Exhibit 99.1
THIS SOLICITATION IS BEING CONDUCTED TO OBTAIN SUFFICIENT ACCEPTANCES OF A JOINT CHAPTER 11
PLAN OF REORGANIZATION PRIOR TO THE FILING OF VOLUNTARY REORGANIZATION CASES UNDER CHAPTER 11
OF TITLE 11 OF THE UNITED STATES CODE. BECAUSE NO CHAPTER 11 CASES HAVE YET BEEN COMMENCED,
THIS DISCLOSURE STATEMENT HAS NOT BEEN APPROVED BY THE BANKRUPTCY COURT AS CONTAINING
ADEQUATE INFORMATION WITHIN THE MEANING OF SECTION 1125(a) OF THE BANKRUPTCY CODE.
FOLLOWING THE COMMENCEMENT OF THEIR CHAPTER 11 CASES, SIMMONS COMPANY, BEDDING HOLDCO
INCORPORATED, SIMMONS BEDDING COMPANY AND THEIR DOMESTIC SUBSIDIARIES EXPECT TO SEEK PROMPTLY
AN ORDER OF THE BANKRUPTCY COURT APPROVING THIS DISCLOSURE STATEMENT AND THE SOLICITATION OF
VOTES AND CONFIRMING THE JOINT PREPACKAGED REORGANIZATION PLAN DESCRIBED HEREIN.
DISCLOSURE STATEMENT
DATED OCTOBER 13, 2009
PREPETITION SOLICITATION OF VOTES
WITH RESPECT TO THE JOINT PLAN OF REORGANIZATION
OF
SIMMONS COMPANY
BEDDING HOLDCO INCORPORATED
SIMMONS BEDDING COMPANY
AND
THEIR DOMESTIC SUBSIDIARIES
FROM HOLDERS OF
LOANS UNDER THE EXISTING SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
SENIOR SUBORDINATED NOTES
AND
SENIOR DISCOUNT NOTES
The information in this Disclosure Statement (as defined below) is being provided to you
solely for purposes of (a) voting to accept or reject the prepackaged Plan and (b) in the case of
holders of allowed Holdco Note Claims (as defined below) who are Eligible Investors (as defined
below), electing, subject to the limitations described herein, to purchase Class A Units (as
defined below) being offered to Eligible Investors in a private transaction exempt from the
registration requirements of the Securities Act of 1933, as amended (the Securities Act).
NEITHER THIS DISCLOSURE STATEMENT NOR THE PLAN DESCRIBED HEREIN HAS BEEN FILED WITH OR
REVIEWED BY, AND THE CLASS A UNITS TO BE ISSUED ON OR AFTER THE EFFECTIVE DATE WILL NOT HAVE BEEN
THE SUBJECT OF A REGISTRATION STATEMENT FILED WITH, THE SECURITIES AND EXCHANGE COMMISSION OR ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE UNDER THE SECURITIES ACT OR UNDER ANY STATE SECURITIES
OR BLUE SKY LAWS. THE PLAN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION, AND NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS PASSED UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION
CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THIS DISCLOSURE
STATEMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION IN ANY STATE OR OTHER JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED.
No person is authorized in connection with this Disclosure Statement to give any information
or to make any representation not contained in this Disclosure Statement, and, if given or made,
such other information or representation must not be relied upon as having been authorized by the
Debtors (as defined below) or any of their representatives.
The statements contained in this Disclosure Statement are made as of the date hereof unless
otherwise specified. Although the Debtors have no obligation to update this Disclosure Statement,
they reserve the right to amend, modify or withdraw this Disclosure Statement at any time prior to
the voting deadline.
Certain of the information, including but not limited to the historical financial information
of Simmons Company, contained herein was provided by the Company (as defined below). The
Purchasers and the Sponsors (each as defined below) have not performed an independent analysis as
to the accuracy or completeness thereof and therefore disclaim any responsibility for such
information.
Certain of the information, including but not limited to the projected and historical
financial and business information of Serta Holdings contained herein was provided by the
Purchasers and the Sponsors. The Company has not performed an independent analysis as to the
accuracy or completeness thereof and therefore disclaims any responsibility for such information.
The terms of the prepackaged Plan (as defined below) and the other documents relating to the
transactions contemplated by the Plan govern in the event of any inconsistency with the summaries
in this Disclosure Statement. Unless otherwise defined herein, capitalized terms used herein have
the meanings ascribed to them in the Plan, which is attached hereto as Exhibit A.
All exhibits to the Disclosure Statement are incorporated into and are a part of this
Disclosure Statement as if set forth in full herein.
This Disclosure Statement is being conducted to obtain sufficient acceptances of the Plan
prior to a filing of the Chapter 11 Cases. Because no cases under chapter 11 of the Bankruptcy
Code has yet been commenced, this Disclosure Statement has not been approved by any U.S. bankruptcy
court as containing adequate information within the meaning of section 1125(a) of the Bankruptcy
Code.
* * * * *
THE VOTING DEADLINE TO ACCEPT OR REJECT THE JOINT PREPACKAGED REORGANIZATION PLAN IS 5:00
P.M., EASTERN TIME, ON NOVEMBER 12, 2009, UNLESS EXTENDED BY THE DEBTORS. IN ORDER TO BE COUNTED,
BALLOTS MUST BE RECEIVED BY THE SOLICITATION AGENT BY THE VOTING DEADLINE.
TABLE OF CONTENTS
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PAGE |
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I. INTRODUCTION |
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A. Voting Deadline and Record Date |
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B. Current Ownership Structure |
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C. Current Capital Structure |
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2 |
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D. Initial Negotiations with Creditors |
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2 |
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E. The Special Committee |
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3 |
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F. The New Money Investment/Sale Process and Restructuring Negotiations |
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3 |
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G. Summary of Anticipated Distributions Under the Plan |
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4 |
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H. Financing for the Plan |
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I. Reasons for the Solicitation; Recommendation |
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5 |
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J. Summary of Voting Procedures |
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5 |
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II. TREATMENT OF CLAIMS AND EQUITY INTERESTS UNDER THE PLAN |
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6 |
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A. Other Priority Claims (Class 1) |
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6 |
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B. IRB Claims (Class 2) |
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6 |
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C. Other Secured Claims (Class 3) |
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6 |
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D. SBC Credit Agreement Claims (Class 4A - 4I) |
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7 |
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E. SBC Note Claims (Class 5A - 5H) |
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7 |
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F. Holdco Claims (Class 6) |
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7 |
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G. General Unsecured Claims (Class 7A - 7H) |
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9 |
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H. Equity Interests in SBC (Class 8) |
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9 |
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I. Equity Interests in Bedding Holdco (Class 9) |
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9 |
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J. Equity Interests in Holdco (Class 10) |
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III. GENERAL INFORMATION REGARDING THE DEBTORS |
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IV. EVENTS LEADING TO THE CHAPTER 11 CASES |
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A. The Special Committee |
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11 |
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B. The New Money Investment/Sale Process |
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12 |
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C. Plan Sponsor Agreement |
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13 |
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D. Guarantee |
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15 |
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E. Restructuring Support Agreement |
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15 |
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F. Exit Financing |
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16 |
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G. DIP Facility Commitment |
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20 |
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PAGE |
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V. THE PURCHASERS |
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A. The Sponsors |
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B. Serta Holdings |
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VI. MANAGEMENT AND CORPORATE STRUCTURE |
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A. Reorganized Debtors |
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26 |
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B. New Parent |
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27 |
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VII. SUMMARY OF OTHER PROVISIONS OF THE PLAN |
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28 |
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A. Administrative Expenses for the Debtors |
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28 |
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B. Allowed Claims |
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28 |
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C. Securities Law Matters and Restrictions on Transfer of the Class A Units |
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28 |
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D. Means for Implementing the Plan |
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29 |
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E. Provisions Governing Distributions |
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30 |
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F. Procedures for Resolving Disputed, Contingent, and Unliquidated Claims |
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30 |
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G. Treatment of Executory Contracts and Unexpired Leases |
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31 |
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H. Conditions Precedent |
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33 |
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I. Effect of Confirmation |
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33 |
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J. Termination of Existing Management Agreement |
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33 |
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K. Releases and Exculpation |
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33 |
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L. Retention of Causes of Action/Reservation of Rights |
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33 |
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M. Retention of Jurisdiction |
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34 |
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N. Determination of Tax Filings and Taxes |
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34 |
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O. Amendments and Severability |
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35 |
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VIII. ANTICIPATED EVENTS DURING THE CHAPTER 11 CASES |
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35 |
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A. Commencement of the Chapter 11 Cases |
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35 |
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B. Debtor in Possession Financing |
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38 |
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IX. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN |
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39 |
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A. Consequences to the Debtors |
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40 |
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B. Consequences to Holders of Claims |
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42 |
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ii
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PAGE |
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X. FEASIBILITY OF THE PLAN AND THE BEST INTERESTS OF CREDITORS TEST |
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46 |
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A. Feasibility of the Plan |
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46 |
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B. Best Interests Test |
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47 |
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C. Liquidation Analysis |
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48 |
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D. Valuation of the Reorganized Debtors |
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48 |
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XI. ALTERNATIVES TO CONFIRMATION AND CONSUMMATION OF THE PLAN |
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49 |
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A. Commencement of a Traditional Chapter 11 Case |
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49 |
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B. Alternative Plan(s) |
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49 |
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C. Liquidation under Chapter 7 or Chapter 11 |
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50 |
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XII. CERTAIN FACTORS TO BE CONSIDERED |
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51 |
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A. Competition Clearance |
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51 |
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B. Bankruptcy Proceedings and Debtors Circumstances |
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51 |
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C. Failure to Receive Requisite Acceptances |
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52 |
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D. Failure to Confirm the Plan |
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52 |
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E. Failure to Consummate the Plan and Transactions Contemplated by the Plan Sponsor Agreement |
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53 |
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F. Claims Estimations |
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53 |
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G. Certain Tax Considerations |
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54 |
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H. Inherent Uncertainty of Financial Projections |
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54 |
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I. Risks Relating to New Parent and its Business |
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54 |
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J. Risks Relating to the Class A Units |
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62 |
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XIII. THE SOLICITATION; VOTING PROCEDURES |
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64 |
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A. Voting Deadline |
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64 |
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B. Voting Procedures |
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64 |
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C. Special Note for the holders of SBC Notes and the holders of Holdco Notes |
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65 |
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D. Fiduciaries and other Representatives |
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66 |
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E. Parties Entitled to Vote |
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67 |
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F. Agreements Upon Furnishing Ballots |
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67 |
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G. Waivers of Defects, Irregularities, Etc. |
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67 |
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H. Withdrawal of Ballots; Revocation |
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68 |
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I. Delivery of Extinguished Securities |
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68 |
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J. Further Information; Additional Copies |
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69 |
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XIV. RECOMMENDATION AND CONCLUSION |
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69 |
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iii
TABLE OF ATTACHMENTS
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EXHIBIT A
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The Plan |
EXHIBIT B-1
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Simmons Companys Form 10-K for the year ended December 29,
2008 |
EXHIBIT B-2
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Simmons Companys Form 10-Q for the quarter ended June 27, 2009 |
EXHIBIT C
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Projected Financial Information of Serta Holdings |
EXHIBIT D
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Projected Financial Information of New Parent |
EXHIBIT E
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Description of the Class A Units |
EXHIBIT F
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Liquidation Analysis and Best Interests Test |
EXHIBIT G
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Projected Financial Information of Simmons Company |
EXHIBIT H
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List of Subsidiaries |
EXHIBIT I
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Current Ownership Structure of the Debtors |
EXHIBIT J
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Debt Commitment Letter |
EXHIBIT K
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ABL Commitment Letter |
iv
NOTICE TO HOLDERS OF HOLDCO NOTE CLAIMS
The Plan involves a private offering exempt from the registration requirements of the
Securities Act of Class A Units of New Parent (as defined below) to holders of allowed Holdco Note
Claims who are (a) qualified institutional buyers as that term is defined in Rule 144A under the
Securities Act (or accounts or funds under common management with a qualified institutional
buyer), (b) accredited investors as defined in Rule 501(a) of Regulation D under the Securities
Act, and (c) not underwriters as defined in section 1145(b) of the Bankruptcy Code (each such
holder, an Eligible Investor). Holders of allowed Holdco Note Claims who are Eligible
Investors may elect, subject to the terms and conditions of the Plan to use the cash distributions
otherwise payable to them under the Plan to purchase Class A Units. The election to purchase Class
A Units is a separate investment decision from approval of the Plan. Holders of allowed Holdco
Note Claims who are not Eligible Investors, or who are Eligible Investors and do not elect to
purchase Class A Units, will receive cash distributions under the Plan.
Neither this Disclosure Statement nor the Plan has been filed with or reviewed by, and the
Class A Units to be issued on or after the Effective Date will not have been the subject of a
registration statement filed with, the Securities and Exchange Commission or any securities
regulatory authority of any state under the Securities Act or under any state securities or blue
sky laws. The Plan has not been approved or disapproved by the Securities and Exchange Commission
or any state securities commission, and neither the Securities and Exchange Commission nor any
state securities commission has passed upon the accuracy or adequacy of the information contained
herein or therein. Any representation to the contrary is a criminal offense. This Disclosure
Statement does not constitute an offer or solicitation in any state or other jurisdiction in which
such offer or solicitation is not authorized.
The right of each Eligible Investor to elect, subject to the limitations herein, to purchase
Class A Units is given on the basis of this Disclosure Statement and is subject to the terms
described herein. Any decision to participate in that election must be made based on the
information contained in this document. In making an investment decision, prospective investors
must rely on their own examination of New Parent and its proposed subsidiaries and the terms of
that election and the Class A Units. Prospective investors should not construe anything in this
Disclosure Statement as legal, business or tax advice. Each prospective investor should consult
its own advisors as needed to make its investment decision and to determine whether it is legally
permitted to participate in the election, subject to the limitations herein, to purchase Class A
Units under applicable legal investment or similar laws or regulations.
Each prospective investor in the Class A Units must comply with all applicable laws and
regulations in force in any jurisdiction in which it participates in such election or possesses or
distributes this Disclosure Statement and must obtain any consent, approval or permission required
under the laws and regulations in force in any jurisdiction to which it is subject, and neither the
Debtors nor their representatives shall have any responsibility herefore.
None of the Debtors, the Reorganized Debtors, New Parent, the owners of New Parent, the
Solicitation Agent (each as defined below), any of their affiliates, or any of their respective
officers, directors, agents, advisors or representatives makes any recommendation as to whether an
Eligible Investor should elect, subject to the limitations herein, to purchase Class A Units. Each
Eligible Investor must make its own determination as to whether to make any such election.
The terms of the prepackaged Plan and the other documents relating to the transactions
contemplated by the Plan govern in the event of any inconsistency with the summaries in this
Disclosure Statement.
The Class A Units are an illiquid, unlisted investment in a private company that will not file
reports with the Securities and Exchange Commission and will not provide investors with protections
commonly available for equity investments in public companies. See SECTION XII CERTAIN FACTORS
TO BE CONSIDERED for a discussion of some of the risks that should be considered prior to making
any investment decision with respect to the Class A Units.
v
* * * * *
FOR NEW HAMPSHIRE RESIDENTS
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE HAS BEEN FILED UNDER
CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED STATUTES ANNOTATED WITH THE STATE OF NEW HAMPSHIRE NOR
THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW
HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT FILED UNDER RSA 421-B
IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR
EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED
IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON,
SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE
PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS
PARAGRAPH.
vi
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This Disclosure Statement contains certain forward-looking statements, including, without
limitation, projected financial information and statements concerning the conditions in the bedding
industry and the operations, economic performance and financial condition of the Debtors or
Reorganized Debtors, Serta Holdings, and New Parent (each as defined below) and their respective
subsidiaries, including in particular statements relating to their respective businesses and growth
strategies and product development efforts. The words believe, expect, anticipate, intend,
project, forecast, plan, will, should, and other similar expressions are used to identify
forward-looking statements within the meaning of the Private Securities Litigation Reform Act of
1995. Such forward-looking statements relate to future financial and operation results. Any
forward-looking statements contained in this Disclosure Statement represent current expectations of
the Debtors, for such statements made by the Debtors, or Serta Holdings, for such statements made
by Serta Holdings, based on present information and current assumptions, and are thus prospective
and subject to risks and uncertainties which could cause actual results to differ materially from
those expressed in such forward-looking statements. Actual results could differ materially from
those anticipated or projected due to a number of factors. These factors include, but are not
limited to:
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the level of competition in the bedding industry; |
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legal and regulatory requirements; |
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the success of new products; |
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relationships with major suppliers; |
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relationships with significant customers and licensees; |
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labor relations and labor organizations; |
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departure of key personnel; |
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encroachments on intellectual property; |
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product liability claims and other litigation; |
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changes in federal or state tax laws or the administration of these laws; |
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the timing, cost and success of opening new, or closing old, manufacturing
facilities; |
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the level of indebtedness of the Reorganized Debtors or Serta Holdings; |
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access to financial credit by the Reorganized Debtors, Serta Holdings and their
customers and vendors; |
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inability to refinance debt maturities on anticipated terms; |
vii
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the ability of New Parent to recognize the benefit of the projected cost-savings and
synergies from its acquisition of the Company; |
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an increase in return rates; |
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the severity and length of the current economic recession and its effect on the
markets in which the Reorganized Debtors and Serta Holdings will operate; and |
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other risks and factors identified (a) under SECTION XII CERTAIN FACTORS TO BE
CONSIDERED and (b) from time to time in Simmons Companys reports filed with the
Securities and Exchange Commission (the SEC) that are incorporated herein by
reference. |
All forward-looking statements including in this Disclosure Statement and incorporated by
reference herein are based on information available to the Debtors, for such statements made by the
Debtors, or Serta Holdings, for such statements made by Serta Holdings, on the date of this
Disclosure Statement. Except as provided by law, neither the Debtors nor Serta Holdings undertake
any obligation to publicly update or revise any forward-looking statements, whether as a result of
new information, future events or otherwise. In light of the above risks and uncertainties, there
can be no assurance that the matters referred to in the forward-looking statements contained in
this Disclosure Statement will in fact occur. All subsequent written and oral forward-looking
statements attributable to any of the Debtors or persons acting on Debtors, or Serta Holdings or
persons acting on Serta Holdings, behalf and incorporated by reference herein are expressly
qualified in their entirety by the cautionary statements contained throughout this Disclosure
Statement.
viii
INCORPORATION BY REFERENCE
Simmons Company files annual, quarterly and current reports and other information with the SEC. The
public may read and copy any materials filed with the SEC at the SECs Public Reference Room at
100 F Street, N.E., Washington, D.C. 20549. The public may obtain information on the operation of
the Public Reference Room by calling the SEC at 1-800-SEC-0330. Also, the SEC maintains an Internet
web site that contains reports, proxy and information statements, and other information regarding
issuers, including Simmons Company, that file electronically with the SEC. The public can obtain
any documents that Simmons Company files electronically with the SEC
at http://www.sec.gov.
The Debtors are incorporating by reference information into this Disclosure Statement, which means
that they are disclosing important information to you by referring you to another document. Any
information referred to in this way is considered part of this Disclosure Statement from the date
the Debtors file that document. Any reports filed by Simmons Company with the SEC after the date of
this Disclosure Statement and before the date that a bankruptcy court of competent jurisdiction
approves this Disclosure Statement will automatically update and, where applicable, supersede any
information contained in this Disclosure Statement or incorporated by reference in this Disclosure
Statement.
The Debtors incorporate by reference in this Disclosure Statement (a) the documents attached as
exhibits hereto and (b) the documents set forth below that have been previously filed by Simmons
Company with the SEC and certain additional documents that may be filed hereafter; provided,
however, that the Debtors are not incorporating any documents or information deemed to have been
furnished rather than filed in accordance with SEC rules:
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Simmons Companys Annual Report on Form 10-K for the fiscal year ended
December 27, 2008 (attached as Exhibit B-1 hereto); |
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Simmons Companys Quarterly Report on Form 10-Q for the fiscal quarter
ended June 27, 2009 (attached as Exhibit B-2 hereto); |
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Simmons Companys Current Reports on Form 8-K filed on January 15,
2009, February 5, 2009, February 17, 2009, March 17, 2009, March 23,
2009, March 30, 2009, April 20, 2009, May 28, 2009, June 2, 2009, July
1, 2009, July 16, 2009, July 31, 2009, August 14, 2009, August 21,
2009, August 28, 2009, September 11, 2009, September 25, 2009 and
October 1, 2009; and |
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any filings Simmons Company makes with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act on or after the date of this
Disclosure Statement and before the date that a bankruptcy court of
competent jurisdiction approves this Disclosure Statement. |
ix
SUPPORT FOR THE PLAN
Certain holders of SBC Note Claims and guarantees of SBC Note Claims, and certain holders of
Holdco Note Claims have entered into a Restructuring Support Agreement with the Debtors and the
Purchasers pursuant to which such holders agree to support the Plan, not to support any competing
plan of reorganization, and to vote their claims to accept the Plan, in each case subject to the
terms and conditions of the Restructuring Support Agreement. Such holders have informed the
Debtors that they hold, in the aggregate as of the Record Date:
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75.4% of the amount of outstanding SBC Note Claims and Guarantees of SBC Note Claims;
and |
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72.6% of the amount of outstanding Holdco Note Claims. |
x
GLOSSARY OF TERMS
The terms in the following table are used in the Disclosure Statement and/or the Plan. The
definitions below are summaries. Please refer to the Plan for the complete definitions of these
terms.
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AOT
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AOT Bedding Holdings Corp. |
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Bankruptcy Code
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Title 11 of the United States Code. |
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Bankruptcy Court
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The United States Bankruptcy Court for the District of Delaware. |
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Bedding Holdco
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Bedding Holdco Incorporated, a Delaware corporation and the sole stockholder of SBC. |
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Chapter 11 Cases
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The cases to be filed by the Debtors in connection with the Plan. |
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Class A Units
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Class A units in New Parent, subscription price $1,000 per unit. |
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Company
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Bedding Holdco, SBC and each of their subsidiaries. |
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Debtors
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Collectively, Holdco, Bedding Holdco, SBC, The Simmons Manufacturing Co., LLC, Windsor
Bedding Co., LLC, World of Sleep Outlets, LLC, Simmons Contract Sales, LLC, Dreamwell,
Ltd., Simmons Capital Management, LLC, and Simmons Export Co. (each individually a
Debtor), and, when the context so requires, in their capacity as debtors and
debtors-in-possession under sections 1107 and 1108 of the Bankruptcy Code. |
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DIP Debtors
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All of the Debtors other than Holdco. |
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DIP Facility
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Credit and Guaranty Agreement, expected to be entered into on or shortly after the
Petition Date, by and among the DIP Debtors, the lenders party thereto, Deutsche Bank
Securities Inc., as sole bookrunner and lead arranger, and Deutsche Bank Trust Company
Americas, as administrative agent and collateral agent. |
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Disclosure Statement
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This document with the annexed Exhibits. |
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Effective Date
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A business day selected by the Debtors on or after the date of confirmation of the Plan,
on which all conditions to the effectiveness of the Plan have been satisfied or waived and
there is no stay of the order confirming the Plan. |
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Eligible Investor
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See section in introductory legend titled Notice to Holders of Holdco Note Claims. |
|
|
|
General Unsecured Claims
|
|
Any unsecured claim against any of the Debtors not specifically described elsewhere, such
as trade claims. |
|
|
|
Holdco
|
|
Simmons Company, a Delaware corporation and the sole stockholder of Bedding Holdco. |
|
|
|
Holdco Notes and Holdco
Note Claims
|
|
The 10% Senior Discount Notes due 2014, issued by Holdco and all claims under such notes. |
|
|
|
Intermediate Holdings
|
|
AOT Bedding Intermediate Holdings, LLC. |
|
|
|
NBC
|
|
National Bedding Company L.L.C. |
|
|
|
New ABL Facility
|
|
$75 million asset-based revolving credit facility that Wells Fargo Foothill, LLC, as
agent, is committed to provide in accordance with the ABL Commitment Letter (as defined in
Section I.H). |
xi
|
|
|
New Common Stock
|
|
1,000,000 shares of common stock of Bedding Holdco authorized for issuance under Section
5.17 of the Plan. |
|
|
|
New Parent
|
|
AOT Bedding Super Holdings, LLC. |
|
|
|
Petition Date
|
|
The date on which the Debtors commence the Chapter 11 Cases. |
|
|
|
Plan
|
|
The Debtors proposed chapter 11 plan of reorganization annexed as Exhibit A to this
Disclosure Statement. |
|
|
|
Plan Sponsor Agreement
|
|
That certain Plan Sponsor Agreement, dated as of September 24, 2009, by and among the
Purchasers and the Debtors. |
|
|
|
Purchasers
|
|
New Parent and Intermediate Holdings. |
|
|
|
Reorganized Bedding
Holdco
|
|
Bedding Holdco, on and after the Effective Date. |
|
|
|
Reorganized Debtors
|
|
The Debtors, as reorganized on the Effective Date in accordance with the terms of the Plan. |
|
|
|
Reorganized Holdco
|
|
Holdco, on and after the Effective Date. |
|
|
|
Reorganized SBC
|
|
SBC, on and after the Effective Date (including any successor corporation, partnership or
limited liability company by merger). |
|
|
|
Restructuring Support
Agreement
|
|
That certain Restructuring Support Agreement, dated as of September 24, 2009, by and among
the Debtors, the Purchasers, and creditor and lender parties identified on the signature
pages thereto. |
|
|
|
SBC
|
|
Simmons Bedding Company, a Delaware corporation and the principal operating company of the
Debtors. |
|
|
|
SBC Credit Agreement
and SBC Credit
Agreement Claims
|
|
That certain Second Amended and Restated Credit and Guaranty Agreement, dated as of
May 25, 2006 (as has been or may be further amended, restated, amended and restated,
supplemented or otherwise modified from time to time), among (i) SBC, as borrower, (ii)
Bedding Holdco, The Simmons Manufacturing Co., LLC, World of Sleep Outlets, LLC, Simmons
Contract Sales, LLC, Windsor Bedding Co., LLC, Simmons Export Co., Dreamwell, Ltd., and
Simmons Capital Management, LLC, as guarantors, (iii) Deutsche Bank AG, New York Branch,
as administrative agent, and (iv) the other lenders, issuing banks, and parties thereto.
All claims under the SBC Credit Agreement. |
|
|
|
SBC Notes and SBC Note
Claims
|
|
The 7.875% Senior Subordinated Notes due 2014, issued by SBC and all claims under such
notes. |
|
|
|
Serta Holdings
|
|
AOT Bedding Holdings Corp., NBC, and Star Bedding Products Co. (together with their
respective subsidiaries). |
|
|
|
Solicitation Agent
|
|
Epiq Bankruptcy Solutions, LLC. |
|
|
|
Special Committee
|
|
The committee of the board of directors for each of Holdco, Bedding Holdco and SBC formed
to oversee the restructuring and new money investment/sale process for its respective
company. When used in this Disclosure Statement, the term Special Committee may refer
to one or all of the committees. |
|
|
|
Sponsors
|
|
Ares Corporate Opportunities Fund, L.P., Ares Corporate Opportunities Fund III, L.P., and
Ontario Teachers Pension Plan Board. |
|
|
|
Voting Deadline
|
|
November 12, 2009 |
|
|
|
Voting Record Date
|
|
October 6, 2009 |
xii
I. INTRODUCTION
Holdco, Bedding Holdco, SBC and each of SBCs domestic subsidiaries are seeking to restructure
their debt obligations through a prepackaged chapter 11 plan of reorganization. A copy of the
Plan is attached as Exhibit A to this Disclosure Statement. Please refer to the Plan for
definitions of terms used in this Disclosure Statement but not otherwise defined herein or in the
Glossary of Terms.
The Debtors are soliciting votes to accept the Plan before they file petitions to commence the
Chapter 11 Cases under the Bankruptcy Code. The Debtors believe that this prepetition solicitation
will significantly simplify, shorten, and reduce the cost of the administration of, and minimize
disputes during, the Chapter 11 Cases and will minimize the disruption of their businesses that
could result from traditional bankruptcy cases.
As part of the proposed restructuring, certain affiliates of the Sponsors are acquiring the
Company. The Debtors will use the equity investment by the Purchasers and the exit financing (as
described in detail in Section IV.F. below), in part, to fund distributions to creditors. The
Purchasers have joined with the Debtors as proponents of the Plan.
The purpose of the Disclosure Statement is to provide sufficient information to enable
creditors who are entitled to vote to make an informed decision on whether to accept or reject the
Plan. The Disclosure Statement describes how creditors will be treated under the Plan, describes
the sale of each of the Debtors (other than Holdco) to the Purchasers, and sets forth certain
detailed information about the Debtors history and future prospects. The Disclosure Statement
also describes voting procedures, the terms of the Plan, alternatives to the Plan, the effects of
confirmation of the Plan, and the manner in which distributions will be made. The summaries of the
Plan and other documents related to the restructuring are qualified in their entirety by the Plan,
its exhibits, and the documents and exhibits contained in the appendix to be filed with the
Bankruptcy Court in a supplement to the Plan. Such appendix will be filed with the Bankruptcy
Court within five business days prior to the hearing to confirm the Plan.
Additional information about Holdco and its affiliates can be found by visiting the website of
the SEC at http://www.sec.gov and performing a search under the Filings & Forms (EDGAR) link.
A. Voting Deadline and Record Date
This Disclosure Statement and the attached Plan are the only materials creditors should use to
determine whether to vote to accept or reject the Plan. The Voting Record Date and the Voting
Deadline are as follows:
|
|
|
|
|
|
|
Voting Record Date
|
|
October 6, 2009 |
|
|
|
|
|
|
|
Voting Deadline
|
|
November 12, 2009 |
B. Current Ownership Structure
The current ownership structure of the Debtors is set forth on Exhibit I attached hereto.
1
C. Current Capital Structure
The current capital structure of the Debtors is set forth in the following table:
|
|
|
|
|
|
|
|
|
|
|
Outstanding |
|
|
|
|
|
(projected as of |
|
Debtors |
|
Material Debt Obligations |
|
Nov 15, 2009) |
|
Simmons Company (Holdco) |
|
- Holdco Note Claims |
|
$ |
267,007,367 |
|
(Holding
company owns Bedding
Holdco) |
|
- Guaranty of the SBC Note Claims |
|
|
|
|
|
|
|
|
|
|
|
Bedding Holdco Incorporated |
|
- Guaranty of the SBC Credit |
|
see below |
|
(Bedding Holdco) |
|
Agreement
Claims |
|
|
|
|
(Holding
company
owns SBC) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons Bedding Company (SBC) |
|
- SBC Credit Agreement Claims |
|
$ |
542,281,142 |
|
(Principal
operating
company and
owner of all
operating
subsidiaries)
|
|
- SBC Note Claims |
|
$ |
221,767,758 |
|
|
|
|
|
|
|
|
Domestic Subsidiaries of Simmons Bedding Company |
|
-
Guaranties of the SBC Credit Agreement Claims and the SBC Note Claims
(by all domestic subsidiaries) |
|
|
see above |
|
In addition to the debt obligations described above, SBC and its domestic subsidiaries have
approximately $56.7 million of trade obligations projected to be outstanding assuming the Petition
Date is November 15, 2009 and SBC has approximately $13.4 million of industrial revenue bond
secured obligations and foreign debt. Holdco is owned by Bedding Superholdco Incorporated, which
in turn is owned 72% by Thomas H. Lee Equity Fund V, L.P. and its affiliates (together,
THL), 9% by Fenway Partners Capital Fund II, L.P. and its affiliates, and 19% by certain
management and directors of SBC. Bedding Superholdco Incorporated, which has its own creditors, is
not part of the Chapter 11 Cases.
D. Initial Negotiations with Creditors
Discussions with SBCs secured creditors began in November 2008, when an event of default
based on a breach of the maximum leverage ratio financial covenant arose under the SBC Credit
Agreement. Negotiations for an amendment of that agreement were unsuccessful and SBC decided to
pursue a long-term restructuring of its financial obligations. In connection with the amendment
process, SBC retained Miller Buckfire & Co., LLC (Miller Buckfire) to advise on all
strategic alternatives available. Due to the severe economic downturn in the Fall of 2008 and the
Debtors highly leveraged capital structure, Miller Buckfire recommended conducting a new money
investment/sale process for the Company while exploring standalone restructuring possibilities.
Discussions with certain holders of the SBC Notes began shortly thereafter. SBC has been in
payment default of the SBC Notes since February, 2009. Commencing in November 2008, holders of the
SBC Credit Agreement Claims entered into a forbearance agreement with SBC. That forbearance has
been extended several times and currently extends through November 16, 2009. In anticipation of
the payment default under the SBC Notes in February, 2009, the holders of the SBC Note Claims have
granted similar forbearance terms and extensions to the Debtors since February, 2009.
2
E. The Special Committee
In January 2009, the board of directors of each of Holdco, Bedding Holdco and SBC formed a
special committee of their respective boards to oversee the restructuring and new money
investment/sale process. The Special Committee was
formed because the boards recognized that certain of their members were affiliated with
parties that may be interested in bidding to purchase some or all of the Company. The Special
Committee consists of B. Joseph Messner and William P. Carmichael, both of whom are independent and
disinterested members of the board of directors of each of Holdco, Bedding Holdco and SBC. In
carrying out its responsibilities of evaluating and overseeing proposals for restructuring the
Debtors debt or for a potential new money investment/sale, the Special Committee was advised by
(i) Miller Buckfire, (ii) Weil, Gotshal & Manges LLP (Weil Gotshal), the Debtors
corporate and restructuring counsel, and (iii) its own separate counsel, Morris James LLP. A
detailed discussion of the Special Committee can be found in Section IV.A., below.
F. The New Money Investment/Sale Process and Restructuring Negotiations
The new money investment/sale process took place from January to August 2009, and involved
contacting over seventy-five potential strategic and financial buyers, including THL. Over
fourteen potential bidders submitted proposals or expressions of interest in purchasing or
investing in the Company. During the sale process, certain holders of the Holdco Notes and the SBC
Notes and their respective legal counsel and the financial advisors to the holders of SBC Notes
joined in the restructuring negotiations. Under the direction of the Special Committee, the
Debtors advisors conducted extensive discussions with the largest holders from its three creditor
groups to determine whether a standalone restructuring or a sale would provide the highest value.
By early August 2009, the Special Committee, having considered the views of the Debtors major
creditors and in reliance in part upon the advice of its advisors, determined that the Purchasers
had submitted the best bid to maximize the value of the Company. On August 13, 2009, Bedding
Holdco and the Purchasers entered into an exclusivity agreement in which Bedding Holdco agreed to
final, exclusive negotiations with the Purchasers to determine whether the bid submitted, and
relevant documentation, would be acceptable to the Debtors and their creditors. During this
exclusivity period, the Special Committee continued to explore the potential for a standalone
restructuring. After consultation with major creditors, the Special Committee decided to recommend
to the boards of directors of each of Holdco, Bedding Holdco, and SBC a restructuring based on a
sale to the Purchasers. The boards of directors of each of Holdco, Bedding Holdco, and SBC
approved the transaction on September 22, 2009 subject to appropriate documentation, and the
Debtors and the Purchasers entered into the Plan Sponsor Agreement on September 24, 2009. The
Company values the transaction at $758 million. As of the Record Date, holders of 75.4% of the SBC
Notes and 72.6% of the Holdco Notes had agreed to support the proposed sale and restructuring. The
sale to the Purchasers and restructuring will take place in Debtors prepackaged Chapter 11 Cases.
A description of creditor recoveries appears in Section G, below. Details about the new money
investment/sale process, the Purchasers, the terms of the Plan Sponsor Agreement, and the agreement
under which creditors support the sale and restructuring can be found in Sections IV and V, below.
3
G. Summary of Anticipated Distributions Under the Plan
As required by the Bankruptcy Code, the Plan separately classifies the claims of creditors and
the equity interests of shareholders. Under the Plan, the Debtors will pay all allowed
administrative and priority claims in full. Claims under The Simmons Manufacturing Co., LLCs (a
Debtor under the Plan) industrial revenue bonds and miscellaneous secured claims will be reinstated
or paid in full. The following chart describes the treatment for the remaining classes.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recovery |
|
|
|
|
|
|
(assuming Petition |
|
|
|
|
|
|
Date of November |
Class |
|
Designation |
|
Treatment |
|
15, 2009) |
4A 4I
|
|
SBC Credit
Agreement Claims
|
|
Paid in full in cash
|
|
100.0% |
|
5A 5H
|
|
SBC Note Claims
|
|
$185 million $190 million in cash
|
|
83.4% 85.7%1
|
6
|
|
Holdco Note Claims
|
|
$10 million $15 million in cash,
which Eligible Investors may apply
to purchase Class A Units
|
|
3.7% 5.6%2
(potentially higher,
depending on level of
expenses and return on
investment in Class A
Units)
|
7A 7H
|
|
General Unsecured
Claims (including
vendors and all
trade)
|
|
Paid in full in cash in accordance
with existing terms
|
|
100.0% |
|
8
|
|
Equity Interests in
SBC
|
|
Canceled
|
|
0% |
|
9
|
|
Equity Interests in
Bedding Holdco
|
|
$10 million $15 million (for
distribution to Class 6 only)
|
|
NA
|
10
|
|
Equity Interests in
Holdco
|
|
Canceled
|
|
0% |
|
More details concerning creditor distributions can be found in Section II, below. As
described below, on completion of the proposed sale and restructuring, the Purchasers will own both
Reorganized Bedding Holdco and AOT. In order for the holders of the Holdco Notes to assess whether
to invest the cash they will receive under the Plan in Class A Units, the Disclosure Statement
includes certain financial information for both the Reorganized Debtors and Serta Holdings.
Holders of Holdco Notes should refer to Section II.F., below.
Eligible Investors who are holders of allowed Holdco Note Claims may elect to use the cash
they otherwise would receive pursuant to the Plan to acquire Class A Units in New Parent. The
offer of Class A Units is made pursuant to an exemption from the
registration requirements of the Securities Act. The Class A Units are illiquid securities in
a private company and subject to significant risks, including those
described under SECTION XII
CERTAIN FACTORS TO BE CONSIDERED.
|
|
|
1 |
|
Final recovery is based on the amount of restructuring
expenses incurred by the Debtors, and the distribution to such Classes of the
$190 million will be reduced by the lesser of one-third of the amount of
restructuring expenses exceeding $42,125,500 or $5 million. See Section II.E.
SBC Note Claims (Class 5A 5H). |
|
2 |
|
Final recovery is based on the amount of restructuring
expenses incurred by the Debtors, and the distribution to such Classes of the
$15 million will be reduced by the lesser of one-third of the amount of
restructuring expenses exceeding $42,125,500 or $5 million. In addition, in
the event that the restructuring expenses are less than $37,125,000, such
excess will be paid to the holders of the Holdco Notes in cash. See Section
II.F. Holdco Note Claims (Class 6). |
4
H. Financing for the Plan
Under the Plan, secured creditors, unsecured trade creditors, and administrative and priority
creditors are being paid in full or reinstated. In addition, holders of the SBC Notes and the
Holdco Notes are receiving cash recoveries. The Debtors are financing those payments from an
equity investment by the Purchasers of approximately $310 million (some portion of which may be
funded by certain holders of the Holdco Notes in accordance with the terms of that certain equity
commitment letter dated as of September 24, 2009), and the proceeds of the issuance of $425 million
senior secured term notes. Certain holders of the SBC Notes, Holdco Notes and SBC Credit Agreement
Claims, as well as an affiliate of one of the Purchasers, have committed to purchase such senior
secured term notes. The terms and conditions of the senior secured term notes offering are set
forth in the Commitment Letter, dated as of September 24, 2009, among Intermediate Holdings and the
commitment parties set forth on Exhibit A thereto (the Commitment Parties), which is
attached hereto as Exhibit J (the Debt Commitment Letter). Wells Fargo Foothill, LLC, as
agent (the ABL Lender), is committed to provide a new $75 million asset-based revolving
credit facility (the New ABL Facility). The terms and conditions of the New ABL Facility
are set forth in the Commitment Letter, dated as of October 8, 2009, between Intermediate Holdings
and the ABL Lender, which is attached hereto as Exhibit K (the ABL Commitment Letter).
Details regarding the exit financing appear in Section IV.F., below.
I. Reasons for the Solicitation; Recommendation
The Debtors anticipate that by conducting the solicitation in advance of commencing the
Chapter 11 Cases, the duration of the bankruptcy will be significantly shortened and the
administration of the cases, which otherwise can be lengthy, complex, and extremely expensive, will
be significantly shortened, greatly simplified, and much less costly.
The Debtors believe that the Plan represents the best recovery available for creditors. It
reached that conclusion after an analysis of the financial prospects for the Debtors, the results
of the new money investment/sale process conducted by the Special Committee and the Debtors
advisors, extensive negotiations with the creditor constituencies, and a review of available
alternatives. Based on these factors, the board of directors of each of Holdco, Bedding Holdco and
SBC believe that the Plan is in the best interests of the Debtors and the holders of SBC Credit
Agreement Claims, SBC Note Claims and Holdco Note Claims, and strongly recommends those holders to
vote to accept the Plan.
J. Summary of Voting Procedures
The Disclosure Statement and related materials are being furnished prior to the commencement
of the Chapter 11 Cases to (i) holders of SBC Credit Agreement Claims whose names (or the names of
whose nominees) appear as of the Voting Record Date in the Register (as defined in the SBC Credit
Agreement) maintained by the SBC Credit Agreement agent and in the records maintained by the
Debtors; (ii) holders of SBC Note Claims whose names (or the names of whose nominees) appear as of
the Voting Record Date in the holder list preserved by Wells Fargo Bank Minnesota, National
Association, as trustee under the indenture governing the SBC Notes, the list of participants (as
defined in the indenture governing the SBC Notes) provided by The Depository Trust Company
(DTC) and in the records maintained by SBC; (iii) holders of Holdco Note Claims whose
names (or the names of whose nominees) appear as of the Voting Record Date in the holder list
preserved by Wilmington Trust Company, as trustee under the indenture governing the Holdco Notes,
the list of participants (as defined in the indenture governing the Holdco Notes) provided by DTC
and in the records maintained by Holdco; and (iv) holders of equity interests in Bedding Holdco.
IF SUCH NOMINEES OF THE HOLDERS OF ELIGIBLE CLAIMS DO NOT HOLD FOR THEIR OWN ACCOUNT, THEY SHOULD
PROVIDE COPIES OF THE SOLICITATION PACKAGE TO THE BENEFICIAL OWNERS OF THE ELIGIBLE CLAIMS.
5
All votes to accept or reject the Plan must be cast by using the ballot enclosed with this
Disclosure Statement or, in the case of a nominee, the master ballot provided to such nominee (or
manually executed facsimiles thereof). No other votes will be counted. Consistent with the
provisions of Rule 3018 of the Bankruptcy Rules, the Debtors have fixed October 6, 2009 as the
Voting Record Date for the determination of holders of record of claims entitled to vote to accept
or reject the Plan. Ballots must be received by the Solicitation Agent no later than the Voting
Deadline, which is currently set at 5:00 p.m., Eastern time, on November 12, 2009. Except to the
extent requested by the Debtors or as permitted by the Bankruptcy Court pursuant to Rule 3018 of
the Bankruptcy Rules, ballots received after the Voting Deadline will not be counted or otherwise
used in connection with the Debtors request for confirmation of the Plan (or any permitted
modification thereof). Subject to the terms and conditions of the Restructuring Support Agreement,
the Debtors reserve the right to use acceptances of the Plan received in the solicitation to seek
confirmation of the Plan under any other circumstances, including in one or more non-prepackaged
chapter 11 cases filed by the Debtors. In addition, the Debtors expressly reserve the right to
extend the Voting Deadline, by oral or written notice to the Solicitation Agent, until the
necessary ballots have been received.
Subject to the terms and conditions of the Plan Sponsor Agreement, the Restructuring Support
Agreement and the Plan, the Debtors reserve the right to amend the Plan either before or after the
Petition Date. Subject to the terms and conditions of the Plan Sponsor Agreement, the
Restructuring Support Agreement and the Plan, amendments to the Plan that do not materially and
adversely affect the treatment of claims may be approved by the Bankruptcy Court at the
confirmation hearing without the necessity of resoliciting votes. In the event resolicitation is
required, the Debtors will furnish new ballots to be used to vote to accept or reject the Plan, as
amended.
II. TREATMENT OF CLAIMS AND EQUITY INTERESTS UNDER THE PLAN
A. Other Priority Claims (Class 1)
The claims in Class 1 relate primarily to prepetition wages and employee benefit plan
contributions unpaid as of the Petition Date. The Debtors estimate the claims in this class total
approximately $17.7 million. The Class 1 claims that have not been paid as of the Effective Date
will be paid in full in cash unless they agree with the Debtors to a lesser recovery.
B. IRB Claims (Class 2)
The claims in Class 2 consist of the claims arising under the Companys industrial revenue
bonds related to projects in Shawnee Mission, Kansas and Janesville, Wisconsin. The claims in this
class total $12.5 million. The IRB Claims will be reinstated on the Effective Date.
C. Other Secured Claims (Class 3)
The claims in Class 3 include the claims of miscellaneous creditors secured under equipment
leases, mechanics and tax liens, and liens of landlords. The claims in Class 3 will either be
reinstated or paid in full on the Effective Date. If not reinstated, holders of Class 3 claims
will either be paid in full in cash on the Effective Date, or will receive proceeds from the sale
of the collateral securing their claims or the actual collateral securing the claims.
6
D. SBC Credit Agreement Claims (Class 4A 4I)
Classes 4A 4I consist of SBC Credit Agreement Claims. The claims in Class 4A-4I are allowed
in the amount of $542,281,142. The SBC Credit Agreement Claims are the largest claims against the
Debtors. This class consists of the following prepetition claims assuming a Petition Date of
November 15, 2009:
|
|
|
|
|
Instrument |
|
Amount |
|
Revolver |
|
$ |
64,532,384 |
|
Tranche D Term Loan |
|
$ |
465,000,000 |
|
Letters of Credit |
|
$ |
10,277,327 |
|
Subtotal |
|
$ |
539,809,711 |
|
Prepetition Interest |
|
$ |
2,471,431 |
|
Total Prepetition claims |
|
$ |
542,281,142 |
|
Under the Plan, holders of SBC Credit Agreement Claims will be paid in full in cash, provided
that, in the event any of the SBC Credit Agreement Claims arise from an outstanding letter of
credit, such letter of credit will be replaced with a new letter of credit under the DIP Facility
or the New ABL Facility. To the extent that any letters of credit issued and outstanding under the
SBC Credit Agreement are replaced by a new letter of credit under either the DIP Facility or the
New ABL Facility, the amount of the SBC Credit Agreement Claims shall be reduced by the face amount
of any replaced letters of credit and the amount of the DIP Facility claims or the amount
outstanding under the New ABL Facility on the Effective Date, as applicable, shall be increased by
the face amount of any new letters of credit issued in connection with any such replacement. The
New ABL Facility is described in further detail in Section IV.F.2 below.
E. SBC Note Claims (Class 5A 5H)
Classes 5A 5H consist of SBC Note Claims. For purposes of the Plan, the allowed claims in
Class 5A-5H total $221,767,758. This amount includes the outstanding principal amount of the SBC
Notes, plus interest accruing through an assumed Petition Date of November 15, 2009. The claims in
Class 5 are subordinate to the SBC Credit Agreement Claims in Class 4. Under the Plan, each holder
of an allowed SBC Note Claim will receive its pro rata share of between $185 million and $190
million in cash, depending on the amount of restructuring expenses incurred by the Debtors. The
Company currently estimates that those expenses will be approximately $38 million. In that event,
holders of claims in these Classes will receive their pro rata share of $190 million. However, if
those expenses exceed $42,125,000, one-third of that excess (up to a maximum of $5 million) will
reduce the cash distribution.
F. Holdco Claims (Class 6)
Class 6 consists of all claims against Holdco arising under the Holdco Notes and claims
against Holdco arising from Holdcos guaranty of the SBC Notes. For purposes of the Plan, the
allowed claims in Class 6 total $298,775,125, which represents $267,007,367 of principal and
interest accrued on the Holdco Notes and the aggregate amount of claims remaining unpaid on the SBC
Notes, after giving effect to the treatment of Class 5 and assuming a November 15, 2009 Petition
Date. Due to the fact that such guaranty claims are subordinate to the Holdco Notes, the entire
distribution to Class 6 will be made to the holders of the Holdco Notes.
Under the Plan, each holder of an allowed Holdco Note Claim will receive its pro rata share of
between $10 million and $15 million in cash, depending on the amount of restructuring expenses
incurred by the Debtors. The Company currently estimates that those expenses will be approximately
$38 million. In that event, holders of claims in this Class will receive their pro rata share of
$15 million. However, if those expenses exceed $42,125,000, one-third of that excess (up to a
maximum of $5 million) will reduce the cash distribution. In addition, in the event that the
restructuring expenses are less than $37,125,000, such excess (the Excess Class 6
Distribution) will be paid to the holders of the Holdco Notes in cash.
