SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_________________
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR 12(g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
The Warnaco Group,
Inc.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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95-4032739
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(State
of Incorporation or Organization)
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(I.R.S.
Employer
Identification
no.)
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501 Seventh Avenue, New York, New
York
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10018
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of Each Class
to be so Registered
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Name
of Each Exchange on
Which Each Class is to be
Registered
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Common
Stock, par value $.01 per share
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New
York Stock Exchange
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If
this form relates to the registration
of
a class of securities pursuant to
Section
12(b) of the Exchange Act
and
is effective pursuant to General
Instruction
A.(c), please check
the
following box. [X]
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If
this form relates to the registration
of
a class of securities pursuant to
Section
12(g) of the Exchange Act
and
is effective pursuant to General
Instruction
A.(d), please check
the
following box. [ ]
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Securities
Act registration statement file number to which this form
relates:
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N/A
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Securities
to be registered pursuant to Section 12(g) of the Act:
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None
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Item
1. Description
of Registrant’s Securities to be Registered
This
registration statement on Form 8-A relates to the registration of common stock,
par value $0.01 per share (the “Common Stock”), of The Warnaco Group, Inc., a
Delaware corporation (the “Company”), pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection
with the listing of the Common Stock on the New York Stock Exchange (the
“NYSE”). The Common Stock was previously registered pursuant to
Section 12(g) of the Exchange Act by the registration statement on Form 8-A/A,
filed with the Securities and Exchange Commission (the “SEC”) on February 4,
2003 (File No. 001-10857). The Common Stock is presently quoted on
the Nasdaq Global Select Market (“Nasdaq”). Upon the commencement of
trading of Common Stock on the NYSE, the Company intends to withdraw its
inclusion of Common Stock on Nasdaq.
Description
of Common Stock
The
Company is authorized to issue 112,500,000 shares of Common Stock, of which
45,502,456 shares were issued and outstanding as of May 8, 2008.
Each
share of Common Stock entitles the holder thereof to one vote on each matter for
which stockholders are entitled to vote. The recordholders of a
majority of the outstanding shares of the Company entitled to vote at meetings
of stockholders, present in person or by proxy, constitute a quorum at any
meeting of stockholders. Matters other than the election of directors
are generally decided by the affirmative vote of a majority of the shares of the
Company present in person or by proxy and entitled to vote. The
Company’s Amended and Restated By-laws were further amended and restated
effective January 9, 2008 (as amended and restated, the "By-laws") to change the
voting standard for the election of directors in uncontested director elections
from a plurality to a majority voting standard. A nominee for
director in an uncontested election is elected to the board of directors if the
votes cast “for” such nominee’s election exceed the votes cast “against” such
nominee’s election. Directors are elected by a plurality vote at a
stockholder meeting if, as of the 10th day preceding the date the Company files
its definitive proxy statement with the Securities and Exchange Commission for
such meeting, the number of nominees exceeds the number of directors to be
elected at such meeting.
Holders
of Common Stock are entitled to receive dividends when and if declared by the
board of directors out of legally available funds, subject to all prior rights
and preferences of holders of any outstanding shares of the Company’s preferred
stock. Subject to any prior rights of holders of outstanding shares of preferred
stock, the holders of Common Stock are entitled to receive pro rata all of the
Company’s assets available for distribution to stockholders in the event of the
voluntary or involuntary liquidation, dissolution, distribution of assets or
other winding up of the Company. The Common Stock has no preemptive,
conversion or other subscription rights. There are no redemption or
sinking fund provisions applicable to the Common Stock. All
outstanding shares of Common Stock are validly issued, fully paid and
non-assessable.
Description
of Preferred Stock
The
Company is authorized to issue 20,000,000 shares of preferred stock, of which
112,500 shares are designated as Series A Preferred Stock. The shares
of preferred stock have a par value of $0.01 per share. As of the date of this
registration statement, there are no shares of the Company’s preferred stock
issued and outstanding.
The board
of directors of the Company has the authority to issue shares of preferred stock
in one or more series and to fix as to any series of preferred stock the
numbers, designations, rights (other than voting rights), preferences and
limitations of such series, without any further vote or action by
stockholders. The authority of the board of directors to issue
preferred stock could have the effect of making it more difficult for a person
or group to gain control of the Company by means of a merger, tender offer,
proxy contest or otherwise.
Description
of Certain Provisions of the Company's Charter and By-laws
Written Consent of
Stockholders
. The Charter and By-laws provide that any action required or
permitted to be taken at any annual or special meeting of the stockholders of
the Company may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of
votes necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted.
