as the case may be.
6. The Assignors hereby provide such consents and waivers as
may be necessary under the Enterprises Agreement, the Polo Agreement and the
Womenswear Agreement to permit the completion of the transactions contemplated
in this Agreement and in the Subscription Agreement.
7. Each party agrees and consents to a stock split and the
conversion of the outstanding Class A Common Stock into Class B Common Stock, in
each case by Assignee one day prior to the Transfer Closing Date such that upon
the consummation of the transactions contemplated by this Agreement, (i) Lauren
shall be the record owner of 55.2112% of the shares of Common Stock to be
outstanding immediately after the Reorganization in the form of Class B Common
Stock, and (ii) each of the Assignors shall be the record owner of the
percentage of shares of Common Stock to be outstanding immediately after the
Reorganization as set forth on Schedule 1 hereto, which shares of Common Stock
shall be in the form of the class of Common Stock as set forth on Schedule 1
opposite such Assignor's name. Lauren, as the stockholder of the Assignee prior
to the Transfer Closing Date, agrees and
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consents to effect the necessary stockholder action to cause such
recapitalization, all as described in the Draft Preliminary Prospectus.
8. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns for
the uses and purposes set forth and referred to herein, effective as of the date
hereof.
10. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
11. For purposes of this Agreement, the "Transfer Closing
Date" shall be a date specified by Lauren, after consultation with GSCP, which
date shall be a date no earlier than the date the following conditions are
satisfied and no later than the date of the anticipated pricing of the Offering.
The obligations of the parties to complete the transactions contemplated in this
Agreement are subject to the fulfillment of the following conditions on or
before the Transfer Closing Date:
(a) All of the Assignors shall have simultaneously
assigned, transferred and set over its respective Equity Interests (in
accordance with Schedule 1) to the Assignee;
(b) All filings required to be made prior to the
Transfer Closing Date with, and all consents, approvals, permits and
authorizations required to be obtained prior to the Transfer Closing
Date from, governmental entities, including, without limitation, any
such filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and
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regulations promulgated thereunder (the "HSR Act"), in connection with
the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby by the Assignee and the Assignors
will have been made or obtained (as the case may be) and all HSR Act
waiting periods shall have expired or been terminated;
(c) The representations and warranties of the
Assignee and each of the Assignors shall be true and correct as of the
Transfer Closing Date as if made at such time;
(d) The Assignee shall have circulated a preliminary
prospectus for the Offering;
(e) The Assignors and the Assignee shall have duly
executed and delivered the Stockholders Agreement referenced in Section
12 hereof; and
(f) The subscription for shares of common stock of
the Assignee contemplated by the Subscription Agreement, dated as of
April 3, 1997, by and among the Assignors and the Assignee the
("Subscription Agreement") shall have simultaneously occurred and all
conditions set forth in the Subscription Agreement shall have been
simultaneously satisfied.
12. Each party agrees and covenants that, upon the
consummation of the transactions contemplated by this Agreement, on the Transfer
Closing Date the parties shall all enter into a Stockholders Agreement in the
Form attached hereto as Exhibit A (the "Stockholders Agreement").
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13. This Agreement may be terminated, at the election of any
of the Assignors or the Assignee, if the Transfer Closing Date has not occurred
on or prior to August 31, 1997.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above written.
ASSIGNORS:
XXXXX LAUREN
_________________________________________
RL HOLDING, L.P.
By: RL HOLDING GROUP, INC.,
its general partner
By:______________________________
Name: Xxxxx Xxxxxx
Title:
RL FAMILY, L.P.
By:____________________________________
Name: Xxxxx Xxxxxx
Title: General Partner
GS CAPITAL PARTNERS, L.P.
By:____________________________________
Name:
Title:
GS CAPITAL PARTNERS PRL HOLDING I, L.P.
By:____________________________________
Name:
Title:
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GS CAPITAL PARTNERS PRL HOLDING II, L.P.
By:____________________________________
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
By:____________________________________
Name:
Title:
STONE STREET 1994 SUBSIDIARY CORP.
By:____________________________________
Name:
Title:
XXXXXX XXXXXX XXXX 0000, X.X.
By:____________________________________
Name:
Title:
ASSIGNEE:
XXXX XXXXX XXXXXX CORPORATION
By:____________________________________
Name:
Title:
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SCHEDULE 1
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PERCENTAGE OF TOTAL COMMON
STOCK OF XXXX XXXXX LAUREN
CORPORATION TO BE OUTSTANDING
IMMEDIATELY AFTER THE
REORGANIZATION
NAME OF ASSIGNOR EQUITY INTERESTS (INCLUDING CLASS OF STOCK)
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Xx. Xxxxx Xxxxxx (i) 5.1053% limited partnership 55.2112% as Class B Common
interest of Enterprises Stock (including 50.192% owned
(ii) 100% common stock of immediately prior to
Womenswear Inc. Reorganization and 5.0192%
acquired pursuant to
Reorganization)
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RL Holding, L.P. 15.3947% limited partnership 15.0376%, as Class B Common
interest of Enterprises Stock
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RL Family, L.P. 100% membership interest of 1.75%, as Class B Common
Fragrances, LLC Stock
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GS Capital Partners, L.P. (i) 15.0717% limited 14.8079%, as Class C Common
partnership interest of Stock
Enterprises
(ii) 0.2108% limited
partnership interest of Polo
(iii) 0.2108% limited
partnership interest of
Womenswear
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GS Capital Partners PRL (i) 6.6808% limited partnership 6.5639%, as Class C Common
Holding I, L.P. interest of Enterprises Stock
(ii) 0.0935% limited
partnership interest of Polo
(iii) 0.0935% limited
partnership interest of
Womenswear
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GS Capital Partners PRL (i) 5.1641% limited partnership 5.0737%, as Class C Common
Holding II, L.P. interest of Enterprises Stock
(ii) 0.0722% limited
partnership interest of Polo
(iii) 0.0722% limited
partnership interest of
Womenswear
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Stone Street Fund 1994, L.P. (i) 0.73560% limited 0.7227%, as Class C Common
partnership interest of Stock
Enterprises
(ii) 0.103% limited partnership
interest of Polo
(iii) 0.0103% limited
partnership interest of
Womenswear
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SCHEDULE 1
(Continued)
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PERCENTAGE OF TOTAL COMMON
STOCK OF XXXX XXXXX XXXXXX
CORPORATION TO BE OUTSTANDING
IMMEDIATELY AFTER THE
REORGANIZATION
NAME OF ASSIGNOR EQUITY INTERESTS (including class of stock)
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Stone Street 1994 Subsidiary (i) 0.03790% limited 0.0372%, as Class C Common
Corp. partnership interest of Stock
Enterprises
(ii) 0.0005% limited
partnership interest of Polo
(iii) 0.0005% limited
partnership interest of
Womenswear
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Bridge Street 1994, L.P. (i) 0.80990% limited 0.7957%, as Class C Common
partnership interest of Stock
Enterprises
(ii) 0.0113% limited
partnership interest of Polo
(iii) 0.0113% limited
partnership interest of
Womenswear
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