7
As discussed in Section IV.C., below, New Parent will be the parent company of the Reorganized
Debtors and Serta Holdings after giving effect to the Plan. Subject to the limitations described
below, each Eligible Investor holding allowed Holdco Note Claims will be entitled to elect to use
all of the cash it will otherwise receive as a holder of a Claim in Class 6 (other than Excess
Class 6 Distributions) to purchase Class A Units. Approximately 6.9% of the initial amount of
Class A Units will be made available for this purpose.
New Parent intends to operate as a private company not subject to the registration
requirements of the Securities and Exchange Act of 1934, as amended (the Exchange Act).
Accordingly, the limited liability company agreement for New Parent provides that there may not be
more than 400 holders of record of equity interests in New Parent at any time for purposes of
section 12(g)(1) of the Exchange Act. In order to comply with this provision of the limited
liability company agreement, the number of record holders who may elect to take Class A Units under
the Plan has been limited. The Company does not believe that the number of record holders of
Holdco Notes approaches 400, but it does not have exact information at this time. In the unlikely
event that there are over 400 Eligible Investors who elect to take Class A Units, only the Eligible
Investors holding the 400 largest amounts of allowed Holdco Note Claims will receive Class A Units.
The remaining holders will, of course, receive their pro rata portion of the cash described above.
A description of the Class A Units is provided in Exhibit E. The Class A Units are an
illiquid, unlisted investment in a private company that will not file reports with the SEC and will
not provide investors with protections commonly available for equity investments in other
companies. See SECTION XII CERTAIN FACTORS TO BE CONSIDERED for a discussion of some of the
risks that should be considered with respect to the Class A Units. All Eligible Investors are
urged to review Exhibit E and SECTION XII CERTAIN FACTORS TO BE CONSIDERED, and to seek their
own investment and tax advice, prior to making any election to purchase Class A Units.
8
G. General Unsecured Claims (Class 7A 7H)
The claims in Classes 7A 7H consist of the claims of suppliers and other vendors, landlords
with prepetition rent claims, litigation claimants to the extent not covered by insurance, parties
to contracts with the Debtors, and other general unsecured claims. For completeness, these classes
also include claims covered by insurance in whole or in part maintained by the Debtors. However,
such claims will be entitled to share in the treatment of this class only to the extent they are
not covered by such insurance. The Debtors estimate that the Class 7 claims total $56.7 million
assuming a November 15, 2009 Petition Date. The following table lists the types of claims and the
estimated amount in these groups to the extent material:
|
|
|
|
|
Type of Claim |
|
Amount |
Accounts Payable |
|
$ |
18.4 million |
Sales incentive claims |
|
$ |
26.7 million |
Royalty claims |
|
$ |
0.2 million |
THL Managers V, LLC Management Fee |
|
$ |
1.9 million |
Warranty claims |
|
$ |
0.7 million |
Freight |
|
$ |
2.5 million |
Other (including, without limitation, credit balances in accounts receivable) |
|
$ |
6.3 million |
Total |
|
$ |
56.7 million |
The holders of the Class 7 claims will be paid in full after the Effective Date on customary
payment terms consistent with past practice, unless any such holder and the Reorganized Debtors
agree to some other treatment.
Based on the information now available to them, the Debtors believe that all Class 7 claims
(other than de minimis claims) are claims against SBC and its Debtor subsidiaries, and not claims
against Bedding Holdco or Holdco.
H. Equity Interests in SBC (Class 8)
This class consists of the currently outstanding 3,000 shares of SBC common stock, $0.01 par
value. All of such issued and outstanding shares are currently held by Bedding Holdco. Bedding
Holdco will receive no property under the Plan and the equity interests in SBC will be cancelled as
of the Effective Date.
I. Equity Interests in Bedding Holdco (Class 9)
Class 9 consists of the outstanding 3,000 shares of common stock of Bedding Holdco, $0.01 par
value, currently held by Holdco. The equity interests in Bedding Holdco will be cancelled as of
the Effective Date. Solely for purposes of making distributions to Class 6, Holdco will receive
the cash distribution described in Section II.F., above.
J. Equity Interests in Holdco (Class 10)
Class 10 consists of the outstanding 3,000 shares of common stock of Holdco, $0.01 par value,
currently held by Bedding Superholdco Incorporated. Bedding Superholdco Incorporated will receive
no property under the Plan and the equity interests in Holdco will be cancelled as of the Effective
Date.
III. GENERAL INFORMATION REGARDING THE DEBTORS
The Debtors are one of the worlds largest manufacturers and marketers of bedding products.
Together with their non-debtor foreign affiliates, the Debtors operate 21 bedding manufacturing
facilities across the U.S., Canada, and Puerto Rico. Since 1876, the Debtors or their predecessors
have been developing innovative products and technologies that provide users of their products a
better nights sleep. The Debtors headquarters are located in Atlanta, Georgia.
9
The Debtors manufacture, sell and distribute their bedding products to individual end-users
through a diverse base of over 2,100 retailers in the U.S. with approximately 13,500 store
locations, including furniture stores, specialty sleep shops, department stores, furniture rental
stores, mass merchandisers and juvenile specialty stores. The Debtors also sell their products to
hospitality customers, such as hotels, casinos and resort properties through Simmons Contract
Sales, LLC, a Debtor under the Plan, and sell overstock and discontinued models through retail
outlets operated by World of Sleep Outlets, LLC, a Debtor under the Plan. Additionally, the
Debtors license their intellectual property through Dreamwell, Ltd., a Debtor under the Plan, to
both international companies that manufacture and sell Simmons branded bedding products throughout
the world and to North American manufacturers and distributors of bedding accessories, furniture,
airbeds, and other products.
Additional information concerning the Debtors and their financial condition and results of
operations, on a consolidated basis, is set forth in Holdcos recent periodic filings with the SEC
attached hereto as Exhibits B-1 and B-2. The current ownership structure of the Debtors is set
forth on Exhibit I attached hereto.
IV. EVENTS LEADING TO THE CHAPTER 11 CASES
The Debtors have experienced and continue to experience financial difficulties due primarily
to the downturn in the North American economy since the second half of 2007 and its significant
impact on the housing sector, consumer confidence and consumer financing, as well as the
significant increase in raw material costs and diesel fuel costs during 2008. The impact of the
economy on bedding purchases accelerated late in the third quarter of 2008. In the fourth quarter
of 2008 International Sleep Products Association (ISPA)s Bedding Barometer sample of leading
mattress manufacturers reported sales dollar declines of approximately 22%, 29% and 17% in October,
November and December 2008, respectively. For all of 2008, ISPA reported a sales dollar decline of
9.1% and through August 2009, ISPAs Barometer reported a sales dollar decline of 14.7%. The sales
declines in 2008 and 2009 were unprecedented in the industry. For the 33 years between 1974, when
ISPA began keeping bedding industry statistics, and 2007 there were only 2 years when ISPA reported
a sales dollar decline, the worst year being a decline of 1.9% in 1982.
In response to declining consumer demand, in June of 2008, SBC announced a salaried workforce
reduction of approximately 8% through voluntary and involuntary terminations which was completed
in the third quarter of 2008. A second reduction in salaried workforce of approximately 20%
occurred in November 2008. In addition, due to slowing demand, SBC announced plans to consolidate
its southeastern manufacturing operations into its new state of the art facility in Waycross,
Georgia, as well as facilities in Dallas, Texas and Charlotte, North Carolina. Further, following
a work stoppage in Bramalea, Ontario, Canada, Simmons Canada, Inc. closed the facility in September
2008.
For the fiscal quarter ended September 27, 2008, the Companys domestic net sales were down
14.8% compared to the same period of 2007. This decline in sales, along with significant increases
in raw material costs and the chapter 11 filing of a major customer, in combination with the
Companys highly leveraged capital structure, resulted in a breach of the maximum leverage ratio
covenant in the SBC Credit Agreement, which ripened into an event of default on November 12, 2008.
In October 2008, upon becoming aware of a likely upcoming covenant default, SBC commenced
discussions with a committee of the holders of the SBC Credit Agreement Claims regarding a possible
amendment to the SBC Credit Agreement pursuant to which the senior lenders would agree, in effect,
to waive the covenant default in exchange for certain concessions from SBC. On November 12, 2008,
to facilitate the ongoing amendment negotiations, SBC and the holders of the SBC Credit Agreement
Claims entered into a forbearance agreement that prohibited the senior lenders from exercising
their respective rights and remedies against SBC until November 26, 2008, and, subject to certain
conditions (which the Company subsequently satisfied), December 10, 2008.
10
When SBC and the senior lenders failed to reach agreement on the terms of an amendment to the
SBC Credit Agreement, the Company initiated a comprehensive review of its various strategic
alternatives, including a wholesale restructuring of its capital structure, and expanded the scope
of the engagements of each of Weil Gotshal and Miller Buckfire in connection therewith. On
December 9, 2008, the Company publicly announced that it had commenced negotiations with its
creditor constituencies to achieve an organized financial restructuring and, a day later, entered
into a second forbearance agreement that required the senior lenders to continue to forbear from
exercising their rights and remedies against the Debtors until March 31, 2009. Following the
execution of the second forbearance agreement, the Company began to explore various means of
maximizing value for its stakeholders, and Miller Buckfire began soliciting proposals from
prospective purchasers and investors in the Company. Concurrently, Miller Buckfire solicited
interest from various lending institutions in connection with providing debt financing to
prospective purchasers of the Company. The prospective purchasers and lenders conducted
preliminary due diligence on the Company in January and February of 2009.
On January 15, 2009, in spite of its strong cash position, SBC did not make a regular
scheduled interest payment on the SBC Notes because such payment would have triggered the
termination of SBCs forbearance agreement with its senior lenders. Accordingly, the Debtors
entered into a forbearance agreement with holders of a majority in aggregate principal amount of
the then outstanding SBC Notes pursuant to which such holders agreed to an initial period of
forbearance ending on March 31, 2009.
In accordance with the terms of the forbearance agreements, SBC has provided regular updates
to its forbearing creditor constituencies regarding the financial performance of the Debtors and
the status of the restructuring process, including by (i) facilitating bi-weekly meetings between
its senior management team and advisors, on one hand, and representatives of each of the senior
lenders and certain holders of the SBC Notes, on the other hand, to discuss the ongoing financial
performance, operations and liquidity of the Company, (ii) delivering rolling 13-week cash flow
forecasts to representatives of the forbearing creditors and (iii) facilitating frequent meetings
between the Debtors advisors and representatives of the senior lenders and holders of the SBC
Notes to discuss the status of each material restructuring proposal.
To continue the Debtors ongoing discussions with its various creditor constituencies and
solicit their support for the Plan, the parties to each of the forbearance agreements have amended
those documents on seven occasions to extend the forbearance periods thereunder, the most recent of
which extended the forbearance period until November 16, 2009.
In addition to the defaults described above, in April, 2009, Holdco received a notice of
default from the trustee under the indenture governing the Holdco Notes relating to its failure to
file a 10-Q for the third quarter of 2008 or a 10-K for the fiscal year 2008. Holdco cured the
indenture default prior to the expiration of the sixty day cure period.
A. The Special Committee
Due to the fact that certain of the members of the boards of directors of each of Holdco,
Bedding Holdco and SBC were affiliated with potential bidders to be approached by Miller Buckfire,
each of the boards of directors of Holdco, Bedding Holdco, and SBC formed a Special Committee to
oversee the sale process, evaluate and negotiate proposals for the restructuring of the Debtors
debt or a potential sale of the Company and to take all other actions it deemed necessary to
maximize the value of the Company. On January 23, 2009, the board of directors of each of Holdco,
Bedding Holdco and SBC appointed William P. Carmichael and B. Joseph Messner to the Special
Committee. Specifically, the Special Committee had the responsibility to evaluate all
restructuring proposals developed by the Debtors, their advisors or their creditors. The Special
Committee retained Morris James LLP to advise on corporate governance matters and to assist the
committee in evaluating the potential restructuring proposals.
As part of its duties, the Special Committee could, among other things, reject any proposal,
propose changes to a proposal or discuss alternative transactions with a bidder or creditor, engage
in negotiations with respect to any proposal, or recommend that the boards of directors of each of
Holdco, Bedding Holdco and SBC accept a proposal. As their first order of business, the Special
Committee approved a restructuring framework proposal which was prepared by Miller Buckfire and
delivered to the SBC Credit Agreement Agent, as required under the terms of the forbearance
agreements.
11
The Special Committee held frequent meetings throughout the duration of the sale process. The
Debtors advisors were present at those meetings to provide updates on the status of the
restructuring process and to receive direction from the Special Committee. In addition, the
Special Committee met on occasion with management of the Debtors and with the Debtors advisors and
separately with its own counsel.
B. The New Money Investment/Sale Process
In December, 2008, and early January, 2009, Miller Buckfire identified over 75 potential
strategic and financial buyers for the Company. On or about January 5, 2009, Miller Buckfire began
contacting those parties to determine their interest in investing in or purchasing the Company.
Thirty-four parties executed confidentiality agreements and were given access to confidential and
proprietary information regarding the Company for the purposes of evaluating a potential
transaction. Potential strategic and financial investors were invited to submit non-binding bids
by January 29, 2009. Miller Buckfire requested that such preliminary proposals address certain
pertinent information, such as the proposed structure of the transaction, the proposed valuation of
the Debtors, and the bidders proposed financing plans. Miller Buckfire received fourteen
preliminary indications of interest from both strategic and financial bidders. Based on the
content of the bids and in consultation with the Special Committee, the Company invited nine
bidders to continue in the process. During early February 2009, the Company held initial
management presentations in Atlanta, Georgia. Bidders were also provided additional confidential
and proprietary information necessary for them to evaluate the potential transaction.
Given the capital market conditions that existed when the new money investment/sales process
began, the Company and Miller Buckfire also contacted fifteen traditional and alternative lending
sources to determine the debt capital available to facilitate bidders proposals. Potential
lenders were asked to submit proposals in advance of the bidders first round deadline, which were
then summarized and provided to the bidders as a baseline for their individual proposals.
On February 22, 2009, Miller Buckfire invited the bidders chosen after the first round to
provide a second round offer by providing a definitive mark-up of a form plan sponsor agreement and
plan term sheet by March 6, 2009. Miller Buckfire received seven second-round bids, including one
from THL, in partnership with another private equity firm. Based on all the bids received, the
Special Committee, in reliance in part on the advice of its advisors, determined that the
Purchasers bid provided the highest value and was the best offer for the Company. The Purchasers
were then invited to complete their business and legal diligence and provide a third round
proposal. While the Purchasers were conducting their diligence, the Company and Miller Buckfire
continued discussions with other bidders, including one other strategic bidder. After submitting a
third round proposal, the Purchasers and the Company began negotiating the Plan Sponsor Agreement
and Plan term sheet. On April 20 and April 21 and as required by the forbearance agreements in
effect at that time, the Purchasers presented their bid to the holders of the SBC Credit Agreement
Claims and certain holders of the SBC Notes, respectively. In considering the Purchasers bid at
that time, the Special Committee received and evaluated the views of the largest holders of the SBC
Notes and the holders of claims under the SBC Credit Agreement. In late April, given the Companys
strong first quarter financial performance, Miller Buckfire provided a Q1 2009 business update to
all second round bidders and solicited revised proposals.
Prompted by general improvements in the debt capital markets, specifically the increase in new
issuances to non-investment grade companies, as well as the continued strong financial performance
of the Company, the Special Committee directed Miller Buckfire to re-contact the entities that
submitted second-round bids and other potentially interested parties and assess their interest in
submitting revised or new proposals, respectively. Accordingly, while the Purchasers and the
Company continued to negotiate the Plan Sponsor Agreement, the Company received revised proposals
from three second-round bidders, including the Purchasers, a first proposal from a new bidder, and
proposals from certain holders of the SBC Notes and certain holders of the Holdco Notes. Each
bidder conducted extensive business and legal due diligence, including quality of earnings
analyses, and was given access to senior- and mid-level management at the Company. Concurrently,
the Company continued to work with potential debt capital providers on various debt proposals and
authorized the bidders to seek debt financing from debt capital providers who were not in
discussions with the Company.
12
After additional deliberation, the Special Committee directed its advisors to ask two bidders,
one of which was the Purchasers, to finalize all outstanding diligence and provide updated
proposals. During this time, the Company, in conjunction with its major creditors, negotiated
various aspects of each bidders proposal including valuation, treatment of creditors, and the Plan
Sponsor Agreement terms and conditions.
The Purchasers submitted their final bid on August 10, 2009, along with a request for a
three-week exclusivity period to finalize the Plan Sponsor Agreement. The Special Committee
determined that the Purchasers had submitted the highest and best bid for the Company.
Accordingly, an exclusivity agreement between Bedding Holdco and the Purchasers was executed on
August 14, 2009, and was subsequently amended such that the exclusivity period was extended through
September 30, 2009.
The terms and conditions of the Purchasers agreement to purchase the Company, reflected in
the Plan Sponsor Agreement, are the result of hundreds of hours of discussions between the
Purchasers and the Debtors over a period of over six months, involving multiple rounds of
competitive bidding for the Company, numerous meetings, and dozens of drafts of the Plan Sponsor
Agreement leading to the final negotiated transaction reflected in the Plan.
Throughout the new money investment/sale process, the Company and its advisors maintained an
open dialogue with key lenders under the SBC Credit Agreement and holders of SBC Notes and
commencing in July 2009 with certain holders of Holdco Notes regarding standalone restructuring
alternatives. The Company was required to deliver a standalone restructuring proposal approved by
the Companys boards of directors to its senior lenders in accordance with its December 10, 2008
forbearance agreement. Such proposal was delivered to the senior lenders and holders of SBC Notes
on January 23, 2009. In addition, certain significant holders of SBC Notes and Holdco Notes both
independently and jointly provided standalone restructuring proposals to the Company with the last
of such proposals provided in August 2009. After considering all available alternatives, key
holders of the SBC Notes and Holdco Notes advised the Company that the Purchasers proposal was
superior to standalone restructuring alternatives.
The new money investment/sales process required a significant time commitment from the
Company, especially senior management, and its advisors including: (i) the creation of an extensive
data room containing thousands of documents, (ii) over 20 management presentations to both debt and
equity providers and (iii) hundreds of hours spent with bidders to facilitate business diligence
and their evaluation of the proposed transaction.
A detailed description of the valuation is set forth in SECTION X.D. FEASIBILITY OF THE
PLAN AND THE BEST INTERESTS TEST VALUATION OF THE REORGANIZED DEBTORS.
C. Plan Sponsor Agreement
On September 24, 2009, the Debtors and Purchasers entered into the Plan Sponsor Agreement,
pursuant to which the Purchasers agreed to acquire 100% of the newly issued common stock of Bedding
Holdco for aggregate consideration of approximately $758 million, representing an equity investment
by the Purchasers in an amount equal to approximately $310 million, exit financing in an amount
equal to $425 million, assumption of industrial revenue bonds aggregating to $12.5 million,
assumption of the obligations under the Loan Agreement between Banco Santander Puerto Rico and
Simmons Caribbean Bedding Inc., dated December 17, 1997 in an amount equal to approximately
$900,000, the assumption of obligations under letters of credit aggregating approximately $10
million, and the assumption of certain pension and severance liabilities of approximately $14
million. The obligations of the parties to consummate the acquisition are conditioned on: the
expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the HSR Act) and other competition laws; the receipt of proceeds
contemplated by the senior secured term notes exit financing discussed in Section IV.F., below; no
material adverse effect on or material change in or to the businesses, assets, properties, results
of operations or financial condition of SBC and its subsidiaries (taken as a whole) since
December 27, 2008; Bedding Holdco not incurring more than $57,125,000 of expenses related to the
restructuring of its capital structure; the tax liability incurred by Bedding Holdco and its
subsidiaries arising as a result of the transactions contemplated by the Plan Sponsor Agreement not
exceeding a specified amount; no indebtedness outstanding as of the closing date after giving
effect to the transactions contemplated by the Plan Sponsor Agreement, except for the exit
financing and certain other indebtedness to be assumed by the Purchasers at closing; receipt of
third party consents under certain of the Debtors material contracts; and other standard and
customary conditions.
13
The Purchasers may terminate their obligations under the Plan Sponsor Agreement in certain
circumstances, including, among other things, (i) in connection with a breach of the Plan Sponsor
Agreement by the Debtors; (ii) the occurrence of a material adverse effect on or a material adverse
change in or to the business, assets, properties, results of operations or financial condition of
Bedding Holdco and its subsidiaries (taken as a whole) since December 27, 2008; (iii) prohibited
changes to the Plan, Plan Sponsor Order or Confirmation Order to which the Purchasers have not
consented; (iv) the occurrence of certain termination events under the Restructuring Support
Agreement; or (v) a failure to meet certain milestones related to the Chapter 11 Cases. For
example, subject to certain rights of the Debtors and the Purchasers to extend milestone
termination dates, (i) the Debtors are required to obtain acceptance of the Plan by at least
two-thirds in amount and more than one-half in number of the holders of the SBC Note Claims and the
Holdco Note Claims, and to commence the Chapter 11 Cases, not later than November 8, 2009; (ii) an
order approving the Plan Sponsor Agreement must be entered by the Bankruptcy Court not later than
25 days after the Petition Date; (iii) an order confirming the Plan must be entered not later than
sixty days after the Petition Date; and (iv) the closing of the transactions contemplated by the
Plan Sponsor Agreement must occur not later that March 15, 2010. Failure to meet these milestones
would allow the Purchasers to terminate the Plan Sponsor Agreement and, in certain circumstances,
require the Debtors to pay the Purchasers up to $3 million as expense reimbursement. In addition,
the Debtors are obligated to pay to the Purchasers a termination fee equal to $21 million and
expense reimbursement up to $3 million if the Purchasers terminate their obligations under the Plan
Sponsor Agreement in connection with (a) a breach of the Plan Sponsor Agreement by the Debtors, (b)
certain prohibited changes to the Plan, Plan Sponsor Order or Confirmation Order to which the
Purchasers have not consented, or (c) the occurrence of certain termination events under the
Restructuring Support Agreement.
The Debtors may terminate their obligations under the Plan Sponsor Agreement in certain
circumstances, including, among other things, as a result of a breach of the Plan Sponsor Agreement
by the Purchasers and failure to meet certain of the milestones referenced above.
Under the Plan Sponsor Agreement, the Debtors are prohibited from taking certain actions to
facilitate, encourage, or solicit inquiries or proposals for transactions that involve the
acquisition of Bedding Holdco or its subsidiaries. However, in the event that the Debtors receive
an unsolicited proposal for such a transaction that the board of directors of Bedding Holdco
determines is superior to the transaction described in the Plan Sponsor Agreement, then the Debtors
may terminate the Plan Sponsor Agreement and pursue such competing transaction at a cost of $21
million payable to the Purchasers as a termination fee and reimbursement of up to $3 million of the
Purchasers expenses.
The Plan Sponsor Agreement was filed on Form 8-K with the SEC on September 25, 2009 and is
incorporated by reference in its entirety in this Disclosure Statement. In the event of an
inconsistency between the summary of the terms of the Plan Sponsor Agreement described in this
Disclosure Statement and the terms contained in the Plan Sponsor Agreement, the terms contained in
the Plan Sponsor Agreement shall govern. You are urged to read the Plan Sponsor Agreement in its
entirety.
14
D. Guarantee
On September 24, 2009, concurrently with the entry of the Purchasers into the Plan Sponsor
Agreement, the Sponsors entered into Guarantees (the Guarantee) in favor of the Debtors.
Each of the Sponsors, severally and not jointly, guaranteed its respective pro-rata share of: (a)
the due and punctual payment by Intermediate Holdings of the equity commitment amount of
$309,532,384, plus its pro-rata share of the Surplus Amount (as that term is defined in the Plan
Sponsor Agreement), if any, that becomes due at closing under Article II of the Plan Sponsor
Agreement, (b) the reimbursement of expenses by the Purchasers of any amounts that become payable
when due pursuant to Section 9.2 (Expenses) of the Plan Sponsor Agreement, and (c) the payment by
the Purchasers of any liquidated damages that become payable when due pursuant to Section 9.3(c)
(Remedies) of the Plan Sponsor Agreement. Each of the Sponsors obligations described in (a)
through (c) is capped at a maximum amount equal to such Sponsors pro rata share of such obligation
(the Guaranteed Amounts). In addition to its payment guarantee described above, each
Sponsor agrees to take commercially reasonable efforts (other than payment of additional funds not
guaranteed thereunder) as are within its control and necessary to cause the Purchasers to comply
with their obligations under the Plan Sponsor Agreement prior to and at closing. The Debtors agree
that the right to seek specific performance is their sole and exclusive remedy against the Sponsors
with respect to the obligations of the Sponsor set forth in the preceding sentence in order to
prevent breaches or threatened breaches of, or to enforce compliance with, such Sponsors
obligations under its Guarantee and the Purchasers obligations under the Plan Sponsor Agreement.
In no event shall the Sponsors have any liability for monetary damages except with respect to their
Guaranteed Amounts as set forth in the Guarantee.
In addition, each Guarantee provides that no Debtor has a right of recovery against, and no
liability shall attach to, be imposed on or otherwise be incurred by, such Sponsor or the former,
current or future directors, officers, employees, agents, affiliates, controlling persons, general
or limited partners, or permitted assignees of such Sponsor, the Purchasers or any former, current
or future stockholder, director, officer, employee, agent, affiliate, controlling person, member,
manager, general or limited partner, or assignee of any of the foregoing (each, other than such
Sponsor, an Affiliate), through the Purchasers or otherwise, whether by or through
attempted piercing of the corporate, limited liability company or limited partnership veil, by or
through a claim by or on behalf of the Purchasers against such Sponsor or an Affiliate, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute,
regulation or applicable law, or otherwise, in each case arising under or in connection with the
Guarantee, the Plan Sponsor Agreement or the transactions contemplated thereby, except for the
rights of the Debtors to recover from such Sponsor under and to the extent provided in its
respective Guarantee and subject to the Guaranteed Amounts, as applicable, and the other
limitations described therein.
E. Restructuring Support Agreement
On September 24, 2009, the Debtors, the Purchasers, and certain of the Debtors creditors,
including holders of SBC Note Claims and Holdco Note Claims, entered into the Restructuring Support
Agreement, pursuant to which such consenting creditors agreed to support the Plan and the sale of
the Company to the Purchasers. Specifically, subject to the terms and conditions specified in the
Restructuring Support Agreement, the consenting creditors agreed to vote to accept the Plan,
support confirmation of the Plan, support first day motions, and not take any action inconsistent
with the Plan or propose, support or solicit the formulation of any plan of reorganization or
liquidation in the Chapter 11 Cases other than the Plan or any competing transaction as
contemplated under the Plan Sponsor Agreement. The Restructuring Support Agreement also obligates
the Purchasers and the Debtors, subject to the Debtors fiduciary duties, to seek approval and
confirmation of the Plan.
The Restructuring Support Agreement automatically terminates on the earlier to occur of the
Effective Date or March 15, 2010, upon the termination of the Plan Sponsor Agreement, if the
Chapter 11 Cases are dismissed or converted to chapter 7 cases, or in certain circumstances where a
chapter 11 trustee is appointed in any of the Chapter 11 Cases. The Restructuring Support
Agreement may also be terminated by consenting creditors (i) in the event of an injunction
preventing the consummation of the transactions contemplated by the Plan or Plan Sponsor
Agreement; (ii) if Debtors approve, or enter into definitive documentation with respect to, a
transaction that competes with the transactions contemplated by the Plan Sponsor Agreement as
described in Section IV.C., above; (iii) if Debtors withdraw the Plan; (iv) if the Petition Date
has not occurred on or prior to December 8, 2009; (v) if an order confirming the Plan has not been
entered within seventy-five days after the Petition Date; or (vi) in the event of certain
amendments to the Plan Sponsor Agreement or the Plan that adversely affect consenting creditors.
Consenting creditors under the Restructuring Support Agreement may transfer any claim that is
subject to the terms thereof, provided that each transferee of such claim agrees to be bound by the
terms thereof. Consenting creditors may also acquire additional claims, which shall be deemed to
be subject to the terms of the Restructuring Support Agreement. Additional holders of claims may
elect to become party to the Restructuring Support Agreement by executing and delivering to Debtors
a counterpart thereof.
15
The Company does not believe that the Restructuring Support Agreement is material to the
decision to approve or reject the Plan, but the Company will make the Restructuring Support
Agreement available to any creditor who would like to review it and requests a copy from the
Company, subject to the applicable confidentiality provisions therein. In the event of an
inconsistency between the summary of the terms of the Restructuring Support Agreement specified
herein and the terms specified in the Restructuring Support Agreement, the terms in the
Restructuring Support Agreement shall govern.
F. Exit Financing
In addition to the equity investment to be made by the Purchasers (which may be funded in part
by certain funds and accounts managed by DDJ Capital Management, LLC, Farallon Capital Management,
LLC, Sola Ltd, and Solus Core Opportunities Master Fund Ltd) under the Plan Sponsor Agreement and
the Debtors existing cash balances, the Debtors will finance distributions under the Plan with the
proceeds of the issuance of $425 million aggregate principal amount of new 11.25% senior secured
term notes (which are also referred to as the notes herein) to be issued by Reorganized SBC on
the date of the closing of the transactions contemplated by the Plan Sponsor Agreement and, if
necessary, borrowings under the New ABL Facility.
The receipt of the proceeds of the senior secured term notes financing is a condition to the
obligation of the Purchasers to consummate the acquisition contemplated by the Plan Sponsor
Agreement. See SECTION XII.E. CERTAIN FACTORS TO BE CONSIDERED FAILURE TO CONSUMMATE THE PLAN
AND TRANSACTIONS CONTEMPLATED BY THE PLAN SPONSOR AGREEMENT. There is no similar condition in the
Plan Sponsor Agreement with respect to the New ABL Facility.
1. Senior Secured Term Notes
The following description is a summary of the material provisions of the terms of the notes
and the indenture, to be entered into, governing the notes (the Indenture). It does not
state all of the terms of the notes or the Indenture in their entirety. For more complete
information in respect of the terms of the notes and the Indenture, you should read the Debt
Commitment Letter and the description of notes. The Company does not believe that the description
of notes is material to the decision to approve or reject the Plan, but the Company will make the
description of notes available to any creditor who would like to review it and requests a copy from
the Company. In the event of an inconsistency between the summary of the terms of the senior
secured term notes specified herein and the terms specified in the Debt Commitment Letter and the
description of notes, the Debt Commitment Letter and the description of notes shall govern. The
terms of the Debt Commitment Letter can be amended by the parties thereto in accordance with the
terms thereof.
a. Principal, Interest and Maturity. In accordance with the terms and subject to the
conditions set forth in the Debt Commitment Letter, Intermediate Holdings has agreed to cause
Reorganized SBC to issue and sell, and the Commitment Parties have agreed to purchase, $425 million
of aggregate principal amount of the initial series of 11.25% senior secured term notes on the date
of the closing of the transactions contemplated by the Plan Sponsor Agreement. As noted in
Section I.H., above, such Commitment Parties include certain holders of the SBC Notes, certain
holders of the Holdco Notes, certain holders of the SBC Credit Agreement Claims and affiliates of
the Purchasers. The senior secured term notes will bear interest at a rate of 11.25% per annum,
payable semiannually in arrears, and will mature five years and six months from the date on which
the notes are first issued.
b. Guarantees, Ranking and Security. The indebtedness evidenced by the notes will be fully
and unconditionally guaranteed by each of Reorganized SBCs restricted domestic subsidiaries and by
any other parties that become guarantors after the date on which the notes are first issued and
such indebtedness, and the guarantees thereof, will constitute senior obligations of Reorganized
SBC and the guarantors, respectively and will rank pari passu in right of payment with all existing
and future senior debt of Reorganized SBC and the guarantors, as the case may be. Subject to
certain customary exceptions, the notes and the note guarantees will be secured by (i) first
priority liens on and security interests in all of the assets of Reorganized SBC and the guarantors
securing the New ABL Facility on a second priority basis and (ii) second priority liens on and
security interests in all of the assets of Reorganized SBC and the guarantors securing the New ABL
Facility on a first priority basis, which first priority basis liens and security interests
securing the New ABL Facility shall be limited in all respects to the extent of the Maximum ABL
Debt Amount (as defined in the description of notes) (as more fully described in Section F.2.c.
below).
16
c. Unregistered Notes. The notes will not be registered under the Securities Act or any other
securities laws, or have the benefit of any exchange or other registration rights.
d. Redemption. Until the second anniversary of the date on which the notes are first issued,
Reorganized SBC will have the option to redeem (i) up to 35% of the aggregate principal amount of
the notes at a redemption price of 111.25% of the principal amount thereof, plus accrued and unpaid
interest as of the redemption date (subject to the rights of holders of notes on the relevant
record date to receive interest due on the relevant interest payment date), with the net cash
proceeds from one or more equity offerings conducted by Reorganized SBC or any direct or indirect
parent thereof (so long as such net cash proceeds are contributed by such parent to Reorganized SBC
as common equity) or (ii) all or part of the notes at a redemption price equal to 100% of the
principal amount of notes redeemed, plus a make-whole premium calculated in accordance with the
terms of the description of notes. Beginning on the second anniversary of the date on which the
notes are first issued, Reorganized SBC may redeem all or part of the notes at (i) 103% of the
principal amount thereof between the second and third anniversary of the date on which the notes
are first issued, (ii) 101% of the principal amount thereof between the third and fourth
anniversary of the date on which the notes are first issued, and (iii) 100% of the principal amount
thereof on and after the fourth anniversary of the date on which the notes are first issued, plus,
in each case, accrued and unpaid interest as of the applicable redemption date (subject to the
rights of holders of notes on the relevant record date to receive interest due on the relevant
interest payment date). Reorganized SBC will not be required to make mandatory redemption or
sinking fund payments with respect to the notes.
e. Covenants. The indenture governing the notes will contain incurrence-based covenants
limiting the ability of Reorganized SBC and its restricted subsidiaries to, among other things, (a)
incur additional indebtedness or issue additional preferred stock, (b) make certain restricted
payments, including the payment of cash dividends, the repurchase, redemption or other acquisition
of the equity interests of Reorganized SBC or any restricted subsidiaries, the payment of the
principal amount of any subordinated indebtedness (except at the stated maturity thereof) and the
making of certain investments, (c) consummate a merger or sale of all or substantially all of the
assets of Reorganized SBC and its restricted subsidiaries, taken as a whole, subject in each case
to (x) the ability of Reorganized SBC to demonstrate compliance with a stipulated financial test
after giving effect to the contemplated transaction or (y) certain exceptions or baskets
described more fully in the description of notes. In addition to the incurrence-based covenants
described in the foregoing sentence, the indenture will also contain restrictions on, among other
things, the ability of Reorganized SBC and its restricted subsidiaries to incur liens, consummate
certain asset sales, designate unrestricted subsidiaries, engage in transactions with their
affiliates, or designate AOT and certain subsidiaries of AOT as guarantors and restricted
subsidiaries, subject to the exceptions set forth in the description of notes. The indenture also
requires Reorganized SBC to provide certain reports on a password-protected website as more fully
described in the description of notes. The indenture will not include any financial maintenance
covenants.
f. Change of Control Offer. Upon the occurrence of a change of control (as defined in the
description of notes), if Reorganized SBC has not then exercised its option (if any) to redeem the
notes in accordance with the provisions described in the description of notes, each holder of the
notes will have a right to require Reorganized SBC to repurchase all or any part of such holders
notes in cash at a price equal to 101% of the aggregate principal amount of the repurchased notes,
plus accrued and unpaid interest as of the repurchase date (subject to the rights of holders of
notes on the relevant record date to receive interest due on the relevant interest payment date).
17
g. Asset Sale Offer. Within 365 days following the receipt by Reorganized SBC or its
restricted subsidiaries of the net proceeds of any asset sale consummated in accordance with the
terms of the indenture, Reorganized SBC or the applicable restricted subsidiary may apply such
proceeds to (i) repay senior debt or acquire, repair or replace collateral securing the New ABL
Facility on a first priority basis or current or non-current assets (other than cash or cash
equivalents) with the net proceeds that are proceeds of the collateral securing the New ABL
Facility on a first priority basis, (ii) acquire all or substantially all of the assets of, or a
majority of the voting stock of, a business that derives a majority of its revenues from the
businesses engaged in by Reorganized SBC and its restricted subsidiaries, provided that such assets
or voting stock are to be pledged as collateral and such person whose voting stock was acquired
becomes a guarantor, (iii) make certain capital expenditures, provided that any assets acquired
through such capital expenditures from net proceeds from the sale of collateral are to be held by
Reorganized SBC or a guarantor and pledged as part of the collateral or (iv) acquire, repair or
replace other non-current assets (other than collateral securing the New ABL Facility on a first
priority basis) used or useful in a business that derives a majority of its revenues from the
business engaged in by Reorganized SBC and its restricted subsidiaries, provided that any such
assets acquired, repaired or replaced from net proceeds that are proceeds from collateral securing
the notes shall be held by Reorganized SBC or a guarantor and pledged as part of the collateral
securing the notes on a first priority basis. On or before the 366th day after an asset sale, if
the aggregate amount of net proceeds not applied in accordance with the foregoing sentence exceeds
$15.0 million, Reorganized SBC must make an offer to repurchase the outstanding notes at a price
equal to 100% of the principal amount of such notes, plus accrued and unpaid interest to the date
of the repurchase.
h. Conditions to Issuance and Sale of Senior Secured Term Notes. The purchase by the
Commitment Parties of the senior secured term notes is subject to the satisfaction or waiver of all
applicable conditions set forth in the Debt Commitment Letter, including, among other things, of
the following material conditions: the funding of the equity investment by the Purchasers; the
consummation of the acquisition by the Purchasers pursuant to the Plan Sponsor Agreement; the
absence of prohibited changes to the Plan Sponsor Agreement, the Plan and the Confirmation Order;
the execution and delivery of the definitive documentation for the sale and issuance of the notes;
the receipt of certain financial statements; the entry of the Confirmation Order on the docket of
the Bankruptcy Court and the absence of an order to stay or vacate such Confirmation Order; the
absence of a Company Material Adverse Effect (as defined in the Plan Sponsor Agreement); and the
perfection of certain liens and security interests. The issuance to each Commitment Party of the
notes by SBC is conditioned on such Commitment Partys providing, or giving adequate assurance of
its readiness to provide at closing of the acquisition, an amount in cash equal to its amount of
commitment; the consummation of the acquisition; and the execution and delivery of the definitive
documentation for the notes. Please refer to Exhibit J for a complete list of all the conditions.
2. New ABL Facility
The following description is a summary of the material terms and conditions of the New ABL
Facility. It does not state all of the terms and conditions of the New ABL Facility in their
entirety. For more complete information in respect of the terms and conditions of the New ABL
Facility, you should read the ABL Commitment Letter. In the event of any inconsistency between the
summary of the terms and conditions of the New ABL Facility specified herein and the terms and
conditions specified in the ABL Commitment Letter, the ABL Commitment Letter shall govern. The
terms and conditions of the ABL Commitment Letter can be amended by the parties thereto in
accordance with the terms thereof.
a. Description of Facility. Subject to the terms and conditions set forth in the ABL
Commitment Letter, the ABL Lender is committed to provide, and act as agent under, a senior secured
revolving credit facility with a maximum credit amount of up to $75 million, the proceeds of which
will be available to (i) repay the existing secured working capital indebtedness of the borrowers
(as defined in the term sheet attached to the ABL Commitment Letter) on the Effective Date, (ii)
otherwise enable the borrowers to consummate the Plan existing on the Effective Date, (iii) fund
certain fees and expenses associated with the New ABL Facility and (iv) finance the ongoing general
corporate needs of the borrowers. A portion of the New ABL Facility will be made available to
Reorganized SBC and its domestic subsidiaries and a portion of the New ABL Facility will be made
available to Reorganized SBCs Canadian subsidiaries. The New ABL Facility will mature four years
from the date of the closing thereof.
b. Guarantors. The obligations of the borrowers under the facility will be guaranteed by
Reorganized Bedding Holdco and all of Reorganized Bedding Holdcos present and future U.S. and
Canadian subsidiaries; however, any Canadian subsidiary that is characterized as a corporation for
U.S. federal income tax purposes will only provide a guaranty of the obligations of the Canadian
borrowers.
18
c. Collateral. The indebtedness under the New ABL Facility and the guarantees thereof will be
secured by (i) a first priority perfected security interest in the borrowers and guarantors,
owned, or after-acquired (a) accounts (but excluding such accounts for equipment sold or leased)
and certain royalty and licensing receivables, (b) inventory, (c) to the extent evidencing or
governing accounts and inventory, general intangibles, documents, contract rights, chattel paper
and instruments (including promissory notes), (d) to the extent relating any of the items referred
to in the preceding clauses (a), (b), and (c), guarantees, letters of credit, security and other
credit enhancements, letter-of-credit rights and supporting obligations, (e) cash and cash
equivalents from whatever source, all lockboxes (excluding safe deposit boxes), deposit accounts
and, solely to the extent constituting cash or cash equivalents or representing a claim to cash
equivalents, securities accounts as original collateral, (f) all intercompany loans and advances
among the borrowers and guarantors, (g) books, records and other property relating to or referring
to any of the foregoing, (h) all proceeds and products related to the foregoing; but with respect
to each of the foregoing, excluding all asset sale proceeds accounts and all cash, cash
equivalents, money, instruments, securities, investment property and financial assets held in or
credited to any asset sale proceeds accounts, and (ii) a second priority perfected security
interest in all or substantially all of the owned or after-acquired property and assets of the
borrowers and the guarantors (other than the assets and properties that secure the New ABL Facility
on a first priority basis) that secure the senior secured term notes on a first priority basis and
all proceeds and products thereof, and (b) all of the stock of each borrower and guarantor (other
than Reorganized Bedding Holdco) and all proceeds and products thereof. The priority of the
security interests and the allocation of rights among the lenders under the New ABL Facility, on
one hand, and the holders of the senior secured term notes, on the other hand, will be set forth in
an intercreditor agreement.
d. Borrowing Base. Although the maximum credit amount under the New ABL Facility is
$75 million, advances to the borrowers thereunder may not, at any one time, exceed the borrowing
base, the calculation of which will take into account (i) 85% of the value of the borrowers
accounts receivable (including certain royalty and licensing receivables), not older than 90 days
from the invoice date, minus certain reserves, (ii) 95% of the amount of cash held in certain
blocked deposit accounts and (iii) the least of (a) 65% of eligible inventory, net of customary
reserves, (b) 85% times the net orderly liquidation value of the borrowers eligible inventory and
(c) 33% of the amount of credit availability created by the borrowers eligible accounts
receivable. The amount available to the U.S. borrowers and the Canadian borrowers under the New
ABL Facility will be based upon the accounts and inventory of the U.S. borrowers and Canadian
borrowers, respectively.
e. Letter of Credit Subfacility. Under the New ABL Facility, the borrowers will be entitled
to request that the administrative agent issue guarantees of payment with respect to letters of
credit issued by Wells Fargo Bank, N.A. in an aggregate amount not to exceed $30 million at any one
time outstanding, which sublimit may be divided between the portion of the revolving facility made
available to the U.S. borrowers and the portion of the revolving facility made available to the
Canadian borrowers.
f. Interest and Fees. The New ABL Facility borrowers will be permitted to elect that the
loans outstanding thereunder bear interest at a rate per annum equal to (a) the base rate plus
4.50% or (b) the LIBOR rate plus 3.50%. Interest on base rate loans will be payable monthly in
arrears. Interest on LIBOR rate loans will be payable on the last day of each relevant interest
period (which may be a period of 1, 2 or 3 months, as selected by the applicable borrower). In
addition, the terms of the facility require the borrowers to pay, monthly in arrears, (x) an
Unused Revolver Fee in an amount equal to .50% per annum times the unused portion of the
revolving facility and (y) a Letter of Credit Fee equal to the margin applicable to LIBOR rate
loans times the undrawn amount of each issued letter of credit. Following the occurrence and during
the continuance of an event of default, and upon the written election of the required lenders, all
amounts due under the New ABL Facility will bear interest at a rate equal to 2.0% above the
interest rate otherwise applicable thereto and the Letter of Credit Fee will be increased by 2%
per annum.
19
g. Covenants. The credit agreement governing the New ABL Facility will contain customary
affirmative and negative covenants, subject, in certain cases, to materiality thresholds, baskets
and customary exceptions and qualifications to be agreed. The affirmative covenants will include,
among other things, financial and collateral reporting obligations, and a requirement that the
borrowers and the guarantors and their respective subsidiaries satisfy their respective ongoing
obligations under the Plan, if any. The negative covenants will include, among other things,
limitations on the ability of the borrowers, the guarantors and their respective subsidiaries to
incur or suffer to exist indebtedness or liens, dispose of assets, make or suffer to exist
investments, engage in transactions with affiliates or consummate transactions that result in a
change of control. In addition, the credit agreement governing the New ABL Facility will contain a
springing financial covenant pursuant to which the borrower, on a consolidated basis, will be
required to maintain a stipulated fixed charge coverage ratio at any time that excess availability
under the facility falls below $14 million, provided, that, no default or event of default will
occur as a result of the borrower failing to maintain such fixed charge coverage ratio if within 15
days after the date the excess availability under the facility falls below $14 million Reorganized
SBC receives a cash equity contribution resulting in excess availability being equal to or greater
than $14 million,
h. Conditions to the New ABL Facility. The initial availability of the New ABL Facility is
subject to the satisfaction or waiver of all applicable conditions set forth in the ABL Commitment
Letter, including, among other things, of the following conditions: the contribution of equity by
the Purchasers; the consummation of the acquisition pursuant to the Plan Sponsor Agreement; the
absence of prohibited changes to material acquisition documents, including the Plan Sponsor
Agreement, the Restructuring Support Agreement, the Plan and the Confirmation Order; the offering
of the senior secured term notes having occurred in an aggregate principal amount not exceeding
$425 million; the execution and delivery of customary loan documents, including an intercreditor
agreement; minimum availability under the New ABL Facility (after giving effect to the initial use
of proceeds, including the payment of all fees and expenses) of not less than $35 million; the
receipt of documentation related to the offering of the senior secured term notes; the completion
by the agent of the initial borrowing base; the perfection of certain liens and security interests;
and certain bankruptcy related conditions. In addition, if the Confirmation Order is not a Final
Order (as defined in the Plan) at the time of the funding of the New ABL Facility, the ABL Lender
also may require as a condition to the funding that the Bankruptcy Court approve the New ABL
Facility, together with the applicable guarantees and other loan documents, as postpetition
financing of the Debtors pursuant to section 364(c), (d) and (e) of the Bankruptcy Code prior to
effectiveness of the Plan, as more fully described in paragraph (i) of Annex B to the ABL
Commitment Letter. Please refer to Exhibit K for a complete list of all conditions.
G. DIP Facility Commitment
On August 20, 2009, SBC received a commitment from Deutsche Bank Trust Company Americas for a
super-priority secured debtor in possession revolving credit facility in an aggregate principal
amount of $35 million. On or shortly after the Petition Date, the DIP Debtors expect to seek
Bankruptcy Court approval of the DIP Facility pursuant to section 364 of the Bankruptcy Code in
order to fund the DIP Debtors working capital needs during the pendency of the Chapter 11 Cases.
See Section VIII.B ANTICIPATED EVENTS DURING THE CHAPTER 11 CASES DEBTOR IN POSSESSION
FINANCING.
V. THE PURCHASERS
A. The Sponsors
Serta Holdings is, and New Parent will be, a portfolio company controlled by the Sponsors.
The Sponsors have guaranteed certain limited obligations of the Purchasers under the Plan Sponsor
Agreement, but are not parties to the Plan Sponsor Agreement or the Restructuring Support
Agreement, nor are they proponents of the Plan. No Sponsor shall have any liability or obligation
with respect to the transactions contemplated hereby except as set forth in its several guarantee.
Each Sponsor disclaims any responsibility for any statement in this Disclosure Statement other than
the statements about such Sponsor contained in this Section V.A.
20
1. Ares Management. Ares Management LLC (Ares) is an SEC-registered investment
adviser and alternative asset manager with total committed capital under management of
approximately $29 billion as of June 2009. With complementary pools of capital in private equity,
private debt and capital markets, Ares Management has the ability to invest across all levels of a
companys capital structure from senior debt to common equity in a variety of industries in a
growing number of international markets. The Ares Private Equity Group has a proven track record of
partnering with high quality, middle-market companies, such as Serta Holdings and creating value
with its flexible capital. Other notable current investments include General Nutrition Centers,
Inc., Hanger Orthopedic Group, Inc. (NYSE: HGR) and Maidenform Brands, Inc. (NYSE: MFB). The firm
is headquartered in Los Angeles with approximately 250 employees located across the United States
and Europe. For more information, visit the Ares website at www.aresmgmt.com.