Amendment of By-laws
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Under the DGCL, the power to adopt, amend or repeal By-laws is conferred upon
the stockholders. A corporation may, however, confer (and the Company has
conferred, in its Charter and By-laws) upon the board of directors the power to
adopt, amend or repeal its By-laws. The Company's stockholders may adopt, amend
or repeal any By-law by the vote of holders of not less than a majority of the
shares then entitled to vote at an election of directors or by written
consent.
Amendment of Charter
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Pursuant to the Charter, the Company reserves the right to amend, alter, change
or repeal any provision of the Charter, in the manner prescribed by statute.
Under the DGCL, unless a corporation's charter specifies otherwise, a
corporation's charter may be amended by the affirmative vote of the holders of a
majority of the outstanding stock entitled to vote thereon, and a majority of
the shares of outstanding stock of each class entitled to vote thereon as a
class.
Special Meetings of
Stockholders
. The Charter and By-laws permit a special meeting of
stockholders to be called at any time by the board of directors, the chairman of
the board of directors, the president or the secretary of the Company or by the
recordholders of at least 15% of the shares of Common Stock issued and
outstanding and entitled to vote at such a meeting.
Removal of Directors;
Filling Vacancies on Board
. Directors may be removed, with or without
cause, at any time by the vote of the recordholders of a majority of the shares
of Common Stock issued and outstanding and entitled to vote at an election of
directors, or by written consent of the recordholders of such Common Stock. The
By-
Laws
provide that vacancies arising as a result of the removal of directors without
cause may be filled only by vote of the recordholders of a majority of the
shares of Common Stock issued and outstanding and entitled to vote at an
election of directors, or by written consent of the recordholders of such Common
Stock. The By-laws provide that vacancies occurring for any other
reason, including, without limitation, as a result of the creation of new
directorships that increase the number of directors, may be filled by the vote
or written consent of such recordholders of Common Stock or by vote of the board
of directors or by written consent of the directors.
Classified Board
. The
Company does not have a classified board of directors.
Advance
Notice
. Generally, the By-laws fix a deadline by which
stockholder nominations for directors or stockholder proposals must be submitted
to the Company before a meeting of stockholders. In the case of an annual
meeting, advance notice must be delivered not less than 90 days nor more than
120 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 30 days before or after such
anniversary date, notice must be received not later than the close of business
on the 10th day following the day on which notice of the date of the annual
meeting is given.
Indemnification
. The
Charter provides that the directors and officers of the Company shall be
indemnified and shall be advanced expenses incurred in defending a civil,
criminal, administrative or investigative action, suit or proceeding arising out
of their status as directors and officers.
Business Combination Under
Delaware Law
. The Company is subject to Section 203 of the DGCL, which is
Delaware's anti-takeover law. This law provides that specified persons who,
together with affiliates and associates, own, or within three years did own, 15%
or more of the outstanding voting stock of a corporation ("interested
stockholder") may not engage in any business combination with the corporation
for a period of three years after the date on which the person became an
interested stockholder, unless (i) the transaction resulting in a person
becoming an interested stockholder, or the business combination, is approved by
the board of directors of the corporation before the person becomes an
interested stockholder, (ii) the interested stockholder acquired 85% or more of
the outstanding voting stock of the corporation in the same transaction that
makes such person an interested stockholder (excluding shares owned by persons
who are both officers and directors of the corporation, and shares held by
certain employee stock ownership plans) or (iii) on or after the date the person
becomes an interested stockholder, the business combination is approved by the
corporation's board of directors and by the holders of at least 66-2/3% of the
corporation's outstanding voting stock at an annual or special meeting, and not
by written consent, excluding shares owned by the interested stockholder. The
term "business combination" is defined to encompass a wide variety of
transactions with or caused by an interested stockholder, including mergers,
asset sales and other transactions in which the interested stockholder receives
or could receive a benefit on other than a pro rata basis with other
stockholders. The Company could amend the Charter in the future to elect to not
be governed by the DGCL anti-takeover law.
Registrar
and Transfer Agent
The
registrar and transfer agent for the Common Stock is Wells Fargo Bank, N.A., 161
N. Concord Exchange, South St. Paul, Minnesota 55075, Attn: Shareholder
Services, and its telephone number is 1-800-468-9716.
Item
2. Exhibits
None.
SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
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Dated:
May 12, 2008
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The
Warnaco Group, Inc.
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By:
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/s/
Lawrence R.
Rutkowski
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Name:
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Lawrence
R. Rutkowski
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Title:
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Executive
Vice President and
Chief
Financial Officer
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