2. Ontario Teachers. Ontario Teachers Private Capital (Ontario Teachers) is one of
the worlds largest private equity investors. It is the private investment department of the
Ontario Teachers Pension Plan, the largest single-profession pension plan in Canada. The Ontario
Teachers Pension Plan is an independent corporation responsible for investing the fund and
administering the pensions of Ontarios 284,000 active and retired teachers. For more information
visit www.otpp.com.
B. Serta Holdings
1. Overview. Serta Holdings, primarily through its subsidiary NBC, is the largest
manufacturer and distributor of Serta®-branded mattresses in the United States and
controls the Serta® brand/name. With 28 of the 34 exclusive domestic manufacturing
licenses, NBC accounts for approximately 85% of total Serta® mattress sales. Serta Inc.
was founded in 1931 to manage the Serta® brand on behalf of licensees nationwide. NBC
was founded in 1989 through the acquisition of a single Serta® licensee. Since then,
the company has grown both organically and through acquisitions. In February 2003, NBC
approximately doubled its revenues by acquiring Sleepmaster LLC out of chapter 11 bankruptcy. The
Sleepmaster acquisition combined the #1 and #2 Serta licensees into a single organization with the
ability to control both the management and growth of the Serta® brand.
2. Ownership. AOT was formed to acquire NBC and certain of its affiliates in 2005. AOTs
stockholders consist of funds affiliated with Ares and Ontario Teachers, certain co-investors of
Ares and entities affiliated with the original NBC ownership.
3. Products. Serta Holdings manufactures a variety of bedding products, including mattresses
and foundations (box springs) marketed primarily under the Serta® brand. Each of Serta
Holdings brands offers products at queen retail price points, ranging from under $100 to
approximately $5,000. The brands are positioned to appeal to a wide range of consumers. In
addition, each brand offers a variety of different types of material, design and size. This
variety offers retailers a choice of products, allowing retailers to develop their own product
assortment to facilitate step-up sales and to meet various consumer comfort and support
preferences.
Serta Holdings core product lines are marketed under the Perfect Day® by
Serta® and Serta Perfect Sleeper® brands. Other products are marketed under
the Sertapedic brand. Serta Holdings has also developed product lines around several additional
brands developed in-house or licensed from third-parties. These brands include Vera Wang by
Serta®, the Trump Collection, Better Homes & Gardens, and Five-Star Mattress.
Serta Holdings also operates a research and development center at its headquarters in suburban
Chicago. In this facility, Serta Holdings develops new bedding products and tests fabrics,
quilting, upholstery and spring components for durability, comfort, safety and manufacturing ease.
4. Marketing. Serta Holdings has developed a marketing organization which has contributed
historically to growth, gains in market share and positive financial performance. The approach is
based on an integrated marketing program known as the Serta Marketing Star Philosophy. The Serta
Marketing Star Philosophy seeks to generate consumer demand and position the company to win
competitive retail floor space by integrating (i) national advertising, (ii) local retail
advertising, (iii) product display, (iv) sales education and (v) high quality service.
21
5. Sales. Serta Holdings maintains relationships with approximately 2,400 customers across a
range of distribution channels. Serta Holdings customer base is diversified. Serta Holdings top
10 largest customers account for 44% of sales. No single customer accounts for more than 1.4% of
sales. Serta Holdings primary distribution channels are retail, national accounts, and contract.
a. Retail. The retail channel represents approximately 47% of Serta Holdings 2008 sales.
Serta Holdings serves a retail customer base with over 2,000 retail accounts. Serta Holdings
markets its products to a variety of retail customers, including specialty bedding retailers (sleep
shops), Serta®-exclusive sleep shops under the Americas Mattress program, furniture
stores and department stores, and other retailers. Specialty sleep shops are a significant and
growing segment of the bedding industry. In recent years, Serta Holdings has expanded its share of
distribution in the specialty sleep shop channel by providing exclusive brands and products to
large multi-vendor chains and furniture stores. Serta Holdings has also developed a group of
approximately 345 independently owned and operated Serta®-exclusive mattress stores
through the Americas Mattress program. This program provides Serta Holdings the ability to sell
a full range of Serta® products in a focused, proprietary distribution channel.
b. National Accounts. National accounts represent approximately 39% of Serta Holdings 2008
sales. The national accounts include big-box stores, department stores, value channels,
rent-to-own and direct-to-consumer accounts. Many of Serta Holdings key national accounts sell
primarily Serta®-branded mattresses, while others (particularly large department stores
such as Macys) tend to have more than one brand of mattress on their showroom floor. National
accounts are serviced by multiple Serta Holdings manufacturing locations and by plants controlled
by independent licensees. Serta Holdings seeks to manage these customers through a single point of
contact and coordinates with various Serta Holdings plant and independent licensee plants with a
goal to provide consistent and high quality product, pricing and service across all regions.
c. Contract. Contract customers represent approximately 14% of Serta Holdings 2008 sales.
Contract customers include the hospitality industry and other institutional customers. Generally,
contract customers order relatively large quantities of mattresses manufactured under particular
design specifications. Market demand is primarily driven by the construction or remodeling of
hotels and resorts. Serta Holdings is a provider of mattresses to many of the largest hotel chains
in the country.
6. Manufacturing. Serta Holdings manufactures and distributes products to its customers
primarily in a just-in-time fashion, typically fulfilling customer
orders within 4872 hours of the
orders being placed through its network of 20 manufacturing facilities in the United States and
Canada. As a result, Serta Holdings and its licensees carry relatively little raw material or
finished goods inventory.
7. Purchasing. Serta Holdings purchases a number of raw materials, virtually all of which are
commodity in nature. These include textiles, thread, polyester fiber quilting, polyurethane foam
upholstery, steel springs and wood boards. Leggett & Platt, the largest furniture component
supplier in the country, is Serta Holdings largest supplier. Serta Holdings also purchases a
small amount of finished products such as bed frames and adjustable bed foundations.
8. Distribution. Serta Holdings generally delivers products directly to the customers
warehouse or store the day after manufacturing. Due to the just-in-time nature of production
operations, manufacturing must be scheduled in the sequence of delivery to customer so that
finished products are loaded on trailers immediately after manufacturing. Approximately 80% of
orders are fulfilled through Serta Holdings proprietary distribution network consisting of
tractors and trailers owned or leased by Serta Holdings, with the balance of deliveries provided by
third-party logistics providers.
22
9. Properties. NBCs corporate office is located in Hoffman Estates, Illinois. NBCs
corporate group management team centrally controls the administrative, manufacturing, sales
management, marketing and product design for the entire organization.
Production, sales, customer service and accounting functions are conducted at each factory
location. Serta Holdings principal properties as of September 30, 2009 were comprised of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Square |
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|
|
|
|
|
|
Location |
|
Footage |
|
|
Union |
|
|
Title |
|
|
|
Manufacturing Facilities |
|
|
|
|
|
|
|
|
|
|
|
|
Batesville, MS |
|
|
122,500 |
|
|
No |
|
Owned |
Beloit, WI |
|
|
204,500 |
|
|
No |
|
Owned |
Cullman, AL |
|
|
122,500 |
|
|
No |
|
Owned |
Denver, CO |
|
|
75,000 |
|
|
Yes |
|
Owned |
Glendale, AZ |
|
|
75,000 |
|
|
No |
|
Owned |
Houston, TX |
|
|
75,000 |
|
|
No |
|
Owned |
Jamestown, NY |
|
|
122,500 |
|
|
No |
|
Owned |
Middleboro, MA |
|
|
150,000 |
|
|
Yes |
|
Owned |
Moreno Valley, CA |
|
|
232,000 |
|
|
Yes |
|
Owned |
Cincinnati, OH |
|
|
150,000 |
|
|
Yes |
|
Leased |
Clear Lake, IA |
|
|
112,500 |
|
|
No |
|
Owned |
Grovetown, GA |
|
|
125,000 |
|
|
No |
|
Owned |
Honolulu, HI |
|
|
62,687 |
|
|
Yes |
|
Leased |
Lancaster, PA |
|
|
97,000 |
|
|
No |
|
Owned |
Puyallup, WA |
|
|
74,790 |
|
|
Yes |
|
Owned |
Toronto, Ontario |
|
|
106,000 |
|
|
Yes |
|
Leased |
West Palm, FL |
|
|
236,250 |
|
|
No |
|
Owned |
Whitsett, NC |
|
|
125,000 |
|
|
Yes |
|
Owned |
Greene County, NY |
|
|
232,000 |
|
|
No |
|
Owned |
Montreal, Quebec |
|
|
69,052 |
|
|
No |
|
Leased |
Corporate Headquarters |
|
|
90,000 |
|
|
No |
|
Owned |
The owned real estate portfolio has been valued in the aggregate at approximately $131
million.
10. Warranties. Serta Holdings conventional innerspring bedding products generally offer
limited warranties of 10 to 20 years against manufacturing defects, with specialty products
offering a 20 to 30 year warranty against manufacturing defects, and promotional products generally
carrying warranties of one to five years. Historically, Serta Holdings cost of honoring warranty
claims has not been material.
11. Employees. Factory employees are compensated on either hourly wage or piece work
wherein production exceeding standard rate is compensated in addition to hourly wage. Salaried
managers at each location are provided bonus programs based on the profitability of their factory.
NBC has not experienced any labor stoppages or strikes since its founding. Serta Holdings generally
considers its employee relations to be good.
23
12. Legal Proceedings. On June 10, 2009 Tempur-Pedic Management, Inc. and Tempur-Pedic North
America, LLC (collectively, Tempur-Pedic) filed a complaint in the U.S. District Court
for the Western District of Virginia, Big Stone Gap Division against Serta, Inc., SBC, The Simmons
Manufacturing Co., LLC, and 15 other bedding manufacturers for alleged infringement of U.S. Patent
No. 7,507,468 (the 468 Patent). The patent relates to certain mattress constructions
utilizing layers of viscoelastic and other foam materials. Specifically, Tempur-Pedics complaint
alleges that Serta, Inc. manufactures and/or sells mattresses, cushions, pillows and other
products, incorporating viscoelastic foam materials, that infringe on the 468 Patent.
Tempur-Pedic has not filed a motion for a preliminary injunction. Neither SBC, nor The Simmons
Manufacturing Co., LLC, nor Serta, Inc. has requested or obtained any legal opinion regarding
non-infringement, invalidity, or enforceability of the 468 Patent in connection with this matter.
At this time, Tempur-Pedic has not specified the amount of damages it is seeking from SBC, The
Simmons Manufacturing Co., LLC or Serta, Inc. in connection with this matter. Serta, Inc. filed
its Answer and Affirmative Defenses, including the defense of invalidity of the 468 Patent, on
July 31, 2009. The parties met and conferred on the Rule 26(f) Order on September 25, 2009 and the
court has set a scheduling conference on October 19, 2009. Discovery has commenced. Serta, Inc.
believes that Tempur-Pedics claims are without merit and intends to vigorously defend against
Tempur-Pedics lawsuit.
Serta Holdings is not currently involved in any other material legal proceedings. Serta
Holdings is involved from time to time in routine litigation and legal proceedings incidental to
its business. Although no assurance can be given as to the outcome or expense associated with any
of these proceedings, Serta Holdings believes that none of such proceedings, either individually or
in the aggregate, will have a material adverse effect on its financial condition.
13. Existing Indebtedness.
a. Description of Facilities. On August 31, 2005 (amended as of February 28, 2007), NBC and
AOT Bedding Holdings Corp. Canada, as borrowers, entered into a $475 million senior secured first
priority credit facility pursuant to a Credit and Guaranty Agreement (the First Lien Credit
Agreement) by and among the borrowers, the guarantors (as described below), the various
lenders, Goldman Sachs Credit Partners L.P., as sole lead arranger, sole bookrunner and sole
syndication agent, Merrill Lynch Capital Corporation, as administrative agent and collateral agent,
and General Electric Capital Corporation and BMO Capital Markets Financing Inc., as documentation
agents. The facility includes a term loan in an aggregate principal amount not to exceed $425
million, revolving loan commitments from the lenders in an aggregate amount not to exceed $50
million and swing line loan commitments in an amount not to exceed the lesser of (i) $10 million
and (ii) the aggregate unused amount of revolving commitments then in effect. The revolving loan
facility will mature on August 31, 2010 and the First Lien term loan facility will mature on
February 28, 2013.
On the same date (also amended as of February 28, 2007), NBC, as borrower, also entered into a
$210 million senior secured second priority credit facility pursuant to a Credit and Guaranty
Agreement (the Second Lien Credit Agreement and, together with the First Lien Credit
Agreement, the AOT Credit Agreements) by and among the borrower, the guarantors (as
described below), the various lenders, Goldman Sachs Credit Partners L.P., as sole lead arranger,
sole bookrunner, co-syndication agent, administrative agent and collateral agent, General Electric
Capital Corporation, as co-syndication agent and General Electric Capital Corporation and BMO
Capital Markets Financing Inc., as documentation agents. The facility consists of a term loan
facility, which will mature on February 28, 2014.
b. Guarantors. The obligations of the borrowers under the AOT Credit Agreements are
guaranteed by AOT and all of AOTs present and future domestic subsidiaries (other than the
borrowers and Serta, Inc.).
c. Interest Rate. The First Lien term loans bear interest (i) at the Base Rate plus 1.00% per
annum; or (ii) at the adjusted Eurodollar Rate plus 2.00% per annum. The First Lien revolving
loans that are Eurodollar rate loans bear interest at the adjusted Eurodollar Rate plus the
Applicable Margin (equal to 2.00% if the Leverage Ratio is equal to or greater than 4.50:1.00 or
1.75% if the Leverage Ratio is less than 4.50:1.00). The First Lien revolving loans and swing line
loans that are Base Rate loans bear interests at the Base Rate plus the Applicable Margin (as
described above) minus 1.00% per annum. The terms Base Rate, adjusted Eurodollar Rate and
Applicable Margin are defined in the Credit Agreement. The Second Lien term loans bear interest
(i) at the Base Rate plus 4.00% per annum; or (ii) at the adjusted Eurodollar Rate plus 5.00% per
annum. The current weighted average cost of capital on the term loan facilities is 3.26%.
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d. Collateral. The indebtedness under the facilities and the guarantees thereof are secured
by a first priority and second priority perfected security interest in all of the borrowers and
guarantors real, personal and mixed property (including capital stock) in which liens were granted
pursuant to the collateral documents.
e. Letter of Credit Subfacility. Under the First Lien Credit Agreement, the borrowers are
entitled to request the issuing bank to issue letters of credit in an aggregate amount not to
exceed $10 million at any one time outstanding.
f. Voluntary Prepayment. Loans under the AOT Credit Agreements generally may be prepaid in
whole or in part without premium or penalty, in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount. The borrowers may at any time and from
time to time terminate in whole or permanently reduce in part, without premium or penalty, the
revolving commitments in an amount up to the amount by which the revolving commitments exceed the
total utilization of revolving commitments at the time of such termination or reduction. The
Second Lien Credit Agreement includes a restriction prohibiting prepayment of loans thereunder
unless (a) the Senior Leverage Ratio (as described in the Second Lien Credit Agreement) is less
than 2.50:1.00 or (b) no loans are outstanding under the First Lien Credit Agreement (or any
permitted refinancings thereof) and no letters of credit, commitments to extend credit or
obligations to make payments remain outstanding under the First Lien Credit Agreement that have not
been fully cash collateralized.
g. Mandatory Prepayment. The following mandatory prepayments are required pursuant to the
First Lien Credit Agreement: (a) prepayments in an amount equal to 100% of net cash proceeds
received from an asset sale, other than net cash proceeds reinvested in long-term productive or
other capital assets of the general type used in the business of AOT and its subsidiaries; (b)
prepayments in an amount equal to 100% of net cash proceeds of insurance received in respect of any
loss of property or assets of AOT or any of its subsidiaries, other than net cash proceeds
reinvested in long-term productive or other capital assets of the general type used in the business
of AOT and its subsidiaries, which investment may include the repair, restoration or replacement of
the applicable asset; (c) prepayments in an amount equal to 50% (subject to reduction to a lower
percentage upon achievement of certain financial ratios) of any cash proceeds received from a
capital contribution to, or the issuance of any capital stock of, AOT or its subsidiaries (other
than issuances pursuant to an employee stock option plans or equity issued to the stockholders of
AOT and the NBC holding investors); (d) prepayments in an amount equal to 100% of any cash proceeds
received from incurrence of any indebtedness by AOT or its subsidiaries (other than indebtedness
permitted under the credit agreement); and (e) prepayments in an amount equal to 75% (subject to
reduction to a lower percentage upon achievement of certain financial ratios) of consolidated
excess cash flow (as defined in the Credit Agreement). The foregoing mandatory prepayments are
also required pursuant to the Second Lien Credit Agreement only to the extent there are no loans
outstanding under the First Lien Credit Agreement (or any permitted refinancings thereof), and no
letters of credit, commitments to extend credit or obligations to make payments remain outstanding
under the First Lien Credit Agreement that have not been fully cash collateralized.
h. Covenants. Both the First Lien and the Second Lien Credit Agreements contain customary
affirmative and negative covenants, subject, in certain cases, to materiality thresholds, baskets
and customary exceptions and qualifications. The affirmative covenants includes, among other
things, delivery of financial statements and other reports; maintenance of existence; payment of
taxes and claims; maintenance of properties; maintenance of insurance; lender meetings; and
compliance with laws. The negative covenants include, among other things, limitations on the
ability of the borrowers, the guarantors and their respective subsidiaries to incur indebtedness or
liens, make negative pledges, make restricted junior payments, make investments, or engage in
transactions with affiliates; restrictions on subsidiary distributions; restrictions on mergers and
acquisitions; covenants with respect to Serta, Inc.; and restrictions on permitted activities of
AOT and amendments or waivers of organizational documents, subordinated indebtedness and other
material agreements, in each case in a manner adverse to the borrowers, guarantors, their
respective subsidiaries and the lenders.
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In addition, the First Lien Credit Agreement contains a springing financial covenant pursuant
to which AOT will be required to maintain a certain First Lien Leverage Ratio ranging from
6.50:1.00 to 6.00 to 1.00 (as described in the First Lien Credit Agreement) for the preceding
four-fiscal quarter period ending on the date of determination) beginning with the first fiscal
quarter, and only for those subsequent quarters in which the outstanding principal balance of the
revolving loans exceeds $30 million; provided, that, no default or event of default will occur as a
result of AOT failing to maintain such First Lien Leverage Ratio if within 10 days subsequent to
delivery of the related compliance certificate, AOT issues securities for cash or otherwise receive
cash contributions to the capital of AOT, in an aggregate amount equal to the lesser of (a) the
amount necessary to cure the relevant failure to comply with the financial ratio and (b) $10
million. AOT does not currently have any revolving loans outstanding.
The foregoing description is a summary of the material provisions of the terms of the First
Lien Credit Agreement and the Second Lien Credit Agreement. It does not state all of the terms of
the First Lien Credit Agreement and the Second Lien Credit Agreement in their entirety. The
Company does not believe that the First Lien Credit Agreement and the Second Lien Credit Agreement
are material to the decision to approve or reject the Plan, but the Company will make the First
Lien Credit Agreement and the Second Lien Credit Agreement available to any creditor who would like
to review it and requests a copy from the Company. In the event of an inconsistency between the
summary of the terms of the First Lien Credit Agreement and the Second Lien Credit Agreement
specified herein and the terms specified in the First Lien Credit Agreement and the Second Lien
Credit Agreement, the First Lien Credit Agreement and the Second Lien Credit Agreement shall
govern.
VI. MANAGEMENT AND CORPORATE STRUCTURE
A. Reorganized Debtors
1. Corporate Structure of the Reorganized Debtors
Immediately following the closing of the transactions contemplated by the Plan Sponsor
Agreement, Reorganized Bedding Holdco will be wholly owned by Intermediate Holdings, which is
wholly owned by New Parent. Reorganized SBC will continue as a wholly owned subsidiary of
Reorganized Bedding Holdco and will remain the operating company of the Reorganized Debtors
business.
2. Boards of Directors of Reorganized Debtors
On the Effective Date, the term of each member of the boards of directors of each of Bedding
Holdco and SBC will expire. The size and composition of the board of directors of Reorganized
Bedding Holdco and Reorganized SBC on and after the Effective Date have not been determined, but
will consist of certain individuals to be designated by the Purchasers prior to the hearing to
confirm the Plan.
3. Management of Reorganized Debtors
The Debtors anticipate that the members of SBCs current management group will maintain their
positions as executive officers of Reorganized SBC on and after the Effective Date. The
biographies for the current management group members can be found in Holdcos most recent 10-K,
attached hereto as Exhibit B-1. All members of SBCs executive leadership team executed new
employment agreements, to which Reorganized SBC will become a party following the Effective Date.
a. Management Incentive Programs
Reorganized SBC is expected to maintain a management bonus program similar to SBCs existing
program. The Purchasers will implement a stock incentive program for management which they expect
to put in place upon the closing
of the transactions contemplated by the Plan Sponsor Agreement. However, no final
determinations about the details of such a program have been made at this time.
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B. New Parent
Immediately following the closing of the transactions contemplated by the Plan Sponsor
Agreement, New Parent, through its wholly-owned subsidiary, Intermediate Holdings, will be the
ultimate parent company of Reorganized Bedding Holdco and AOT. At closing, members of New Parent
will include the Sponsors, certain co-investors of Ares Management, entities affiliated with
management of NBC, certain members of management of Reorganized SBC and holders of the Holdco
Notes.
The Serta Holdings debt capital structure will remain unchanged following the closing and the
debt of Serta Holdings will remain at AOT and its subsidiaries level. See SECTION V.B. THE
PURCHASERS SERTA HOLDINGS for more detail. The new debt issued to fund the acquisition of the
Company will be issued and borrowed at SBC and its subsidiaries level. For additional information
regarding the exit financing, see Section IV.F., above.
Set forth below is an organizational chart of New Parent following the closing of the
transactions described in the Plan Sponsor Agreement.
Concurrently with the closing of the transactions contemplated by the Plan, existing
stockholders of AOT will exchange their stock in AOT for, in the aggregate, $200 million of Class A
units of New Parent (which amount will be increased by the amount received by AOT representing the
exercise price for any AOT options exercised between the date of the Plan Sponsor Agreement and the
closing). The Class A units being offered to Eligible Investors will be entitled to the same
distributions on a pari passu basis as the Class A units being issued to current holders of stock
of AOT.
The Purchasers intend to operate Reorganized Bedding Holdco and AOT as separate and distinct
entities with separate management teams that will continue to compete with one another in the
marketplace. Operating cost synergies will be effectuated and their benefits allocated through a
master services agreement between the two companies, pursuant to which the companies will provide
goods and services to one another on terms negotiated on an arms length basis and
verified by an independent third-party auditor. For a summary of projected financial
information of New Parent, see Exhibit D attached hereto.
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On August 31, 2005, in connection with the acquisition of NBC, ACOF Manager, L.P., an
affiliate of Ares Management (the Advisor), entered into a management services agreement
with Serta Holdings to provide advisory services to Serta Holdings for a term of 10 years. During
such term, the Advisor receives an aggregate sum of $500,000 per annum, plus VAT where applicable,
in quarterly installments. The advisory fees are intended to be flat fees and, as such are payable
to the Advisor irrespective of the actual level of services provided. In addition, the agreement
provides that Serta Holdings shall reimburse the Advisor for its reasonable out-of-pocket expenses
incurred in connection with the services provided. While not a party to the management services
agreement, Ontario Teachers is instead entitled to receive a special dividend payable by AOT
pursuant to AOTs certificate of incorporation in an amount equal to $500,000 per annum, payable in
quarterly installments similar to the advisory fee paid to the Advisor.
Upon closing of the transactions contemplated by the Plan Sponsor Agreement, it is intended
that the Advisor or another affiliate of Ares Management will enter into a management services
agreement with the Company on terms substantially similar to the AOT management service agreement
described above. Similarly, such advisor shall receive from the Company an advisory fee of
$500,000 per annum, plus VAT where applicable, in addition to reimbursement of reasonable
out-of-pocket expenses in connection with its services. In addition, Ontario Teachers will receive
a special distribution on account of its Class A-2 Units in the same amounts as the advisory fee
received by the advisor. See Exhibit E for additional information about the special distribution.
VII. SUMMARY OF OTHER PROVISIONS OF THE PLAN
A. Administrative Expenses for the Debtors
Obligations of the Debtors that arise after the Petition Date are known as administrative
expenses. These include postpetition credit provided by vendors and suppliers, obligations to
customers, tax claims, and obligations under the DIP Facility. All such claims are required to be
paid in full in cash on the effective date of the Plan or in accordance with normal business terms.
Certain prepetition claims are entitled to priority in the Chapter 11 Cases, such as certain
amounts for wages and taxes. These amounts must also be paid in full. The Debtors have the
ability to pay priority tax claims (including interest) over an extended period (up to five years).
The Debtors expect that Holdcos administrative expenses will be de minimis because it is a
holding company.
B. Allowed Claims
Notwithstanding any provision in the Plan to the contrary, the Debtors or Reorganized Debtors
will only make distributions to holders of allowed claims. No holder of a disputed claim or
disputed equity interest will receive any distribution on account thereof until and to the extent
that its disputed claim or disputed equity interest becomes an allowed claim or allowed equity
interest.
C. Securities Law Matters and Restrictions on Transfer of the Class A Units
The Debtors and New Parent are relying on a private transaction exemption under the Securities
Act to exempt the offer of the Class A Units that may be deemed to occur through the solicitation
of acceptances of the Plan prior to the Petition Date, and are relying on section 1145(a)(1) of the
Bankruptcy Code to exempt the offer and sale of Class A Units pursuant to the Plan from the
registration requirements of the Securities Act and applicable state securities and blue sky laws.
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Section 1145(a)(1) of the Bankruptcy Code exempts the offer or sale of securities pursuant to
a plan of reorganization from the registration requirements of the Securities Act and from
registration under state securities laws if the following conditions are satisfied: (i) the
securities are issued by a company (a debtor under the Bankruptcy Code) under a plan of
reorganization (or an affiliate participating in a joint plan with the debtor, or successors
to the debtor under a plan); (ii) the recipients of the securities hold a claim against, an
interest in, or a claim for an administrative expense against, the debtor; and (iii) the securities
are issued in exchange for the recipients claim against or interest in the debtor, or principally
in such exchange and partly for cash or property. In general, offers and sales of securities made
in reliance on the exemption afforded under section 1145(a)(1) of the Bankruptcy Code are deemed to
be made in a public offering, so that the recipients thereof, other than underwriters or
affiliates, are free to resell such securities without registration under the Securities Act. In
addition, such securities generally may be resold without registration under state securities laws
pursuant to various exemptions provided by the respective laws of the several states.
A person who is an underwriter of the Class A Units, as that term is defined in section
1145(b) of the Bankruptcy Code, will not be an Eligible Investor entitled to elect to receive Class
A Units under the Plan. Section 1145(b) of the Bankruptcy Code defines the term underwriter as
one who (a) purchases a claim with a view toward distribution of any security to be received in
exchange for the claim, or (b) offers to sell securities issued under a plan for the holders of
such securities, or (c) offers to buy securities issued under a plan from persons receiving such
securities, if the offer to buy is made with a view toward distribution, or (d) is a control person
of the issuer of the securities.
THE FOREGOING SUMMARY DISCUSSION IS GENERAL IN NATURE AND HAS BEEN INCLUDED IN THIS DISCLOSURE
STATEMENT SOLELY FOR INFORMATIONAL PURPOSES. THE DEBTORS MAKE NO REPRESENTATIONS CONCERNING, AND
DO NOT HEREBY PROVIDE, ANY OPINIONS OR ADVICE WITH RESPECT TO THE SECURITIES AND BANKRUPTCY MATTERS
DESCRIBED HEREIN. IN LIGHT OF THE UNCERTAINTY CONCERNING THE AVAILABILITY OF EXEMPTIONS FROM THE
RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS, THE DEBTORS ENCOURAGE EACH CREDITOR AND
PARTY-IN-INTEREST TO CONSIDER CAREFULLY AND CONSULT WITH ITS OWN LEGAL ADVISORS WITH RESPECT TO ALL
SUCH MATTERS. BECAUSE OF THE COMPLEX, SUBJECTIVE NATURE OF THE QUESTION OF WHETHER A PARTICULAR
HOLDER MAY BE AN UNDERWRITER OR AN AFFILIATE, THE DEBTORS MAKE NO REPRESENTATION CONCERNING THE
ABILITY OF A PERSON TO DISPOSE OF THE SECURITIES TO BE DISTRIBUTED UNDER THE PLAN.
D. Means for Implementing the Plan
1. Joint Chapter 11 Plan
The Plan is a joint chapter 11 plan for each of the Debtors, with the Plan for each Debtor
being non-severable and mutually dependent on the Plan for each other Debtor. This means that the
failure to obtain confirmation of the Plan at one of the Debtors will result in a failure to
confirm the Plan with respect to each of the other Debtors.
2. Authorization of New Securities and Plan-Related Documents
Each of the Reorganized Debtors is authorized to enter into all agreements necessary for the
New ABL Facility and the issuance of the senior secured term notes. On, or as soon as reasonably
practicable after, the Effective Date, Reorganized Bedding Holdco is authorized to and shall
distribute, or cause to be distributed, New Common Stock, the Class A Units and other New
Securities and Documents, in each case without further notice to or order of the Bankruptcy Court,
act or action under applicable law, regulation, order or rule or the vote, consent, authorization
or approval of any Person or any further corporate action. All documents, agreements and
instruments entered into and delivered on or as of the Effective Date contemplated by or in
furtherance of the Plan, and any other agreement or document related to or entered into in
connection with same, shall become, and shall remain, effective and binding in accordance with
their respective terms and conditions upon the parties thereto, in each case without further notice
to or order of the Bankruptcy Court, act or action under applicable law, regulation, order or rule
or the vote, consent, authorization or approval of any Person or any further corporate action
(other than as expressly required by such applicable agreement).
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3. Fees and Expenses
The Plan provides that the Reorganized Debtors will pay the reasonable fees and expenses of
various parties involved in the restructuring effort, including the administrative agent under the
DIP Facility and the SBC Credit Agreement, the respective indenture trustees for the holders of SBC
Note Claims and Holdco Note Claims, counsel to certain of the Debtors major creditors, and counsel
to the directors of the Debtors.
E. Provisions Governing Distributions
1. Distribution Record Date
At the close of business on the Confirmation Date, the transfer ledgers for holders of the
Classes of claims or equity interests (other than the New Common Stock) maintained by the Debtors
shall be closed, and there shall be no further changes in the record holders of such debt. The
Reorganized Debtors have no obligation to recognize any transfer of any such claims or equity
interests occurring after the Confirmation Date and shall be entitled instead to recognize and deal
for all purposes under the Plan with only those record holders listed on the transfer ledgers as of
the close of business on the Confirmation Date.
2. Date of Distributions
Except for the residual payments to holders of SBC Note Claims, Holdco Note Claims, or as
otherwise provided in the Plan, distributions and deliveries with respect to allowed claims will be
made on the Effective Date or as soon thereafter as is practical.
3. Delivery of Distributions
Subject to Bankruptcy Rule 9010, distributions to the holders of the SBC Notes and the Holdco
Notes will be made to the indenture trustee for such notes. Distributions with respect to the SBC
Credit Agreement Claims will be made to the agent under the SBC Credit Agreement. In the event
that any distribution to any holder is returned as undeliverable, the Reorganized Debtors shall use
reasonable efforts to determine the current address of such holder, but no distribution to such
holder shall be made unless and until the Reorganized Debtors have determined the then-current
address of such holder, at which time such distribution shall be made to such holder without
interest; provided that such distributions shall be deemed unclaimed property under section 347(b)
of the Bankruptcy Code at the expiration of one (1) year from the Effective Date. After such date,
all unclaimed property or interest in property shall revert to the Reorganized Debtors, and the
Claim of any other holder to such property or interest in property shall be discharged and forever
barred.
4. Minimum Distributions
The Reorganized Debtors shall not be obligated to make a distribution of less than $1,000.00
on account of an Allowed Claim to any holder of a Claim unless a request therefor is made in
writing to the Reorganized Debtors.
F. Procedures for Resolving Disputed, Contingent, and Unliquidated Claims
1. Objections to Claims
The Reorganized Debtors shall be entitled to object to claims. Any objections will be served
and filed on or before the later of one hundred twenty (120) days after the Effective Date or such
date as may be fixed by the Bankruptcy Court. At such time as a disputed claim becomes allowed,
the Reorganized Debtors will make appropriate distributions.
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2. Preservation of Rights to Settle Claims
In accordance with section 1123(b) of the Bankruptcy Code, the Reorganized Debtors shall
retain and may enforce, sue on, settle, or compromise (or decline to do any of the foregoing) all
Claims, rights, causes of action, suits, and proceedings, whether in law or in equity, whether
known or unknown, that the Debtors or their estates may hold against any Person or entity without
the approval of the Bankruptcy Court, subject to the terms of Section 7.1 of the Plan, the
Confirmation Order and any contract, instrument, release, indenture, or other agreement entered
into in connection herewith. The Reorganized Debtors or their successor(s) may pursue such
retained Claims, rights, or causes of action, suits, or proceedings, as appropriate, in accordance
with the best interests of the Reorganized Debtors or their successor(s) who hold such rights.
G. Treatment of Executory Contracts and Unexpired Leases
1. General Treatment
Except as otherwise provided in the Plan or any subsequent supplement thereto, or in any
contract, instrument, release, indenture, or other agreement or document entered in connection with
the Plan, as of the Effective Date, all executory contracts and unexpired leases to which any of
the Debtors are parties are assumed except for an executory contract or unexpired lease that (i)
previously has been assumed or rejected pursuant to Final Order, (ii) previously expired or
terminated by its own terms, (iii) is set forth in a schedule as an executory contract or unexpired
lease to be rejected to be filed as part of the Plan Supplement, (iv) is rejected pursuant to the
terms of the Plan, (v) is not capable of assumption pursuant to section 365(c) of the Bankruptcy
Code, or (vi) is the subject of a separate motion to assume or reject such executory contract or
unexpired lease filed by the Debtors with Purchaser Approval under section 365 of the Bankruptcy
Code prior to the Confirmation Date.
2. Cure of Defaults
Except to the extent that different treatment has been agreed to by the non-debtor party or
parties to any executory contract or unexpired lease to be assumed pursuant to Section 8.2 of the
Plan, the Debtors or Reorganized Debtors shall, pursuant to the provisions of sections
1123(a)(5)(G) and 1123(b)(2) of the Bankruptcy Code and consistent with the requirements of section
365 of the Bankruptcy Code, within thirty (30) days after the Confirmation Date, file and serve a
pleading (such pleading subject to Purchaser Approval) with the Bankruptcy Court listing the cure
amounts of all executory contracts or unexpired leases to be assumed. The parties to such
executory contracts or unexpired leases to be assumed by the Debtors or Reorganized Debtors shall
have fifteen (15) days from service to object to the cure amounts listed by the Debtors or
Reorganized Debtors. If there are any objections filed, the Bankruptcy Court shall hold a hearing.
The Debtors or Reorganized Debtors shall retain their right, with Purchaser Approval, to reject
any of their executory contracts or unexpired leases, including contracts or leases that are
subject to a dispute concerning amounts necessary to cure any defaults.
3. Rejection Claims
In the event that the rejection of an executory contract or unexpired lease by any of the
Debtors pursuant to the Plan results in damages to the other party or parties to such contract or
lease, a Claim for such damages, if not heretofore evidenced by a timely filed proof of claim,
shall be forever barred and shall not be enforceable against the Debtors or the Reorganized
Debtors, or their respective properties or interests in property as agents, successors, or assigns,
unless a proof of claim is filed with the Bankruptcy Court and served on counsel for the Debtors
and the Reorganized Debtors on or before the date that is thirty (30) days after the Confirmation
Date or such later rejection date that occurs as a result of a dispute concerning amounts necessary
to cure any defaults.
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4. Assignment
Pursuant to sections 105(a), 363 and 365 of the Bankruptcy Code, the Debtors (with Purchaser
Approval) or Reorganized Debtors may transfer and assign any of their executory contracts or
unexpired leases that have not been rejected without any further act, authority, or notice. Any
executory contract or unexpired lease so transferred and assigned shall remain in full force and
effect for the benefit of the transferee or assignee in accordance with its terms, notwithstanding
any provision in such executory contract or unexpired lease (including those of the type described
in sections 365(b)(2) of the Bankruptcy Code) that prohibits, restricts, or conditions such
transfer or assignment. Any provision that prohibits, restricts, or conditions the assignment or
transfer of any such executory contract or unexpired lease or that terminates or modifies such
executory contract or unexpired lease or allows the counterparty to such executory contract or
unexpired lease to terminate, modify, recapture, impose any penalty, condition renewal or
extension, or modify any term or condition on any such transfer and assignment constitutes an
unenforceable anti-assignment provision and is void and of no force or effect.
5. Survival of the Debtors Indemnification Obligations
Subject to Section 10.7 of the Plan, any obligations of the Debtors pursuant to any separate
indemnification agreements with current and former officers and directors or pursuant to their
corporate charters and bylaws or other organizational documents to indemnify current and former
officers, directors, agents, and/or employees with respect to actions, suits, and proceedings
against such parties, shall not be discharged or impaired by confirmation of the Plan and such
obligations shall be deemed and treated as executory contracts assumed by the Debtors hereunder and
shall continue as obligations of the Reorganized Debtors.
6. Survival of Other Employment Arrangements and Equity
Except and to the extent previously assumed by an order of the Bankruptcy Court, on or before
the Confirmation Date, all employee compensation and benefit plans of the Debtors, including
benefit plans and programs subject to sections 1114 and 1129(a)(13) of the Bankruptcy Code, entered
into before or after the Commencement Date and not since terminated, shall be deemed to be, and
shall be treated as if they were, executory contracts that are to be assumed under the Plan. The
Debtors obligations under such plans and programs shall survive confirmation of the Plan.
Notwithstanding anything in Section 8.7 of the Plan to the contrary, any equity incentive plans of
Bedding Superholdco Incorporated or any of the Debtors, including but not limited to the Third
Amended and Restated Simmons Holdco, Inc. Equity Incentive Plan, incentive and compensatory
warrants issued in connection with Bedding Holdcos acquisition of the assets of Comfor Products,
Inc., and any stock option, restricted stock or other equity agreements and any stock appreciation
rights or similar equity incentives or equity based incentives or other obligations or liabilities
the value of which depend on the price of, or distributions paid with respect to, equity
securities, shall be cancelled as of the Effective Date and the Debtors shall have no liability or
responsibility in respect of such equity interests.
7. Insurance Policies
All insurance policies pursuant to which the Debtors have rights and obligations as of the
date of the entry of the Confirmation Order and that qualify as executory contracts shall be
assumed by the respective Debtors and Reorganized Debtors and shall continue in full force and
effect. All insurance policies shall revest in the Reorganized Debtors. The Debtors intend to
purchase new director and officer insurance which will be put in place as of the Effective Date.
8. Workers Compensation Programs
Except as otherwise expressly provided in the Plan, as of the Effective Date, the Debtors and
the Reorganized Debtors shall continue to honor their obligations under (i) all applicable workers
compensation laws in states in which the Reorganized Debtors operate and (ii) the Debtors written
contracts, agreements, agreements of indemnity, self-insurer workers compensation bonds and any
other policies, programs and plans regarding or relating to workers compensation
and workers compensation insurance. All such contracts and agreements are treated as
executory contracts under the Plan and on the Effective Date will be assumed pursuant to the
provisions of sections 365 and 1123 of the Bankruptcy Code, with a cure amount of zero.
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H. Conditions Precedent
Both confirmation and the effective date of the Plan are subject to the occurrence of certain
conditions. The Debtors will not proceed to confirmation if, for any reason, the Plan Sponsor
Agreement has been terminated. The effective date of the Plan is dependent on all conditions to
the Plan Sponsor Agreement, including closing of the senior secured term notes exit financing
discussed in Section IV.F., above, being satisfied or waived. If there is a failure of any such
conditions, the Plan will not become effective and the rights of creditors and equity holders will
be preserved.
I. Effect of Confirmation
Confirmation acts to re-vest all the property of the Debtors in the Reorganized Debtors, free
and clear of all liens, other than as provided in the Plan. Confirmation also discharges all
claims and terminates all equity interests, other than as explicitly provided in the Plan. All
parties will be prohibited from seeking to pursue any prepetition claims against the Reorganized
Debtors or any of their current or former officers and directors. All parties will also be
prohibited from interfering with the Plan.
J. Termination of Existing Management Agreement
Subject to the effectiveness of the releases and the exculpation described below, THL Managers
V, LLC and its affiliates are terminating all existing management agreements with the Debtors and
waiving any outstanding claims under such agreements.
K. Releases and Exculpation
The Plan provides for mutual and general releases and exculpation of the Debtors, direct and
indirect stockholders of the Debtors, each creditor that votes to accept the Plan, the Purchasers,
any party that has provided management services to the Debtors, and each of their respective
current and former officers, directors, managers, members, employees, agents, representatives, and
affiliates. The releases do not prohibit the Debtors or the Reorganized Debtors from asserting and
enforcing any claims, obligations, suits, judgments, demands, debts, rights, causes of action or
liabilities they may have against (A) any current or former employee that are based on an alleged
breach of a confidentiality, non-compete, or any other contractual obligation owed to the Debtors
through the Effective Date or (B) any current or former employee (other than executive officers)
that is based on an alleged breach of a fiduciary obligation owed to the Debtors through the
Effective Date. The releases also do not cut off certain indemnification obligations or affect
obligations incurred by the parties under agreements executed in connection with the restructuring.
The releases do not release any party for causes of action based on a final determination of gross
negligence, intentional fraud, or criminal misconduct, and the exculpation does not release any
party from liability based on a final determination of willful misconduct, intentional fraud, or
criminal conduct.
Nothing in this section shall be deemed to limit or modify any of the Releases and
Exculpations contained in Section 10.5 or 10.6 of the Plan.
L. Retention of Causes of Action/Reservation of Rights
Except with respect to the releases and exculpation provided under the Plan, the Debtors and
the Reorganized Debtors will retain all causes of action, claims, rights of setoff or recoupment,
rights under the Bankruptcy Code, including, without limitation, the right to require the turnover
of property of the Debtors estates, or any applicable non-bankruptcy law or rule, common law,
equitable principle or other source of right or obligation, including, without limitation, (i) any
and all claims against any person or entity, to the extent such person or entity asserts a
crossclaim, counterclaim, and/or claim for setoff which seeks affirmative relief against the
Debtors, the Reorganized Debtors, their officers, directors, or representatives; and (ii) the
turnover of any property of the Debtors estates.
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Nothing contained in the Plan or in the Confirmation Order shall be deemed to be a waiver or
relinquishment of any claim, cause of action, right of setoff, or other legal or equitable defense
which the Debtors had immediately prior to the Commencement Date, against or with respect to any
claim left unimpaired by the Plan. The Reorganized Debtors shall have, retain, reserve and be
entitled to assert all such claims, causes of action, rights of setoff, and other legal or
equitable defenses which they had immediately prior to the Petition Date fully as if the Chapter 11
Cases had not been commenced, and all of the Reorganized Debtors legal and equitable rights
respecting any Claim left unimpaired by the Plan may be asserted after the Confirmation Date to the
same extent as if the Chapter 11 Cases had not been commenced.
Nothing in this section or in the Plan shall be deemed to limit or modify any of the Releases
or Exculpations contained in Sections 10.5 or 10.6 of the Plan.
M. Retention of Jurisdiction
On and after the Effective Date, the Bankruptcy Court shall retain jurisdiction over most
matters arising in, arising under, and related to the Chapter 11 Cases. However, choice of forum
provisions in the exit financing documents will be respected.
N. Determination of Tax Filings and Taxes
For all taxable periods ending on or prior to, or including, the Effective Date, Bedding
Holdco shall prepare and file (or cause to be prepared and filed) on behalf of the Simmons Group
(as defined below), all combined, consolidated or unitary tax returns, reports, certificates, forms
or similar statements or documents for any group of entities that include Bedding Holdco
(collectively, Group Tax Returns) required to be filed or that Bedding Holdco otherwise
deems appropriate, including the filing of amended Group Tax Returns or requests for refunds. If
requested by Bedding Holdco, Bedding Superholdco Incorporated or Holdco, as appropriate, shall
promptly execute or cause to be executed and filed any Group Tax Returns of the Simmons Group
submitted by Bedding Holdco to Bedding Superholdco Incorporated, or Holdco (as applicable) for
execution or filing. Neither Bedding Superholdco Incorporated nor Holdco shall file or amend any
Group Tax Return for any taxable periods (or portions thereof) described in the first sentence of
this clause (a) without Bedding Holdcos prior written consent.
Bedding Superholdco Incorporated, Holdco, and Bedding Holdco shall cooperate fully with each
other regarding the implementation of Section 12.5(b) of the Plan (including the execution of
appropriate powers of attorney) and shall make available to each other as reasonably requested all
information, records and documents relating to taxes governed by Section 12.5 of the Plan until the
expiration of the applicable statute of limitations or extension thereof or at the conclusion of
all audits, appeals or litigation with respect to such taxes. Without limiting the generality of
the foregoing, Bedding Superholdco Incorporated shall execute on or prior to the Effective Date a
power of attorney authorizing Bedding Holdco to correspond, sign, collect, negotiate, settle and
administer tax payments and Group Tax Returns for the taxable periods described in Section 12.4 of
the Plan.
If Bedding Superholdco Incorporated or Holdco receives written notice from a taxing authority
of any pending examination, claim, settlement, proposed adjustment or related matters with respect
to taxes that could affect any other member of the Simmons Group (by operation of law or by reason
of this Plan), it shall so notify Bedding Holdco in writing within ten (10) business days
thereafter. Bedding Holdco shall have the sole right, at its expense, to control, conduct,
compromise and settle any tax contest, audit or administrative or court proceeding relating to any
liability for taxes of the Simmons Group. With respect to any such proceeding and with respect to
the preparation and filing of any Group Tax Returns of the Simmons Group, Bedding Holdco may act in
its own self-interest and in the interest of its subsidiaries and affiliates, without regard to any
adverse consequences to Bedding Superholdco Incorporated or Holdco.
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If Bedding Superholdco Incorporated or Holdco is dissolved, merged out of existence, or
otherwise treated in a manner that terminates the Simmons Group for applicable tax purposes,
immediately before such termination, Bedding Superholdco Incorporated or Holdco (as applicable)
shall designate Bedding Holdco as the substitute agent (within the meaning of Treasury Regulation
Section 1.1502-77) for the Simmons Group in accordance with Treasury Regulation Section 1.1502-77
and Rev. Proc. 2002-43, 2002-2 C.B. 99, in either case, as amended or supplemented, and any
comparable provision under state or local law, with respect to all taxable periods ending on or
before, or including, the Effective Date.
Bedding Holdco shall be entitled to the entire amount of any refunds and credits (including
interest thereon) with respect to or otherwise relating to any taxes of the Simmons Group,
including for any taxable period ending on or prior to, or including, the Effective Date. Within
five (5) business days after receipt of any such refunds or credits, Bedding Superholdco
Incorporated or Holdco (as applicable) shall notify Bedding Holdco thereof and shall transfer any
such refunds to Bedding Holdco by wire transfer or otherwise in accordance with written
instructions provided by Bedding Holdco.
O. Amendments and Severability
Generally, the Debtors may amend certain provisions of the Plan with Purchaser Approval, but
may not otherwise amend the Plan. Specifically, the Debtors have agreed in the Restructuring
Support Agreement not to make any amendments to the Plan that amend, modify or are inconsistent
with (i) any of the releases or exculpation provided under the Plan, (ii) the obligation under the
Plan to pay the reasonable fees and expenses of (A) the administrative agent under the restated
Credit and Guaranty Agreement for the SBC Credit Agreement Claims, (B) the respective indenture
trustees for the holders of the SBC Note Claims and the Holdco Note Claims, or (C) counsel and/or
financial advisors for certain parties named in the Restructuring Support Agreement, (iii) the
requirement in the Plan that the Plan is a joint chapter 11 plan for each of Holdco, Bedding
Holdco, and SBC with the Plan for each such Debtor being non-severable and mutually dependent on
the Plan for each such other Debtor, or (iv) the treatment of the Lenders, the holders of SBC
Notes, the holders of Holdco Notes, or any equity interests in any of the Debtors. The Debtors are
also prohibited from amending Section 8.9 of the Plan (Existing Management Agreement) without the
prior written consent of THL Managers V, LLC.
If the Bankruptcy Court finds any provision of the Plan to be invalid or unenforceable, it
shall have the power to interpret such provision to make it valid or enforceable, provided its
interpretation is consistent with the original purpose of the provision. Such interpretation by
the Bankruptcy Court will not affect the remainder of the Plan, which will remain in full force and
effect; provided that no such alternation or interpretation of the Plan will operate to modify or
amend the terms and conditions of the Plan Sponsor Agreement without the consent of the Purchasers.
VIII. ANTICIPATED EVENTS DURING THE CHAPTER 11 CASES
A. Commencement of the Chapter 11 Cases
If the Debtors receive the requisite acceptances in response to the solicitation, the Debtors
intend to promptly commence the Chapter 11 Cases. The Debtors may decide to commence the Chapter
11 Cases even without the requisite acceptances of the Plan. From and after the Petition Date, the
Debtors will continue to operate their businesses and manage their properties as debtors in
possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
The Debtors do not expect the Chapter 11 Cases to be protracted. To expedite their emergence
from chapter 11, the Debtors intend to seek the relief detailed below, among other things, from the
Bankruptcy Court on the Petition Date. If granted, this relief will facilitate the administration
of the Chapter 11 Cases. There can be no assurance, however, that the Bankruptcy Court will grant
the requested relief. Bankruptcy courts customarily provide these and various other forms of
administrative and other relief in the early stages of Chapter 11 Cases. The Debtors intend to
seek all necessary and appropriate relief from the Bankruptcy Court in order to facilitate their
reorganization goals, including without limitation, the matters described below. All votes to
accept the Plan shall be deemed to constitute consents to the relief to be sought
by the Debtors upon the commencement of the Chapter 11 Cases as summarized below and set forth
in greater detail in the respective motions and applications.
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1. Joint Administration
The Debtors will seek authority to consolidate under a single case name, in a single docket,
for administrative purposes, the separate filings that would result if the Bankruptcy Court
maintained entirely separate dockets for each of the cases. This relief will, among other things,
reduce costs for parties making filings with the Bankruptcy Court and obviate the need for
duplicate pleadings and files maintained by the Bankruptcy Court.
2. Schedules and Statement of Financial Affairs
Section 521 of the Bankruptcy Code and Rule 1007 of the Bankruptcy Rules direct the Debtors to
prepare and file schedules of assets and liabilities, claims, executory contracts and unexpired
leases and related information, and a statement of financial affairs within fifteen business days
(or thirty business days if certain conditions are met) of the commencement of the Chapter 11
Cases, unless otherwise ordered by the Bankruptcy Court. The purpose of this requirement is to
provide the Debtors creditors, equity security holders and other interested parties with
sufficient information to make informed decisions with respect to the Debtors reorganization. The
Debtors intend to seek a sixty day extension of the applicable deadline to file their schedules
and/or a waiver of all or part of the scheduling requirement in light of the nature of their
Chapter 11 proceedings and decision not to impair general unsecured creditors.
3. Approval of Prepetition Solicitation and Scheduling of Confirmation Hearing
To facilitate the prompt confirmation and consummation of the Plan, the Debtors intend to seek
an order scheduling a combined hearing to (i) approve the prepetition solicitation procedures,
including this Disclosure Statement, and (ii) confirm the Plan for a date immediately following the
end of the applicable notice period therefor, or as soon thereafter as the Bankruptcy Courts
calendar permits.
4. Cash Management System
Because of the administrative hardship that any operating changes would impose on the Debtors,
the Debtors intend to seek authority from the Bankruptcy Court to continue using their existing
cash management system, bank accounts and business forms. Absent authorization to continue using
the cash management system, the Debtors cash flow could be severely impeded, to the detriment of
the Debtors estate and creditors. The Debtors also intend to seek authority to maintain their
existing investment practices.
Continued use of the existing cash management system will facilitate the Debtors smooth and
orderly transition into chapter 11, minimize the disruption to their businesses while in chapter
11, and expedite their emergence from chapter 11. Requiring the Debtors to adopt and implement a
new cash management system would likely increase the costs of the Chapter 11 Cases, primarily as a
result of the significant time and expense associated with the transition to a new cash management
system. For the same reasons, requiring the Debtors to cancel their existing bank accounts and
establish new accounts and create new business forms, and obtain surety bonds in connection with
their investment practices, would only frustrate the Debtors efforts to reorganize expeditiously.
5. Payment of Prepetition Employee Wages, Compensation and Employee Benefits
The Debtors will seek authority to pay all accrued but unpaid amounts due for employee wages,
salaries and benefit programs in the ordinary course of the Debtors businesses. Such employee
benefit plans and policies include: (i) medical, health, dental and vision insurance; (ii) life,
disability, workers compensation and employee counseling and assistance; (iii) severance benefits;
(iv) incentive benefits; and (v) 401(k) matching plan benefits. The Debtors will also request that
they be permitted to (a) pay all accrued but unpaid expense reimbursements, vacation benefits and
employee
payroll deductions associated with the Debtors payroll, and other employee benefit
obligations; and (b) maintain and pay all accrued but unpaid prepetition amounts owed to the
Debtors payroll and employee benefits administrators.
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6. Honoring Prepetition Obligations Under Customer-Related Programs and Otherwise Continuing
Customer-Related Practices and Programs
The Debtors intend to seek authority to honor and continue, in the ordinary course of their
businesses, the various programs and practices currently in place with their customers and the
parties who administer such programs. These programs and practices are designed to ensure customer
satisfaction, increase sales, respond to competitive pressures, maintain customer loyalty, improve
profitability, and generate goodwill for the Debtors and their products.
7. Adequate Assurance to Utility Companies
The Debtors intend to seek interim and final orders (a) prohibiting any utility companies that
provide utility services to the Debtors from altering, refusing or discontinuing any such utility
services; (b) deeming such utility companies adequately assured of payment within the meaning of
section 366 of the Bankruptcy Code without the need for payment of additional deposits or security;
and (c) establishing procedures for determining requests by utility companies for additional
assurances of future payment.
8. Authority to Pay Prepetition Claims of Critical Vendors
The Debtors employ the use of just-in-time inventory manufacturing techniques given that the
Debtors manufacture and ship most of their bedding products within five days of their initial
receipt of an order. Under this approach, the Debtors typically do not maintain on hand more than
approximately one weeks supply of their finished products or two and one-half weeks supply of the
raw materials needed to manufacture their finished products. In some instances, the Debtors may
maintain as little as a one day supply of products or raw materials on hand. The Debtors closely
coordinate with their vendors to efficiently manage their supply purchases and to maintain their
inventories of finished products and raw materials at very low levels. Given these low
inventories, the Debtors ability to continue manufacturing their bedding products largely depends
upon their continued ability to access the goods, materials and services provided by their
suppliers.
Given this, the Debtors will seek authority to pay the prepetition fixed, liquidated, and
undisputed claims of its raw materials suppliers, dedicated third party logistic providers,
proprietary software providers and information technology service providers with whom the Debtors
continue to do business and whose materials, goods and services are essential and critical to the
Debtors reorganization. The Debtors will submit that the payment of such claims should be
authorized on a number of grounds, including that: (i) a substantial amount of the critical vendor
claims are entitled to administrative expense status pursuant to section 503(b)(9) of the
Bankruptcy Code because their claims arise from the delivery of goods within twenty days of the
Petition Date; (ii) a certain number of the critical vendors are parties to executory contracts and
their claims under such contracts would be subject to priority treatment if the Debtors elected to
assume those contracts under section 365(a) of the Bankruptcy Code; (iii) certain of the critical
vendors have reclamation rights under section 546 of the Bankruptcy Code, which, if exercised,
would undermine the Debtors ability to continue their manufacturing operations, and, thus, their
ability to generate revenues; and (iv) payment of the critical vendor claims is necessary to the
preservation of the Debtors business and is therefore a valid exercise of the Bankruptcy Courts
authority under section 105(a) of the Bankruptcy Code.
Additionally, the Debtors will seek authority to (i) grant various vendors and suppliers
administrative expense priority status under section 503(b) of the Bankruptcy Code for any
undisputed obligations arising from the postpetition delivery of goods and services under
outstanding prepetition purchase orders; and (ii) in the exercise of their business judgment and in
accordance with their customary business practices, satisfy such undisputed obligations to vendors
in the ordinary course of business.
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9. Payment of Prepetition Sales and Use Taxes
The Debtors intend to seek authority to pay all prepetition sales, use and excise taxes owed
to any taxing authority, including any such taxes and assessments that are subsequently determined
upon audit to have accrued during the period prior to the Petition Date, and any related penalties
and interest thereon.
10. Payment of Prepetition Insurance and Related Charges
The Debtors intend to seek authority to maintain their workers compensation, general
liability, property and other insurance programs and to pay any accrued but unpaid amounts due as
of the Petition Date in connection with such programs.
11. Retention of Professionals
The Debtors intend to seek authority from the Bankruptcy Court to retain and employ certain
professionals to represent and assist them in connection with the Chapter 11 Cases. The
professionals that have been intimately involved in the negotiation and development of the Plan and
other aspects of the Debtors reorganization include: (i) Weil Gotshal, as counsel for the
Debtors, (ii) Miller Buckfire, as investment banker and financial advisor to the Debtors; (iii) CRG
Partners Group LLC, as an advisor to the Debtors; (iv) Morris James LLP, as counsel to the Special
Committee; (v) Deloitte & Touche LLP, as tax advisors on elections available as part of the chapter
11 process; and (vi) Epiq Bankruptcy Solutions, LLC, as Solicitation Agent for the Debtors.
The Debtors may also retain additional professionals to assist in the restructuring process,
including additional counsel to assist with asset dispositions and to pursue litigation claims.
12. Procedures for Interim Compensation and Reimbursement of Expenses of Professionals
The Debtors intend to seek authority to establish procedures which would require each
professional retained by the Debtors, and subject to a formal retention application, to file with
the Bankruptcy Court and serve upon the Debtors, the Administrative Agent for the holders of SBC
Credit Agreement Claims and the United States Trustee, among other parties, a detailed statement of
services rendered and expenses incurred for the month preceding the rendering of such services.
Such procedures would provide that if no party timely objects to the professionals monthly
statement or only objects to a portion of such monthly statement, the Debtors would be authorized
to pay each of the professionals the lesser of (i) 80% of the fees incurred for the month and 100%
of the expense disbursements for such month, or (ii) 80% of the fees incurred for the month and
100% of the expense disbursements for such month that are not subject to an objection. These
payments would be subject to the Bankruptcy Courts subsequent final approval as part of the normal
interim fee application process.
13. Retention of Professionals Utilized in Ordinary Course of Business
The Debtors intend to seek authority, pursuant to sections 105 and 327 of the Bankruptcy Code,
to retain and employ professionals utilized in the ordinary course of their businesses on terms
substantially similar to those in effect prior to the Petition Date without the need to file
separate retention applications and obtain separate retention orders for such professionals.
B. Debtor in Possession Financing
On or shortly after the Petition Date, the DIP Debtors expect to seek Bankruptcy Court
approval of a DIP Facility to fund the DIP Debtors working capital needs during the pendency of
the Chapter 11 Cases. The DIP Facility will be a senior secured revolving credit facility with (i)
a maximum borrowing capacity of up to $35 million, (ii) a letter of credit sublimit of an amount to
be determined, (iii) a maturity of the earlier of (x) 6 months from the Petition Date (with the
ability to extend such maturity to 12 months) and (y) the Effective Date, (iv) an interest
rate of LIBOR plus 450 basis points per annum (subject to a LIBOR floor of 3.00%), (v) an unused
line fee of 1.00%, (vi) a to be determined minimum monthly EBITDA financial covenant and (vii)
conditions precedent, representations and warranties, affirmative and negative covenants and events
of default to be agreed upon and which are normal and customary for transactions of this type.
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The obligations under the DIP Facility will be (i) secured by a first priority priming lien on
substantially all of the existing and after-acquired assets of the DIP Debtors, including assets
constituting collateral securing obligations to the holders of SBC Credit Agreement Claims under
the SBC Credit Agreement and (ii) guaranteed by the domestic subsidiaries of SBC. Additionally,
obligations under the DIP Facility will be entitled to superpriority administrative expense status.
IX. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN
The following discussion summarizes certain U.S. federal income tax consequences of the
implementation of the Plan to the Debtors, and, except as provided below, to holders of SBC Credit
Agreement Claims, SBC Note Claims, and Holdco Note Claims (collectively, Claims). This
discussion does not address the U.S. federal income tax consequences to holders of Claims who are
unimpaired and holders of SBC Note Claims who purchase senior secured term notes of Reorganized SBC
on the Effective Date.
The discussion of U.S. federal income tax consequences below is based on the Internal Revenue
Code of 1986, as amended (the Tax Code), Treasury regulations, judicial authorities,
published positions of the Internal Revenue Service (IRS) and other applicable
authorities, all as in effect on the date of this document and all of which are subject to change
or differing interpretations (possibly with retroactive effect). The U.S. federal income tax
consequences of the contemplated transactions are complex and are subject to significant
uncertainties. The Debtors have not requested a ruling from the IRS or any other tax authority, or
an opinion of counsel, with respect to any of the tax aspects of the contemplated transactions, and
the discussion below is not binding upon the IRS or such other authorities. Thus, no assurance can
be given that the IRS or such other authorities would not assert, or that a court would not
sustain, a different position from any discussed herein.
This summary does not address foreign, state or local tax consequences of the contemplated
transactions, nor does it purport to address the U.S. federal income tax consequences of the
transactions to special classes of taxpayers (e.g., foreign taxpayers, small business investment
companies, regulated investment companies, real estate investment trusts, controlled foreign
corporations, passive foreign investment companies, banks and certain other financial institutions,
insurance companies, tax-exempt organizations, retirement plans, holders of Claims that are, or
hold Claims through, partnerships or other pass-through entities for U.S. federal income tax
purposes, U.S. Holders (as defined below) whose functional currency is not the U.S. dollar, dealers
in securities or foreign currencies, traders that mark-to-market their securities, expatriates and
former long-term residents of the United States, persons subject to the alternative minimum tax,
and persons holding Claims that are part of a straddle, hedging, constructive sale or conversion
transaction). In addition, this discussion does not address U.S. federal taxes other than income
taxes, nor does it apply to any person that acquires any of the Class A Units in the secondary
market.
This discussion assumes that the Claims and the Class A Units are held as capital assets
(generally, property held for investment) within the meaning of Section 1221 of the Tax Code and
that New Parent will properly elect to be treated as a corporation for U.S. federal income tax
purposes as of the date of its formation.
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The following summary of certain U.S. federal income tax consequences is for informational
purposes only and is not a substitute for careful tax planning and advice based upon your
individual circumstances.
Internal Revenue Service Circular 230 Notice: To ensure compliance with Internal
Revenue Service Circular 230, holders of Claims are hereby notified that: (A) any discussion of
federal tax issues contained or referred to in this Disclosure Statement is not intended or written
to be used, and cannot be used, by holders of Claims for the purpose of avoiding penalties that may
be imposed on them under the Internal Revenue Code; (B) such discussion is written in connection
with the promotion or marketing by the Debtors of the transactions or matters addressed herein; and
(C) holders of Claims should seek advice based on their particular circumstances from an
independent tax advisor.
A. Consequences to the Debtors
For U.S. federal income tax purposes, the Debtors are members of an affiliated group of
corporations (or disregarded entities wholly owned by members of such group), of which Bedding
Superholdco Incorporated is the common parent, which files a single consolidated U.S. federal
income tax return (the Simmons Group).
The Simmons Group has reported net operating loss (NOL) carryforwards of
approximately $95 million for U.S. federal income tax purposes as of the end of 2008. The Simmons
Group may incur further operating losses during its taxable year ending December 26, 2009. The
amount of any such NOL carryforwards and other losses, and the extent to which any limitations
might apply, remains subject to audit and adjustment by the IRS.
As discussed below, in connection with the Plan, the amount of the Simmons Groups NOL
carryforwards may be significantly reduced or eliminated, and other tax attributes of the Simmons
Group (such as tax basis in assets) may be reduced.
The Simmons Group will terminate for U.S. federal consolidated return filing purposes on the
Effective Date upon the issuance of the New Common Stock. After the Effective Date, the
Reorganized Debtors (other than Holdco) will be members of a new affiliated group of corporations.
The Debtors expect that this group will file a single consolidated U.S. federal income tax return;
accordingly, references to the Simmons Group in the remainder of this discussion refer, as
applicable, to the reorganized Simmons Group.
1. Cancellation of Debt
In general, the Tax Code provides that a debtor in a bankruptcy case must reduce certain of
its tax attributes such as NOL carryforwards and current year NOLs, capital loss carryforwards,
tax credits, and tax basis in assets by the amount of any cancellation of debt income
(COD) incurred pursuant to a confirmed chapter 11 plan. The amount of COD incurred is
generally the amount by which the indebtedness discharged exceeds the value of any consideration
given in exchange therefor. Certain statutory or judicial exceptions may apply to limit the amount
of COD incurred for U.S. federal income tax purposes. If advantageous, a borrower can elect to
reduce the basis of depreciable property prior to any reduction in its NOL carryforwards or other
tax attributes. Where the borrower joins in the filing of a consolidated U.S. federal income tax
return, applicable Treasury regulations require, in certain circumstances, that the tax attributes
of the consolidated subsidiaries of the borrower and other members of the group also be reduced.
The Debtors expect to incur substantial COD as a result of the implementation of the Plan,
with the result that there will be substantial reductions in the NOL carryforwards or other tax
attributes of the Simmons Group. Alternatively, the American Recovery and Reinvestment Act of 2009
permits the Debtors to elect to defer the inclusion of COD resulting from the Plan, with the amount
of COD becoming includible in their income ratably over a five-taxable year period beginning in the
fourth or fifth taxable year after the COD arises (depending on whether the Plan is consummated in
2009 or 2010). The collateral tax consequences of making such election are complex. The Debtors
do not expect to make the deferral election in connection with their annual tax return preparation.
The U.S. federal income tax consequences applicable to situations where members of a
consolidated group recognize COD and depart such consolidated group in the same taxable year are
complex and, in certain respects, unclear. Although
not currently expected, the application of such rules could result in the Simmons Group
incurring a material cash tax liability as a result of the consummation of the transactions
contemplated by the Plan.
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2. Potential Limitations on NOL Carryforwards and Other Tax Attributes
Following the Effective Date, any remaining NOL carryforwards and certain other tax attributes
(including current year NOLs) allocable to periods prior to the Effective Date (collectively,
pre-change losses) will be subject to limitations if Section 382 of the Tax Code applies
as a result of the changes in ownership described below. Any Section 382 limitations apply in
addition to, and not in lieu of, the use of attributes or the attribute reduction that results from
the COD arising in connection with the Plan. Absent electing to defer the inclusion of COD, the
Debtors believe that there will be no material tax attributes remaining after the Effective Date to
which Section 382 of the Tax Code would apply due to the expected reduction of tax attributes on
account of COD as discussed above.
Under Section 382 of the Tax Code, if a corporation (or consolidated group) undergoes an
ownership change and the corporation does not qualify for (or elects out of) the special
bankruptcy exception discussed below, the amount of its pre-change losses that may be utilized to
offset future taxable income is subject to an annual limitation. The consummation of the
transactions contemplated by the Plan would constitute an ownership change of the Simmons Group
for these purposes.
In general, the amount of the annual limitation to which a corporation that undergoes an
ownership change will be subject is equal to the product of (i) the fair market value of the stock
of the corporation immediately before the ownership change (with certain adjustments) multiplied by
(ii) the long term tax exempt rate in effect for the month in which the ownership change occurs
(e.g., 4.48% for ownership changes occurring in October 2009). As discussed below, this annual
limitation often may be increased in the event the corporation (or consolidated group) has an
overall built-in gain in its assets at the time of the ownership change. For a corporation (or
consolidated group) in bankruptcy that undergoes an ownership change pursuant to a confirmed
bankruptcy plan, the fair market value of the stock of the corporation is generally determined
immediately after (rather than before) the ownership change after giving effect to the discharge of
creditors claims, but subject to certain adjustments; in no event, however, can the stock value
for this purpose exceed the pre-change gross value of the corporations assets.
Any portion of the annual limitation that is not used in a given year may be carried forward,
thereby adding to the annual limitation for the subsequent taxable year. However, if the
corporation does not continue its historic business or use a significant portion of its historic
assets in a new business for at least two years after the ownership change, or if certain
shareholders claim worthless stock deductions and continue to hold their stock in the corporation
at the end of the taxable year, the annual limitation resulting from the ownership change is
reduced to zero, thereby precluding any utilization of the corporations pre-change losses, absent
any increases due to recognized built-in gains discussed below. Generally, NOL carryforwards
expire after 20 years.
Section 382 of the Tax Code also limits the deduction of certain built-in losses recognized
subsequent to the date of the ownership change. If a loss corporation has a net unrealized
built-in loss at the time of an ownership change (taking into account most assets and items of
built-in income, gain, loss and deduction), then any built-in losses recognized during the
following five years (up to the amount of the original net unrealized built-in loss) generally will
be treated as pre-change losses and similarly will be subject to the annual limitation.
Conversely, if the loss corporation has a net unrealized built-in gain at the time of an ownership
change, any built-in gains recognized (or, according to an IRS notice, treated as recognized)
during the following five years (up to the amount of the original net unrealized built-in gain)
generally will increase the annual limitation in the year recognized, such that the loss
corporation would be permitted to use its pre-change losses against such built-in gain income in
addition to its regular annual allowance. In general, a loss corporations net unrealized built-in
gain or loss will be deemed to be zero unless the actual value is greater than the lesser of (i)
$10 million or (ii) 15% of the fair market value of its assets (with certain adjustments) before
the ownership change.
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An exception to the foregoing annual limitation rules generally applies where qualified
creditors of a debtor corporation receive, in respect of their claims, at least 50% of the vote and
value of the stock of the reorganized debtor (or a controlling corporation if also in bankruptcy)
pursuant to a confirmed chapter 11 plan.
3. Alternative Minimum Tax
In general, a U.S. federal alternative minimum tax (AMT) is imposed on a
corporations alternative minimum taxable income at a 20% rate to the extent that such tax exceeds
the corporations regular U.S. federal income tax. For purposes of computing taxable income for
AMT purposes, certain tax deductions and other beneficial allowances are modified or eliminated.
In particular, even though a corporation otherwise might be able to offset all of its taxable
income for regular tax purposes by available NOL carryforwards, only 90% of a corporations taxable
income for AMT purposes may be offset by available NOL carryforwards (as computed for AMT
purposes).
In addition, if a corporation undergoes an ownership change and is in a net unrealized
built-in loss position (as determined for AMT purposes) on the date of the ownership change, the
corporations aggregate tax basis in its assets is reduced for certain AMT purposes to reflect the
fair market value of such assets as of the change date.
Any AMT that a corporation pays generally will be allowed as a nonrefundable credit against
its regular U.S. federal income tax liability in future taxable years when the corporation is no
longer subject to the AMT.
B. Consequences to Holders of Claims
As used in this section of the Disclosure Statement, the term U.S. Holder means a
beneficial owner of Claims or Class A Units that is for U.S. federal income tax purposes:
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an individual who is a citizen or resident of the United States; |
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a corporation, or other entity taxable as a corporation for U.S. federal income tax
purposes, created or organized in or under the laws of the United States, any state
thereof or the District of Columbia; |
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an estate the income of which is subject to U.S. federal income taxation regardless
of its source; or |
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a trust, if a court within the United States is able to exercise primary jurisdiction
over its administration and one or more U.S. persons have authority to control all of
its substantial decisions, or if the trust has a valid election in effect under
applicable Treasury regulations to be treated as a U.S. person. |
If a partnership or other entity taxable as a partnership for U.S. federal income tax purposes
holds Claims or Class A Units, the tax treatment of a partner will generally depend upon the status
of the partner and the activities of the partnership. If you are a partner in a partnership
holding any of such instruments, you should consult your own tax advisor.
1. Distributions under the Plan
Pursuant to the Plan, and in complete and final satisfaction of their respective Claims, U.S.
Holders of (i) SBC Credit Agreement Claims will receive from SBC their pro rata share of
$542,281,142 in cash, (ii) SBC Note Claims will receive from SBC their pro rata share of (a) $185
million and (b) the Class 5 Residual Amount; and (iii) Holdco Note Claims will receive from Holdco
their pro rata share of (a) $10 million, (b) the Class 6 Residual Amount in cash, and (c) Excess
Class 6 Distributions; provided, however, upon an effective election by any such holder of Holdco
Note Claims, such cash (other than cash from Excess Class 6 Distributions) shall immediately be
converted into Class A Units plus cash in lieu of fractional shares thereof.
Distributions to U.S. Holders of SBC Credit Agreement Claims, SBC Note Claims and Holdco Note
Claims may be made subsequent to the Effective Date. Under the Tax Code, a portion of any
distribution received after the Effective
Date may be treated as imputed interest depending on, among other things, whether the U.S.
Holder is an accrued or cash basis taxpayer. In addition, it is possible that any loss and a
portion of any gain realized by such holder may be deferred until such holder has received its
final distribution. All holders of such Claims should consult their tax advisors as to tax
consequences of distributions subsequent to the Effective Date.
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An exchange by a U.S. Holder of SBC Credit Agreement Claims, SBC Note Claims, or Holdco Note
Claims solely for cash should be treated as a fully taxable transaction, with the consequences
described below in the Section entitled Fully Taxable Exchange; provided, however, a U.S. Holder
of a Holdco Note Claim that elects to immediately convert its cash to Class A Units may be treated
for U.S. federal income tax purposes as having received such Class A Units directly pursuant to the
Plan with its temporary receipt of cash disregarded.
Assuming a U.S. Holder is treated for U.S. federal income tax purposes as receiving Class A
Units pursuant to the Plan, the U.S. federal income tax consequences of the Plan to a U.S. Holder
electing to receive Class A Units in respect of its Holdco Note Claims will depend on whether the
Holdco Note Claims constitute securities of Holdco for U.S. federal income tax purposes. If the
Holdco Note Claims constitute securities of Holdco, then the deemed receipt of Class A Units in
exchange therefor may qualify as exchanged pursuant to a G reorganization for U.S. federal income
tax purposes, with the consequences described below in Reorganization Treatment. If, on the
other hand, the Holdco Note Claims do not constitute securities of Holdco, then the deemed receipt
of Class A Units (and, if applicable, cash) in exchange therefor should be treated as a fully
taxable transaction, with the consequences described below in the Section below entitled Fully
Taxable Exchange.
The term security is not defined in the Tax Code or in the Treasury regulations issued
thereunder and has not been clearly defined by judicial decisions. The determination of whether a
particular debt obligation constitutes a security depends on an overall evaluation of the nature
of the debt, including whether the holder of such debt obligation is subject to a material level of
entrepreneurial risk and whether a continuing proprietary interest is intended or not. One of the
most significant factors considered in determining whether a particular debt is a security is its
original term. In general, debt obligations issued with a weighted average maturity at issuance of
less than five years do not constitute securities, whereas debt obligations with a weighted average
maturity at issuance of ten years or more constitute securities. Additionally, the IRS has ruled
that new debt obligations with a term of less than five years issued in exchange for and bearing
the same terms (other than interest rate) as securities should also be classified as securities for
this purpose, since the new debt represents a continuation of the holders investment in the
corporation in substantially the same form.
U.S. Holders of Holdco Note Claims electing to use cash they will otherwise receive as a
holder of a Claim in Class 6 (other than the Excess Class 6 Distributions) to purchase Class A
Units are urged to consult their own tax advisors regarding the appropriate status for U.S. federal
income tax purposes of their Claims.
Reorganization Treatment. The classification of an exchange as pursuant to a reorganization
for U.S. federal income tax purposes generally serves to defer the recognition of any gain or loss
by the U.S. Holder. Notwithstanding the foregoing, in the case of an Excess Class 6 Distribution,
a U.S. Holder of Holdco Note Claims would generally have to recognize its gain, if any, to the
extent of the cash received in the reorganization (excluding cash received in lieu of fractional
shares).
In addition, even within an otherwise tax-free reorganization exchange, however, a U.S. Holder
will have interest income to the extent of any exchange consideration allocable to accrued but
unpaid interest not previously included in income. See Section below entitled Payment of Accrued
Interest.
In an exchange pursuant to a reorganization, a U.S. Holders aggregate tax basis in any Class
A Units (including any fractional shares of Class A Units received, but subject to the deemed
redemption discussed below) received will equal the U.S. Holders aggregate adjusted tax basis in
the Holdco Note Claims exchanged therefor, increased by any gain (excluding any gain recognized in
the deemed redemption discussed below) or interest income recognized in the exchange, and decreased
by any cash received (excluding any cash received in lieu of fractional shares). A U.S. Holders
holding period in any Class A Units received will include the U.S. Holders holding period in
the Holdco Note Claims exchanged therefor, except to the extent of any exchange consideration
received in respect of accrued but unpaid interest.
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Any cash received in lieu of fractional shares will be treated as if the U.S. Holder received
such fractional shares followed by a redemption of such fractional shares in a fully taxable
transaction. The U.S. Holder generally should recognize a capital gain or loss in an amount equal
to the difference, if any, between (i) the sum of cash received in lieu of the fractional shares
and (ii) the U.S. Holders portion of its adjusted tax basis in the Class A Units allocable to such
fractional shares.
Fully Taxable Exchange. If the exchange of a Claim pursuant to the Plan is a fully taxable
exchange, the exchanging U.S. Holder generally should recognize gain or loss in an amount equal to
the difference, if any, between (i) the sum of amounts of cash and the fair market value of any
Class A Units, received (other than any exchange consideration received in respect of a Claim for
accrued but unpaid interest), and (ii) the U.S. Holders adjusted tax basis in the Claims exchanged
(other than any basis attributable to accrued but unpaid interest). See Section below entitled
Character of Gain or Loss. In addition, a U.S. Holder of a Claim will have interest income to
the extent of any exchange consideration allocable to accrued but unpaid interest not previously
included in income. See Section below entitled Payment of Accrued Interest.
Generally, a U.S. Holders adjusted tax basis in a Claim will be equal to the cost of the
Claim to such U.S. Holder, increased by any original issue discount (OID) previously
included in income. If applicable, a U.S. Holders tax basis in a Claim will also be (i) increased
by any market discount previously included in income by such U.S. Holder pursuant to an election to
include market discount in gross income currently as it accrues, and (ii) reduced by any cash
payments received on the Claim other than payments of qualified stated interest, and by any
amortizable bond premium which the U.S. Holder has previously deducted.
In the case of a taxable exchange, a U.S. Holders tax basis in any Class A Units received
will equal the amount taken into account in respect of such stock in determining the U.S. Holders
gain or loss. The U.S. Holders holding period in such stock should begin on the day following the
exchange date.
Character of Gain or Loss. Except to the extent that any consideration received pursuant to
the Plan is received in satisfaction of accrued but unpaid interest during its holding period (see
Section below entitled Payment of Accrued Interest), where gain or loss is recognized by a U.S.
Holder in respect of the satisfaction and exchange of its Claim, such gain or loss will be capital
gain or loss except to the extent any gain is recharacterized as ordinary income pursuant to the
market discount rules discussed below. A reduced tax rate on long-term capital gain may apply to
non-corporate U.S. Holders. The deductibility of capital loss is subject to significant
limitations.
A U.S. Holder that purchased its Claims from a prior holder at a market discount (relative
to the principal amount of the Claims at the time of acquisition) may be subject to the market
discount rules of the Tax Code. In general, a debt instrument is considered to have been acquired
with market discount if its holders adjusted tax basis in the debt instrument is less than (i)
its stated principal amount or (ii) in the case of a debt instrument issued with OID, its adjusted
issue price, in each case, by at least a de minimis amount. The de minimis amount is equal to
0.25% of the sum of all remaining payments to be made on the debt instrument, excluding qualified
stated interest, multiplied by the number of remaining whole years to maturity. Generally,
qualified stated interest is a stated amount of interest payable in cash at least annually.
Under these rules, any gain recognized on the exchange of Claims (other than in respect of a
Claim for accrued but unpaid interest) generally will be treated as ordinary income to the extent
of the market discount accrued (on a straight line basis or, at the election of the U.S. Holder, on
a constant interest basis) during the U.S. Holders period of ownership, unless the U.S. Holder
elected to include the market discount in income as it accrued. If a U.S. Holder of Claims did not
elect to include market discount in income as it accrued and thus, under the market discount rules,
was required to defer all or a portion of any deductions for interest on debt incurred or
maintained to purchase or carry its Claims, such deferred
amounts would become deductible at the time of the exchange, up to the amount of gain that the
U.S. Holder recognizes in the exchange.
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In the case of an exchange of Claims that qualifies as a reorganization, the Tax Code
indicates that any accrued market discount in respect of such Claims in excess of the gain
recognized in the exchange should not be currently includible in income under Treasury regulations
to be issued. However, such accrued market discount should carry over to any non-recognition
property received in exchange therefor (i.e., Class A Units). Any gain recognized by a U.S. Holder
upon a subsequent disposition of such exchange consideration would be treated as ordinary income to
the extent of any accrued market discount not previously included in income. To date, specific
Treasury regulations implementing this rule have not been issued.
Payment of Accrued Interest. In general, to the extent that any consideration received
pursuant to the Plan by a U.S. Holder of a Claim is received in satisfaction of accrued interest
during its holding period, such amount will be taxable to the U.S. Holder as interest income (if
not previously included in the U.S. Holders gross income). Conversely, a U.S. Holder generally
recognizes a deductible loss to the extent any accrued interest claimed or amortized OID was
previously included in its gross income and is not paid in full. However, the IRS has privately
ruled that a holder of a security of a corporate issuer, in an otherwise tax-free exchange, could
not claim a current deduction with respect to any unpaid OID. Accordingly, it is also unclear
whether, by analogy, a U.S. Holder of a Claim that does not constitute a security would be required
to recognize a capital loss, rather than an ordinary loss, with respect to previously included OID
that is not paid in full.
The Plan provides that consideration received in respect of a Claim is allocable first to the
principal amount of the Claim (as determined for U.S. federal income tax purposes) and then, to the
extent of any excess, to the remainder of the Claim, including any Claim for accrued but unpaid
interest (in contrast, for example, to a pro rata allocation of a portion of the exchange
consideration received between principal and interest, or an allocation first to accrued but unpaid
interest). There is no assurance that the IRS will respect such allocation for U.S. federal income
tax purposes. You are urged to consult your own tax advisor regarding the allocation of
consideration and the deductibility of accrued but unpaid interest for U.S. federal income tax
purposes.
2. Ownership and Disposition of Class A Units
New Parent intends to elect to be treated as a corporation for U.S. federal income tax
purposes. As a consequence, the Class A Units should be treated as stock in a corporation for U.S.
federal income tax purposes.
Payment of Dividends. Distributions on the Class A Units, if any, generally will constitute
dividends for U.S. federal income tax purposes to the extent paid from current or accumulated
earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated
as dividends for U.S. federal income tax purposes will constitute a return of capital and will
first be applied against and reduce a holders adjusted tax basis in the Class A Units, but not
below zero, and then the excess, if any, will be treated as gain from the sale of the Class A
Units.
Disposition of Class A Units. Unless a non-recognition provision applies and subject to the
discussion above with respect to market discount (see Section IX.B.1 CONSEQUENCES TO HOLDERS OF
CLAIMS DISTRIBUTIONS UNDER THE PLAN Character of Gain or Loss) and the discussion below,
U.S. Holders generally should recognize capital gain or loss upon the sale or exchange of the Class
A Units in an amount equal to the difference between the U.S. Holders adjusted tax basis in the
Class A Units and the sum of the cash plus the fair market value of any property received from such
disposition. Any such gain or loss generally should be long-term if the U.S. Holders holding
period for its Class A Units is more than one year at that time. A reduced tax rate on long-term
capital gain may apply to non-corporate U.S. Holders. The deductibility of capital loss is subject
to significant limitations.
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Notwithstanding the above, and potentially only in case the exchange for Class 6 is treated as
pursuant to a reorganization, any gain recognized by a U.S. Holder upon a subsequent taxable
disposition of the Class A Units (or any
stock or property received for it in a later tax-free exchange) received in exchange for the
Holdco Note Claims, will be treated as ordinary income for U.S. federal income tax purposes to the
extent of (i) the sum of any ordinary loss deductions incurred upon exchange of the Claim and any
deductions incurred by reason of the worthlessness or partial worthlessness of the Claim, decreased
by any income (other than interest income) recognized by the U.S. Holder upon exchange of the
Claim, and (ii) with respect to a cash basis U.S. Holder and in addition to (i), any amounts which
would have been included in its gross income if the U.S. Holders Claim had been satisfied in full
but which was not included by reason of the cash method of accounting.
3. Information Reporting and Backup Withholding
Payments of interest (including accruals of OID) or dividends and any other reportable
payments, possibly including amounts received pursuant to the Plan and payments of proceeds from
the sale, retirement or other disposition of the exchange consideration, may be subject to backup
withholding (currently at a rate of 28%) if a recipient of those payments fails to furnish to the
payor certain identifying information, and, in some cases, a certification that the recipient is
not subject to backup withholding. Backup withholding is not an additional tax. Any amounts
deducted and withheld should generally be allowed as a credit against that recipients U.S. federal
income tax, provided that appropriate proof is timely provided under rules established by the IRS.
Furthermore, certain penalties may be imposed by the IRS on a recipient of payments who is required
to supply information but who does not do so in the proper manner. Backup withholding generally
should not apply with respect to payments made to certain exempt recipients, such as corporations
and financial institutions. Information may also be required to be provided to the IRS concerning
payments, unless an exemption applies. You should consult your own tax advisor regarding your
qualification for exemption from backup withholding and information reporting and the procedures
for obtaining such an exemption.
Treasury regulations generally require disclosure by a taxpayer on its U.S. federal income tax
return of certain types of transactions in which the taxpayer participated, including, among other
types of transactions, certain transactions that result in the taxpayers claiming a loss in excess
of certain thresholds. You are urged to consult your own tax advisor regarding these regulations
and whether the contemplated transactions under the Plan would be subject to these regulations and
require disclosure on your tax return.
X. FEASIBILITY OF THE PLAN AND THE BEST INTERESTS OF CREDITORS TEST
A. Feasibility of the Plan
In connection with confirmation of the Plan, section 1129(a)(11) of the Bankruptcy Code
requires that the Bankruptcy Court find that confirmation of the Plan is not likely to be followed
by the liquidation or the need for further financial reorganization of the Debtors. This is the
so-called feasibility test. To support their belief in the feasibility of the Plan, the Debtors,
with the assistance of their financial advisors, have prepared the Financial Projections attached
hereto as Exhibit G.
The projections of the Debtors financial performance indicate that the Reorganized Debtors
should have sufficient cash resources to make the payments required under the Plan on the Effective
Date, repay and service debt obligations and maintain operations on a going-forward basis.
Accordingly, the Debtors believe that the Plan complies with the standard of section 1129(a)(11) of
the Bankruptcy Code. As noted in the projections, however, the Debtors caution that no
representations can be made as to the accuracy of the projections or as to the Reorganized Debtors
ability to achieve the projected results. Many of the assumptions upon which the projections are
based are subject to uncertainties outside the control of the Debtors. Some assumptions inevitably
will not materialize, and events and circumstances occurring after the date on which the
projections were prepared may be different from those assumed or may be unanticipated, and may
adversely affect the Debtors financial results. See Section XII CERTAIN FACTORS TO BE
CONSIDERED for a discussion of certain risk factors that could affect financial feasibility of the
Plan.
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THE FINANCIAL PROJECTIONS WERE NOT PREPARED WITH A VIEW TOWARD COMPLIANCE WITH THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS OR THE RULES AND REGULATIONS
OF THE SECURITIES AND EXCHANGE COMMISSION REGARDING FINANCIAL PROJECTIONS. FURTHERMORE, THE
FINANCIAL PROJECTIONS HAVE NOT BEEN AUDITED BY HOLDCOS INDEPENDENT CERTIFIED ACCOUNTANTS.
ALTHOUGH PRESENTED WITH NUMERICAL SPECIFICITY, THE FINANCIAL PROJECTIONS ARE BASED UPON A VARIETY
OF ASSUMPTIONS, SOME OF WHICH HAVE NOT BEEN ACHIEVED TO DATE AND MAY NOT BE REALIZED IN THE FUTURE,
AND ARE SUBJECT TO SIGNIFICANT BUSINESS, LITIGATION, ECONOMIC, AND COMPETITIVE UNCERTAINTIES AND
CONTINGENCIES, MANY, IF NOT ALL, OF WHICH ARE BEYOND THE CONTROL OF THE DEBTORS. CONSEQUENTLY, THE
FINANCIAL PROJECTIONS SHOULD NOT BE REGARDED AS A REPRESENTATION OR WARRANTY BY THE DEBTORS, OR ANY
OTHER PERSON, THAT THE FINANCIAL PROJECTIONS WILL BE REALIZED. ACTUAL RESULTS MAY VARY MATERIALLY
FROM THOSE PRESENTED IN THE FINANCIAL PROJECTIONS.
B. Best Interests Test
Even if the Plan is accepted by all holders of claims that are eligible to vote, the
Bankruptcy Code requires that the Bankruptcy Court determine that the Plan is in the best interests
of all holders of claims and equity interests that are impaired by the Plan or that have not
accepted the Plan. The best interests test, set forth in section 1129(a)(7) of the Bankruptcy
Code, requires the Bankruptcy Court to find either that all members of an impaired class of claims
or equity interests have accepted the plan or that the plan will provide a member who has not
accepted the plan with a recovery of property of a value, as of the effective date of the plan,
that is not less than the amount that such holder would receive or retain if the debtor were
liquidated under chapter 7 of the Bankruptcy Code on such date.
To calculate the probable distribution to members of each impaired class of claims and equity
interests if a debtor were liquidated under chapter 7, the Bankruptcy Court must first determine
the aggregate dollar amount that would be generated from the disposition of the Debtors assets if
their Chapter 11 Cases were converted to chapter 7 cases under the Bankruptcy Code. This
liquidation value would consist primarily of the proceeds from a forced sale of the Debtors
assets by a chapter 7 trustee.
The amount of liquidation value available to holders of unsecured claims against the Debtors
would be reduced by, first, the claims of secured creditors (to the extent of the value of their
collateral), and second, by the costs and expenses of liquidation, as well as by other
administrative expenses and costs of both the chapter 7 cases and the Chapter 11 Cases. Costs of a
liquidation of the Debtors under chapter 7 of the Bankruptcy Code would include the compensation of
a chapter 7 trustee, as well as counsel and other professionals retained by the trustee, asset
disposition expenses, all unpaid expenses incurred by the Debtors in the Chapter 11 Cases (such as
compensation of attorneys, financial advisors, and accountants) that are allowed in the chapter 7
cases, litigation costs, and claims arising from the operations of the Debtors during the pendency
of the Chapter 11 Cases. The liquidation itself would trigger certain priority payments that
otherwise would be due in the ordinary course of business. Those priority claims would be paid in
full from the liquidation proceeds before the balance would be made available to pay unsecured
claims or to make any distribution in respect of equity interests. The liquidation would also
prompt the rejection of executory contracts and unexpired leases and thereby create a significantly
greater amount of unsecured claims.
In a chapter 7 liquidation, no junior class of claims or equity interests may be paid unless
all classes of claims or equity interests senior to such junior class are paid in full. Section
510(a) of the Bankruptcy Code provides that subordination agreements are enforceable in a
bankruptcy case to the same extent that such subordination agreements are enforceable under
applicable non-bankruptcy law. Therefore, no class of claims or equity interests that is
contractually subordinated to another class would receive any payment on account of its claims or
equity interests, unless and until such senior class were paid in full.
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Once the Bankruptcy Court ascertains the recoveries in liquidation of the Debtors secured and
priority creditors, it would then determine the probable distribution to unsecured creditors from
the remaining available proceeds of the liquidation. If this probable distribution has a value
greater than the value of distributions to be received by the unsecured creditors under the Plan,
then the Plan is not in the best interests of creditors and cannot be confirmed by the Bankruptcy
Court. As shown in the Liquidation Analysis attached hereto as Exhibit F, the Debtors believe that
each member of each class of impaired claims and equity interests will receive at least as much, if
not more, under the Plan as they would receive if the Debtors were liquidated.
C. Liquidation Analysis
As noted above, the Debtors believe that under the Plan all holders of impaired claims and
equity interests will receive property with a value not less than the value such holder would
receive in a liquidation of the Debtors under chapter 7 of the Bankruptcy Code. The Debtors
belief is based primarily on (i) consideration of the effects that a chapter 7 liquidation would
have on the ultimate proceeds available for distribution to holders of impaired claims and equity
interests, including (a) the increased costs and expenses of a liquidation under chapter 7 arising
from fees payable to a chapter 7 trustee and professional advisors to the trustee, (b) the erosion
in value of assets in a chapter 7 case in the context of the rapid liquidation required under
chapter 7 and the forced sale atmosphere that would prevail, (c) the adverse effects on the
Debtors businesses as a result of the likely departure of key employees and the probable loss of
customers, (d) the substantial increases in claims, such as estimated contingent claims, which
would be satisfied on a priority basis or on parity with the holders of impaired claims and equity
interests of the Chapter 11 Cases, (e) the reduction of value associated with a chapter 7 trustees
operation of the Debtors businesses, and (f) the substantial delay in distributions to the holders
of impaired claims and equity interests that would likely ensue in a chapter 7 liquidation and (ii)
the liquidation analysis prepared by the Debtors, which is attached hereto as Exhibit F.
The Debtors believe that any liquidation analysis is speculative, as such an analysis
necessarily is premised on assumptions and estimates which are inherently subject to significant
uncertainties and contingencies, many of which would be beyond the control of the Debtors. Thus,
there can be no assurance as to values that would actually be realized in a chapter 7 liquidation,
nor can there be any assurance that a Bankruptcy Court would accept the Debtors conclusions or
concur with such assumptions in making its determinations under section 1129(a)(7) of the
Bankruptcy Code.
For example, the liquidation analysis necessarily contains an estimate of the amount of claims
which will ultimately become allowed claims. This estimate is based solely upon the Debtors
review of their books and records and the Debtors estimates as to additional claims that may be
filed in the Chapter 11 Cases or that would arise in the event of a conversion of the cases from
chapter 11 to chapter 7. No order or finding has been entered by the Bankruptcy Court or any other
court estimating or otherwise fixing the amount of claims at the projected-amounts of allowed
claims set forth in the liquidation analysis. In preparing the Liquidation Analysis, the Debtors
have projected an amount of allowed claims that is at the lower end of a range of reasonableness
such that, for purposes of the liquidation analysis, the largest possible liquidation dividend to
holders of allowed claims can be assessed. The estimate of the amount of allowed claims set forth
in the liquidation analysis should not be relied on for any other purpose, including any
determination of the value of any distribution to be made on account of allowed claims under the
Plan.
To the extent that confirmation of the Plan requires the establishment of amounts for the
chapter 7 liquidation value of the Debtors, funds available to pay claims, and the reorganization
value of the Debtors, the Bankruptcy Court will determine those amounts at the confirmation
hearing. Accordingly, the annexed Liquidation Analysis is provided solely to disclose to holders
the effects of a hypothetical chapter 7 liquidation of the Debtors, subject to the assumptions set
forth therein.
D. Valuation of the Reorganized Debtors
The investment by the Purchasers is the culmination of an eight-month marketing process during
which Miller Buckfire contacted over seventy potential strategic and financial buyers. The process
included several rounds of active
bidding by several interested parties, as well as the exploration of stand-alone restructuring
opportunities. A detailed description of the sales/investment process is set forth in Section
IV.B., above.
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Under the Plan, the Purchasers are acquiring 100% of newly-issued common stock of Bedding
Holdco. Miller Buckfire values the purchase price at approximately $758 million, consisting of an
equity investment of approximately $310 million, new long-term financing of $425 million, and the
assumption of approximately $23 million of existing obligations. The bid by the Purchasers was
materially greater than the next highest bid.
Miller Buckfire believes that the value generated by the active bidding pursuant to the
investment/sale process described above resulting in the Purchasers winning bid is the best
measure of the Debtors value in light of, among other things, (i) the extended and robust nature
of the investment/sale process, which benefited from the Companys strong EBITDA performance,
significant liquidity position, and creditor support, (ii) the fact that the Purchasers are
strategic investors with greater incentive to acquire the Company than financial bidders, (iii) the
extensive negotiations with significant creditors on the terms of a stand-alone restructuring, and
(iv) the high level of support for the transaction with the Purchasers by the holders of Holdco
Notes and SBC Notes. Miller Buckfire believes that the extensive sale/investment process
undertaken in this case resulted in the highest value for the Debtors.
The valuation set forth herein does not purport to be an estimate of the post-reorganization
market value of the Companys or the Purchasers securities. Such trading value, if any, may be
materially different from the reorganized equity value associated with the valuation analysis.
In addition, the valuation described herein does not constitute a recommendation to any holder
of claims against the Debtors as to how to vote on the Plan. The estimated reorganized value also
does not constitute an opinion as to the fairness from a financial point of view of the
consideration to be received under the Plan or of the terms and provisions of the Plan.
XI. ALTERNATIVES TO CONFIRMATION AND CONSUMMATION OF THE PLAN
The Debtors believe that the Plan affords holders of eligible claims the potential for the
greatest realization on the Debtors assets and, therefore, is in the best interests of such
holders. If, however, the requisite acceptances are not received, or the requisite acceptances are
received, the Chapter 11 Cases are commenced, and the Plan is not subsequently confirmed and
consummated, the theoretical alternatives include: (i) commencement of non-prepackaged or
traditional chapter 11 cases, (ii) formulation of an alternative plan or plans of reorganization,
and (iii) liquidation of the Debtors under chapter 7 or 11 of the Bankruptcy Code.
A. Commencement of a Traditional Chapter 11 Case
If the requisite acceptances are not received, the Debtors nevertheless could commence
traditional chapter 11 cases, in which circumstance they could continue to operate their
businesses and manage their properties as debtors-in-possession, but would become subject to the
numerous restrictions imposed on debtors-in-possession by the Bankruptcy Code. The Debtors could
have difficulty sustaining operations in the face of the high costs, erosion of customer
confidence, loss of key employees, difficulty in obtaining performance bonds and general liquidity
difficulties that could well result if they remained chapter 11 debtors-in-possession for a
protracted length of time. Ultimately, the Debtors (or other parties in interest) could propose
another plan or liquidate the Debtors under chapter 7 or chapter 11 of the Bankruptcy Code.
B. Alternative Plan(s)
If the requisite acceptances are not received or if the Plan is not confirmed, the Debtors
(or, if the Debtors exclusive periods in which to file and solicit acceptances of a reorganization
plan have expired or been terminated, any other party-
in-interest) could attempt to formulate and propose a different plan or plans of
reorganization. Such a plan or plans might involve either a reorganization and continuation of the
Debtors businesses or an orderly liquidation of assets.
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As described above, the Debtors conducted extensive negotiations with the major holders of the
SBC Notes and Holdco Notes on the potential terms of multiple standalone restructuring plans.
Although such an alternative plan may be possible, the Debtors and the holders of such notes all
concluded the transactions contemplated by and the treatment under the Plan is superior to the
potential results under any such an alternative. Accordingly, the Debtors believe that the Plan,
as described herein, enables holders of eligible claims to realize the greatest possible value
under the circumstances, and that, as compared to any alternative plan of reorganization, the Plan
has the greatest chance to be confirmed and consummated.
C. Liquidation under Chapter 7 or Chapter 11
If no plan is confirmed, the Chapter 11 Cases may be converted to cases under chapter 7 of the
Bankruptcy Code, pursuant to which a trustee would be elected or appointed to liquidate the
Debtors assets for distribution to creditors in accordance with the priorities by the Bankruptcy
Code. It is impossible to predict precisely how the proceeds of the liquidation would be
distributed to the respective holders of claims against or equity interests in the Debtors.
The Debtors believe that in liquidation under chapter 7, before creditors received any
distribution, additional administrative expenses involved in the appointment of a trustee or
trustees and attorneys, accountants and other professionals to assist such trustees would cause a
substantial diminution in the value of the Debtors assets. The assets available for distribution
to creditors would be reduced by such additional expenses and by claims, some of which would be
entitled to priority, which would arise by reason of the liquidation and from the rejection of
leases and other executory contracts in connection with the cessation of operations and the failure
to realize the greater going concern value of the Debtors assets.
The Debtors could also be liquidated pursuant to the provisions of a chapter 11 plan of
liquidation. In a liquidation under chapter 11, the Debtors assets could be sold in an orderly
fashion over a more extended period of time than in a liquidation under chapter 7. Thus, a chapter
11 liquidation might result in larger recoveries than in a chapter 7 liquidation, but the delay in
distributions could result in lower present values received and higher administrative costs.
Because a trustee is not required in a chapter 11 case, expenses for professional fees could be
lower than in a chapter 7 case, in which a trustee must be appointed. Any distribution to the
holders of claims and equity interests under a chapter 11 liquidation plan probably would be
delayed substantially.
Although preferable to a chapter 7 liquidation, the Debtors believe that any alternative
liquidation under chapter 11 is a much less attractive alternative for creditors than the Plan
because of the greater return the Debtors anticipate will be provided by the Plan. THE DEBTORS
BELIEVE THAT THE PLAN AFFORDS SUBSTANTIALLY GREATER BENEFITS TO HOLDERS OF IMPAIRED CLAIMS THAN
WOULD ANY OTHER REASONABLY CONFIRMABLE REORGANIZATION PLAN OR LIQUIDATION UNDER ANY CHAPTER OF THE
BANKRUPTCY CODE.
The liquidation analysis, prepared by the Debtors with their financial advisors, is premised
upon a liquidation in a chapter 7 case and is attached hereto as Exhibit F. In the analysis, the
Debtors have taken into account the nature, status, and underlying value of the assets of the
Debtors, the ultimate realizable value of such assets, and the extent to which the assets are
subject to liens and security interests.
Based on the Debtors experience in seeking investors and potential purchasers during the past
year, the Debtors have no knowledge of a buyer ready, willing, and able to purchase the Debtors as
a whole or even to purchase significant portions of the Debtors as ongoing businesses. Therefore,
the likely form of any liquidation would be the sale of individual assets. Based on this analysis,
it is likely that a liquidation of the Debtors assets would produce less value for distribution to
creditors than that recoverable in each instance under the Plan. In the opinion of the Debtors,
the
recoveries projected to be available in liquidation are not likely to afford holders of claims
as great a realization potential as does the Plan.
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XII. CERTAIN FACTORS TO BE CONSIDERED
Holders of eligible claims should consider the risks and uncertainties below in making their
decisions regarding whether to vote to accept the Plan and, in the case of Eligible Investors, to
elect to purchase Class A Units. The risks and uncertainties described below are not the only ones
the Debtors and New Parent face. Additional risks and uncertainties not presently known to the
Debtors or New Parent, or that each currently deems immaterial, may also harm their businesses.
A. Competition Clearance
The Purchasers obligations to consummate the transaction contemplated by the Plan Sponsor
Agreement is subject to the expiration or termination prior to expiration of the applicable waiting
period under the HSR Act and other competition laws. The parties currently expect that the
applicable waiting period will expire or will be terminated prior to expiration, but such
expiration or termination is not certain until it occurs. If the waiting period does not expire or
is not terminated prior to the expiry of the Plan Sponsor Agreement, the Plan will not become
effective and the Debtor could be exposed to the risks involved in a longer bankruptcy proceeding
that is more expensive and disruptive to its business.
On October 7, 2009, the Competition Bureau of Canada provided the parties with a no-action
letter advising that grounds do not exist at this time to initiate a proceeding before the
competition tribunal under the Canadian Competition Act (the Competition Act) to
challenge the proposed transaction in Canada. The Competition Act provides that the commissioner
may bring an action before the competition tribunal regarding the proposed transaction within one
year from closing, but a change in the commissions view is not expected.
B. Bankruptcy Proceedings and Debtors Circumstances
While the Debtors would hope that a chapter 11 filing solely for the purpose of implementing
an agreed-upon restructuring would be of short duration and would not be seriously disruptive to
their business, the Debtors cannot be certain that this would be the case. Although the Plan is
designed to minimize the length of the Chapter 11 Cases, it is impossible to predict with certainty
the amount of time that the Debtors might spend in chapter 11 or to assure that the Plan will be
confirmed.
Even if the Plan is confirmed on a timely basis, a prolonged chapter 11 proceeding could have
an adverse effect on the Debtors business. Among other things, it is possible that a protracted
bankruptcy proceeding could adversely affect (i) the Debtors relationships with their key
suppliers, (ii) the Debtors relationships with their customers, particularly those that depend on
SBC or any of its subsidiaries as a supplier, and (iii) the Debtors relationships with their
employees.
A chapter 11 proceeding will also result in the Debtors incurrence of substantial
administrative expense claims and professional fee claims and will require the Debtors management
to devote substantial time and energy which could otherwise be directed at improving the operation
of the Debtors businesses and implementing a strategic business plan.
The extent to which a chapter 11 proceeding disrupts the Debtors business will likely be
directly related to the length of time it takes to complete the proceeding. If the Debtors are
unable to obtain confirmation of the Plan on a timely basis because of a challenge to the Plan or a
failure to satisfy the conditions to the Plan, they may be forced to operate in Chapter 11 for an
extended period while they try to develop an alternative reorganization plan that can be confirmed.
Such a circumstance would increase both the probability and the magnitude of the adverse effects
described above.
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C. Failure to Receive Requisite Acceptances
If the requisite acceptances are received, the Debtors intend to file voluntary petitions for
relief under chapter 11 of the Bankruptcy Code and to seek, as promptly thereafter as practicable,
confirmation of the Plan. If the requisite acceptances are not received, the Debtors may
nevertheless file petitions for relief under chapter 11 and seek confirmation of a modified plan
notwithstanding the dissent of certain classes of claims. The Bankruptcy Court may confirm a
modified plan pursuant to the cramdown provisions of the Bankruptcy Code which allow the
Bankruptcy Court to confirm a plan that has been rejected by an impaired class of claims or equity
interests if it determines that the rejecting class is being treated appropriately given the
relative priority of the claims or equity interests in such class. In order to confirm a plan
against a dissenting class, the Bankruptcy Court must also find that at least one impaired class
has accepted the plan, with such acceptance being determined without including the acceptance of
any insider in such class.
There can be no assurance that the terms of any such alternative restructuring arrangement or
plan would be similar to or as favorable to the holders of impaired claims and equity interests as
those proposed in the Plan.
D. Failure to Confirm the Plan
Even if the requisite acceptances are received and, with respect to those classes deemed to
have rejected the Plan, the requirements for cramdown are met, the Bankruptcy Court, which as a
court of equity may exercise substantial discretion, may choose not to confirm the Plan. Section
1129 of the Bankruptcy Code requires, among other things, a showing that confirmation of the Plan
will not be followed by liquidation or the need for further financial reorganization of the Debtors
(see Section X.A. FEASIBILITY OF THE PLAN AND THE BEST INTERESTS OF CREDITORS TEST
FEASIBILITY OF THE PLAN) and that the value of distributions to dissenting holders of claims and
equity interests may not be less than the value such holders would receive if the Debtors were
liquidated under chapter 7 of the Bankruptcy Code. See Section X.B. FEASIBILITY OF THE PLAN
AND THE BEST INTERESTS OF CREDITORS TEST BEST INTERESTS TEST. Although the Debtors believe that
the Plan will meet such tests, there can be no assurance that the Bankruptcy Court will reach the
same conclusion.
Additionally, the solicitation must comply with the requirements of section 1126(b) of the
Bankruptcy Code and the applicable bankruptcy rules with respect to the length of the solicitation
period, compliance with applicable non-bankruptcy law, if any, and in the absence of applicable
non-bankruptcy law, the adequacy of the information contained in this Disclosure Statement (as
defined in section 1125(a)(1) of the Bankruptcy Code). If the Bankruptcy Court were to find that
the solicitation did not so comply, all acceptances received pursuant to the solicitation could be
deemed invalid and the Debtors could be forced to resolicit acceptances under section 1125(b) of
the Bankruptcy Code, in which case confirmation of the Plan could be delayed and possibly
jeopardized. The Debtors believe that the solicitation complies with the requirements of section
1126(b) of the Bankruptcy Code, that duly executed ballots will be in compliance with applicable
provisions of the Bankruptcy Code, and that if the requisite acceptances are received, the Plan
should be confirmed by the Bankruptcy Court.
The Debtors ability to propose and confirm an alternative reorganization plan is uncertain.
Confirmation of any alternative reorganization plan under chapter 11 of the Bankruptcy Code would
likely take significantly more time and result in delays in the ultimate distributions to the
holders of eligible claims. If confirmation of an alternative plan of reorganization was not
possible, the Debtors would likely be liquidated. Based upon the Debtors analysis, liquidation
under chapter 7 would result in distributions of reduced value to holders of eligible claims. See
Section X FEASIBILITY OF THE PLAN AND THE BEST INTERESTS OF CREDITORS TEST. In a liquidation
under chapter 11, the Debtors assets could be sold in an orderly fashion over a more extended
period of time than in a liquidation under chapter 7. However, it is unlikely that any liquidation
would realize the full going concern value of their businesses. Instead, the Debtors assets would
be sold separately. Consequently, the Debtors believe that a liquidation under chapter 11 would
also result in smaller distributions, if any, to the holders of eligible claims than those provided
for in the Plan.
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E. Failure to Consummate the Plan and Transactions Contemplated by the Plan Sponsor Agreement
Consummation of the Plan is conditioned upon, among other things, entry of the Confirmation
Order and an order (which may be the confirmation order) approving the assumption and assignment of
all executory contracts and unexpired leases (other than those specifically rejected by the
Debtors) to the Reorganized Debtors or their assignees. As of the date of this Disclosure
Statement, there can be no assurance that any or all of the foregoing conditions will be met (or
waived) or that the other conditions to consummation, if any, will be satisfied. Accordingly, even
if the Plan is confirmed by the Bankruptcy Court, there can be no assurance that the Plan will be
consummated and the restructuring completed.
The obligation of the Purchasers to consummate the transactions contemplated by the Plan
Sponsor Agreement is subject to the satisfaction or waiver by the Purchasers in their sole
discretion of certain conditions precedent, including compliance by the Debtors with their
obligations under the Plan Sponsor Agreement and certain conditions that are beyond the control of
the Debtors. These conditions precedent include, among other things, (i) no material adverse
effect on or material change in or to the businesses, assets, properties, results of operations or
financial condition of Bedding Holdco and its subsidiaries (taken as a whole) since December 27,
2008; (ii) Bedding Holdco not incurring more than $57,125,000 of expenses related to the
restructuring of its capital structure; (iii) the tax liability incurred by Bedding Holdco and its
subsidiaries arising as a result of the transactions contemplated by the Plan Sponsor Agreement not
expected to exceed a certain amount; (iv) no indebtedness being outstanding as of the closing date
after giving effect to the transactions contemplated by the Plan Sponsor Agreement, except for the
exit financing and certain other indebtedness to be assumed by the Purchasers at closing; (v)
receipt of third party consents under certain of the Debtors material contracts; and (vi)
satisfaction of the conditions to effectiveness of the Plan. In addition, the obligations of the
Purchasers to consummate the transactions contemplated by the Plan Sponsor Agreement are subject to
availability of the senior secured term note exit financing (or alternative financing) at
effectiveness of the Plan and, accordingly, the conditions to such exit financing are effectively
conditions precedent to the Purchasers obligations as well. As of the date of this Disclosure
Statement, there can be no assurance that any or all of the foregoing conditions will be satisfied,
and the Purchasers have no duty to agree to any waiver of these conditions. Accordingly, even if
the Plan is confirmed by the Bankruptcy Court, there can be no assurance that the Plan will be
consummated and the restructuring completed. You are urged to read each of the Plan Sponsor
Agreement, which was filed on Form 8-K with the SEC on September 25, 2009 and is incorporated by
reference in this Disclosure Statement, and the Debt Commitment Letter attached as Exhibit J in
their entirety.
F. Claims Estimations
There can be no assurance that the estimated amount of claims set forth herein are correct and
the actual allowed amounts of claims may differ from estimates. The estimated amounts are subject
to certain risks, uncertainties and assumptions. Should one or more of these risks or
uncertainties materialize or should underlying assumptions prove incorrect, the actual allowed
amounts of claims may vary from those estimated therein.
In the event that (i) the Plan Sponsor Agreement is terminated at any time, (ii) as provided
in Section 12.8 of the Plan, the Debtors revoke or withdraw the Plan, or the Confirmation Order is
not entered or consummation of the Plan does not occur, or (iii) the Plan is amended in violation
of Section 12.6(a)(i) thereto, the Plan and all votes cast in favor thereof, will be null and void.
53
G. Certain Tax Considerations
THERE ARE A NUMBER OF MATERIAL INCOME TAX CONSIDERATIONS, RISKS AND UNCERTAINTIES ASSOCIATED
WITH CONSUMMATION OF THE PLAN. INTERESTED PARTIES SHOULD READ CAREFULLY THE DISCUSSION SET FORTH
IN SECTION IX CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN FOR A DISCUSSION OF
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED UNDER THE PLAN BOTH
TO THE COMPANY AND TO CERTAIN HOLDERS OF CLAIMS THAT ARE IMPAIRED UNDER THE PLAN.
H. Inherent Uncertainty of Financial Projections
The projections of the Debtors financial performance cover the Debtors operations through
the period ending December 28, 2013. These projections are based on numerous assumptions that are
an integral part of the projections, including confirmation and consummation of the Plan in
accordance with its terms, the anticipated future performance of the Reorganized Debtors, industry
performance, general business and economic conditions, competition, adequate financing, absence of
material contingent or unliquidated litigation or indemnity claims, and other matters, many of
which are beyond the control of the Reorganized Debtors and some or all of which may not
materialize. The projections of the Debtors financial performance assume that the Debtors will be
able to achieve a successful arrangement with their surety providers for the continued provision of
bid and performance bonds. Even if the Debtors are able to obtain sufficient bonding capacity,
they will likely be required to secure such bonds with a significant amount of cash collateral. In
addition, unanticipated events and circumstances occurring subsequent to the date of this
Disclosure Statement may affect the actual financial results of Reorganized Debtors operations.
These variations may be material and may adversely affect the ability of the Reorganized Debtors to
pay the obligations owing to certain holders of claims entitled to distributions under the Plan and
other post-Effective Date indebtedness. Because the actual results achieved throughout the periods
covered by the projections of the Debtors financial performance may vary from the projected
results, the projections should not be relied upon as a guaranty, representation or other assurance
of the actual results that will occur. Please see Cautionary Statement Regarding Forward Looking
Statements in this Disclosure Statement.
I. Risks Relating to New Parent and its Business
1. Deteriorating Economic Conditions
General U.S. and world economic conditions have weakened significantly, and New Parent expects
this weakness to continue for the balance of 2009 and into 2010, with a possible turnaround
expected in the second half of the year. The unemployment rate is expected to continue to rise,
consumer confidence and spending, including spending on larger homes or second homes, has decreased
dramatically and the stock market remains extremely volatile. In addition, in an economic
recession or under other adverse economic conditions, customers and vendors may be more likely to
fail to meet contractual terms or their payment obligations. Such failures will impact New
Parents cash flow and the ability of the Company and Serta Holdings to repay their indebtedness.
A further decline in economic conditions may have continued negative impact on New Parents
business, as well as the value of the Class A Units.
2. Bedding Industry Competition
The bedding industry is highly competitive. The highly competitive nature of the bedding
industry means the Company and Serta Holdings will be continually subject to the potential loss of
market share or the inability to gain market share, difficulty in raising prices, and margin
reductions. The Company and Serta Holdings may not be able to compete effectively in the future.
In addition, some of the Companys and Serta Holdings principal competitors may be less
highly-leveraged, have greater access to financial or other resources, have lower cost operations
and/or be better able to withstand changing market conditions.
54
3. Regulatory Requirements
The Company and Serta Holdings products are and will continue to be subject to regulation in
the United States and Canada by various federal, state, provincial and local regulatory
authorities. In addition, other governments and agencies in other jurisdictions regulate the sale
and distribution of the Company and Serta Holdings products. Compliance with these regulations
may negatively impact New Parents business. For example, the products manufactured, distributed
and sold by the Company and Serta Holdings come within the scope of several provisions of the
Consumer Product Safety Improvement Act of 2008 (CPSIA), which was signed into law on
August 14, 2008. CPSIA section 102 requires that as of November 12, 2008, a Certificate of
Compliance (COC) issued by the manufacturer accompany all products subject to regulation
by the CPSC, that the COC be provided to all distributors and retailers to whom such regulated
product is
shipped, and that the COC be available for inspection upon request of the CPSC. All of the
products subject to regulation by the CPSC that the Company and Serta Holdings manufacture were
accompanied by a COC in advance of the November 12, 2008 deadline, and the Company and Serta
Holdings are able to produce the COCs upon request, in accordance with current federal law.
Further, CPSIA section 101 establishes limitations on the levels of lead that may be present in
certain products intended for use by children; similarly, CPSIA section 108 regulates the levels of
certain phthalates which may be present in certain products intended for use by children. Many of
the juvenile products, as well as certain specific adult mattress manufactured or distributed by
the Company and Serta Holdings that are marketed for use by children are subject to and comply with
these regulations. Similarly, many of the juvenile products manufactured and distributed by the
Company will be subject to the requirements of CPSIA section 104, which requires registration of
certain childrens products, and are preparing and expect to be in full compliance before CPSIA
section 104 becomes effective. The Company and Serta Holdings will continue to monitor rulemaking
by the CPSC and work toward compliance with additional requirements of the CPSIA, particularly with
respect to juvenile products sold by the Company, and expect to be in full compliance in advance of
the respective effective dates. The Company and Serta Holdings incurred and will continue to incur
significant costs related to the new standards. In addition, the CPSC and other regulatory
agencies may also adopt new laws, rules and regulations relating to other standards. The Company
and Serta Holdings product solutions will not necessarily meet all future standards. Compliance
with such new laws, rules and regulations may increase the New Parents costs, alter the
manufacturing processes and impair the performance of the Company and Serta Holdings products.
Further, any bankruptcy filing by or against the Debtors could adversely affect their ability to
comply with new laws, rules or regulations on a timely basis.
The Companys and Serta Holdings marketing and advertising practices could become the subject
of proceedings before regulatory authorities or the subject of claims by other parties which could
require the Company and Serta Holdings to alter or end such practices or adopt new practices that
are not as effective or are more expensive. In addition, the Companys and Serta Holdings
operations are subject to federal, state, provincial and local laws and regulations relating to
pollution, environmental protection, occupational health and safety and labor and employee
relations. The Company and Serta Holdings may not be in complete compliance with all such
requirements at all times. Under various environmental laws, New Parent, Serta Holdings and the
Company may be held liable for the costs of remediation of releases of hazardous substances at any
properties currently or previously owned or operated by the Company or Serta Holdings or at any
site to which the Company or Serta Holdings sent hazardous substances for disposal. Such liability
may be imposed without fault, and the amount of such liability could be material. The Company and
Serta Holdings are subject to investigation under various labor and employment laws and regulations
by both governmental entities and employees and former employees. Should liability be imposed as a
result of such activity, particularly in the context of class or multi-plaintiff litigation, New
Parents profitability could be reduced. Further, any bankruptcy filing by or against the Debtors
or their affiliates would result in significant expense for legal counsel and professional
advisors.
4. New Product Launches
Each year the Company and Serta Holdings invest significant time and resources in research and
development to improve their product offerings. In addition, the Company and Serta Holdings incur
increased costs in the near term associated with the introduction of new product lines, including
training of their employees in new manufacturing, sales processes, and the production and placement
of new floor samples for their customers. The Company and Serta Holdings are subject to a number
of risks inherent in new product introductions, including development delays, failure of new
products to achieve anticipated levels of market acceptance, and costs associated with failed
product introductions. In addition, the Company and Serta Holdings have a limited ability to
increase prices on existing products, and any failure of new product introductions may reduce their
ability to sell their products at appropriate price levels. The filing of the Plan could
adversely affect the Debtors ability to improve their product offerings.
55
5. Seasonality
The Company and Serta Holdings have historically experienced and expect to continue to
experience seasonal and quarterly fluctuations in net sales and operating income. The Company and
Serta Holdings third quarter sales are
typically higher than their other fiscal quarters. This seasonality is attributed principally
to retailers sales promotions related to the 4th of July and Labor Day holidays. This seasonality
means that a sequential quarter to quarter comparison may not be a good indication of New Parents
performance or how each of the Company and Serta Holdings will perform in the future.
6. Dependence upon Suppliers and Third-Party Providers
Each of the Company and Serta Holdings purchase substantially all of their conventional
bedding raw materials centrally to obtain volume discounts and achieve economies of scale. A large
percentage of their raw materials is obtained from a small number of suppliers. For the year ended
December 27, 2008, the Company purchased approximately 74% of its raw materials from 10 suppliers.
For the year ended December 31, 2008, Serta Holdings purchased approximately 80% of its raw
materials from 10 suppliers. As a result of the current economic climate, the Company and Serta
Holdings suppliers have experienced and may in the future experience disruptions in their
relationships with their suppliers, which disrupt their ability to provide the requisite supplies
and negatively impact the New Parents manufacturing processes. Any future supply disruptions
could adversely affect New Parents ability to manufacture the Company and Serta Holdings
products and sales.
The Company has supply agreements with several suppliers including Leggett & Platt
Incorporated (L&P), Foamex L.P. (Foamex), and National Standard LLC
(National Standard). Similarly, Serta Holdings has supply agreements with several
suppliers including L&P, Flexible Foam Products, Inc. (Flexible Foam), and Carpenter Co.
(Carpenter).
L&P supplies the majority of certain bedding components (including certain spring components,
insulator pads, wire, quilt backing and flange material) to the U.S. bedding industry. In 2008,
the Company and Serta Holdings purchased approximately 30% and 31% of their raw materials from L&P,
respectively. To ensure an adequate supply of various components, the Company has entered into
agreements with L&P, generally expiring in the year 2010, for the supply of certain spring
components. Among other things, these agreements generally require the Company to purchase a
majority of their requirements of several components from L&P. The Company intends to negotiate a
new agreement with L&P to extend the term. L&P is also the exclusive supplier for Serta Holdings
continuous coil spring units. National Standard is the Companys exclusive supplier for the
stranded wire used in their Advanced Pocketed Coil products. Foamex is the Companys exclusive
supplier of NxG advanced visco-foam used in the Companys Comfor-Pedic® and Beautyrest NxG
products.
The Company and Serta Holdings may not be able to renew these agreements with their suppliers
or find alternative sources for some of these components on terms as favorable to each as they
currently receive. If this happens, New Parents business, financial condition and results of
operations could be impaired if the Company and/or Serta Holdings
lose L&P, Foamex, National Standard, Flexible Foam or Carpenter as a supplier. Further, if
the Company does not reach committed levels of purchases, various additional payments could be
required to be paid to L&P, and certain sales volume rebates or exclusivity to certain products
could be lost. If Serta Holdings does not reach committed levels of purchases from L&P, certain
volume rebates could be lost. With the exception of certain products of L&P, Foamex and National
Standard with respect to the Company and certain products of L&P with respect to Serta Holdings,
each of the Company and Serta Holdings believes that they can readily replace their supply, if or
when the need arises, within ninety days as they have already identified and use alternative
resources.
56
Additionally, the Companys domestic operations primarily utilize three third-party logistics
providers which, in the aggregate, accounted for approximately 80% of the Companys outbound
wholesale shipments for the year ended December 27, 2008. Serta Holdings domestic operations
utilize third-party logistics providers which accounted for approximately 20% of Serta Holdings
outbound wholesale shipments for the year ended December 31, 2008.
The filing of the Plan could adversely affect the Debtors ability to obtain new or maintain
existing relationships with suppliers and third-party providers. Any instability of, or change in
the Debtors relationship with, these providers could materially disrupt the Debtors business and
New Parents business following the closing.
7. Fluctuations in the Cost and Availability of Raw Materials
The major raw materials that the Company and Serta Holdings purchase for production are foam,
wire, spring components, lumber, cotton, insulator pads, innersprings, foundation constructions,
fabrics and roll goods consisting of fiber, ticking and non-wovens. The price and availability of
these raw materials, as well as the cost of fuel to transport the products to market, are subject
to market conditions affecting supply and demand. During 2007 and 2008, the cost of these
components remained elevated above historical averages. Further, the price of lumber obtained from
Canada has increased as a result of increased tariffs and may increase due to adverse fluctuations
in exchange rates. Additionally, during 2007 and 2008, the Company and Serta Holdings
distribution costs were negatively impacted by the rapid rise in diesel prices. New Parents
financial condition and results of operations may be impaired by further increases in raw material
and diesel costs to the extent the Company and Serta Holdings are unable to pass those higher costs
on to their customers. In addition, if these materials are not available on a timely basis or at
all, the Company and Serta Holdings may not be able to produce their products, and their sales may
decline.
8. Dependence on Significant Customers
The Companys top 10 customers collectively accounted for approximately 38.6% of its bedding
shipments for the year ended December 27, 2008. Serta Holdings top 10 customers collectively
accounted for approximately 44% of its bedding shipments for the year ended December 31, 2008.
Most of the Company and Serta Holdings customer arrangements are by purchase order or are
terminable at will. Several of the customer arrangements are governed by long-term supply
agreements. A substantial decrease or interruption in business from either the Company or Serta
Holdings significant customers could result in a reduction in net sales, an increase in bad debt
expense or the loss of future business, any of which could impair New Parents business, financial
condition or results of operations. Additionally, the expiration of a long-term supply agreement
could result in the loss of future business, or the payment of additional amounts to secure a
contract renewal or an increase in required advertising support, any of which could impair New
Parents business, financial condition or results of operations. Further, if the Company or Serta
Holdings customers seek bankruptcy protection, such customers could act to terminate all or a
portion of their business with such company, originate new business with the Company or Serta
Holdings competitors and terminate or assign the long-term supply agreements, which could impair
New Parents results of operations. Any loss of revenue from major customers, including the
non-payment or late payment of invoices, could negatively affect New Parents business, results of
operations and financial condition.
Retailers may, and in the past some of the Company and Serta Holdings retailers did,
consolidate, undergo restructurings or reorganizations, or realign their affiliations. These
events may result, and have temporarily resulted, in a
decrease in the number of stores that carry or carried the Company or Serta Holdings
products, an increase in the ownership concentration in the retail industry, and/or our being
required to record significant bad debt expense and write-off the unamortized portion of
expenditures for customer supply agreements. Retailers may decide to carry only a limited number
of brands of mattress products, which could affect the Company or Serta Holdings ability to sell
their products to them on favorable terms, if at all, and could negatively impact New Parents
business, financial condition or results of operations. The filing of the Plan could adversely
affect the Debtors relationship with retailers, which could impair the Debtors business,
financial condition or results of operations or New Parents business, financial condition or
results of operations following the closing.
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9. Cost-Cutting
A variety of factors could prevent the Company and Serta Holdings from achieving their goal of
better aligning their product offerings and cost structure with customer needs in the current
business environment through reducing their operating expenses and eliminating redundancies. For
example, the Company and Serta Holdings efforts to improve efficiencies in their plant network
could lead to disruptions and cause their facilities to have to operate above optimal capacity and
could increase distribution expenses. If either company receive unanticipated orders, these
incremental volumes could be unprofitable due to the higher costs of operating above their optimal
capacity. In addition, they may not
be able to sufficiently increase capacity to meet any increased demand. As a result, New
Parent may not achieve their expected cost savings in the time anticipated, or at all. In such
case, New Parents results of operations and profitability may be negatively impacted, making the
Company and/or Serta Holdings less competitive and potentially causing them to lose market share.
10. Cost-Savings and Synergies
A variety of factors could prevent each of the Company and Serta Holdings from achieving the
estimated cost savings and synergies that have been used for the purposes of preparing the
financial projections set forth in Exhibits D and G attached hereto. If the companies have
difficulties achieving these and other synergies or cost saving initiatives, New Parents business,
financial condition or results of operations may be negatively impacted, as may the value of the
Class A Units.
11. Substantial Indebtedness
Serta Holdings has and the Company will have following the closing a substantial amount of
indebtedness that such company may be unable to extend, refinance or repay. See Section V.B.13 for
a description of the outstanding indebtedness of Serta Holdings and Section IV.F. for a description
of the exit financing facilities of the Company as of the closing. The substantial indebtedness at
each company could have important consequences. For example, it could:
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limit the Company or Serta Holdings ability to pay dividends on its equity
securities; |
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make it more difficult for each of the Company and Serta Holdings to satisfy its
obligations with respect to its outstanding debt, and a failure with any financial and
other restrictive covenants could result in an event of default under such companys
debt instruments and agreements; |
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require each of the Company and Serta Holdings to dedicate a substantial portion of
its cash flow to pay principal and interest on its debt, which will reduce the funds
available for dividends on New Parents equity securities, working capital, capital
expenditures, acquisitions and other general corporate purposes; |
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limit the Company or Serta Holdings and each of their subsidiaries flexibility in
planning for and reacting to changes in their business and in the industry in which they
operate; |
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make the Company or Serta Holdings and each of their subsidiaries more vulnerable to
adverse changes in general economic, industry and competitive conditions and adverse
changes in government regulation; |
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limit the Company or Serta Holdings and each of their subsidiaries ability to borrow
additional amounts for working capital, capital expenditures, acquisitions, debt service
requirements, execution of their strategy, or other purposes; and |
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place the Company or Serta Holdings and each of their subsidiaries at a disadvantage
compared to other competitors who have less debt. |
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Any of the above listed factors could negatively impact the Company or Serta Holdings
business, financial condition or results of operations, as well as the value of the Class A Units.
In addition, Serta Holdings credit facilities and the Companys exit financing facilities as
described in this Disclosure Statement contain various provisions which limit each companys
managements discretion in managing its respective business by, among other things, restricting
their ability to:
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pay dividends on stock or restrict dividends or other payments from their
subsidiaries; |
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make certain types of investments and other restricted payments; |
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sell certain assets or merge with or into other companies; and |
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enter into certain transactions with affiliates. |
12. Change in Labor Relations
At eight of the Companys 21 manufacturing facilities the Companys employees (approximately
56% of their workforce as of December 27, 2008) are represented by various labor unions with
separate collective bargaining agreements. The Companys collective bargaining agreements are
typically negotiated for two- to five-year terms. At eight of Serta Holdings 18 domestic
manufacturing facilities, Serta Holdings employees (approximately 26% of their manufacturing
workforce as of December 31, 2008) are represented by various labor unions with separate collective
bargaining agreements. Serta Holdings collective bargaining agreements are typically negotiated
in three-year terms. The Company and/or Serta Holdings may not be able to renew these contracts on
a timely basis or on favorable terms. It is possible that labor union efforts to organize
employees at additional non-union facilities may be successful. It is also possible that the
Company and/or Serta Holdings may experience labor-related work stoppages in the future. Any of
these developments could disrupt the Company or Serta Holdings business operations or increase
costs, which could negatively impact the Company or Serta Holdings sales and profitability, as
well as the value of the Class A Units.
13. Change in Executive Leadership
The Company and Serta Holdings depend on the continued services of the executive leadership
teams of each of the Company and Serta Holdings. The loss of any of these key officers at either
company could impair such companys ability to execute their business strategy and negatively
impact their business, financial condition and results of operations. Neither the Company nor
Serta Holdings carries key man insurance for any of their management executives. In the event the
Plan is not confirmed and the new employment agreements discussed in Section VI.A.3. above are not
in place, there is a risk that the Debtors will not be able to retain their executive leadership
and other key employees.
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14. Foreign Exchange Risks
The Company and Serta Holdings currently conduct operations in Canada. The Company and Serta
Holdings Canadian operations are subject to fluctuations in currency exchange rates, the potential
imposition of trade restrictions, and tariff and other tax increases. The Company has also limited
its ability to independently expand in certain international markets where it has granted licenses
to manufacture and sell Simmons products. Serta Holdings has also granted licenses to manufacture
and sell Serta® products in certain international markets. However, the licenses are
not perpetual and generally exist for five- or ten-year periods. Fluctuations in the currency
exchange rate between the U.S. dollar and the Canadian dollar may affect New Parents membership
equity interest and New Parents financial condition or results of operations. In addition, as a
result of a recent tax treaty between the U.S. and Canada, the withholding tax on transfers of cash
from the Company and Serta Holdings Canadian operations to their respective U.S. operations has
increased substantially which could impact New Parents results of operations.
15. FDIC Limits
As of June 27, 2009, the Company had approximately $67.3 million held in accounts at several
financial institutions in the U.S., Canada and Puerto Rico. As of June 30, 2009, Serta Holdings
has approximately $66.4 million held in accounts at several financial institutions in the U.S. and
Canada. Although the Federal Deposit Insurance Corporation (FDIC)
insures deposits in U.S. banks and thrift institutions up to $250,000 per eligible account,
the amount that the Company and Serta Holdings have deposited at these banks substantially exceeds
the FDIC limit. If any of the financial institutions where such funds have been deposited were to
fail, the Company and Serta Holdings may lose some or all of their deposited funds that exceed the
FDICs $250,000 insurance coverage limit. Such a loss would have a severe negative effect on each
company and New Parents operations and liquidity.
16. Underfunded Retirement Plans
Simmons Canada Inc. has a registered combined non-contributory defined benefit and defined
contribution pension plan for substantially all of the employees of Simmons Canada and a retirement
compensation arrangements (RCA) for certain senior officials of Simmons Canada. As of
December 27, 2008, the projected benefit obligation exceeded the fair value of the plan assets of
the defined benefit segment of the pension plan (Pension Plan) by $2.9 million. As of
December 27, 2008, the fair value of the plan assets exceeded the projected benefit obligation of
the RCA by $0.7 million. Simmons Canada Inc. expects to make estimated minimum funding
contributions totaling approximately $1.1 million in 2009 related to the Pension Plan. No
contributions are expected for the RCA in 2009. Simmons Canada Inc. also has unfunded supplemental
executive retirement plans (SERP) for certain former executives. As of December 27,
2008, Simmons Canada Inc. had a liability of $3.1 million related to the SERP and anticipate making
contributions to the SERP of $0.2 million in 2009. If the performance of the assets in the Pension
Plan do not meet Simmons Canada Inc.s expectations, or if other actuarial assumptions are
modified, Simmons Canada Inc.s future cash payments to the Pension Plan could be higher than they
expected.
17. Intellectual Property Risks
Brands and branded products are very important to the Company and Serta Holdings business.
The Company and Serta Holdings have a large number of well-known trademarks and service marks
registered in the U.S., Canada and abroad, and they continue to pursue many pending applications to
register marks domestically and internationally. The Company and Serta Holdings also have a
significant portfolio of patents and patent applications that have been issued or are being pursued
both domestically and abroad. In addition, certain marks, trade secrets, know-how and other
proprietary materials that the Company and Serta Holdings use in their business are not registered
or subject to patent protection. Each companys intellectual property is important to the design,
manufacture, marketing and distribution of their products and services.
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To compete effectively with other companies, the Company and Serta Holdings must maintain the
proprietary nature of the Company and Serta Holdings owned and licensed intellectual property.
Despite their efforts, the Company and Serta Holdings cannot eliminate the following risks: (i) it
may be possible for others to circumvent their trademarks, service marks, patents and other rights;
(ii) their products and promotional materials, including trademarks, service marks, may now or in
the future violate the proprietary rights of others; (iii) the Company and Serta Holdings may be
prevented from using their own trademarks, service marks, product designs or manufacturing
technology, if challenged; (iv) it may be cost prohibitive to enforce or defend their trademarks,
service marks, patents and other rights; (v) the Company and Serta Holdings pending applications
regarding trademarks, service marks and patents may not result in marks being registered or patents
being issued; and (vi) the Company and Serta Holdings may be unable to protect their technological
advantages when their patents expire.
The nature and value of SBC, The Simmons Manufacturing Co., LLC, and Serta Holdings
intellectual property may be affected by a change in law domestically or abroad. In light of the
political and economic circumstances in certain foreign jurisdictions, the Company and Serta
Holdings rights may not be enforced or enforceable in foreign countries even if they are validly
issued or registered.
While New Parent does not believe that its overall success depends upon any particular
intellectual property rights, any inability to maintain the proprietary nature of the Company or
Serta Holdings intellectual property could have a material negative effect on their business. For
example, an action to enforce their rights, or an action brought by a third party
challenging their rights, could impair their financial condition or results of operations,
either as a result of a negative ruling with respect to their use, the validity or enforceability
of their intellectual property or through the time consumed and legal costs involved in bringing or
defending such an action.
On June 10, 2009, Tempur-Pedic filed a complaint in the U.S. District Court for the Western
District of Virginia, Big Stone Gap Division against SBC, The Simmons Manufacturing Co., LLC,
Serta, Inc. and 15 other bedding manufacturer for alleged infringement of the 468 Patent. The
patent relates to certain mattress constructions utilizing layers of viscoelastic and other foam
materials. Specifically, Tempur-Pedic alleges that the Companys Comfor-Pedic® Original and
Beautyrest® NxG 250 Firm products and Serta, Inc.s Vera Wang Serenity Collection signature Visco
line of products infringe its 468 Patent.
Tempur-Pedic has not filed a motion for a preliminary injunction. Neither SBC, nor The
Simmons Manufacturing Co., LLC, nor Serta, Inc. has requested or obtained any legal opinion
regarding non-infringement, invalidity, or enforceability of the 468 Patent in connection with
this matter. At this time, Tempur-Pedic has not specified the amount of damages it is seeking from
SBC, The Simmons Manufacturing Co., LLC, or Serta, Inc. in connection with this matter. SBC and The
Simmons Manufacturing Co., LLC filed its Answer and Affirmative Defenses, including defenses of
non-infringement, invalidity and unenforceability of the patent on July 31, 2009. Serta, Inc.
filed its Answer and Affirmative Defenses, including defenses of non-infringement, invalidity and
unenforceability of the patent on July 31, 2009. The parties met and conferred on the Rule 26(f)
Order on September 25, 2009 and the court has set a scheduling conference on October 19, 2009.
Discovery has commenced. SBC, The Simmons Manufacturing Co., LLC and Serta Holdings believe that
Tempur-Pedics claims are without merit and intend to vigorously defend against Tempur-Pedics
lawsuit.
As a separate matter, on August 21, 2009, the Company filed a Petition for Inter Partes
Reexamination of the 468 Patent in the U.S. Patent and Trademark Office, based upon prior art that
the Company believes presents strong grounds for reexamination of the validity of the Tempur-Pedic
claims.
18. Exposure to Product Liability Claims
The Company and Serta Holdings face an inherent business risk of exposure to product liability
claims if the use of any of the Company or Serta Holdings products results in personal injury or
property damage. In the event that any of the products prove to be defective or if they are
determined not to meet state or federal legal requirements, the Company or Serta Holdings, as
applicable, may be required to recall or redesign those products, which could be costly and impact
the Company and Serta Holdings profitability. The Company and Serta Holdings maintain
insurance against product liability claims, but such coverage may not continue to be available on
terms acceptable to each of them and such coverage may not be adequate to cover types of
liabilities actually incurred. A successful claim brought against the Company or Serta Holdings if
not fully covered by available insurance coverage, or any claim or product recall that results in
significant adverse publicity against such company, could have a material negative effect on New
Parents business and/or result in consumers purchasing fewer of such companys products, which
could also reduce New Parents liquidity and profitability.
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19. Return Rates and Warranty Reserves
As the Company and Serta Holdings increase their sales, their return rates may not remain
within their historical levels. An increase in return rates could significantly impair their
liquidity and profitability. Each company also generally provides their customers with a limited
warranty against manufacturing defects on their conventional innerspring and specialty bedding
products of ten to 20 and 30 years, respectively. The Companys juvenile bedding products
generally have warranty periods ranging from five years to a lifetime. The historical costs to
each company of honoring warranty claims have been within their respective managements
expectations. However, as the Company and Serta Holdings have released new products in recent
years, many new products are fairly early in their product life cycles. Because these products
have not been in use by customers for the full warranty period, each company relies on the
combination of historical experience and product testing for the development of their estimate for
warranty claims. However, the actual
level of warranty claims could prove to be greater than the level of warranty claims estimated
during product testing. The companies have also experienced non-warranty returns for reasons
generally related to order entry errors, shipping damage, and to accommodate customers. If the
Company and Serta Holdings warranty and non-warranty reserves are not adequate to cover future
claims, their inadequacy could reduce New Parents liquidity and profitability.
20. Terrorist Attacks
Additional terrorist attacks in the U.S. or against U.S. targets, or threats of war or the
escalation of current hostilities involving the U.S. or its allies, or military or trade
disruptions impacting the Company and Serta Holdings domestic or foreign suppliers of components
of their products, may impact New Parents operations, including, but not limited to, causing
supply chain disruptions and decreased sales of the Company and Serta Holdings products. These
events could also cause an increase in oil or other commodity prices, which could adversely affect
the Company and Serta Holdings raw materials or transportation costs. More generally, any of these
events could cause consumer confidence and spending to decrease. These events also could cause an
economic recession in the U.S. or abroad. Any of these occurrences could have a significant impact
on New Parents business, financial condition or results of operations.
21. Swine Flu Pandemic
A significant outbreak of swine flu, or a similar pandemic, or even a perceived threat of such
an outbreak, could cause significant disruptions to the Company and Serta Holdings supply chain,
manufacturing capability, corporate support infrastructure or distribution system that could
adversely impact the Company and Serta Holdings ability to produce and deliver products.
Similarly, such events could cause significant adverse impacts on consumer confidence and consumer
demand generally. Any of these occurrences could have a significant impact on New Parents
business, financial condition or results of operations.
J. Risks Relating to the Class A Units
The Class A Units are not an appropriate investment other than for Eligible Investors that are
willing to accept significant illiquidity and other risks not present in other equity investments.
New Parent urges Eligible Investors to consider these risks carefully before making any investment
in the Class A Units.
1. No Listing or Trading Market
The Class A Units are illiquid securities without a trading market. New Parent does not
anticipate that the Class A Units will be listed on a national securities exchange or the NASDAQ
Stock Market or quoted on any automated dealer quotation systems. Accordingly, Eligible Investors
who purchase Class A Units may not be able to sell the Class A Units for their fair value, or at
all. No Eligible Investor should elect to purchase Class A Units unless the Eligible Investor is
prepared to hold the Class A Units for a long and uncertain period of time.
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2. Significant Contractual Transfer Restrictions
Class A Units are not freely transferable. Class A Units are subject to significant
contractual transfer restrictions that may affect the future trading prices of Class A Units and/or
the development of an active trading market in such units, and the ability of holders of Class A
Units to sell their investment. For further information about the transfer restrictions on the
Class A Units, please see the section of Exhibit E entitled Transfer Restrictions.
3. Limited Financial Information and Investor Protections
Holders of Class A Units will not have the benefit of various investor protection laws and
regulations that benefit holders of equity securities of U.S. issuers that are listed on the NYSE,
NASDAQ stock market or other national securities exchanges or are otherwise registered under
Section 12 of the Exchange Act. While such holders will be entitled to annual and quarterly
consolidated financial statements of New Parent, there will be less information available about us,
our managers, executive officers, beneficial owners and prospective purchasers of our Class A Units
than is regularly published by or about public U.S. issuers. Moreover, the information that is
provided by New Parent will not be subject to the same scrutiny as the information provided by
issuers with equity securities listed on a national securities exchange or otherwise registered
pursuant to Section 12. Moreover, New Parent will not be subject to any corporate governance rules
applicable to companies listed on NYSE, NASDAQ stock market or other national securities exchange,
or the rules under the Exchange Act concerning the ownership and trading of securities of New
Parent by control persons, officers, directors and employees.
4. Control by Sponsors with Divergent Interests
New Parent will be controlled by the Sponsors who will seek to influence the direction of New
Parent and will have the ability to control its management, policies and financing decisions, to
elect all of the members of its board of managers and to control the vote on all matters coming
before its holders of Class A Units. In addition, the Sponsors will have the right to drag-along
holders of Class A Units in certain transactions involving the sale of the Company or a majority of
the equity interests of New Parent, as described in the limited liability company agreement of New
Parent. Holders of Class A Units will be required to sell their Class A Units in proportion to the
sale made by, and on the same terms and conditions as, the Sponsors to the purchaser of such units
in such a transaction. The interests of the Sponsors may conflict with the interests of the other
holders of Class A Units.
5. Limited Fiduciary Duties
The managers of New Parent will be subject to fiduciary duties to the holders of Class A Units
to the extent of fiduciary duties owed by directors of a Delaware corporation to its stockholders;
provided, however, that the corporate opportunity doctrine, will not apply and the operating
agreement of New Parent may eliminate or limit personal liability of managers to the extent
permitted by Section 102(b)(7) of the Delaware General Corporation Law.
6. No Control Over Subsequent Issuances of Securities; No Preemptive Rights
The issuance of additional classes of units by the board of managers of New Parent could
adversely affect holders of Class A Units and may negatively impact the investment of Eligible
Investors. The board of managers of New Parent is
authorized to issue additional classes of units without the approval of holders of Class A
Units. The board of managers also has the power, without the approval of Class A Units, to set the
terms of any such classes of units that may be issued, including voting rights, distribution
rights, and preferences over Class A Units with respect to distributions or upon New Parents
dissolution, winding-up and liquidation and other terms. If the board of managers of New Parent
issues additional classes of units in the future that have a preference over the Class A Units with
respect to the payment of distributions or upon the liquidation, dissolution, or winding up of New
Parent, or if the board of managers of New Parent issues classes of units with voting rights that
dilute the voting power of the Class A Units, the rights of holders of the Class A Units or the
market price of the Class A Units could be materially and adversely affected. Class A Units will
not benefit from pre-emptive rights.
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7. Effective Subordination to Class B Units
The entitlement of holders of Class A Units to distributions from New Parent is subordinated
in nature to the distribution rights of Class B units in New Parent (Class B Units).
Class A Units will only receive a distribution after Class B Units have received an aggregate
distribution from time to time or at any time of the initial subscription price of $1,000 per
share, accreting at a 6% rate, compounded annually (the Class B Liquidation Preference).
Until the Class B Liquidation Preference has been reduced to zero, Class A Units will not receive
any distribution from New Parent. If the
Class B Liquidation Preference has been reduced to zero, Class A Units will be entitled to
distributions from New Parent, before additional distributions may be paid on Class B Units, until
Class A Units receive a catch-up amount equal to the total distributions on Class B Units.
Thereafter, additional distributions will be paid on Class A and Class B Units on a pro rata basis.
8. Risks Relating to U.S. Taxation
Under United States Treasury Regulations Section 1.1502-6, Reorganized SBC and its
subsidiaries (could become liable for U.S. federal income tax liabilities of Bedding Superholdco
Incorporated and Holdco for periods during which such companies were members of a federal tax
consolidated group. The U.S. federal income tax consequences applicable to situations where
members of a consolidated group recognize COD and depart such consolidated group in the same
taxable year are complex and, in certain respects, unclear. Although not currently expected, the
application of such rules could result in the Simmons Group incurring a material cash tax liability
to Bedding Superholdco Incorporated and Holdco for periods prior to the Effective Date as a result
of the consummation of the transactions contemplated by the Plan.
XIII. THE SOLICITATION; VOTING PROCEDURES
A. Voting Deadline
The period during which ballots with respect to the Plan will be accepted by the Debtors (and
may be withdrawn or revoked unless the Bankruptcy Court issues an order to the contrary) will
terminate on the Voting Deadline. Except to the extent the Debtors so determine or as permitted by
the Bankruptcy Court, ballots that are received after the Voting Deadline will not be counted or
otherwise used by the Debtors in connection with the Debtors request for confirmation of the Plan
(or any permitted modification thereof).
The Debtors reserve the absolute right, at any time or from time to time, to extend, by oral
or written notice to the Solicitation Agent, the period of time (on a daily basis, if necessary)
during which ballots will be accepted for any reason including determining whether or not the
requisite acceptances have been received, by making a public announcement of such extension no
later than 8:00 a.m., Eastern time, on the first business day next succeeding the previously
announced Voting Deadline. Without limiting the manner in which the Debtors may choose to make any
public announcement, the Debtors will not have any obligation to publish, advertise or otherwise
communicate any such public announcement, other than by issuing a news release through the Dow
Jones News Service. There can be no assurance that the Debtors will exercise their right to extend
the solicitation period for the receipt of ballots.
B. Voting Procedures
Under the Bankruptcy Code, for purposes of determining whether the requisite acceptances have
been received, only holders of impaired claims and equity interests who actually vote will be
counted. The failure of a holder to deliver a duly executed ballot will be deemed to constitute an
abstention by such holder with respect to voting on the Plan and such abstentions will not be
counted as votes for or against the Plan.
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The Debtors are providing the solicitation package to holders of eligible claims and equity
interests whose names (or the names of whose nominees) appear as of the Voting Record Date in the
register maintained by the agent under the SBC Credit Agreement and the records maintained by the
Debtors, the holder list preserved by the trustee under the indenture governing the SBC Notes, the
list of participants under the indenture governing the SBC Notes provided by the DTC and in the
records maintained by SBC, and the holder list preserved by trustee under the indenture governing
the Holdco Notes, the list of participants under the indenture governing the Holdco Notes provide
by the DTC and in the records maintained by Holdco, and holders of equity interests in Bedding
Holdco. Nominees should provide copies of the solicitation package to the beneficial owners of the
eligible claims. Any beneficial owner of eligible claims who has not received a ballot should
contact his/her or its nominee or the Solicitation Agent.
Holders of eligible claims should provide all of the information requested by the ballots
holders of eligible claims receive. Holders of eligible claims should complete and return all
ballots that holders of eligible claims receive in the return envelope provided with each such
ballot.
C. Special Note for the holders of SBC Notes and the holders of Holdco Notes
For purposes of the SBC Notes and the Holdco Notes (the Notes), only the holders of
the Notes as of the Voting Record Date are entitled to vote on the Plan. The indenture trustee
will not vote on behalf of the holders of such notes. Holders must submit their own ballots.
1. Beneficial Owners
A beneficial owner holding Notes as record holder in its own name should vote on the Plan by
completing and signing the enclosed ballot and returning it directly to the Solicitation Agent on
or before the Voting Deadline using the enclosed self-addressed envelope.
Any beneficial owner holding Notes in street name through a nominee may vote on the Plan by
one of the following two methods (as selected by such beneficial owners nominee).
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Complete and sign the enclosed beneficial owner ballot. Return the ballot to your
nominee as promptly as possible and in sufficient time to allow such nominee to process the
ballot and return it to the Solicitation Agent by the Voting Deadline. If no self-addressed
envelope was enclosed for this purpose, contact the Solicitation Agent for instructions. |
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Complete and sign the pre-validated ballot (as described below) provided to you by your
nominee. Return the pre-validated ballot to the Solicitation Agent by the Voting Deadline
using the enclosed self-addressed envelope. |
Any ballot returned to a nominee by a beneficial owner will not be counted for purposes of
acceptance or rejection of the Plan until such nominee properly completes and delivers to the
Solicitation Agent that ballot or a master ballot that reflects the vote of such beneficial owner.
2. Nominees
A nominee that on the Voting Record Date is the registered holder of Notes for a beneficial
owner should obtain the votes of the beneficial owners of such Notes, consistent with customary
practices for obtaining the votes of securities held in street name, in one of the following two
ways:
a. Pre-Validated Ballots
A nominee may pre-validate a ballot by: (i) signing the ballot; (ii) indicating on the ballot
the name of the registered holder and the amount of Notes held by the nominee; and (iii) forwarding
such ballot together with the solicitation package and other materials requested to be forwarded,
to the beneficial owner for voting. The beneficial owner must then complete the information
requested in the ballot, review the certifications contained in the ballot, and return the ballot
directly to the Solicitation Agent in the pre-addressed envelope so that it is received by the
Solicitation Agent before the Voting Deadline. A list of the beneficial owners to whom
pre-validated ballots were delivered should be maintained by the nominee for inspection for at
least one year from the Voting Deadline.
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b. Master Ballots
A nominee may obtain the votes of beneficial owners by forwarding to the beneficial owners the
unsigned ballots, together with the Disclosure Statement, a return envelope provided by, and
addressed to, the nominee, and other materials
requested to be forwarded. Each such beneficial owner must then indicate his/her or its vote on
the ballot, complete the information requested in the ballot, review the certifications contained
in the ballot, execute the ballot, and return the ballot to the nominee. After collecting the
ballots, the nominee should, in turn, complete a master ballot compiling the votes and other
information from the ballot, execute the master ballot, and deliver the master ballot to the
Solicitation Agent so that it is received by the Solicitation Agent before the Voting Deadline.
All ballots returned by beneficial owners should either be forwarded to the Solicitation Agent
(along with the master ballot) or retained by the nominees for inspection for at least one year
from the Voting Deadline.
EACH NOMINEE SHOULD ADVISE ITS BENEFICIAL OWNERS TO RETURN THEIR BALLOTS TO THE NOMINEE BY A
DATE CALCULATED BY THE NOMINEE TO ALLOW IT TO PREPARE AND RETURN THE MASTER BALLOT TO THE
SOLICITATION AGENT SO THAT IT IS RECEIVED BY THE SOLICITATION AGENT BEFORE THE VOTING DEADLINE.
3. Securities Clearing Agency
The Debtors expect that the DTC, as a nominee holder of the Notes, will arrange for its
participants to vote by providing a record date listing of participants entitled to vote. Such
participants will be authorized to vote their Voting Record Date positions held in the name of such
securities clearing agency.
4. Miscellaneous
For purposes of voting to accept or reject the Plan, the beneficial owners of Notes will be
deemed to be the holders of the claims represented by such Notes. Unless otherwise ordered by
the Bankruptcy Court, ballots that are signed, dated and timely received, but on which a vote to
accept or reject the Plan has not been indicated, will not be counted. The Debtors, in their sole
discretion, may request that the Solicitation Agent attempt to contact such voters to cure any such
defects in the ballots.
Except as provided below, unless the ballot is timely submitted to the Solicitation Agent
before the Voting Deadline together with any other documents required by such ballot, the Debtors
may, in their sole discretion, reject such ballot as invalid, and therefore decline to utilize it
in connection with seeking confirmation of the Plan.
In the event of a dispute with respect to any SBC Note Claim or Holdco Note Claim, any vote to
accept or reject the Plan cast with respect to such claim will not be counted for purposes of
determining whether the Plan has been accepted or rejected, unless the Bankruptcy Court orders
otherwise.
D. Fiduciaries and other Representatives
If a ballot is signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation, or another acting in a fiduciary or representative capacity, such person
should indicate such capacity when signing and, unless otherwise determined by the Company, must
submit proper evidence satisfactory to the Company of authority to so act. Authorized signatories
should submit the separate ballot of each beneficial owner for whom they are voting.
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UNLESS THE BALLOT BEING FURNISHED IS TIMELY SUBMITTED TO THE SOLICITATION AGENT ON OR PRIOR TO
THE VOTING DEADLINE, SUCH BALLOT WILL BE REJECTED AS INVALID AND WILL NOT BE COUNTED AS AN
ACCEPTANCE OR REJECTION OF THE PLAN; PROVIDED, HOWEVER, THAT THE DEBTORS RESERVE THE RIGHT, IN
THEIR SOLE DISCRETION, TO REQUEST OF THE BANKRUPTCY COURT THAT ANY SUCH BALLOT BE COUNTED. IN NO
CASE SHOULD A BALLOT BE DELIVERED TO ANY ENTITY OTHER THAN THE NOMINEE OR THE SOLICITATION AGENT.
E. Parties Entitled to Vote
Under section 1124 of the Bankruptcy Code, a class of claims or equity interests is deemed to
be impaired under a plan unless (i) the plan leaves unaltered the legal, equitable and
contractual rights to which such claim or equity interest entitles the holder thereof or (ii)
notwithstanding any legal right to an accelerated payment of such claim or equity interest, the
plan cures all existing defaults (other than defaults resulting from the occurrence of events of
bankruptcy) and reinstates the maturity of such claim or equity interest as it existed before the
default.
In general, a holder of a claim or equity interest may vote to accept or to reject a plan if
the claim or equity interest is allowed, which means generally that no party-in-interest has
objected to such claim or equity interest, and the claim or equity interest is impaired by the
plan. If, however, the holder of an impaired claim or equity interest will not receive or retain
any property under the plan on account of such claim or equity interest, the Bankruptcy Code deems
such holder to have rejected the plan, and, accordingly, holders of such claims and equity
interests do not actually vote on the plan. If a claim or equity interest is not impaired by the
plan, the Bankruptcy Code deems the holder of such claim or equity interest to have accepted the
plan and, accordingly, holders of such claims and equity interests are not entitled to vote on the
plan.
Classes 1, 2, 3 and 7 of the Plan are not impaired. Accordingly, under section 1126(f) of the
Bankruptcy Code, all such classes of claims and equity interests are deemed to have accepted the
Plan and are not entitled to vote in respect of the Plan.
Classes 8 and 10 will not receive or retain any property under the Plan on account of their
claims and equity interests. Accordingly, under section 1126(g) of the Bankruptcy Code, Classes 8
and 10 are deemed to have rejected the Plan and is not entitled to vote in respect of the Plan.
Therefore, in accordance with sections 1126 and 1129 of the Bankruptcy Code, the Debtors are
soliciting acceptances only from holders of claims and equity interests in Classes 4, 5, 6 and 9.
A vote may be disregarded if the Bankruptcy Court determines, pursuant to section 1126(e) of
the Bankruptcy Code, that it was not solicited or procured in good faith or in accordance with the
provisions of the Bankruptcy Code.
F. Agreements Upon Furnishing Ballots
The delivery of an accepting ballot to the Solicitation Agent by a holder of eligible claims
pursuant to one of the procedures set forth above will constitute the agreement of such holder to
accept (i) all of the terms of, and conditions to the solicitation and (ii) the terms of the Plan;
provided, however, all parties in interest retain their right to object to confirmation of the Plan
pursuant to section 1128 of the Bankruptcy Code.
G. Waivers of Defects, Irregularities, Etc.
Unless otherwise directed by the Bankruptcy Court, all questions as to the validity, form,
eligibility (including time of receipt), acceptance and revocation or withdrawal of ballots will be
determined by the Solicitation Agent and the Debtors in their sole discretion, which determination
will be final and binding. As indicated in Section XIII.H., effective withdrawals of ballots must
be delivered to the Solicitation Agent prior to the Voting Deadline. The Debtors reserve the
absolute right to contest the validity of any such withdrawal. The Debtors also reserve the right
to reject any and all ballots not in proper form, the acceptance of which would, in the opinion of
the Debtors or their counsel, be unlawful. The Debtors further reserve the right to waive any
defects or irregularities or conditions of delivery as to any particular ballot. The
interpretation (including the ballot and the respective instructions thereto) by the Debtors,
unless otherwise directed by the Bankruptcy Court, will be final and binding on all parties.
Unless waived, any defects or irregularities in connection with deliveries of ballots must be cured
within such time as the Debtors (or the Bankruptcy Court) determine. Neither the Debtors nor any
other person will be under any duty to provide notification of defects or irregularities with
respect to deliveries of ballots nor will any of them incur any liabilities for failure to provide
such notification. Unless otherwise directed by the Bankruptcy Court, delivery of such ballots
will not be deemed to have been made until such
irregularities have been cured or waived. Ballots previously furnished (and as to which any
irregularities have not theretofore been cured or waived) will be invalidated.
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H. Withdrawal of Ballots; Revocation
Any party who has delivered a valid ballot for the acceptance or rejection of the Plan may
withdraw such acceptance or rejection by delivering a written notice of withdrawal to the
Solicitation Agent at any time prior to the Voting Deadline. A notice of withdrawal, to be valid,
must (i) contain the description of the claim(s) to which it relates and the aggregate principal
amount represented by such claim(s), (ii) be signed by the withdrawing party in the same manner as
the ballot being withdrawn, (iii) contain a certification that the withdrawing party owns the
claim(s) and possesses the right to withdraw the vote sought to be withdrawn and (iv) be received
by the Solicitation Agent in a timely manner at the address set forth in Section XIII.J. Prior to
the filing of the Plan, Bedding Holdco intends to consult with the Solicitation Agent to determine
whether any withdrawals of ballots were received and whether the requisite acceptances of the Plan
have been received. As stated above, the Debtors expressly reserve the absolute right to contest
the validity of any such withdrawals of ballots.
Unless otherwise directed by the Bankruptcy Court, a purported notice of withdrawal of ballots
which is not received in a timely manner by the Solicitation Agent will not be effective to
withdraw a previously cast ballot.
Any party who has previously submitted to the Solicitation Agent prior to the Voting Deadline
a properly completed ballot may revoke such ballot and change his or its vote by submitting to the
Solicitation Agent prior to the Voting Deadline a subsequent properly completed ballot for
acceptance or rejection of the Plan. In the case where more than one timely, properly completed
ballot is received, only the ballot which bears the latest date will be counted for purposes of
determining whether the requisite acceptances have been received.
Upon termination of the Plan Sponsor Agreement, all votes cast and all ballots shall be deemed
to be automatically withdrawn and null and void.
The Debtors will pay all costs, fees and expenses relating to the solicitation, including
customary mailing and handling costs of nominees.
I. Delivery of Extinguished Securities
The Debtors are not at this time requesting the delivery of, and neither the Debtors nor the
Solicitation Agent will accept, certificates representing any securities which will, on and after
the Effective Date, be cancelled. In connection with the Effective Date, the Debtors will furnish
all record holders of extinguished securities with appropriate letters of transmittal to be used to
remit their extinguished securities in exchange for the distribution under the Plan. Information
regarding such remittance procedure (together with all appropriate materials) will be distributed
by the Reorganized Debtors after the confirmation date.
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J. Further Information; Additional Copies
If you have any questions or require further information about the voting procedure for voting
your claim or about the solicitation package, or if you wish to obtain an additional copy of the
Plan, the Disclosure Statement, or any exhibits to such documents (at your own expense, unless
otherwise specifically required by of Rule 3017(d) of the Bankruptcy Rules), please contact the
Solicitation Agent:
Epiq Bankruptcy Solutions, LLC
757 Third Avenue 3rd Floor
New York, New York 10017
Telephone: (646) 282-2500
XIV. RECOMMENDATION AND CONCLUSION
For all of the reasons set forth in this Disclosure Statement, the Debtors believe that
confirmation and consummation of the Plan is preferable to all other alternatives. Consequently,
the Debtors urge all holders of eligible claims to vote to accept the Plan, and to complete and
return their ballots so that they will be received by the Solicitation Agent on or before 5:00
p.m., Eastern time, on November 12, 2009.
Dated: October 13, 2009
SIMMONS COMPANY, ON BEHALF OF ITSELF
AND ITS DIRECT AND INDIRECT DOMESTIC SUBSIDIARIES
SET FORTH ON EXHIBIT H
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By:
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/s/ William S. Creekmuir |
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Name: William S. Creekmuir
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Title: Executive Vice President, Chief Financial Officer, |
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Treasurer and Assistant Secretary |
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EXHIBIT A
The Plan
Please see attached.
Exhibit A
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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In re
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Chapter 11 |
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SIMMONS BEDDING COMPANY, et al.,
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Case No. ( ) |
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Debtors.
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(Jointly Administered) |
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JOINT PLAN OF REORGANIZATION OF SIMMONS BEDDING
COMPANY, ET AL. UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
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WEIL, GOTSHAL & MANGES LLP |
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Michael F. Walsh, Esq. |
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767 5th Avenue |
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New York, New York 10153 |
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(212) 310-8000 |
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- and - |
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RICHARDS, LAYTON & FINGER, PA |
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Mark D. Collins, Esq. |
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Michael J. Merchant, Esq. |
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Richards, Layton & Finger, P.A. |
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One Rodney Square |
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P.O. Box 551 |
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Wilmington, Delaware 19899 |
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Phone: (302) 651-7700 |
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Facsimile: (302) 651-7701 |
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Proposed Attorneys for Simmons Bedding Company, et
al. |
Dated: Wilmington, Delaware
October 13, 2009
Simmons Company, Bedding Holdco Incorporated, Simmons Bedding Company and their domestic
subsidiaries, as debtors and debtors in possession in the above-captioned chapter 11 cases, and AOT
Bedding Super Holdings, LLC and AOT Bedding Intermediate Holdings, LLC propose the following joint
chapter 11 Plan of Reorganization pursuant to section 1121 of title 11 of the United States Code.
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION
A. Definitions.
Except as expressly provided or unless the context otherwise requires, capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in this Article I. Terms defined
herein by reference to the Plan Sponsor Agreement are used herein with the meanings assigned to
such terms in the Plan Sponsor Agreement without giving effect to any amendments of such agreement.
Any term that is used and not defined herein, but is defined in the Bankruptcy Code or the
Bankruptcy Rules, shall have the meaning ascribed to it therein. Where the context requires, any
definition applies to the plural as well as the singular number:
1.1. Administrative Expense Claim means any right to payment constituting a cost or expense of
administration of any of the Reorganization Cases allowed under sections 503(b), 507(a)(1), or
1114(e) of the Bankruptcy Code, including, without limitation, (i) any actual, necessary costs and
expenses, incurred after the Commencement Date, of preserving the Debtors estates or operating the
Debtors businesses, (ii) any indebtedness or obligations incurred or assumed by the Debtors, as
debtors in possession, during the Reorganization Cases, including, without limitation, for the
acquisition or lease of property or an interest in property or the rendition of services, (iii) the
compensation and reimbursement of expenses of professionals to the extent allowed by Final Order
under sections 330 or 503 of the Bankruptcy Code, and (iv) any fees or charges assessed against the
estates of the Debtors under section 1930 of chapter 123 of title 28 of the United States Code.
1.2. Affiliate has the meaning ascribed to such term in section 101(2) of the Bankruptcy Code.
1.3. Allowed means, with reference to a Claim, (i) a Claim against a Debtor that has been
listed by such Debtor in the Schedules, as such Schedules may be amended by the Debtors from time
to time in accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed or
contingent and for which no contrary proof of claim has been filed, (ii) a Claim that has been
timely filed and as to which no objection to allowance or request for estimation has been timely
interposed and not withdrawn, or (iii) any Claim expressly allowed by a Final Order or hereunder,
provided that any Claim that is allowed for the limited purpose of voting to accept or reject the
Plan pursuant to an order of the Bankruptcy Court shall not be considered Allowed for the purpose
of Distributions hereunder; and, provided, further, that an Allowed Claim shall not include, for
purposes of calculating Distributions under the Plan, interest on such Claim from and after the
Petition Date, except as provided in section 506(b) of the Bankruptcy Code, any applicable Final
Order, or as otherwise expressly set forth in this Plan.
1.4. Bankruptcy Code means title 11 of the United States Code, as amended from time to time,
as applicable to the Reorganization Cases.
1.5. Bankruptcy Court means the United States Bankruptcy Court for the District of Delaware,
or any other court with jurisdiction over the Reorganization Cases, and, to the extent
of any reference made under section 157 of title 28 of the United States Code, the unit of
such District Court having jurisdiction over the Reorganization Cases under section 151 of title 28
of the United States Code.
1
1.6. Bankruptcy Rules means, collectively, the Federal Rules of Bankruptcy Procedure as
promulgated by the United States Supreme Court under section 2075 of title 28 of the United States
Code, as amended from time to time, applicable to the Reorganization Cases, and any Local Rules of
the Bankruptcy Court.
1.7. Bedding Holdco means Bedding Holdco Incorporated, a Delaware corporation.
1.8. Business Day means any day other than a Saturday, a Sunday, or any other day on which
banking institutions in New York, New York are required or authorized to close by law or executive
order.
1.9. Cash means legal tender of the United States of America.
1.10. Claim has the meaning set forth in section 101(5) of the Bankruptcy Code.
1.11. Class means any group of Claims or Equity Interests classified by the Plan of
Reorganization pursuant to section 1122(a)(1) of the Bankruptcy Code.
1.12. Class 5 Residual Amount means $5,000,000 less an amount equal to one-third of the
Restructuring Expenses in excess of $42,125,000, as determined pursuant to Section 5.6 herein,
provided that the Class 5 Residual Payment shall not be less than $0.
1.13. Class 6 Excess Amount means the amount by which the Restructuring Expenses are less than
$37,125,000, as determined pursuant to Section 5.6 herein.
1.14. Class 6 Parent Stock means shares of the Class A membership interests issued by AOT
Bedding Super Holdings, LLC, having the rights and privileges described in the Equity Term Sheet
attached hereto as Exhibit A.
1.15. Class 6 Residual Amount means $5,000,000 less an amount equal to one-third of the
Restructuring Expenses in excess of $42,125,000, as determined pursuant to Section 5.6 herein,
provided that the Class 6 Residual shall not be less than $0.
1.16.
Commencement Date means [ ], 2009.
1.17. Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the
Confirmation Order.
1.18. Confirmation Order means the order of the Bankruptcy Court confirming the Plan of
Reorganization pursuant to section 1129 of the Bankruptcy Code.
1.19. Debtors means, collectively, Holdco, Bedding Holdco, SBC, The Simmons Manufacturing Co.,
LLC, Windsor Bedding Co., LLC, World of Sleep Outlets, LLC, Simmons Contract Sales, LLC, Dreamwell,
Ltd., Simmons Capital Management, LLC, and Simmons Export Co. (each individually a Debtor, and,
when the context so requires, in its capacity as a debtor and debtors in
possession under sections 1107 and 1108 of the Bankruptcy Code). When the term Debtors is
used with respect to periods after the Effective Date, Debtors shall mean the Reorganized
Debtors.
2
1.20. Debtors in Possession means the Debtors in their capacity as debtors in possession in
the Reorganization Cases pursuant to sections 1101, 1107(a), and 1108 of the Bankruptcy Code.
1.21. DIP Facility means the debtor in possession credit facility, dated as of
[ ,] 2009, among the Debtors in Possession, Deutsche Bank Trust Company Americas, as
administrative agent and collateral agent, and the lenders party thereto.
1.22. Disbursing Agent means any entity (including any applicable Debtor if it acts in such
capacity) in its capacity as a disbursing agent under section 6.3 hereof.
1.23. Disputed Claim means any Claim that has not been Allowed, provided that any Claim
asserted against the Debtors that has been disallowed or expunged by the Bankruptcy Court or
withdrawn by the entity asserting such Claim shall, at that point, no longer be a Claim against the
Debtors.
1.24. Effective Date means a Business Day on or after the Confirmation Date specified by the
Debtors on which (i) no stay of the Confirmation Order is in effect and (ii) the conditions to the
effectiveness of the Plan of Reorganization specified in section 9 hereof have been satisfied or
waived.
1.25. Equity Interest means any equity security (as defined in section 101(16) of the
Bankruptcy Code) or general or limited partnership interest in any of the Debtors.
1.26. Final Order means an order or judgment of the Bankruptcy Court entered by the Clerk of
the Bankruptcy Court on the docket in the Reorganization Cases, no portion of which has been
reversed, vacated, or stayed and as to which (i) the time to appeal, petition for certiorari, or
move for a new trial, reargument, or rehearing has expired and as to which no appeal, petition for
certiorari, or other proceedings for a new trial, reargument, or rehearing shall then be pending,
or (ii) if an appeal, writ of certiorari, new trial, reargument, or rehearing thereof has been
sought, such order or judgment of the Bankruptcy Court shall have been affirmed by the highest
court to which such order was appealed, or certiorari shall have been denied, or a new trial,
reargument, or rehearing shall have been denied or resulted in no modification of such order, and
the time to take any further appeal, petition for certiorari or move for a new trial, reargument,
or rehearing shall have expired; provided, however, that the possibility that a motion under Rule
60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may
be filed relating to such order shall not cause such order to not be a Final Order.
1.27. General Unsecured Claim means an unsecured Claim other than an SBC Note Claim or a
Holdco Note Claim that is not entitled to priority under section 507 of the Bankruptcy Code,
including the claims of suppliers and other vendors, landlords with prepetition rent claims and/or
claims based on rejection of leases, litigation claimants to the extent not covered by insurance,
parties to contracts with the Debtors that are being rejected, deficiency claims of mortgage
lenders, and other general unsecured claimants.
1.28. Holdco means Simmons Company.
1.29. Holdco Note Claims means all Claims against Holdco arising under Holdcos 10% Senior
Discount Notes due 2014.
3
1.30. Holdco Subordinated Guaranty Claims means all Claims against Holdco arising under that
certain Supplemental Indenture, dated as of December 29, 2005, pursuant to which Holdco guarantied
the SBC Note Claims. Pursuant to the indenture governing the SBC Note Claims, Claims arising under
such guaranty are expressly subordinated to senior indebtedness of Holdco, which includes the
Holdco Note Claims.
1.31. Impaired means, with reference to a Claim or Equity Interest, that the treatment of such
Claim or Equity Interest under the Plan does not satisfy the requirements specified in either
subsection 1124(1) or 1124(2) of the Bankruptcy Code.
1.32. Intercompany Claim means (i) any account reflecting intercompany book entries by or
against any Debtor with respect to any Affiliate, (ii) any Claim that is not reflected in such book
entries and is held by or against any Debtor with respect to any Affiliate or (iii) Claims arising
under any contract or other agreement between any Debtor and its Affiliate.
1.33. IRB Claims means the Claims arising under that certain Placement Contract, dated as of
December 23, 1996 (as may be or has been amended, modified or supplemented to date), by and among
the City of Shawnee, Kansas, The Simmons Manufacturing Co., LLC (by assignment from Simmons
Company), and SunTrust Bank, Atlanta, as placement agent.
1.34. New ABL Financing means [the new asset based revolving credit agreement provided by
Wells Fargo Foothill].
1.35. New Common Stock means 1,000,000 shares of common stock of Bedding Holdco authorized for
issuance under Section 5.17 of the Plan.
1.36. New Notes means SBCs 11.25% senior secured notes due 2015. The New Notes are governed
by that certain New Notes Indenture, the form of which is set forth in the Plan Supplement.
1.37. New Notes Financing means the $425,000,000 of exit financing on the terms and conditions
of that certain Commitment to Purchase, dated as of September 24, 2009, among AOT Bedding
Intermediate Holdings LLC and various Commitment Parties (as defined therein), including all
exhibits and other attachments thereto, to finance the transactions set forth in the Plan and the
Plan Sponsor Agreement and to provide post Effective Date funding for the Reorganized Debtors
working capital requirements.
1.38. New Notes Indenture means that certain indenture, dated as of the Effective Date, in the
form set forth in the Plan Supplement.
1.39. New Notes Indenture Documents has the meaning set forth in Section 5.15 herein.
1.40. New Notes Purchasers means the holders from time to time of the New Notes in respect of
the New Notes Financing.
1.41. New Securities and Documents has the meaning set forth in Section 5.13 herein.
1.42. Other Priority Claim means any Claim against any of the Debtors other than an
Administrative Expense Claim or a Priority Tax Claim, entitled to priority in payment as specified
in section 507(a)(3), (4), (5), (6), (7), or (9) of the Bankruptcy Code.
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1.43. Other Secured Claim means any Secured Claim other than SBC Credit Agreement Claims.
1.44. Person means an individual, partnership, corporation, limited liability company,
cooperative, trust, unincorporated organization, association, joint venture, government or agency
or political subdivision thereof or any other form of legal entity.
1.45. Plan or Plan of Reorganization means this joint chapter 11 plan of reorganization,
including the exhibits hereto, as the same may be amended or modified from time to time in
accordance with the provisions of the Bankruptcy Code and the terms hereof.
1.46. Plan Sponsor Agreement means that certain Plan Sponsor Agreement, dated as of September
24, 2009, by and among Purchasers, Holdco, Bedding Holdco, SBC, and SBCs subsidiary Debtors.
1.47. Plan Supplement means the compilation of documents, including any exhibits to the Plan
of Reorganization not included herewith, that the Debtors may file with the Bankruptcy Court on or
before the date that is five (5) Business Days prior to the commencement of the hearing to confirm
the Plan.
1.48. Priority Tax Claim means any Claim of a governmental unit of the kind entitled to
priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code that is
due and payable on or before the Effective Date. Any Claims asserted by a governmental unit on
account of penalties shall not be Priority Tax Claims.
1.49. Purchasers means AOT Bedding Super Holdings, LLC, a Delaware limited liability company
and its wholly-owned subsidiary, AOT Bedding Intermediate Holdings, LLC, a Delaware limited
liability company.
1.50. Purchaser Approval means, with respect to any action, that the action is taken in
consultation with the Purchasers and the Purchasers have consented thereto, such consent not to be
unreasonably withheld or delayed in the case of any action that is reasonably necessary for the
consummation of the transactions specified in the Plan. Without limiting the generality of the
foregoing, the Purchasers may withhold their consent in their sole discretion to any action that
(i) would materially and adversely affect the Purchasers, the Reorganized Debtors or their
Subsidiaries at and after Closing, or the rights and remedies of the Purchasers under the Plan
Sponsor Agreement, Plan Sponsor Order, Confirmation Order, or Plan or (ii) would have the effect of
(A) increasing any amount payable by or any liabilities of the Purchasers or their Affiliates
(other than the Reorganized Debtors or their Subsidiaries), (B) the Purchasers paying (or incurring
any liability to pay) from funds or property that would otherwise be available to the Reorganized
Debtors any consideration to any creditor or equity holder of the Debtors impaired by the Plan
other than (1) distributions specified in the Plan as in effect on the date hereof and (2)
Restructuring Expenses, (C) changing or preventing the satisfaction of any condition to the
effectiveness of the Plan, or (D) modifying or amending the terms and conditions of the Plan
Sponsor Agreement or any other agreement signed by any Purchaser, Sponsor, or their respective
Affiliates.
1.51. Reorganization Cases means the above-captioned, jointly administered cases under chapter
11 of the Bankruptcy Code.
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1.52. Reorganized Bedding Holdco means Bedding Holdco, as reorganized on and after the
Effective Date (including any successor corporation, partnership or limited liability company by
merger).
1.53. Reorganized Debtors means the Debtors, as reorganized on and after the Effective Date in
accordance with the terms of the Plan of Reorganization.
1.54. Reorganized SBC means Simmons Bedding Company, as reorganized on and after the Effective
Date (including any successor corporation, partnership or limited liability company by merger).
1.55. Restructuring Expenses has the meaning assigned to that term in the Plan Sponsor
Agreement.
1.56. SBC means Simmons Bedding Company, a Delaware corporation.
1.57. SBC Credit Agreement Claims means all Claims (including all Secured Obligations and
Hedge Agreements as defined in the Pledge and Security Agreement referenced below) against the
Debtors arising under (x) the Second Amended and Restated Credit and Guaranty Agreement, dated as
of May 25, 2006, as has been or may be further amended, restated, supplemented or otherwise
modified from time to time, among (i) Simmons Bedding Company, as borrower, (ii) Bedding Holdco
Incorporated, The Simmons Manufacturing Co., LLC, World of Sleep Outlets, LLC, Simmons Contract
Sales, LLC, Windsor Bedding Co., LLC, Simmons Export Co., Dreamwell Ltd., and Simmons Capital
Management, LLC, as guarantors, (iii) Deutsche Bank AG, New York Branch, as administrative agent
(the Prepetition Agent), and (iv) the other lenders and issuing banks from time to time, parties
thereto (the SBC Credit Agreement) (y) the Pledge and Security Agreement, dated as of December
19, 2003, and each other Collateral Document (as defined in the SBC Credit Agreement), in each
case, as has been or may be further amended, restated, supplemented or otherwise modified from time
to time, among SBC, the guarantors party thereto and the Prepetition Agent, and (z) any bilateral
letter of credit arrangements among the Debtors and the Prepetition Agent in its individual
capacity that are collateralized by Cash.
1.58. SBC Note Claims means all Claims against SBC arising under SBCs 7.875% Senior
Subordinated Notes due 2014 and all Claims against SBCs Debtor subsidiaries for guarantying the
Claims against SBC.
1.59. Schedules means the schedules of assets and liabilities and the statement of financial
affairs filed by the Debtors under section 521 of the Bankruptcy Code, Bankruptcy Rule 1007, and
the Official Bankruptcy Forms of the Bankruptcy Rules as such schedules and statements have been or
may be supplemented or amended from time to time through the Confirmation Date.
1.60. Secured Claim means a Claim, the amount of which (i) has been determined by a Final
Order to be secured pursuant to section 506(a) and, if applicable, section 1111 of the Bankruptcy
Code or (ii) in the absence of such Final Order, has been agreed by the Debtors to be secured (as
set forth in the Plan or otherwise).
1.61. Simmons Group means (i) the affiliated group of corporations, within the meaning of
Section 1504 of the Tax Code, of which Bedding Superholdco Incorporated is the common parent, and
(ii) any other group of corporations filing consolidated, combined or unitary tax returns for state
or local tax purposes of which Bedding Superholdco Incorporated is the common parent.
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1.62. Tax Code means the Internal Revenue Code of 1986, as amended from time to time, and the
Treasury regulations promulgated thereunder.
1.63. Unimpaired means, with reference to a Claim or Equity Interest, that the treatment of
such Claim or Equity Interest under the Plan satisfies the requirements specified in either
subsection 1124(1) or 1124(2) of the Bankruptcy Code.
B. Rules of Interpretation; Application of Definitions and Rules of Construction.
Unless otherwise specified, all section or exhibit references in the Plan of Reorganization
are to the respective section in, or exhibit to, the Plan of Reorganization, as the same may be
amended or modified from time to time. The words herein, hereof, hereto, hereunder, and
other words of similar import refer to the Plan of Reorganization as a whole and not to any
particular section, subsection, or clause contained therein. The rules of construction contained
in section 102 of the Bankruptcy Code shall apply to the Plan of Reorganization. The headings in
the Plan of Reorganization are for convenience of reference only and shall not limit or otherwise
affect the provisions hereof.
SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS
2.1. Administrative Expense Claims.
Except to the extent that a holder of an Allowed Administrative Expense Claim agrees to a
different treatment, the Debtors shall pay to such holder Cash in an amount equal to such Claim on,
or as soon thereafter as is reasonably practicable, the later of (i) the Effective Date or (ii) the
first Business Day after the date that is thirty (30) calendar days after the date such
Administrative Expense Claim becomes Allowed; provided, however, that Allowed Administrative
Expense Claims representing liabilities incurred in the ordinary course of business by the Debtors,
as debtors in possession, or liabilities arising under loans, advances, or other financial
accommodations made to or other obligations incurred by the Debtors, as debtors in possession,
whether or not incurred in the ordinary course of business, shall be paid by the Debtors in the
ordinary course of business, consistent with past practice and in accordance with the terms and
subject to the conditions of any agreements governing, instruments evidencing, or other documents
relating to such transactions.
2.2. Compensation and Reimbursement Claims.
All entities seeking an award by the Bankruptcy Court of compensation for services rendered or
reimbursement of expenses incurred through and including the Confirmation Date under section
503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code (i) shall file their
respective final applications for allowance of compensation for services rendered and reimbursement
of expenses incurred by the date that is forty-five (45) days after the Effective Date, (ii) shall
be paid in full from the Debtors or Reorganized Debtors Cash on hand in such amounts as are
allowed by the Bankruptcy Court (A) on the later of (x) the Effective Date, or (y) within five (5)
Business Days after the date on which the order approving such Allowed Administrative Expense Claim
is entered, or (B) on such other terms as may be mutually agreed on between the holder of such an
Allowed Administrative Expense Claim and the Debtors or, on and after the Effective Date, the
Reorganized Debtors. The Reorganized Debtors are
authorized to pay compensation for services rendered or reimbursement of expenses incurred
after the Confirmation Date and until the Effective Date in the ordinary course and without the
need for Bankruptcy Court approval.
7
2.3. Priority Tax Claims.
Except to the extent that a holder of an Allowed Priority Tax Claim agrees to a different
treatment, each holder of an Allowed Priority Tax Claim shall receive, at the option of the Debtors
or the Reorganized Debtors, but subject to Purchaser Approval, (i) Cash in an amount equal to such
Allowed Priority Tax Claim on, or as soon thereafter as is reasonably practicable, the later of the
(a) Effective Date or (b) first Business Day after the date that is thirty (30) calendar days after
the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, or (ii) equal annual Cash
payments in an aggregate amount equal to such Allowed Priority Tax Claim, together with interest at
the applicable rate under section 511 of the Bankruptcy Code, over a period not exceeding five (5)
years after the date of assessment of such Allowed Priority Tax Claim. The Debtors reserve the
right to prepay an Allowed Priority Tax Claim at any time under this option. All Allowed Priority
Tax Claims that are not due and payable on or before the Effective Date shall be paid in the
ordinary course of business as such obligations become due.
2.4. DIP Financing Claims
Debtors shall pay or cause the payment in Cash on the Effective Date of all amounts
outstanding under the DIP Facility approved by the Bankruptcy Court, which payment shall terminate
any such agreement other than the provisions thereof that expressly survive termination. On the
Effective Date, the Debtors shall either replace or backstop any letters of credit issued
thereunder with new letters of credit or provide Cash as collateral for the outstanding obligations
under the DIP Facility with respect thereto, in each case, in accordance with the terms of the DIP
Facility. On such payment, all of the Debtors respective obligations, liabilities and
indebtedness in respect of the DIP Facility and all liens and security interests securing the same
shall be satisfied, discharged, and terminated in full, and the Reorganized Debtors shall have no
further obligations, liabilities or indebtedness under the DIP Facility or any documents relating
thereto other than the provisions thereof that expressly survive termination and with respect to
arrangements relating to letters of credit that are either backstopped or collateralized by Cash as
provided in the second sentence of this Section 2.4.
8
SECTION 3. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
The following table designates the Classes of Claims against and Equity Interests in the
Debtors and specifies which of those Classes are (i) Impaired or Unimpaired by the Plan of
Reorganization, (ii) entitled to vote to accept or reject the Plan of Reorganization, and (iii)
deemed to accept or reject the Plan of Reorganization. A Claim or Equity Interest is designated in
a particular class only to the extent it falls within the description of that class, and is
classified in any other class to the extent that a portion thereof falls within the description of
such other class.
Classes 4A 4I consist of SBC Credit Agreement Claims against SBC and guaranty claims against
Bedding Holdco and each of SBCs debtor subsidiaries. Classes 5A 5H consist of SBC Note Claims
against SBC and the Claims against each of SBCs debtor subsidiaries for guarantying the SBC Note
Claims. Class 6 consists of the Holdco Note Claims and the Holdco Subordinated Guaranty Claims.
Classes 7A 7H consist of General Unsecured Claims against SBC and its debtor subsidiaries.
|
|
|
|
|
|
|
Class |
|
Designation |
|
Treatment |
|
Entitled to Vote |
1
|
|
Other Priority Claims
|
|
Unimpaired
|
|
No
(deemed to accept) |
2
|
|
IRB Claims
|
|
Unimpaired
|
|
No
(deemed to accept) |
3
|
|
Other Secured Claims
|
|
Unimpaired
|
|
No
(deemed to accept) |
4A 4I
|
|
SBC Credit Agreement Claims
|
|
Impaired
|
|
Yes |
5A 5H
|
|
SBC Note Claims
|
|
Impaired
|
|
Yes |
6
|
|
Holdco Claims
|
|
Impaired
|
|
Yes |
7A 7H
|
|
General Unsecured Claims
|
|
Unimpaired
|
|
No
(deemed to accept) |
8
|
|
Equity Interests in SBC
|
|
Impaired
|
|
No
(deemed to reject) |
9
|
|
Equity Interests in
Bedding Holdco
|
|
Impaired
|
|
Yes
|
10
|
|
Equity Interests in Holdco
|
|
Impaired
|
|
No
(deemed to reject) |
SECTION 4. TREATMENT OF CLAIMS AND EQUITY INTERESTS
Except as otherwise specified in the Plan, all distributions will be made on the Effective
Date or as soon thereafter as practical.
4.1. Other Priority Claims (Class 1).
Except to the extent that a holder of an Allowed Other Priority Claim (i) has been paid by a
Debtor, in whole or in part, prior to the Effective Date or (ii) agrees to a less favorable
treatment, each holder of an Allowed Other Priority Claim shall receive, in full satisfaction,
settlement, release, and discharge of, and in exchange for such Other Priority Claim, Cash in the
full amount of such Allowed Other Priority Claim.
4.2. IRB Claims (Class 2).
The IRB Claims shall be reinstated and Unimpaired in accordance with section 1124(2) of the
Bankruptcy Code.
9
4.3. Other Secured Claims (Class 3).
Except to the extent that a holder of an Allowed Other Secured Claim agrees to a less
favorable treatment, at the option of the Debtors, but subject to Purchaser Approval, (i) each
Allowed Other Secured Claim shall be reinstated and Unimpaired in accordance with section 1124(2)
of the Bankruptcy Code, or (ii) each holder of an Allowed Other Secured Claim shall receive, in
full satisfaction, settlement, release, and discharge of, and in exchange for, such Other Secured
Claim, either (w) Cash in the full amount of such Allowed Other Secured Claim, including any
postpetition interest
accrued pursuant to section 506(b) of the Bankruptcy Code, (x) the proceeds of the sale or
disposition of the collateral securing such Allowed Other Secured Claim to the extent of the value
of the holders secured interest in such collateral, (y) the collateral securing such Allowed Other
Secured Claim and any interest on such Allowed Other Secured Claim required to be paid pursuant to
section 506(b) of the Bankruptcy Code, or (z) such other distribution as necessary to satisfy the
requirements of section 1129 of the Bankruptcy Code.
4.4. SBC Credit Agreement Claims (Class 4A-4I).
For purposes of the Plan, the Claims in Class 4A-4I are Allowed in the amount of $542,281,142.
Each holder of an Allowed SBC Credit Agreement Claim shall receive, in full satisfaction of such
Claim, Cash from SBC equal to the Allowed amount of such Claim, plus accrued interest at the
contractual non-default rate and other amounts through the Effective Date. Each letter of credit
outstanding on the Effective Date that would give rise to a SBC Credit Agreement Claim either shall
be replaced with a new letter of credit under the New ABL Facility or shall be collateralized by
Cash on or before the Effective Date in accordance with the restated SBC Credit Agreement for the
SBC Credit Agreement Claims or any other applicable bilateral agreements.
4.5. SBC Note Claims (Class 5A-H).
For purposes of the Plan, the Claims in Class 5A-H are Allowed in the amount of $221,767,758.
Each holder of an Allowed SBC Note Claim against SBC and SBCs debtor subsidiaries shall receive
from SBC, in full satisfaction of such Claim, its pro rata share of Cash in the amount of (i)
$185,000,000 plus (ii) the Class 5 Residual Amount.
4.6. Holdco Claims (Class 6).
For purposes of the Plan, the Claims in Class 6 are Allowed in the amount of $298,775,125
which consists of $267,007,367 for the Holdco Note Claims and $31,767,758 for the Holdco
Subordinated Guaranty Claims. Each holder of an Allowed Claim in Class 6 shall receive from
Holdco, in full satisfaction of such Claim, its pro rata share of Cash in an amount equal to (i)
$10,000,000 plus (ii) the Class 6 Residual Amount plus (iii) the Class 6 Excess Amount, provided,
however, that pursuant to section 510(a) of the Bankruptcy Code, the contractual subordination of
the Holdco Subordinated Guaranty Claims to the Holdco Note Claims shall be enforced and all
distributions to which holders of Allowed Holdco Subordinated Guaranty Claims are entitled under
this Section shall be made pro rata to holders of Allowed Holdco Note Claims.
In addition, each holder of an Allowed Claim in Class 6 who is entitled to receive a Cash
distribution under this Section and who is (a) a qualified institutional buyer (as defined in
Rule 144A under the Securities Act of 1933, as amended) or an affiliated fund of a qualified
institutional buyer, (b) an accredited investor (as defined in Rule 501(a) of Regulation D under
the Securities Act of 1933, as amended), and (c) not an underwriter as defined in Section 1145(b)
of the Bankruptcy Code, shall have the right to use all but not part of its distribution under
clause (i) and clause (ii) (but not clause (iii)) of the previous paragraph to purchase shares of
Class 6 Parent Stock at a price per share equal to the per share subscription price paid for Class
A membership interests in AOT Beddings Super Holdings, LLC by Parent, as calculated pursuant to the
terms set forth on the Equity Term Sheet attached hereto as Exhibit A; provided, however, that in
order to avoid AOT Beddings Super Holdings LLC becoming a public reporting company, the holders of
the 400 largest Allowed Holdco Note Claims electing and eligible to purchase Class 6 Parent Stock
shall be the only holders entitled to purchase such shares. Holders entitled to purchase shares of
Class 6 Parent Stock shall make such election on the ballot to accept the Plan, and
such election shall be subject to the accuracy of the representations and warranties as to
securities law matters described on the ballot. No fractional shares of Class 6 Parent Stock shall
be issued or distributed under the Plan. Each holder electing to purchase Class 6 Parent Stock
shall receive the total number of whole shares of Class 6 Parent Stock to which such Person is
entitled, and Cash in lieu of any fraction of a share.
10
4.7. General Unsecured Claims (Class 7A-7H).
Except to the extent that a holder of an Allowed General Unsecured Claim agrees to a less
favorable treatment, the claims in Class 7A-7H are Unimpaired. Holders of trade payables in the
ordinary course as of the Effective Date shall receive payment after the Effective Date on
customary payment terms consistent with past practice, except as any such holder and the applicable
Reorganized Debtor shall otherwise agree.
4.8. Equity Interests in SBC (Class 8).
The holder of Equity Interests in Class 8 shall receive no property under the Plan and such
Equity Interests shall be cancelled as of the Effective Date.
4.9. Equity Interests in Bedding Holdco (Class 9).
The holder of Equity Interests in Class 9 shall receive Cash (i) in an amount equal to
$10,000,000 plus (ii) the Class 6 Residual Amount, solely for distributions to holders of Allowed
Claims in Class 6 in accordance with the treatment of such Class under Section 4.6 hereof. The
Equity Interests in Class 9 shall be cancelled as of the Effective Date.
4.10. Equity Interests in Holdco (Class 10).
The holder of Equity Interests in Class 10 shall receive no property under the Plan and such
Equity Interests shall be cancelled as of the Effective Date.
SECTION 5. MEANS FOR IMPLEMENTATION
5.1. Effect of Distribution to Creditors.
Except as specifically provided herein, all Plan distributions made to creditors holding
Allowed Claims in any Class are intended to be and shall be final, and no Plan distribution to the
holder of a Claim in one Class shall be subject to being shared with or reallocated to the holders
of any Claim in another Class by virtue of any prepetition collateral trust agreement, shared
collateral agreement, subordination agreement, or other similar inter-creditor arrangement.
5.2. Joint Chapter 11 Plan.
The Plan is a joint chapter 11 plan for each of the Debtors, with the Plan for each Debtor
being non-severable and mutually dependent on the Plan for each other Debtor.
5.3. Continued Corporate Existence.
On or after the Effective Date, Holdco may, in its discretion, liquidate or, with the
agreement of Purchasers, merge into any of the other Reorganized Debtors. Except as provided
herein,
each Debtor will, as a Reorganized Debtor, continue to exist after the Effective Date as a
separate corporate or limited liability entity with all the powers of a corporation under
applicable law and without prejudice to any right to alter or terminate such existence (whether by
merger, dissolution, or otherwise) under applicable state law. On and after the Effective Date,
each Reorganized Debtor may operate its business and may use, acquire, and dispose of property and
compromise or settle claims without supervision or approval by the Bankruptcy Court and free of any
restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly
imposed by the Plan of Reorganization or the Confirmation Order. Without limiting the foregoing,
each Reorganized Debtor may pay the charges that it incurs on or after the date the Confirmation
Order is entered for professional fees and expenses, disbursements, expenses related to support
services (including fees relating to the preparation of professional fee applications) without
application to, or approval of, the Bankruptcy Court. Windsor Bedding Co., LLC, one of the
above-captioned Debtors which has no assets, shall be dissolved as soon as practical after the
Effective Date.
11
5.4. Plan Sponsor Agreement.
The Plan Sponsor Agreement previously has been approved by the Bankruptcy Court. In
accordance with the Plan Sponsor Agreement, the Debtors shall issue and sell to the Purchasers and
the Purchasers shall purchase all the shares of New Common Stock on the Effective Date for the
purchase price specified therein.
5.5. Investment in Reorganized SBC.
On the Effective Date, Reorganized Bedding Holdco shall invest the Cash it receives from
Purchasers pursuant to the Plan Sponsor Agreement in Reorganized SBC in exchange for 100% of the
newly issued common stock of Reorganized SBC.
5.6. Determination of Class 5 and Class 6 Residual Payments.
The Reorganized Debtors shall (i) follow the procedures specified in Section 2.3 of the Plan
Sponsor Agreement to determine the amount of the Restructuring Expenses, (ii) use such amount to
calculate the Class 5 Residual Payment, the Class 6 Excess Amount, and the Class 6 Residual
Payment, and (iii) distribute such amounts in accordance with Sections 4.5 and 4.6 of the Plan.
5.7. Payment of Certain Fees and Expenses.
On the Effective Date, the Reorganized Debtors shall pay the reasonable fees and expenses of
the (i) administrative agent under the DIP Facility and the restated Credit and Guaranty Agreement
for the SBC Credit Agreement Claims, (ii) the respective indenture trustees for the holders of the
SBC Note Claims and the Holdco Note Claims, (iii) counsel to DDJ Capital Management, LLC and its
affiliates and accounts and Farallon Capital Management, L.L.C. and its affiliates and accounts,
(iv) counsel and financial advisor to JP Morgan Asset Management, MSD SBI, L.P., and Oaktree
Capital Management, L.P. (on behalf of various funds and accounts) and (v) counsel to the directors
of the Debtors.
5.8. Cancellation of Agreements and Securities.
Except (i) for purposes of evidencing a right to distributions under the Plan, (ii) with
respect to executory contracts and unexpired leases assumed by the Debtors with Purchaser Approval,
or (iii) otherwise as provided herein, all the agreements and other documents evidencing the Claims
(other
than with respect to Claims in Classes 7A 7H), Equity Interest, or rights of any holder of
a Claim or Equity Interests Impaired under the Plan shall be cancelled on the Effective Date,
provided, however, that the indenture governing the SBC Note Claims, the indenture governing the
Holdco Note Claims and the credit agreement governing the SBC Credit Agreement Claims shall
continue in effect solely for the purposes of (a) allowing the indenture trustee or administrative
agent, as applicable, to make distributions on account of Classes 4, 5 and 6 respectively, and to
perform such other necessary administrative functions with respect thereto and (b) permitting such
parties to maintain any rights or liens they may have for fees, costs, and expenses thereunder.
12
5.9. Directors and Executive Officers.
On the Effective Date, the term of each member of the current Boards of Directors of Bedding
Holdco and SBC shall automatically expire. The size and composition of the board of directors of
Reorganized Bedding Holdco and Reorganized SBC on and after the Effective Date have not been
determined, but will consist of certain individuals to be designated by the Purchasers prior to the
hearing to confirm the Plan. The persons serving as executive officers of Bedding Holdco and SBC
immediately before the Effective Date shall maintain their current positions after the Effective
Date, subject to new employment agreements or arrangements as set forth in the Plan Supplement.
5.10. Management Incentive Plan.
Reorganized Bedding Holdco and Reorganized SBC shall adopt the new management incentive plan
set forth in the Plan Supplement.
5.11. Effectuating Documents; Further Transactions.
The chairman of the board of directors, president, chief financial officer, any executive
vice-president or senior vice-president, or any other appropriate officer of each Debtor shall be
authorized to execute, deliver, file, or record such contracts, instruments, releases, indentures,
and other agreements or documents, and take such other actions, as may be necessary/ or
appropriate, to effectuate and further evidence the terms and conditions of the Plan of
Reorganization. The secretary or assistant secretary of the appropriate Debtor shall be authorized
to certify or attest to any of the foregoing actions.
5.12. Sources of Consideration for Plan Distributions.
Except as otherwise provided in the Plan of Reorganization or the Confirmation Order, all
consideration necessary for the Reorganized Debtors to make payments pursuant to the Plan shall be
obtained from the existing Cash balances of the Debtors, the purchase price specified in the Plan
Sponsor Agreement, the New ABL Financing, the New Notes Financing, the issuance of the New Common
Stock, and the operations of the Debtors or the Reorganized Debtors. The Reorganized Debtors may
also make such payments using Cash received from their subsidiaries through the Reorganized
Debtors consolidated cash management systems.
5.13. Intercompany Claims.
Except as otherwise expressly provided in the Plan of Reorganization to the contrary, on the
Effective Date, the Intercompany Claims of Debtors against Debtors and their Affiliates shall be
reinstated or discharged and satisfied at the option of Reorganized SBC by contributions,
distributions or otherwise.
5.14. Issuance of New Securities and Related Documentation.
On, or as soon as reasonably practicable after, the Effective Date, Reorganized SBC is
authorized to and shall distribute, or cause to be distributed, its new common stock, the New
Notes, and any and all other securities, notes, instruments, certificates and other documents or
agreements required to be issued, executed or delivered pursuant to the Plan of Reorganization
(collectively the New Securities and Documents), in each case without further notice to or order
of the Bankruptcy Court, act or action under applicable law, regulation, order or rule or the vote,
consent, authorization or approval of any Person. All documents, agreements and instruments
entered into and delivered on or as of the Effective Date contemplated by or in furtherance of the
Plan of Reorganization, and any other agreement or document related to or entered into in
connection with same, shall become, and shall remain, effective and binding in accordance with
their respective terms and conditions upon the parties thereto, in each case without further notice
to or order of the Bankruptcy Court, act or action under applicable law, regulation, order or rule
or the vote, consent, authorization or approval of any Person (other than as expressly required by
such applicable agreement).
13
5.15. Authorization of New Securities and Plan-Related Documents.
Each of the Reorganized Debtors is authorized to enter into all agreements necessary for the
New ABL Financing and the New Notes Financing. On, or as soon as reasonably practicable after, the
Effective Date, Reorganized Bedding Holdco is authorized to and shall distribute, or cause to be
distributed, New Common Stock and other New Securities and Documents, in each case without further
notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order
or rule or the vote, consent, authorization or approval of any Person or any further corporate
action. All documents, agreements and instruments entered into and delivered on or as of the
Effective Date contemplated by or in furtherance of the Plan of Reorganization, and any other
agreement or document related to or entered into in connection with same, shall become, and shall
remain, effective and binding in accordance with their respective terms and conditions upon the
parties thereto, in each case without further notice to or order of the Bankruptcy Court, act or
action under applicable law, regulation, order or rule or the vote, consent, authorization or
approval of any Person or any further corporate action (other than as expressly required by such
applicable agreement).
5.16. New Notes Financing.
On the Effective Date, the Reorganized Debtors shall enter into the New Notes Financing and
shall execute and deliver, and are authorized to execute, deliver, file, record and issue the New
Notes Indenture and all other related documents (collectively, the New Notes Indenture
Documents), and the Reorganized Debtors and Debtors are further authorized to execute, deliver,
file, record and issue any other agreements, instruments or documents reasonably requested by the
trustee under the New Notes Indenture to effectuate or memorialize the New Notes Financing, in each
case, without further notice to or order of the Bankruptcy Court, act or action under applicable
law, regulation, order or rule or the vote, consent, authorization or approval of any Person (other
than as expressly required by the New Notes Indenture). Upon the effectiveness of the New Notes
Financing in accordance with the terms of the New
Notes Indenture Documents, (i) the Debtors or Reorganized Debtors, as applicable, are
authorized to perform their obligations thereunder including, without limitation, the payment or
reimbursement of any fees, expenses, losses, damages or indemnities, (ii) the New Notes Indenture
Documents shall constitute the legal, valid and binding obligations of the Reorganized Debtors
which are parties thereto, enforceable in accordance with their respective terms, and (iii) no
obligation, payment, transfer or grant of security under the New Notes Indenture Documents shall be
stayed, restrained, voidable, or recoverable under the Bankruptcy Code or under any applicable law
or subject to any defense, reduction, recoupment, setoff or counterclaim. Confirmation of the Plan
shall be deemed approval of the New Notes Financing (including the transactions contemplated
thereby, and all actions to be taken, undertakings to be made, and obligations to be incurred by
the Reorganized Debtors and the Debtors in connection therewith, including the payment of all fees,
indemnities, and expenses provided for therein) and authorization for the Reorganized Debtors to
enter into and execute the New Notes Indenture Documents. The Reorganized Debtors may use the New
Notes Financing for any purpose permitted thereunder, including the funding of obligations under
the Plan and satisfaction of ongoing working capital needs.
14
The Debtors and the Reorganized Debtors, as applicable, and the other persons granting any
liens and security interests to secure the obligations under the New Notes Indenture Documents are
authorized to make all filings and recordings, and to obtain all governmental approvals and
consents necessary or desirable to establish and further evidence perfection of such liens and
security interests under the provisions of any applicable federal, state, provincial or other law
(whether domestic or foreign) (it being understood that perfection shall occur automatically by
virtue of the entry of the Confirmation Order without the need for any such filings, recordings,
approvals and consents), and will thereafter cooperate to make all other filings and recordings
that otherwise would be necessary under applicable law to give notice of such liens and security
interests to third parties.
5.17. New Common Stock.
Upon the Effective Date, all shares of New Common Stock will be, or will be deemed to be, duly
authorized and validly issued and be, or deemed to be, fully paid and non assessable, and issued in
compliance with all applicable federal and state securities laws and any preemptive rights or
rights of first refusal of any Person, and not listed on any stock exchange or regulated market.
SECTION 6. DISTRIBUTIONS
6.1. Distribution Record Date.
At the close of business on the Confirmation Date, the transfer ledgers for holders of the
Classes of Claims or Equity Interests (other than the New Common Stock) maintained by the Debtors
shall be closed, and there shall be no further changes in the record holders of such debt. The
Reorganized Debtors and the Disbursing Agent, if any, shall have no obligation to recognize any
transfer of any such Claims or Equity Interests occurring after the Confirmation Date and shall be
entitled instead to recognize and deal for all purposes under the Plan of Reorganization with only
those record holders listed on the transfer ledgers as of the close of business on the Confirmation
Date.
6.2. Date of Distributions.
Except as otherwise provided herein, distributions and deliveries under the Plan with respect
to Allowed Claims shall be made on the Effective Date or as soon thereafter as is practicable. In
the event that any payment or act under the Plan is required to be made or performed on a date that
is not a Business Day, then the making of such payment or the performance of such act may be
completed on or
as soon as reasonably practicable after the next succeeding Business Day, but shall be deemed
to have been completed as of the required date.
6.3. Disbursing Agent.
The Disbursing Agent shall make all distributions required under the Plan of Reorganization,
except with respect to a holder of a Claim whose distribution is governed by an indenture or other
agreement and is administered by an indenture trustee, agent, or servicer, which distributions
shall be deposited with the appropriate indenture trustee, agent, or servicer, who shall deliver
such distributions to the holders of Claims in accordance with the provisions of the Plan of
Reorganization and the terms of the relevant indenture or other governing agreement.
15
If the Disbursing Agent is an independent third party designated by the Reorganized Debtors to
serve in such capacity (or, in the case of an indenture or other agreement that governs
distributions and is administered by an indenture trustee, agent, or servicer), such Disbursing
Agent, indenture trustee, agent, or servicer shall receive, without further Bankruptcy Court
approval, reasonable compensation for distribution services rendered pursuant to the Plan of
Reorganization and reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services from the Reorganized Debtors on terms acceptable to the Reorganized Debtors. No
Disbursing Agent shall be required to give any bond or surety or other security for the performance
of its duties unless otherwise ordered by the Bankruptcy Court. If otherwise so ordered, all costs
and expenses of procuring any such bond shall be paid by the Reorganized Debtors.
6.4. Powers of Disbursing Agent.
The Disbursing Agent shall be empowered to (i) effect all actions and execute all agreements,
instruments, and other documents necessary to perform its duties hereunder, (ii) make all
distributions contemplated hereby, and (iii) exercise such other powers as may be vested in the
Disbursing Agent by order of the Bankruptcy Court or pursuant to the Plan of Reorganization.
6.5. Surrender of Securities or Instruments.
Except with respect to holders of SBC Credit Agreement Claims, as a condition to receiving any
distribution under the Plan of Reorganization, each holder of a certificated instrument or note
must surrender such instrument or note held by it to the Disbursing Agent or its designee. Any
holder of such instrument or note that fails to (i) surrender such instrument or note, or (ii)
execute and deliver an affidavit of loss and/or indemnity reasonably satisfactory to the Disbursing
Agent and furnish a bond in form, substance, and amount reasonably satisfactory to the Disbursing
Agent before the first anniversary of the Effective Date shall be deemed to have forfeited all
rights and Claims and may not participate in any distribution hereunder. Any distribution so
forfeited shall become property of the Reorganized Debtors.
6.6. Delivery of Distributions.
Subject to Bankruptcy Rule 9010, all distributions to any holder of an Allowed Claim shall be
made to the Disbursing Agent, the indenture trustee, or the Prepetition Agent for the holders of
the SBC Credit Agreement Claims, as the case may be, who shall transmit such distribution to the
last known address of the applicable holders of Allowed Claims. In the event that any distribution
to any holder is returned as undeliverable, the Disbursing Agent shall use reasonable efforts to
determine the current address of such holder, but no distribution to such holder shall be made
unless and until the
Disbursing Agent has determined the then-current address of such holder, at which time such
distribution shall be made to such holder without interest; provided that such distributions shall
be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of one
(1) year from the Effective Date. After such date, all unclaimed property or interest in property
shall revert to the Reorganized Debtors, and the Claim of any other holder to such property or
interest in property shall be discharged and forever barred.
6.7. Manner of Payment Under Plan of Reorganization.
At the option of the Debtors, any Cash payment to be made hereunder may be made by a check,
wire transfer, or such other commercially reasonable manner as the payor shall determine in its
sole discretion, or as otherwise required or provided in applicable agreements. Any distributions
that revert to any of the Reorganized Debtors or are otherwise cancelled (such as to the extent any
distributions have not been claimed within one year or are cancelled pursuant to Section 6.6
hereof) shall revest solely in Reorganized SBC.
16
6.8. Calculation of Distribution Amounts of New Common Stock.
No fractional shares of New Common Stock shall be issued or distributed under the Plan. Each
Person entitled to receive New Common Stock shall receive the total number of whole shares of New
Common Stock to which such Person is entitled. Whenever any distribution to a particular Person
would otherwise call for distribution of a fraction of a share of New Common Stock, such number of
shares to be distributed shall be rounded down to the nearest whole number.
6.9. Withholding and Reporting Requirements.
In connection with the Plan of Reorganization and all distributions thereunder, the Disbursing
Agent shall, to the extent applicable as determined in its sole discretion, comply with all tax
withholding and reporting requirements imposed by any federal, state, local, or foreign taxing
authority, and all distributions under the Plan of Reorganization shall be subject to any such
withholding and reporting requirements. The Disbursing Agent shall be authorized to take all
actions necessary or appropriate to comply with such withholding and reporting requirements. All
persons holding Claims shall be required to provide any information necessary to effect information
reporting and the withholding of such taxes. Notwithstanding any other provisions of the Plan of
Reorganization to the contrary, (a) each holder of an Allowed Claim shall have the sole and
exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any
governmental unit, including income, withholding and other tax obligations, on account of such
distributions, and (b) no distribution shall be made to or on behalf of such holder pursuant to the
Plan of Reorganization unless and until such holder has made arrangements satisfactory to the
Disbursing Agent for the payment and satisfaction of such tax obligations. Any Cash, New Common
Stock, other New Securities and Documents and/or other consideration or property to be distributed
pursuant to the Plan of Reorganization shall, pending the implementation of such arrangements, be
treated as an unclaimed distribution pursuant to Section 6.6 herein. Any party issuing any
instruments or making any distribution under the Plan has the right, but not the obligation, to not
make a distribution until such holder has made arrangements satisfactory to such issuing or
distributing party for payment of any such tax obligations.
6.10. Setoffs.
The Debtors and the Reorganized Debtors may, but shall not be required to, set off against any
Claim (for purposes of determining the Allowed amount of such Claim on which distribution
shall be made), any claims of any nature whatsoever that the Debtors or the Reorganized
Debtors may have against the holder of such Claim, but neither the failure to do so nor the
allowance of any Claim hereunder shall constitute a waiver or release by the Debtors or the
Reorganized Debtors of any such claim the Debtors or the Reorganized Debtors may have against the
holder of such Claim. Nothing in the Plan of Reorganization shall be deemed to expand rights to
setoff under applicable non-bankruptcy law. Notwithstanding the foregoing, the Reorganized Debtors
shall be deemed to waive and shall have no right of setoff or recoupment against the holders of the
SBC Credit Agreement Claims, the SBC Note Claims and the Holdco Note Claims.
6.11. Distributions After Effective Date.
Distributions made after the Effective Date to holders of Disputed Claims that are not Allowed
Claims as of the Effective Date but which later become Allowed Claims shall be deemed to have been
made on the Effective Date.
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6.12. Allocation of Distributions Between Principal and Interest.
To the extent that any Allowed Claim entitled to a distribution under the Plan of
Reorganization is comprised of indebtedness and accrued but unpaid interest thereon, such
distribution shall be allocated to the principal amount (as determined for federal income tax
purposes) of the Claim first, and then to accrued but unpaid interest.
6.13. Postpetition Interest on Claims.
Except as provided in the DIP Facility and with respect to the SBC Credit Agreement Claims
(for the avoidance of doubt, each of which shall accrue and be paid postpetition interest in
accordance with the terms set forth in the agreements governing the DIP Facility and the SBC Credit
Agreement Claims (at the non-default rate), as applicable), as, required by applicable bankruptcy
law or as expressly set forth in the Plan, postpetition interest shall not accrue on or after the
Commencement Date.
6.14. Minimum Distributions.
The Reorganized Debtors shall not be obligated to make a distribution of less than $1,000.00
on account of an Allowed Claim to any holder of a Claim unless a request therefor is made in
writing to the Reorganized Debtors.
SECTION 7. PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT,
AND UNLIQUIDATED CLAIMS
7.1. Objections to Claims.
The Reorganized Debtors shall be entitled to object to Claims. Any objections to Claims shall
be served and filed on or before the later of (i) one hundred twenty (120) days after the Effective
Date or (ii) such date as may be fixed by the Bankruptcy Court, whether fixed before or after the
date specified in clause (i) above.
7.2. Payments and Distributions with Respect to Disputed Claims.
Notwithstanding any other provision hereof, if any portion of a Claim is a Disputed Claim, no
payment or distribution provided hereunder shall be made on account of such Claim unless and until
such Disputed Claim becomes an Allowed Claim.
7.3. Estimation of Claims.
The Reorganized Debtors may at any time request that the Bankruptcy Court estimate any
contingent, unliquidated, or Disputed Claim pursuant to section 502(c) of the Bankruptcy Code or
other applicable law regardless of whether an objection was previously filed with the Bankruptcy
Court with respect to such Claim or whether the Bankruptcy Court has ruled on any such objection,
and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time during
litigation concerning any objection to any Claim, including, without limitation, during the
pendency of any appeal relating to any such objection. In the event that the Bankruptcy Court
estimates any contingent, unliquidated, or Disputed Claim, the amount so estimated shall constitute
either the Allowed amount of such Claim or a maximum limitation on such Claim, as determined by the
Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such
Claim, the Reorganized Debtors may pursue supplementary proceedings to object to the allowance of
such Claim. All of the aforementioned objection, estimation, and resolution procedures are
intended to be cumulative and not exclusive of one another. Claims may be estimated and
subsequently compromised, settled, withdrawn, or resolved by any mechanism approved by the
Bankruptcy Court.
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7.4. Distributions Relating to Disputed Claims.
At such time as a Disputed Claim becomes an Allowed Claim, the Disbursing Agent shall
distribute to the holder of such Claim, such holders pro rata portion of the property
distributable with respect to the Class in which such Claim belongs. To the extent that all or a
portion of a Disputed Claim is disallowed, the holder of such Claim shall not receive any
distribution on account of the portion of such Claim that is disallowed and any property withheld
pending the resolution of such Claim shall be reallocated pro rata to the holders of Allowed Claims
in the same class.
7.5. Preservation of Rights to Settle Claims.
In accordance with section 1123(b) of the Bankruptcy Code, the Reorganized Debtors shall
retain and may enforce, sue on, settle, or compromise (or decline to do any of the foregoing) all
Claims, rights, causes of action, suits, and proceedings, whether in law or in equity, whether
known or unknown, that the Debtors or their estates may hold against any Person or entity without
the approval of the Bankruptcy Court, subject to the terms of Section 7.1 hereof, the Confirmation
Order and any contract, instrument, release, indenture, or other agreement entered into in
connection herewith. The Reorganized Debtors or their successor(s) may pursue such retained
Claims, rights, or causes of action, suits, or proceedings, as appropriate, in accordance with the
best interests of the Reorganized Debtors or their successor(s) who hold such rights.
7.6. Disallowed Claims.
All Claims held by Persons or entities against whom or which any Debtor or Reorganized Debtor
has commenced a proceeding asserting a cause of action under sections 542, 543, 544, 545, 547, 548,
549, and/or 550 of the Bankruptcy Code shall be deemed disallowed claims pursuant to section
502(d) of the Bankruptcy Code and holders of such claims shall not be entitled to vote to accept or
reject
the Plan of Reorganization. Claims that are deemed disallowed pursuant to this section shall
continue to be disallowed for all purposes until the avoidance action against such party has been
settled or resolved by Final Order and any sums due to the Debtors or the Reorganized Debtors from
such party have been paid.
SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1. Plan Sponsor Agreement.
As of the Effective Date, Bedding Holdco and SBC hereby expressly assume the Plan Sponsor
Agreement.
8.2. General Treatment.
Except as otherwise provided in the Plan of Reorganization, or in any contract, instrument,
release, indenture, or other agreement or document entered in connection with the Plan of
Reorganization, as of the Effective Date, all executory contracts and unexpired leases to which any
of the Debtors are parties are hereby assumed except for an executory contract or unexpired lease
that (i) previously has been assumed or rejected pursuant to Final Order, (ii) previously expired
or terminated by its own terms, (iii) is set forth in a schedule, as an executory contract or
unexpired lease to be rejected, filed as part of the Plan Supplement, (iv) are rejected pursuant to
the terms of the Plan, (v) are not capable of assumption pursuant to section 365(c) of the
Bankruptcy Code, or (vi) is the subject of a separate motion to assume or reject such executory
contract or unexpired lease filed by the Debtors with Purchaser Approval under section 365 of the
Bankruptcy Code prior to the Confirmation Date.
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8.3. Cure of Defaults.
Except to the extent that different treatment has been agreed to by the non-debtor party or
parties to any executory contract or unexpired lease to be assumed pursuant to Section 8.2 hereof,
the Debtors or Reorganized Debtors shall, pursuant to the provisions of sections 1123(a)(5)(G) and
1123(b)(2) of the Bankruptcy Code and consistent with the requirements of section 365 of the
Bankruptcy Code, within thirty (30) days after the Confirmation Date, file and serve a pleading
(such pleading subject to Purchaser Approval) with the Bankruptcy Court listing the cure amounts of
all executory contracts or unexpired leases to be assumed. The parties to such executory contracts
or unexpired leases to be assumed by the Debtors or Reorganized Debtors shall have fifteen (15)
days from service to object to the cure amounts listed by the Debtors or Reorganized Debtors. If
there are any objections filed, the Bankruptcy Court shall hold a hearing. The Debtors or
Reorganized Debtors shall retain their right, with Purchaser Approval, to reject any of their
executory contracts or unexpired leases, including contracts or leases that are subject to a
dispute concerning amounts necessary to cure any defaults.
8.4. Rejection Claims.
In the event that the rejection of an executory contract or unexpired lease by any of the
Debtors pursuant to the Plan of Reorganization results in damages to the other party or parties to
such contract or lease, a Claim for such damages, if not heretofore evidenced by a timely filed
proof of claim, shall be forever barred and shall not be enforceable against the Debtors or the
Reorganized Debtors, or their respective properties or interests in property as agents, successors,
or assigns, unless a proof of claim is filed with the Bankruptcy Court and served on counsel for
the Debtors and the Reorganized Debtors on or before the date that is thirty (30) days after the
Confirmation Date or such later rejection date that occurs as a result of a dispute concerning
amounts necessary to cure any defaults.
8.5. Assignment.
Pursuant to sections 105(a), 363 and 365 of the Bankruptcy Code, the Debtors (with Purchaser
Approval) or Reorganized Debtors may transfer and assign any of their executory contracts or
unexpired leases that have not been rejected without any further act, authority, or notice. Any
executory contract or unexpired lease so transferred and assigned shall remain in full force and
effect for the benefit of the transferee or assignee in accordance with its terms, notwithstanding
any provision in such executory contract or unexpired lease (including those of the type described
in sections 365(b)(2) of the Bankruptcy Code) that prohibits, restricts, or conditions such
transfer or assignment. Any provision that prohibits, restricts, or conditions the assignment or
transfer of any such executory contract or unexpired lease or that terminates or modifies such
executory contract or unexpired lease or allows the counterparty to such executory contract or
unexpired lease to terminate, modify, recapture, impose any penalty, condition renewal or
extension, or modify any term or condition on any such transfer and assignment constitutes an
unenforceable anti-assignment provision and is void and of no force or effect.
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8.6. Survival of the Debtors Indemnification Obligations.
Subject to Section 10.7 herein, any obligations of the Debtors pursuant to any separate
indemnification agreements with current and former officers and directors or pursuant to their
corporate charters and bylaws or other organizational documents to indemnify current and former
officers, directors, agents, and/or employees with respect to actions, suits, and proceedings
against such parties, shall not be discharged or impaired by confirmation of the Plan of
Reorganization and such obligations shall be deemed and treated as executory contracts assumed by
the Debtors hereunder and shall continue as obligations of the Reorganized Debtors.
8.7. Survival of Other Employment Arrangements.
Except and to the extent previously assumed by an order of the Bankruptcy Court, on or before
the Confirmation Date, all employee compensation and benefit plans of the Debtors, including
benefit plans and programs subject to sections 1114 and 1129(a)(13) of the Bankruptcy Code, entered
into before or after the Commencement Date and not since terminated, shall be deemed to be, and
shall be treated as if they were, executory contracts that are to be assumed under the Plan of
Reorganization. The Debtors obligations under such plans and programs shall survive confirmation
of the Plan of Reorganization. Notwithstanding anything in this Section 8.7 to the contrary, any
equity incentive plans of Bedding Superholdco Incorporated or any of the Debtors, including but not
limited to the Third Amended and Restated Simmons Holdco, Inc. Equity Incentive Plan, and any stock
option, restricted stock or other equity agreements and any stock appreciation rights or similar
equity incentives or equity based incentives or other obligations or liabilities the value of which
depend on the price of, or distributions paid with respect to, equity securities, shall be
cancelled as of the Effective Date and the Debtors shall have no liability or responsibility in
respect of such equity interests.
8.8. Insurance Policies.
All insurance policies pursuant to which the Debtors have rights and obligations as of the
date of the entry of the Confirmation Order and that qualify as executory contracts shall be
assumed by the respective Debtors and Reorganized Debtors and shall continue in full force and
effect. All insurance policies shall revest in the Reorganized Debtors.
8.9. Existing Management Agreement.
If the releases provided in Section 10.5 hereof and the exculpation provided in Section 10.6
hereof are effective and no less favorable to all of (i) the Released Parties that are party to
that certain Management Agreement, dated as of the 19th day of December, 2003, between SBC and THL
Managers V, LLC or any other prepetition management agreement between the Debtors and their direct
or indirect shareholders (or any affiliates of their direct or indirect shareholders) (each, a
Management Agreement) and (ii) all affiliates of THL Managers V, LLC, than provided under the
terms of the Plan, dated October 13, 2009, then each such Management Agreement as of the Effective
Date shall be terminated and any outstanding Claims arising thereunder shall be waived and
discharged. For the avoidance of doubt, if a Management Agreement survives the Effective Date, all
defenses with respect to amounts due thereunder also shall survive the Effective Date,
notwithstanding the releases provided in Section 10.5.
8.10. Workers Compensation Programs.
Except as otherwise expressly provided in the Plan of Reorganization, as of the Effective
Date, the Debtors and the Reorganized Debtors shall continue to honor their obligations under (i)
all applicable workers compensation laws in states in which the Reorganized Debtors operate and
(ii) the Debtors written contracts, agreements, agreements of indemnity, self-insurer workers
compensation bonds and any other policies, programs and plans regarding or relating to workers
compensation and workers compensation insurance. All such contracts and agreements are treated as
executory contracts under the Plan of Reorganization and on the Effective Date will be assumed
pursuant to the provisions of sections 365 and 1123 of the Bankruptcy Code, with a cure amount of
zero.
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SECTION 9. CONDITIONS PRECEDENT
9.1. Conditions Precedent to Confirmation.
The confirmation of the Plan of Reorganization is subject to the satisfaction or waiver of the
following conditions precedent:
(a) the Confirmation Order shall be in form and substance reasonably acceptable to the Debtors
and the Purchasers; and
(b) the Plan Sponsor Agreement shall not have been terminated.
9.2. Conditions Precedent to the Effective Date.
The occurrence of the Effective Date of the Plan of Reorganization is subject to the
satisfaction or waiver of the following conditions precedent:
(a) the Confirmation Order, in form and substance satisfactory to the Debtors and the
Purchasers, shall have been entered ten (10) days prior to the Effective Date and shall be in full
force and effect and there shall not be a stay or injunction in effect with respect thereto;
(b) the Debtors shall have received all authorizations, consents, regulatory approvals,
rulings, letters, no-action letters, opinions, or documents that are necessary to implement the
Plan of Reorganization and required by law, regulation, or order;
(c) the conditions in the New Notes Financing shall have been satisfied or waived; and
(d) the conditions to Closing (as defined in the Plan Sponsor Agreement) shall have been
satisfied or waived in accordance with the terms thereof, other than those conditions to be
satisfied simultaneously with the Closing under the Plan Sponsor Agreement.
9.3. Effect of Failure of Conditions to Effective Date.
If the Plan Sponsor Agreement is terminated in accordance with its terms after the
Confirmation Date or the Effective Date has not occurred by March 15, 2010, then (i) the
Confirmation Order shall be vacated, (ii) no distributions under the Plan of Reorganization shall
be made, (iii) the Debtors and all holders of Claims and Equity Interests shall be restored to the
status quo ante as of the day immediately preceding the Confirmation Date as though the
Confirmation Date never occurred, and (iv) all the Debtors obligations with respect to the Claims
and the Equity Interests shall remain unchanged and nothing contained herein shall be deemed to
constitute a waiver or release of any claims by or against the Debtors or any other entity or to
prejudice in any manner the rights of the Debtors or any other entity in any further proceedings
involving the Debtors or otherwise.
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9.4. Waiver of Conditions.
Each of the conditions set forth in Sections 9.1 and 9.2, other than as set forth in
subsections 9.2(a) and (b) thereof, may be waived in whole or in part by the Debtors, with the
consent of the Purchasers in their sole discretion, without any notice to other parties in interest
or the Bankruptcy Court and without a hearing.
9.5. Effect of Termination of Plan Sponsor Agreement.
Upon the termination of the Plan Sponsor Agreement at any time, (i) the Plan shall
automatically be null and void, (ii) all votes cast in respect of the Plan shall automatically be
null and void and deemed withdrawn, and (iii) the Debtors and all holders of Claims and Equity
Interests shall be restored to the status quo ante as of the day immediately preceding such
termination of the Plan Sponsor Agreement, and (iv) all the Debtors obligations with respect to
the Claims and the Equity Interests shall remain unchanged and nothing contained herein shall be
deemed to constitute a waiver or release of any claims by or against the Debtors or any other
entity or to prejudice in any manner the rights of the Debtors or any other entity in any further
proceedings involving the Debtors or otherwise.
SECTION 10. EFFECT OF CONFIRMATION
10.1. Vesting of Assets.
On the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all
property of the Debtors estates shall vest in the Reorganized Debtors free and clear of all
Claims, liens, encumbrances, charges, and other interests, except for the liens and security
interests granted to secure the New Notes Financing and the New ABL Financing and except as
provided herein. The Reorganized Debtors may operate their businesses and may use, acquire, and
dispose of property free of any restrictions of the Bankruptcy Code or the Bankruptcy Rules and in
all respects as if there were no pending cases under any chapter or provision of the Bankruptcy
Code, except as provided herein.
10.2. Discharge of Claims and Termination of Equity Interests.
Upon the Effective Date and in consideration of the rights afforded herein and the payments
and distributions to be made hereunder, except as otherwise expressly provided herein or in the
Confirmation Order, each holder (as well as any trustees and agents on behalf of each holder) of a
Claim against the Debtors or Equity Interest and any affiliate of such holder shall be deemed to
have forever waived, released and discharged the Debtors to the fullest extent permitted by section
1141 of the Bankruptcy Code, of and from any and all Claims, Equity Interests, rights and
liabilities of any kind, nature or description that arose prior to the Effective Date. On the
Effective Date, all holders of such Claims and Equity Interests shall be forever precluded and
enjoined, pursuant to section 524 of the Bankruptcy Code, from prosecuting or asserting any such
discharged Claim against the Debtors, Reorganized Debtors, or any of their assets or properties, or
the terminated Equity Interests based on any act or omission, transaction, or other activity of any
kind or nature that occurred prior to the Effective Date, whether or not such holder has filed a
proof of Claim or proof of Equity Interest.
Except as otherwise provided herein or in the Confirmation Order, all persons or entities who
have held, now hold or may hold Claims against any of the Debtors or Equity Interests and all other
parties in interest, along with their respective present and former employees, agents, officers,
directors, principals and affiliates, are permanently enjoined from and after the Effective Date,
from (a) commencing or continuing in any manner any action or other proceeding of any kind with
respect to such Claim or Equity Interest against the Debtors or the Reorganized Debtors, (b) the
enforcement, attachment, collection or recovery by any manner or means of any judgment, award,
decree or order against the Debtors or the Reorganized Debtors with respect to such Claim or Equity
Interest, (c) creating, perfecting or enforcing any encumbrance of any kind against the Debtors or
the Reorganized Debtors or against the property or interests in property of the Debtors or the
Reorganized Debtors with respect to such Claim or Equity Interest, or (d) asserting any right of
setoff, subrogation, or recoupment of any kind against any obligations due from Debtors or the
Reorganized Debtors, with respect to such Claim or Equity Interest. Such injunction shall extend
to any successors of the Debtors and Reorganized Debtors and their respective properties and
interest in properties.
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10.3. Term of Injunctions or Stays.
(a) Unless otherwise provided, all injunctions or stays arising under or entered during the
Reorganization Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, and in
existence on the Confirmation Date, shall remain in full force and effect until the later of the
Effective Date and the date indicated in the order providing for such injunction or stay.
(b) Unless otherwise ordered by the Bankruptcy Court, on or after the Confirmation Date, any
person or group of persons constituting a fifty percent shareholder of Bedding Superholdco
Incorporated within the meaning of section 382(g)(4)(D) of the Tax Code shall be enjoined from
claiming a worthless stock deduction with respect to any Equity Interests in Bedding Superholdco
Incorporated
held by such person(s) (or otherwise treating such Equity Interests as worthless for U.S.
federal income tax purposes) for any taxable year of such person(s) ending prior to the Effective
Date.
10.4. Injunction Against Interference with Plan of Reorganization.
On the entry of the Confirmation Order, all holders of Claims and Equity Interests and other
parties-in-interest, along with their respective present or former employees, agents, officers,
directors, or principals, shall be enjoined from taking any actions to interfere with the
implementation or consummation of the Plan of Reorganization.
10.5. Releases.
For purposes of this section, Released Party means (i) each Debtor or Reorganized Debtor,
(ii) each direct or indirect shareholder of the Debtors, including Thomas H. Lee Equity Fund V,
L.P., Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., 1997 Thomas H. Lee
Nominee Trust, Thomas H. Lee Investors Limited Partnership, Thomas H. Lee Partners, L.P.,
Great-West Investors, L.P., Putnam Investments Employees Securities Company I, LLC, Putnam
Investments Employees Securities Company II, LLC, and Fenway Partners Capital Fund II, L.P., (iii)
each holder of a SBC Credit Agreement Claim who votes to accept the Plan and the administrative
agent and collateral agent for the holders of the SBC Credit Agreement Claims, (iv) each holder of
a SBC Note Claim who votes to accept the Plan, (v) each holder of a Holdco Note Claim who votes to
accept the Plan, (vi) each of the Purchasers, (vii) DDJ Capital Management, LLC and its affiliates
and accounts, Farallon Capital Management, L.L.C. and its affiliates and accounts, Sola Ltd and
Solus Core Opportunities Master Fund Ltd and their respective affiliates, JP Morgan Asset
Management and its affiliates, MSD SBI, L.P. and its affiliates, and Oaktree Capital Management,
L.P. (on behalf of various funds and accounts) and its affiliates, (viii) each entity or person
providing management services to a Debtor, including THL Managers V, LLC, and (ix) with respect to
each of the forgoing, each of their respective direct or indirect subsidiaries, current and former
officers and directors, managers, members, employees, agents, representatives, financial advisors,
professionals, accountants, and attorneys, and each of their predecessors, successors, and assigns.
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As of the Confirmation Date, but subject to the occurrence of the Effective Date, for good and
valuable consideration, the adequacy of which is hereby confirmed, each Released Party and any
person seeking to exercise the rights of the Debtors estates, including, without limitation, any
successor to the Debtors or any estate representative appointed or selected pursuant to section
1123(b)(3) of the Bankruptcy Code, shall be deemed to unconditionally, forever release, waive, and
discharge each other Released Party, from any and all Claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action, and liabilities whatsoever in connection with or
related in any way to the Debtors, the operation of the Debtors businesses, the incurrence by the
Debtors of any indebtedness or the use of proceeds thereof, the Reorganization Cases, and the Plan
of Reorganization, including any distributions to be made by any indenture trustee or agent under
indentures or other agreements, whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law,
equity, or otherwise, that are based in whole or part on any act, omission, transaction, event, or
other occurrence taking place on or prior to the Effective Date; provided, however, that nothing in
this Section 10.5 shall be deemed to (i) prohibit the Debtors or the Reorganized Debtors from
asserting and enforcing any claims, obligations, suits, judgments, demands, debts, rights, causes
of action or liabilities they may have against (A) any current or former employee that are based on
an alleged breach of a confidentiality, non-compete, or any other contractual obligation owed to
the Debtors through the Effective Date or (B) any current or former employee (other than executive
officers) that is based on an alleged breach of a fiduciary obligation owed to the Debtors through
the Effective
Date, (ii) release indemnities (or any liabilities or obligations thereunder) set forth in any
applicable credit agreement or indenture that survive the termination thereof, (iii) waive or
modify in any manner any written agreement entered into by a Released Party on or after September
21, 2009, or any Claims, obligations, suits, judgments, damages, demands, debts, rights, causes of
action, and liabilities arising thereunder, (iv) waive or release the rights of the Released
Parties to enforce the Restructuring Support Agreement, made and entered into as of September 24,
2009, among the Debtors, AOT Bedding Super Holdings, LLC, AOT Bedding Intermediate Holdings, LLC,
and the creditors and lenders party thereto or the Plan and the contracts, instruments, indentures,
and other agreements or documents delivered or assumed thereunder or in connection therewith, and
(v) operate as a waiver or release from any causes of action based on gross negligence, intentional
fraud, or criminal misconduct, in each case as determined by a final order entered by a court of
competent jurisdiction.
Without limiting the generality of the foregoing, as of the Effective Date, the Debtors shall
be deemed to have waived the right to prosecute, and to have settled and released for fair value,
any avoidance or recovery actions under sections 545, 547, 548, 549, 550, 551, and 553 of the
Bankruptcy Code or other applicable law that belong to the Debtors and/or which the Debtors could
have prosecuted as debtors or debtors in possession against the other Released Parties relating to
distributions made on account of principal, interest, fees, or other obligations under and relating
to the SBC Credit Agreement Claims, the SBC Note Claims, the Holdco Note Claims, or management fees
or expense reimbursements whether brought under the Bankruptcy Code or other applicable law.
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10.6. Exculpation.
Notwithstanding anything provided herein, as of the Effective Date and subject to the
occurrence of the Effective Date, the following parties, entities, and individuals shall have no
liability for any action or failure to act with respect to formulation, negotiation, preparation,
confirmation, or consummation of the Plan or the administration of the Reorganization Cases (other
than liability determined by a final order of a court of competent jurisdiction for actions or
failure to act amounting to willful misconduct, intentional fraud, or criminal conduct arising out
of the Reorganization Cases or any liability arising out of an express contractual obligation)):
(i) the Debtors; (ii) the direct or indirect
shareholders of the Debtors, including Thomas H. Lee
Equity Fund V, L.P., Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., 1997
Thomas H. Lee Nominee Trust, Thomas H. Lee Investors Limited Partnership, Thomas H. Lee Partners,
L.P., Great-West Investors, L.P., Putnam Investments Employees Securities Company I, LLC, Putnam
Investments Employees Securities Company II, LLC, and Fenway Partners Capital Fund II, L.P.; (iii)
the agent and the informal steering committee for the holders of the SBC Credit Agreement Claims;
(iv) the indenture trustee for the holders of the SBC Note Claims; (v) the Purchasers; (vi) the New
Notes Purchasers; (vii) DDJ Capital Management, LLC and its affiliates and accounts, Farallon
Capital Management, L.L.C. and its affiliates and accounts, Sola Ltd and Solus Core Opportunities
Master Fund Ltd and their respective affiliates, JP Morgan Asset Management and its affiliates, MSD
SBI, L.P. and its affiliates, and Oaktree Capital Management, L.P. and its affiliates (on behalf of
various funds and accounts); (viii) the entities and persons providing management services to a
Debtor, including THL Managers V, LLC; and (ix) each of their respective direct or indirect
subsidiaries, current and former officers and directors, managers, members, employees, agents,
representatives, financial advisors, professionals, accountants, and attorneys, and each of their
predecessors, successors, and assigns. Any act or omission taken with the approval of the
Bankruptcy Court will be conclusively deemed not to constitute gross negligence or willful
misconduct.
10.7. Retention of Causes of Action/Reservation of Rights
(a) Except with respect to the releases and exculpation provided hereunder, the Debtors and
the Reorganized Debtors shall retain all causes of action, Claims, rights of setoff or recoupment,
rights under the Bankruptcy Code, including, without limitation, the right to require the turnover
of property of the Debtors estates, or any applicable non-bankruptcy law or rule, common law,
equitable principle or other source of right or obligation, including, without limitation, (i) any
and all Claims against any person or entity, to the extent such person or entity asserts a
crossclaim, counterclaim, and/or Claim for setoff which seeks affirmative relief against the
Debtors, the Reorganized Debtors, their officers, directors, or representatives; and (ii) the
turnover of any property of the Debtors estates.
(b) Nothing contained herein or in the Confirmation Order shall be deemed to be a waiver or
relinquishment of any claim, cause of action, right of setoff, or other legal or equitable defense
which the Debtors had immediately prior to the Commencement Date, against or with respect to any
Claim left unimpaired by the Plan of Reorganization. The Reorganized Debtors shall have, retain,
reserve and be entitled to assert all such claims, causes of action, rights of setoff, and other
legal or equitable defenses which they had immediately prior to the Commencement Date fully as if
the Reorganization Cases had not been commenced, and all of the Reorganized Debtors legal and
equitable rights respecting any Claim left unimpaired by the Plan of Reorganization may be asserted
after the Confirmation Date to the same extent as if the Reorganization Cases had not been
commenced.
(c) Nothing in clauses (a) and (b) of this Section 10.7 shall be deemed to limit or otherwise
modify Section 10.5 or Section 10.6 hereof.
10.8. Solicitation of the Plan of Reorganization.
As of and subject to the occurrence of the Confirmation Date: (i) the Debtors shall be deemed
to have solicited acceptances of the Plan of Reorganization in good faith and in compliance with
the applicable provisions of the Bankruptcy Code, including without limitation, sections 1125(a)
and (e) of the Bankruptcy Code, and any applicable non-bankruptcy law, rule, or regulation
governing the adequacy of disclosure in connection with such solicitation and (ii) the Debtors and
each of their respective directors, officers, employees, affiliates, agents, financial advisors,
investment bankers, professionals, accountants, and attorneys shall be deemed to have participated
in good faith and in compliance with the applicable provisions of the Bankruptcy Code in the offer
and issuance of any securities under the Plan of Reorganization, and therefore are not, and on
account of such offer, issuance, and solicitation will not be, liable at any time for any violation
of any applicable law, rule or regulation governing the solicitation of acceptances or rejections
of the Plan of Reorganization or the offer and issuance of any securities under the Plan of
Reorganization.
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10.9. Exemption from Certain Transfer Taxes.
Pursuant to section 1146(a) of the Bankruptcy Code, (a) the issuance, transfer or exchange (or
deemed issuance, transfer or exchange) of a security, (b) the creation of any mortgage, deed of
trust, Lien, pledge or other security interest, (c) the making or assignment of any lease or
sublease, or (d) the making or delivery of any deed or other instrument of transfer under, in
furtherance of, or in connection with the Plan of Reorganization (including, without limitation,
any merger agreements, agreements of consolidation, restructuring, disposition, liquidation,
dissolution, deeds, bills of sale and transfers of tangible property) will not be subject to any
stamp tax, recording tax, personal property tax, real estate transfer tax, sales tax, use tax,
transaction privilege tax (including, without limitation, such taxes on prime contracting and
owner-builder sales), privilege taxes (including, without limitation, privilege taxes on
construction contracting with regard to speculative builders and owner builders) or other similar
taxes. Unless the Bankruptcy Court orders otherwise, all sales, transfers and assignments of
owned and leased property approved by the Bankruptcy Court on or prior to the Effective Date
shall be deemed to have been in furtherance of or in connection with the Plan of Reorganization.
10.10. Other Exemptions.
(a) Pursuant to section 4(2) and Regulation D of the Securities Act of 1933, the offer and
sale of the New Common Stock to Purchasers and the new common stock of SBC to Bedding Holdco shall
be exempt from registration.
(b) Pursuant to section 1145 of the Bankruptcy Code, section 5 of the Securities Act of 1933
and any state or local law requiring registration for offer or sale of a security or registration
or licensing of an issuer of, underwriter of, or broker or dealer in, a security, do not apply to
the offer or sale of the Class 6 Parent Stock to holders of Claims in Class 6 to any person that is
not an underwriter as defined in section 1145(b) of the Bankruptcy Code.
(c) Pursuant to section 1125 of the Bankruptcy Code, any Person that solicits the acceptance
of the Plan or any participation (in good faith and in compliance with the applicable provisions of
the Bankruptcy Code) in the offer, issuance, sale or purchase of a security, offered or sold under
the Plan (including without limitation the Class 6 Parent Stock), shall not be liable for violation
of any applicable law, rule, or regulation governing solicitation of acceptance of a plan or the
offer, issuance, sale, or purchase of securities.
10.11. Corporate Action.
(a) Upon the Effective Date, all matters provided herein that would otherwise require approval
of the stockholders or directors of one or more of the Debtors or Reorganized Debtors, including,
without limitation, (i) adoption or assumption, as applicable, of executory contracts and unexpired
leases, (ii) selection of the directors and officers, as appropriate, for the Reorganized Debtors,
(iii) the execution and entry into the New ABL Financing and the New Notes Financing, (iv) the
distribution of the New Common Stock, and (v) all other actions contemplated by the Plan (whether
to occur before, on or after the Effective Date) shall be deemed to have occurred and shall be in
effect from and after the Effective Date pursuant to the applicable general corporation law of the
states in which the Debtors or the Reorganized Debtors are incorporated, without any requirement of
further action by the stockholders or directors of the Debtors or the Reorganized Debtors.
27
(b) On or (as applicable) prior to the Effective Date, the appropriate officers of the Debtors
or the Reorganized Debtors (including, any vice-president, president, chief executive officer,
treasurer or chief financial officer of any Debtor or Reorganized Debtor), as applicable, shall be
authorized and directed to issue, execute and deliver the agreements, documents, securities, and
instruments contemplated by the Plan (or necessary or desirable to effect the transactions
contemplated by the Plan) in the name of and on behalf of the Reorganized Debtors, including (i)
the New ABL Financing and the New Notes Financing, (ii) the organizational documents of the
Reorganized Debtors, and (iii) any and all other agreements, documents, securities and instruments
relating to the foregoing. The authorizations and approvals contemplated by this Section shall be
effective notwithstanding any requirements under nonbankruptcy law. The issuance of the New Common
Stock shall be exempt from the requirements of section 16(b) of the Securities and Exchange Act of
1934 (pursuant to rule 16b-3 promulgated thereunder) with respect to any acquisition of such
securities by an officer or director (or a director deputized for purposes thereof) as of the
Effective Date.
10.12. Termination of Subordination Rights and Settlement of Related Claims.
The classification and manner of satisfying all Claims and Equity Interests under the Plan of
Reorganization take into consideration all subordination rights, whether arising by contract or
under general principles of equitable subordination, section 510(b) and (c) of the Bankruptcy Code
or otherwise. All subordination rights that a holder of a Claim or Equity Interest may have with
respect to any distribution to be made pursuant to the Plan of Reorganization will be discharged
and terminated and all actions related to the enforcement of such subordination rights will be
permanently enjoined. Accordingly, distributions pursuant to the Plan of Reorganization to holders
of Allowed Claims will not be subject to payment to a beneficiary of such terminated subordination
rights or to levy, garnishment, attachment or other legal process by a beneficiary of such
terminated subordination rights; provided, however, that nothing contained herein shall preclude
any Person or entity from exercising their rights pursuant to and consistent with the terms of the
Plan of Reorganization and the contracts, instruments, releases, indentures and other agreements or
documents delivered under or in connection with the Plan.
SECTION 11. RETENTION OF JURISDICTION
On and after the Effective Date, the Bankruptcy Court shall retain jurisdiction over all
matters arising in, arising under, and related to the Reorganization Cases for, among other things,
the following purposes:
(a) to hear and determine motions and/or applications for the assumption or rejection of
executory contracts or unexpired leases and the allowance, classification, priority, compromise,
estimation, or payment of Claims resulting therefrom;
(b) to determine any motion, adversary proceeding, application, contested matter, and other
litigated matter pending on or commenced after the Confirmation Date;
(c) to ensure that distributions to holders of Allowed Claims are accomplished as provided
herein;
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(d) to allow, disallow, determine, liquidate, classify, estimate or establish the priority or
secured or unsecured status of any Claim or Equity Interest, including the resolution of any
request for payment of any Administrative Expense Claim and the resolution of any objections to the
allowance or priority of Claims or Equity Interests;
(e) to resolve any matters related to the assumption, assumption and assignment or rejection
of any executory contract or unexpired lease to which any Debtor is party or with respect to which
any Debtor or Reorganized Debtor may be liable, including, without limitation, any matter relating
to the terms and conditions of any such executory contract or unexpired lease as assumed or
assigned, or the obligation of any party to perform thereunder, and to hear, determine, and if
necessary, liquidate any Claims arising therefrom;
(f) to enter, implement, or enforce such orders as may be appropriate in the event the
Confirmation Order is for any reason stayed, reversed, revoked, modified, or vacated;
(g) to issue injunctions, enter and implement other orders, and take such other actions as may
be necessary or appropriate to restrain interference by any Person with the consummation,
implementation, or enforcement of the Plan of Reorganization, the Confirmation Order, or any other
order of the Bankruptcy Court;
(h) to hear and determine any application to modify the Plan of Reorganization in accordance
with section 1127 of the Bankruptcy Code, to remedy any defect or omission or reconcile any
inconsistency in the Plan of Reorganization, the disclosure statement for the Plan or
Reorganization, or any order of the Bankruptcy Court, including the Confirmation Order, in such a
manner as may be necessary to carry out the purposes and effects thereof;
(i) to hear and determine all applications under sections 330, 331, and 503(b) of the
Bankruptcy Code for awards of compensation for services rendered and reimbursement of expenses
incurred prior to the Confirmation Date;
(j) to hear and determine disputes arising in connection with the interpretation,
implementation, or enforcement of the Plan of Reorganization, the Confirmation Order, any
transactions or payments contemplated hereby, or any agreement, instrument, or other document
governing or relating to any of the foregoing, provided that, notwithstanding the foregoing, any
forum selection provisions in such agreements, instruments, or other documents shall be respected;
(k) to take any action and issue such orders as may be necessary to construe, enforce,
implement, execute, and consummate the Plan of Reorganization or to maintain the integrity of the
Plan of Reorganization following consummation;
(l) to hear any disputes arising out of, and to enforce, the order approving alternative
dispute resolution procedures to resolve personal injury, employment litigation, and similar claims
pursuant to section 105(a) of the Bankruptcy Code;
(m) to determine such other matters and for such other purposes as may be provided in the
Confirmation Order;
(n) to hear and determine matters concerning state, local, and federal taxes in accordance
with sections 346, 505, and 1146 of the Bankruptcy Code (including any requests for expedited
determinations under section 505(b) of the Bankruptcy Code);
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(o) to hear and determine any other matters related hereto and not inconsistent with the
Bankruptcy Code and title 28 of the United States Code;
(p) to enter a final decree closing the Reorganization Cases;
(q) to enforce all orders, judgments, injunctions, releases, exculpations, indemnifications
and rulings entered in connection with the Reorganization Cases;
(r) to recover all assets of the Debtors and property of the Debtors estates, wherever
located; and
(s) to hear and determine any rights, Claims, or causes of action held by or accruing to the
Debtors pursuant to the Confirmation Order, the Bankruptcy Code or any federal statute or legal
theory.
SECTION 12. MISCELLANEOUS PROVISIONS
12.1. Payment of Statutory Fees.
On the Effective Date, and thereafter as may be required, the Debtors shall pay all fees
payable pursuant to section 1930 of chapter 123 of title 28 of the United States Code.
12.2. Dissolution of Committees.
Any creditor or equity committee appointed pursuant to section 1102 of the Bankruptcy Code in
the Reorganization Cases shall dissolve on the Effective Date.
12.3. Substantial Consummation.
On the Effective Date, the Plan of Reorganization shall be deemed to be substantially
consummated under sections 1101 and 1127(b) of the Bankruptcy Code.
12.4. Request for Expedited Determination of Taxes.
The Reorganized Debtors shall have the right to request an expedited determination under
section 505(b) of the Bankruptcy Code with respect to tax returns filed, or to be filed, for any
and all taxable periods ending after the Commencement Date through the Effective Date.
12.5. Determination of Tax Filings and Taxes.
(a) For all taxable periods ending on or prior to, or including, the Effective Date, Bedding
Holdco shall prepare and file (or cause to be prepared and filed) on behalf of the Simmons Group,
all combined, consolidated or unitary tax returns, reports, certificates, forms or similar
statements or documents for any group of entities that include Bedding Holdco (collectively, Group
Tax Returns) required to be filed or that Bedding Holdco otherwise deems appropriate, including
the filing of amended Group Tax Returns or requests for refunds. If requested by Bedding Holdco,
Bedding Superholdco Incorporated or Holdco, as appropriate, shall promptly execute or cause to be
executed and filed any Group Tax Returns of the Simmons Group submitted by Bedding Holdco to
Bedding Superholdco Incorporated, or Holdco (as applicable) for execution or filing. Neither
Bedding Superholdco Incorporated nor Holdco shall file or amend any Group Tax Return for any
taxable periods (or portions thereof) described in the first sentence of this clause (a) without
Bedding Holdcos prior written consent.
30
(b) Bedding Superholdco Incorporated, Holdco, and Bedding Holdco shall cooperate fully with
each other regarding the implementation of this Section 12.5(b) of the Plan (including the
execution of appropriate powers of attorney) and shall make available to each other as reasonably
requested all information, records and documents relating to taxes governed by this Section 12.5
until the expiration of the applicable statute of limitations or extension thereof or at the
conclusion of all audits, appeals or litigation with respect to such taxes. Without limiting the
generality of the foregoing, Bedding Superholdco Incorporated shall execute on or prior to the
Effective Date a power of attorney authorizing Bedding Holdco to correspond, sign, collect,
negotiate, settle and administer tax payments and Group Tax Returns for the taxable periods
described in Section 12.4.
(c) If Bedding Superholdco Incorporated or Holdco receives written notice from a taxing
authority of any pending examination, claim, settlement, proposed adjustment or related matters
with respect to taxes that could affect any other member of the Simmons Group (by operation of law
or by reason of this Plan), it shall so notify Bedding Holdco in writing within ten (10) business
days thereafter. Bedding Holdco shall have the sole right, at its expense, to control, conduct,
compromise and settle any tax contest, audit or administrative or court proceeding relating to any
liability for taxes of the Simmons Group. With respect to any such proceeding and with respect to
the preparation and filing of
any Group Tax Returns of the Simmons Group, Bedding Holdco may act in its own self-interest
and in the interest of its subsidiaries and affiliates, without regard to any adverse consequences
to Bedding Superholdco Inc. or Holdco.
(d) If Bedding Superholdco Incorporated or Holdco is dissolved, merged out of existence, or
otherwise treated in a manner that terminates the Simmons Group for applicable tax purposes,
immediately before such termination, Bedding Superholdco Inc. or Holdco (as applicable) shall
designate Bedding Holdco as the substitute agent (within the meaning of Treasury Regulation
Section 1.1502-77) for the Simmons Group in accordance with Treasury Regulation Section 1.1502-77
and Rev. Proc. 2002-43, 2002-2 C.B. 99, in either case, as amended or supplemented, and any
comparable provision under state or local law, with respect to all taxable periods ending on or
before, or including, the Effective Date.
(e) Bedding Holdco shall be entitled to the entire amount of any refunds and credits
(including interest thereon) with respect to or otherwise relating to any taxes of the Simmons
Group, including for any taxable period ending on or prior to, or including, the Effective Date.
Within five (5) business days after receipt of any such refunds or credits, Bedding Superholdco
Incorporated or Holdco (as applicable) shall notify Bedding Holdco thereof and shall transfer any
such refunds to Bedding Holdco by wire transfer or otherwise in accordance with written
instructions provided by Bedding Holdco.
12.6. Amendments.
(a) Plan of Reorganization Modifications. The Plan of Reorganization may be amended,
modified, or supplemented by the Debtors or the Reorganized Debtors in the manner provided for by
section 1127 of the Bankruptcy Code or as otherwise permitted by law without additional disclosure
pursuant to section 1125 of the Bankruptcy Code; provided however, that the Debtors or Reorganized
Debtors shall not amend or modify (i) the Plan so as to violate Section 1.2(d) of the Restructuring
Support Agreement, made and entered into as of September 24, 2009, among the Debtors, AOT Bedding
Super Holdings, LLC, AOT Bedding Intermediate Holdings, LLC, and the creditors and lenders party
thereto and (ii) Section 8.9 of the Plan without the prior written consent of THL Managers V, LLC.
Such amendment shall be made only with Purchaser Approval. In addition, after the Confirmation
Date, the Debtors (with Purchaser Approval) or Reorganized Debtors may institute proceedings in the
Bankruptcy Court to remedy any defect or omission or reconcile any inconsistencies in the Plan of
Reorganization or the Confirmation Order, with respect to such matters as may be necessary to carry
out the purposes and effects of the Plan of Reorganization.
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(b) Other Amendments. Subject to the terms of the Plan Sponsor Agreement, prior to the
Effective Date, the Debtors, with Purchaser Approval, may make appropriate technical adjustments
and modifications to the Plan of Reorganization without further order or approval of the Bankruptcy
Court.
12.7. Effectuating Documents and Further Transactions.
Each of the officers of the Reorganized Debtors is authorized, in accordance with his or her
authority under the resolutions of the applicable board of directors, to execute, deliver, file, or
record such contracts, instruments, releases, indentures, and other agreements or documents and
take such actions as may be necessary or appropriate to effectuate and further evidence the terms
and conditions of the Plan of Reorganization.
12.8. Revocation, Withdrawal, or Non-Consummation of the Plan.
Subject to the terms of the Plan Sponsor Agreement, the Debtors reserve the right to revoke or
withdraw the Plan at any time prior to the Confirmation Date and to file other plans of
reorganization. If the Debtors revoke or withdraw the Plan, or if Confirmation Order is not
entered or consummation of the Plan does not occur, then (i) the Plan shall be null and void in all
respects, (ii) any settlement or compromise embodied in the Plan (including the fixing or limiting
to an amount any Claim or Class of Claims), assumption or rejection of executory contracts or
leases effected by the Plan, and any document or agreement executed pursuant to the Plan shall be
deemed null and void, (iii) nothing contained in the Plan, and no acts taken in preparation for
consummation of the Plan, shall (a) constitute or be deemed to constitute a waiver or release of
any Claims by or against, or any Equity Interests in, the Debtors or any other Person, (b)
prejudice in any manner the rights of the Debtors or any Person in any further proceedings
involving the Debtors, or (c) constitute an admission of any sort by the Debtors or any other
Person, and (iv) the Plan Sponsor Agreement and the Plan Sponsor Order shall continue in full force
and effect.
12.9. Severability.
If, prior to the entry of the Confirmation Order, any term or provision of the Plan of
Reorganization is held by the Bankruptcy Court to be invalid, void, or unenforceable, the
Bankruptcy Court, at the request of the Debtors, with Purchaser Approval, shall have the power to
alter and interpret such term or provision to make it valid or enforceable to the maximum extent
practicable, consistent with the original purpose of the term or provision held to be invalid,
void, or unenforceable, and such term or provision shall then be applicable as altered or
interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the
terms and provisions of the Plan of Reorganization will remain in full force and effect and will in
no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The
Confirmation Order shall constitute a judicial determination and shall provide that each term and
provision of the Plan or Reorganization, as it may have been altered or interpreted in accordance
with the foregoing, is valid and enforceable pursuant to its terms. No alteration or
interpretation of the Plan of Reorganization pursuant to this section shall operate to modify or
amend the terms and conditions of the Plan Sponsor Agreement without the consent of the Purchasers
in their sole discretion.
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12.10. Governing Law.
Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the
extent an exhibit hereto or a schedule in the Plan Supplement provides otherwise, the rights,
duties, and obligations arising under the Plan of Reorganization shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York, without giving effect
to the principles of conflict of laws thereof.
12.11. Time.
In computing any period of time prescribed or allowed by the Plan of Reorganization, unless
otherwise set forth herein or determined by the Bankruptcy Court, the provisions of Bankruptcy Rule
9006 shall apply.
12.12. Binding Effect.
The Plan of Reorganization shall be binding on and inure to the benefit of the Debtors, the
holders of Claims and Equity Interests, and each of their respective successors and assigns,
including, without limitation, the Reorganized Debtors, and all other parties-in-interest in the
Reorganization Cases.
12.13. Notices.
All notices, requests, or demands to or on the Debtors or Reorganized Debtors shall be (i) in
writing, (ii) served by certified mail (return receipt requested), hand delivery, overnight
delivery service, first class mail, or facsimile transmission, and, (iii) unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when actually delivered
or, in the case of notice by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
For the Reorganized Debtors:
SIMMONS BEDDING COMPANY
One Concourse Parkway
Atlanta, Georgia 30328-5369
Attn: Kristen K. McGuffey
Telephone: (770) 392-2502
Telecopier: (770) 206-2669
- and -
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Attn: Michael F. Walsh, Esq.
Telephone: (212) 310-8000
Telecopier: (212) 310-8007
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For the Purchasers:
AOT BEDDING INTERMEDIATE HOLDINGS, LLC
c/o National Bedding Company, L.L.C.
2600 Forbs Avenue
Hoffman Estates, IL 60192
Attn: Romeo Leemrijse
Nav Rahemtulla
Telecopier: (416) 730-5082
- and -
(310) 432-8641
- and -
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498
Attn: Andrew G. Dietderich
Telephone: (212) 558-3830
Telecopier: (212) 558-3588
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For the administrative agent for holders of SBC Credit Agreement Claims:
DEUTSCHE BANK AG, NEW YORK BRANCH
60 Wall Street, 2nd Floor
New York, New York 10005
Attn: Vincent DAmore
Telecopier: (212) 797-5695
- and -
SIMPSON, THATCHER & BARTLETT LLP
425 Lexington Avenue
New York, New York 10017-3954
Attn: Sandeep Qusba
Telephone: (212) 455-2000
Telecopier: (212) 455-2502
For certain holders of SBC Note Claims:
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Attn: Brian Hermann
Julie M. DAmbruoso
Telephone: (212) 373-3000
Telecopier: (212) 757-3990
For certain holders of Holdco Note Claims:
GOODWIN PROCTER LLP
620 Eighth Avenue
New York, NY 10018
Attn: Allan S. Brilliant
Telephone: (212) 813-8800
Telecopier: (212) 355-3333
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Dated:
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New York, New York |
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October 13, 2009 |
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Respectfully submitted,
SIMMONS BEDDING COMPANY ON BEHALF OF ITSELF AND THE DIRECT AND INDIRECT
SUBSIDIARIES SET FORTH ON EXHIBIT B
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Name: |
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Title: |
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SIMMONS COMPANY
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By: |
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BEDDING HOLDCO INCORPORATED
(f/k/a THL-SC BEDDING COMPANY)
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By: |
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Name: |
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Title: |
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AOT Bedding Intermediate Holdings, LLC
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By: |
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SULLIVAN & CROMWELL LLP
Attorneys for AOT Bedding Intermediate Holdings, LLC
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By: |
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Andrew G. Dietderich |
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EXHIBITS AND SCHEDULES
TO THE PLAN OF REORGANIZATION
38
Exhibit A
Schedule 4.6
EQUITY TERM SHEET
i
Exhibit A
EQUITY TERM SHEET
The following is a summary of the material terms of the Class A Units being offered to
Eligible Investors and certain related provisions of the Amended and Restated Operating Agreement
of New Parent (the Operating Agreement) and of the Delaware Limited Liability Company Act
(DLLCA). In addition to reviewing this description, Eligible Investors contemplating a
purchase of Class A Units should review SECTION XII CERTAIN FACTORS TO BE CONSIDERED of the
Disclosure Statement for a discussion of some of risks that should be considered prior to making
any investment decision.
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Issuer
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New Parent, the direct or indirect owner of the Company and AOT after
effectiveness of the Plan. |
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Class A Units
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Class A units in New Parent having a subscription price of $1,000 per
unit (Class A Units). Upon effectiveness of the Plan, Class A
Units will be held by: (i) the Sponsors and their affiliates and
co-investors who currently are the equity holders of AOT, (ii) the
owners of other assets contributed to New Parent at or prior to
effectiveness of the Plan, (iii) management, employees and
independent directors pursuant to a management and employee
compensation and stock ownership plan approved by the Sponsors, and
(iii) any Eligible Investors holding allowed Holdco Note Claims that
elect to use cash distributions under the Plan to purchase Class A
Units in accordance with the Plan (the Permitted Class A Units and,
together with the Permitted Class B Units, the Permitted Initial
Interests). |
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Class A Units shall be subscribed for and purchased at par. The
aggregate subscription price for the initial Class A Units issued in
exchange for the capital stock of AOT and other assets contributed to
New Parent at or prior to Closing in connection with the transactions
contemplated by the Plan shall be $200 million, provided that such
amount shall be increased by the aggregate amount received by AOT
after September 24, 2009 representing the exercise price for any
options to acquire AOT stock exercised during such period. |
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New Parent reserves the right to divide the Class A Units for
purposes of the definitive Operating Agreement into two sub-classes,
Class A-1 Units and Class A-2 Units. Only Ontario Teachers (for a
portion of its Units) will hold Class A-2 Units. The Class A-1 Units
and Class A-2 Units would be identical, except that the Class A-2
Units shall not vote with respect to election of the Board of
Managers (Board) of New Parent and shall be entitled to receive
supplemental distributions in an amount equal to the management fees
payable to Ares and its affiliates provided that the aggregate of
management fees and the supplemental distributions referenced above
payable to the Sponsors and their affiliates shall not exceed $2
million annually, plus documented out-of-pocket expenses. Such
supplement distributions will be payable prior to the application of
the Distribution Waterfall described below. |
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Class B Units
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New Parent also is issuing upon effectiveness of the Plan Class B
units in New Parent having a subscription price of $1,000 per unit
(Class B Units), to finance a portion of the costs of acquiring the
Company pursuant to the Plan Sponsor Agreement, together with related
fees and expenses of New Parent, and potentially to finance other
acquisitions of assets by New Parent and its subsidiaries from
licensees or other parties. New Parent estimates that the aggregate
subscription price of Class B Units initially issued will be less
than $365 million, although the final amount of Class B Units to be
issued will depend upon the financial requirements of New Parent.
New Parent does not intend to raise indebtedness to finance the Plan,
but reserves the right to do so or to raise indebtedness at any time
thereafter. |
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New cash investments by the Sponsors, their affiliates and
co-investors in New Parent at effectiveness of the Plan will be made
by purchasing Class B Units. The Sponsors may subscribe for the
necessary Class B Units themselves or may seek to obtain acquisition
financing commitments from others. For example, New Parent has
obtained acquisition financing commitments from DDJ Capital
Management, LLC, Farallon Capital Management, LLC, Sola Ltd, and
Solus Core Opportunities Master Fund Ltd. (the New Parent Financing
Parties) to purchase $55 million of the Class B Units. However, the
Sponsors have agreed with the Debtors that, regardless of the
commitments from the New Parent Financing Parties or any other
person, each Sponsor remains obligated with respect to its guarantee
of the purchase price due at Closing under the Plan Sponsor Agreement
to the extent described under SECTION IV.D. EVENTS LEADING TO THE
CHAPTER 11 CASES GUARANTEE in the Disclosure Statement, subject to
the terms and conditions of the Plan Sponsor Agreement. |
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Initial Capitalization
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Other than the Class A Units and the Class B Units upon confirmation
of the Plan, New Parent will have no other outstanding equity or
equity-like securities or instruments or options, rights, convertible
securities or similar securities providing for the issuance of any
additional equity or equity-like securities or instruments.
There is no limit on the number of Class A Units or Class B Units
that may be issued upon effectiveness of the Plan. In addition,
subject to the preemptive rights in favor of Class B Units (but not
Class A Units), the Operating Agreement authorizes the Board to issue
additional units at any time and from time to time, whether of an
existing class or series or a new class or series, in each case on
such terms and conditions as the Board may determine. |
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Liquidation Preference
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Class A Units have no liquidation preference. Class B Units are
entitled to a Liquidation Preference equal to the initial
subscription price per share as reduced from time to time by the
aggregate amount of all distributions paid per share of Class B
Units. The then outstanding Liquidation Preference shall accrete at
a 6% rate, compounded annually. The Liquidation Preference shall
never be less than zero. |
2
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Distributions
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All cash or non-cash dividends or distributions paid with respect to
the equity securities of New Parent (other than supplemental
distributions with respect to Class A-2 Units or pursuant to
management and employee compensation and stock ownership plans
approved by the Sponsors) shall be applied as follows (the
"Distribution Waterfall): |
first, to make distributions on a pro rata basis on the Class B Units
until such time as their Liquidation Preference has been reduced to
zero;
second, to make distributions on a pro rata basis on the Class A
Units other than those issued pursuant to an equity incentive or
ownership plan until such time as there has been paid $1,000 per such
unit;
third, to make distributions on a pro rata basis on certain Class A
Units issued pursuant to an equity incentive or ownership plan until
such time as there has been paid $1,000 per such unit;
fourth, to make catch-up distributions on a pro rata basis to all
Class A Units until the aggregate amount of distributions for each
such Class A Unit since the Closing equals the aggregate amount of
distributions for each Class B Units since the Closing; and
fifth, to make distributions on Class A Units and Class B Units on a
pro rata basis.
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100% of all distributable net cash and non-cash proceeds received by
New Parent arising from a Sale of the Company, defined as the sale
of all or substantially all of the consolidated assets of New Parent
(whether held by New Parent or one or more of its subsidiaries and
whether by way of an asset sale, security sale, tender offer, merger
or other similar transaction) shall be distributed to New Parents
equity holders in accordance with the Distribution Waterfall, unless
New Parent and each holder of Class B Units other than those held by
the Sponsors or their affiliates consent in writing. |
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Conversion Upon IPO
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In connection with an initial public offering of common stock by New
Parent (an IPO), the Class A Units and the Class B Units shall
automatically convert, without any action by the holders thereof,
into fully paid and nonassessable shares of common stock or other
similar equity securities (the Converted Securities). The amount
of Converted Securities to be issued to any holder of Class A or
Class B Units shall be determined by applying the Distribution
Waterfall to the market value of all Class A and Class B Units
pursuant to such procedure as the Board shall approve. |
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Management; Limited
Voting Rights
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The Board will have the exclusive right and full power and authority
to manage and control the business and affairs of New Parent. The
Board will be elected by the holders of Class A-1 Units holding a
plurality of the Class A-1 Units present in person or represented by
proxy and entitled to vote on the election of managers at any meeting
of members. |
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As of the effective date of the Plan, because of the level of their
holdings of Class A-1 Units, the Sponsors will control the vote with
respect to the election of managers. It is not anticipated that
other holders of Class A-1 Units, whether individually or in the
aggregate, other than the Sponsors, will have any representation on
the Board or influence in the manner in which New Parent is managed. |
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The Operating Agreement also will specify that the members of the
Board are subject to fiduciary duties to the members of New Parent to
the extent of the fiduciary duties owed by directors of a Delaware
corporation to its stockholders; provided, however, that the
corporate opportunity doctrine will not apply and that the Operating
Agreement may eliminate or limit the personal liability of the
managers to the extent permitted under Section 102(b)(7) of the
Delaware General Corporation Law. These are important limitations on
investors rights, and Eligible Investors considering an investment
in the Class A-1 Units should consult with their own legal counsel
prior to making an investment decision. |
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The Class A Units do not have special voting or approval rights or
other minority protections available in some other private companies.
However, the majority in interest of the Class B Units which are not
held by the Sponsors or any of their affiliates or co-investors do
have the right to approve the entrance into or material amendment or
modification of any related party transactions among New Parent
and/or its controlled subsidiaries, on the one hand, and the Sponsors
and/or any of their affiliates (other than New Parent and/or its
controlled affiliates), on the other hand (other than (x) management
fees to Ares or its affiliates pursuant to a management agreement and
supplemental distributions to Ontario Teachers with respect to its
Class A-2 Units which in the aggregate shall not exceed $2 million in
the aggregate during any calendar year, plus reasonable documented
out-of-pocket expenses, and (y) the participation by the Sponsors
and/or their affiliates in the financing of the transactions
contemplated by the Plan), to the extent any such transaction is not
at least as favorable to New Parent or the applicable controlled
subsidiary as a transaction with a third party on arms-length terms. |
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Reporting
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New Parent will provide to each holder of Class A or Class B Units
annual and quarterly consolidated financial statements, including a
balance sheet, income statement and statement of cash flows. In
addition, New Parent has agreed to provide the New Parent Financing
Parties and their affiliates committing to invest in Class B Units
with the following additional information so long as they maintain a
certain minimum holding of Class B Units: (a) such quarterly
reporting as AOT Bedding Holdings Corp. (or its subsidiaries), Holdco
(or its subsidiaries) and/or New Parent provides to its debt
investors from time to time, and (b) reasonable access to Sponsor
directors and officers on the Board. New Parent may or may not
agree to provide additional financial information from time to time.
The provision of all information shall be subject to such
confidentiality restrictions as New Parent or the Sponsors may
reasonably require. |
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Drag and Tag Rights
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The Sponsors will have the right to drag-along holders of the Class A
or Class B Units in a transaction (a Change of Control Transaction)
involving (i) a Sale of the Company to any person or entity other
than a Sponsor or any of its affiliates or (ii) a sale to any person
or entity other than a Sponsor or any of its affiliates of a majority
of the equity interests in New Parent. In the case of any drag-along
sale, holders of Class A or Class B Units shall be entitled to
participate in the net cash or non cash proceeds of the sale in
accordance with the Distribution Waterfall as provided in
Distributions above, and shall only be required to sell their units
(a) in proportion to the sale by the Sponsors of their Class A and/or
Class B Units in such sale, (b) on no less favorable terms and
conditions as the Sponsors and (c) without giving any representations
or warranties (or otherwise having liability) to the purchaser other
than as to clear title, due authority, required approvals and absence
of conflicts. Notwithstanding the foregoing, drag-along rights shall
expire upon an IPO. |
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Following the disposition of one-third, in the aggregate, taking into
consideration all prior transfers, of the outstanding Class A Units
by the Sponsors, the holders of Class A or Class B Units will have
the right to tag-along, in connection with any disposition of Class A
Units by the Sponsors, provided that the holders of Class B Units
will tag on an as converted basis and without separate payment of the
Liquidation Preference. Following the disposition of one-third, in
the aggregate, taking into consideration all prior transfers, of the
outstanding Class B Units by the Sponsors, the holders of Class B
Units will have the right to tag-along in connection with any
disposition of Class B Units by the Sponsors. Notwithstanding the
foregoing, tag-along rights will not apply to transfers among the
Sponsors and/or their affiliates and/or limited partners. Subject to
the drag-along outlined above, the holders of Class A and Class B
Units shall also be permitted to tag-along in any Change of Control
transaction and all proceeds from the sale of interests in such
Change of Control transaction shall be distributed pursuant to the
Distribution Waterfall. In addition, tag-along rights shall expire
upon an IPO. |
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Transfer Restrictions
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The Class A Units are subject to significant restrictions on transfer. |
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Prior to an initial public offering of New Parent, no member shall
transfer any Class A Units, other than in one of the following
transactions: |
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with respect to a transfer by Ares or Ontario Teachers, a
transfer with the prior written consent of the other; |
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a transfer pursuant to the drag-along or tag-along provisions
described in Drag and Tag Rights above; |
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a transfer to a Permitted Transferee (as defined below); |
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a transfer to a person that is also a member immediately
prior to the consummation of such transfer or to its Permitted
Transferee; |
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a transfer of Class A Units with the prior written consent of
New Parent, which shall not be unreasonably withheld, conditioned or
delayed, subject to a right of first refusal in favor of the Sponsors
and New Parent providing for a five business day period in which the
Sponsors and New Parent may elect to accept or reject the offer and,
if the offer is rejected, a 60-day selling period for the
transferring member; or |
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if a member holds Class A Units and Class B Units, a transfer
of all or a portion of the Class B Units and all of the Class A Units
held by such member, if any, with the prior written consent of New
Parent, which shall not be unreasonably withheld, conditioned or
delayed, subject to a right of first offer in favor of the Sponsors
and New Parent providing for a five business day period in which the
Sponsors and New Parent may elect to accept or reject the offer and,
if the offer is rejected, a 60-day selling period for the
transferring member. |
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"Permitted Transferee means: |
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with respect to any member who is a natural person, (a) such
members spouse, parents, grandparents and descendents, including
adopted relationships and the spouses of all such persons (the
foregoing persons being a Family Group) and (b) any trust which is
for the primary benefit of such Member and/or such Members Family
Group (a Trust) or a charitable organization which is controlled by
such member; |
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with respect to any member that is a Trust, such Trusts
beneficiaries, the members of the Trusts beneficiaries respective
Family Groups, and any corporation, partnership, limited liability
company or other entity in which the beneficial owners of all the
equity interests are members of such Trusts beneficiaries
respective Family Groups and/or the Trust; and |
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with respect to any member that is a fund, (a) any investment
manager, investment advisor or general partner of such member, (b)
any investment fund, investment account or investment entity whose
investment manager, investment advisor or general partner is such
member or (c) any investment fund, investment account or investment
entity whose investment manager, investment advisor or general
partner is the same entity as such members investment manager,
investment advisor or general partner, provided that in no event
shall the limited partners of such member constitute Permitted
Transferees. |
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Notwithstanding the foregoing, a proposed transfer of units will not
be effective: |
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if the proposed transferee is any of New Parents
competitors, customers or suppliers or any of their respective
controlled, commonly controlled or controlling affiliates; |
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until the proposed transferee, if not already a party to the
Operating Agreement, has executed a joinder and any other standard
and customary documentation as may be required by New Parent form
time to time; |
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if such transfer is for units in minimum denominations of
less than $5 million in initial subscription price, unless such units
represent all of the units held by the transferring member; |
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if the proposed transferee is not a qualified institutional
buyer (as defined in Rule 144A under the Securities Act of 1933) or
a fund or account under common management with a qualified
institutional buyer; |
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if such transfer does not comply with applicable securities
laws; and |
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if, after giving effect to such transfer, more than 400
persons (excluding the Sponsors, their respective affiliates, and the
managers, officers and employees of New Parent and its subsidiaries)
would hold of record equity securities of any class of New Parent for
purposes of Section 12(g) of the Exchange Act. |
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In addition, the Operating Agreement limits the total number of
record holders that may hold any class of equity securities of New
Parent at any one time to 400 (excluding the Sponsors, their
respective affiliates, and the managers, officers and employees of
New Parent and its subsidiaries) (or such larger number established
by the Board) and authorizes New Parent (i) to notify an Affected
Member (as defined below) that it has 10 days to (x) rescind the
transaction causing such member to become an Affected Member or (y)
otherwise reconfigure its ownership of the units to cause such member
to no longer be an Affected Member and (ii) if the member remains an
Affected Member after such 10-day period, to (xx) require that the
Affected Member transfer its units to an existing member (not
affiliated with any Sponsor) in the event that the limit is exceeded
or (yy) if no transfer is practicable in a timely manner to avoid the
registration requirements of Section 12(g), New Parent may redeem an
Affected Members units to reduce |
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the number of record holders to 400
(or such larger number established by the Board). The price at which
such transfer or redemption shall be effected will not be less than
the greater of (x) the fair market value of the units as determined
in good faith by the Board and (y) the subscription price of the
units. Pending such a compulsory transfer or redemption, the
Affected Member whose units are to be transferred or redeemed shall
not have the right to vote or receive distributions in respect of
such units. The Board may from time to time, without the approval of
the members, increase the maximum number of record holders that may
hold any class of equity securities of New Parent at any one time.
"Affected Member shall mean (i) a member which is the purported
transferee of units pursuant to a transfer which causes the record
holders that hold any class of equity securities of New Parent at any
one time to exceed 400 (or such larger number established by the
Board) as calculated for purposes of Section 12(g) of the Securities
Exchange Act of 1934 (excluding the Sponsors, their respective
affiliates, and the managers, officers and employees of New Parent
and its subsidiaries) or (ii) (x) if New Parent concludes that record
holders that held any class of equity securities of New Parent on the
Effective Date of the Plan exceeded 400 (or such larger number
established by the Board) as calculated for purposes of Section 12(g)
(excluding the Sponsors, their respective affiliates, and the
managers, officers and employees of New Parent and its subsidiaries),
those members holding the smallest number of units of such class of
equity securities of New Parent on the Effective Date of the Plan
required to transfer their units to cause the record holders of such
class of equity securities of New Parent at such time to equal 400
(or such larger number established by the Board) as calculated for
purposes of Section 12(g) (excluding the Sponsors, their respective
affiliates, and the managers, officers and employees of New Parent
and its subsidiaries) or (y) if New Parent concludes that record
holders that held any class of equity securities of New Parent
exceeded 400 (or such larger number established by the Board) as
calculated for purposes of Section 12(g) (excluding the Sponsors,
their respective affiliates, and the managers, officers and employees
of New Parent and its subsidiaries) after the Effective Date of the
Plan as the result of a change in the nature of the ownership of a
members units, the member the nature of whose ownership so changed. |
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Preemptive Rights
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Holders of Class A Units will not benefit from preemptive rights. The
Sponsors and other holders of Class B Units will have preemptive
rights as they may agree from time to time. |
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Registration Rights
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The Class A Units will be issued to Eligible Investors will be
offered and sold in reliance on the exemption afforded under section
1145(a)(1) of the Bankruptcy Code and deemed to be made in a public
offering under section 1145(c) of the Bankruptcy Code. Accordingly,
as a general matter, Eligible Holders, other than underwriters or
affiliates of the issuer, should be free to resell such securities
without registration under the Securities Act and New Parent is not
undertaking to provide registration rights to all of its members.
New Parent reserves the right to grant to underwriters, affiliates or
purchasers of larger positions, whether in Class A Units, Class B
Units or other interests, such registration rights as may be
separately agreed from time to time. |
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Tax Matters
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New Parent will elect to be classified as a corporation for U.S.
federal income tax purposes effective as of the date of its
formation; provided, however, that if New Parent subsequently elects
to be classified as a partnership for U.S. federal income tax
purposes, New Parent shall comply with the tax covenants set forth
below. |
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Neither New Parent nor Holdings shall engage, directly or indirectly
through any entity owned by New Parent or Holdings that is treated as
a pass-through entity for U.S. federal income tax purposes, in any
activity that could result in unrelated business taxable income
within the meaning of Section 512 of the Internal Revenue Code of
1986, as amended (the Code) (including by reason of Section 514 of
the Code) or income effectively connected with a U.S. trade or
business for U.S. federal income tax purposes being allocated to any
of the members of New Parent or Holdings, or that could result in a
member of New Parent or Holdings being treated as engaged in a U.S.
trade or business for U.S. federal income tax purposes by reason of
its investments. |
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The Operating Agreement shall include such other provisions relating
to tax matters as investors in the Class B Units or as New Parent may
determine from time to time, subject to the rights of the Sponsors
and other investors in New Parent. |
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Dissolution
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New Parent will be dissolved and liquidated upon the earliest to
occur of the following events: |
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the determination by the Board that continued operation of
New Parent is not in the best interest of the members; |
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any event which makes it unlawful for New Parent to be
continued; or |
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the entry of a decree of judicial dissolution pursuant to the
DLLCA. |
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The proceeds of sale and all other assets of New Parent will be
applied in accordance with the provisions described under
"Distributions above after the prior payment with respect to the
debts and liabilities of New Parent and the expenses of liquidation
or distribution, as may be determined by the Board, and the setting
up of any reserves which the Board shall determine to be reasonably
necessary for contingent, unliquidated or unforeseen liabilities or
obligations of New Parent or the members arising out of or in
connection with New Parent. |
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Amendments
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Except as expressly provided in the Operating Agreement, any
provision of the Operating Agreement may be amended from time to time
by the Board. Notwithstanding the foregoing, (a) any amendment or
modification to the Operating Agreement which adversely affects the
rights or privileges of the Class B Units shall require the
affirmative vote by members holding at least a majority of the issued
and outstanding Class B Units, other than those held by the Sponsors,
their respective affiliates or Ares co-investors, and (b) any
amendment or modification of the preemptive rights in favor of
holders of Class B Units which adversely affects the rights or
privileges of the Class B Units shall require the affirmative vote by
each member holding Class B Units. |
10
Exhibit B
Signatory Direct and Indirect Subsidiaries of Simmons Bedding Company
i
Exhibit B
Signatory Direct and Indirect
Subsidiaries of Simmons Bedding Company
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The Simmons Manufacturing Co., LLC |
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Windsor Bedding Co., LLC |
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World of Sleep Outlets, LLC |
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Simmons Contract Sales, LLC |
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Simmons Capital Management, LLC |
EXHIBIT B-1
Simmons Companys Form 10-K for the year ended December 29, 2008
Please see attached.
Exhibit B-1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
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þ |
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 27, 2008
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o |
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 333-124138
SIMMONS COMPANY
(Exact name of registrant as specified in its charter)
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Delaware |
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20-0646221 |
(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.) |
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One Concourse Parkway, Suite 800, Atlanta, Georgia |
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30328 |
(Address of principal executive offices)
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(Zip Code) |
Registrants telephone
number, including area code: (770) 512-7700
Securities registered pursuant to Section 12(b) of the Act: None
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Title of each class
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Name of each exchange on which registered |
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Not applicable
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Not applicable |
Securities
registered pursuant to Section 12(b) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer as defined in Rule
405 of the Securities Act. Yes: o No: þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section
13 or Section 15(d) of the Act. Yes: þ No: o
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes: o No: þ
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation
S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. þ
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§ 229.405 of this chapter) during the preceeding 12 months
(or for such shorter period that the registrant was required to
submit and post such files). Yes:
o No: þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. (See definition of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act).
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Large accelerated filer: o
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Accelerated filer: o
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Non-accelerated filer: þ
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Smaller reporting company: o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes: o No: þ
The aggregate market value of the voting and non-voting common equity stock held by
non-affiliates computed by reference to the price at the common equity was last sold, or average
bid and asked price of such common equity, as of the last business day of the registrants most
recently completed second fiscal quarter, June 27, 2008: Not applicable
The number of shares of the registrants common stock outstanding as of June 10, 2009: 100
DOCUMENTS OR PARTS THEREOF INCORPORATED BY REFERENCE: None
As used within this report, the term Holdings refers only to Simmons Company, a Delaware
corporation, the terms Company, Simmons, we, our, and us refer to Simmons Company and its
subsidiaries, and the term Simmons Bedding refers to Simmons Bedding Company, a Delaware
corporation, and its subsidiaries. We refer to our parent company, Simmons Holdco, Inc., as
Simmons Holdco. Holdings is a holding company with no material assets other than its ownership
of the common stock of its wholly-owned subsidiary, THL-SC Bedding Company (THL-SC), which is
also a holding company with no material assets other than its ownership of the common stock of its
wholly-owned subsidiary, Simmons Bedding. All of Holdings business operations are conducted by
Simmons Bedding. Holdings was incorporated in 2003. We principally manufacture and sell
adult-sized bedding products which we refer to as conventional bedding products throughout this
report.
We are a voluntary filer with the Securities and Exchange Commission (SEC). Copies of our
quarterly reports on Form 10-Q and annual reports on Form 10-K along with other reports and
information filed with the SEC can be read and copied at the SECs Public Reference Room at 100 F
Street, NE, Washington, DC 20549. The public may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. Our information may also be obtained
electronically by accessing the SECs web site at http://www.sec.gov.
PART I
OVERVIEW
Founded in 1870, Simmons is one of the worlds largest mattress manufacturers, manufacturing
and marketing a broad range of products under our well-recognized brand names. The majority of our
products are conventional innerspring mattresses and foundations that utilize our Pocketed
Coil® and patented Advanced Pocketed Coil technologies and are marketed under
our
Beautyrest®, Beautyrest Black®, Beautyrest NxG and
Beautyrest Studio brand names. In addition, we manufacture and market open coil
innerspring mattresses under our DeepSleep® and BeautySleep® brand names and
specialty (non-innerspring) visco-elastic products that utilize a patented NxG Advanced
Memory Foam under our ComforPedic by Simmons brand name and specialty products made from
natural latex under our Natural Care® brand names. We manufacture, sell and distribute
our premium branded bedding products principally to retail and hospitality customers throughout the
U.S. and Canada. Additionally, we license our intellectual property to international companies
that manufacture and sell our premium branded bedding products throughout the world and to U.S. and
Canadian manufacturers and distributors of bedding accessories, furniture, airbeds and other
products. We sell products through a diverse North American base of approximately 3,300
retailers, representing over 15,500 outlets, including furniture stores, specialty sleep shops,
department stores, furniture rental stores, mass merchandisers and juvenile specialty stores.
We believe that we are the industry leader in product innovation which helps drive unit sales
and average unit selling price (AUSP) increases. Over our almost 140-year history, we have
developed numerous innovations, including the first mass-produced innerspring mattress, the
Pocketed Coil® and patented Advanced Pocketed Coil innersprings, the Murphy
Bed, the Hide-a-Bed® sofa and our patented no flip mattress. We have proven research
and development capabilities which we apply to design, develop, manufacture and market innovative
sleep products that provide consumers with a better nights sleep.
We operate 19 conventional bedding manufacturing facilities and two juvenile bedding
manufacturing facilities strategically located throughout the U.S., Canada and Puerto Rico and,
because we have national in-house manufacturing capabilities, we have the ability to service
multi-state accounts, maintain consistent quality of products and leverage research and development
activities. Our just-in-time manufacturing capability enables us to manufacture and ship almost
all orders to our retail customers within five business days of receiving their order and also
minimizes our working capital requirements.
2
As of December 27, 2008, Simmons Bedding was not in compliance with certain covenants of its
$540.0 million senior credit facility and was operating under a forbearance agreement with Simmons
Beddings senior lenders. On January 15, 2009, Simmons Bedding did not make a scheduled payment of
interest due on its $200.0 million 7.875% senior subordinated notes (the Subordinated Notes)
resulting in a default under the indenture governing the Subordinated Notes. As a result, we
entered into a forbearance agreement with more than a majority of the outstanding Subordinated
Notes holders, pursuant to which such noteholders have agreed to refrain from enforcing their
respective rights and remedies under the Subordinated Notes and the related indenture. Both
forbearance agreements, as amended, with our senior lenders and the noteholders provide a
forbearance period through June 30, 2009 and, upon meeting certain conditions, a further extension
to July 31, 2009. We incurred fees and expenses in connection with the forbearance agreements and
related amendments.
As a condition to the forbearance agreement with our senior lenders, we initiated a financing
restructuring process in December 2008. A special committee of independent directors was formed by
our board of directors on January 23, 2009 to evaluate and oversee proposals for restructuring our
debt obligations, including seeking additional debt or equity capital and evaluating various
strategic alternatives of the Company. There can be no assurance that we will be successful in
implementing a restructuring. If we are unable to successfully complete a restructuring, comply
with the terms of the forbearance agreements, or extend the forbearance periods as needed to
successfully complete a restructuring, our payment obligations under the senior credit facility and
the Subordinated Notes may be accelerated. If there is an acceleration of payments under the
senior credit facility or the Subordinated Notes, then Holdings would be in default under its
Discount Notes and Simmons Holdco would be in default under its Toggle Loan. We would not have the
ability to repay any amounts accelerated under our various debt obligations without obtaining
additional equity and/or debt financing. An acceleration of payments could result in a voluntary
filing of bankruptcy by, or the filing of an involuntary petition for bankruptcy against, Simmons
Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates. Due to the possibility of such
circumstances occurring, we are seeking a negotiated restructuring, including a restructuring of
our debt obligations and/or sale of us, our affiliates or our assets, which could occur pursuant to
a pre-packaged, pre-arranged or voluntary bankruptcy filing. Any bankruptcy filing could have a
material adverse effect on our business, financial condition, liquidity and results of
operations. The considerations above raise substantial doubt about our ability to continue as a
going concern. For further information regarding our debt covenant violations and related
forbearance agreements please see Item 1A Risk Factors Risks Related to Our Liquidity and Item
7 Managements Discussion and Analysis of Financial Conditions and Results of Operations
Liquidity and Capital Resources.
3
RECENT ACQUISITIONS AND DISPOSITIONS
In June 2007, we acquired certain assets of CP Holdco, Inc., a specialty producer of foam
mattresses and pillows (the ComforPedic Acquisition). In November 2006, we purchased Simmons
Canada Inc. (Simmons Canada), a former licensee of Simmons Bedding and one of the largest bedding
manufacturers in Canada (the Canada Acquisition). In August 2006, we sold our specialty sleep
retail stores, Sleep Country USA, LLC (SCUSA), and now operate only as a manufacturer and
distributor of bedding products principally to retailers or hospitality customers. The sale of
SCUSA is referred to as the SCUSA Disposition.
MERGER AND DISTRIBUTION TO SHAREHOLDERS
In February 2007, Holdings merged with another entity to become a wholly-owned subsidiary of
Simmons Holdco, a holding company. Simmons Holdco was established to borrow $300.0 million under a
senior unsecured loan (Toggle Loan) to fund a distribution of $278.3 million to Holdings then
existing class A stockholders (the transactions are collectively referred to as the 2007
Distribution). After the merger, the ownership structure of Simmons Holdco was identical to
Holdings ownership structure prior to the merger. As of December 27, 2008, Thomas H. Lee Equity
Fund V, L.P. and its affiliates (THL), Fenway Partners Capital Fund II, L.P. and its affiliates
(Fenway), and our management and directors held 71.1%, 8.4% and 20.5%, respectively, of Simmons
Holdcos voting stock, after giving effect to restricted stock and stock options issued to
management and directors under our equity incentive plan.
OUR SEGMENTS
We have two reportable segments organized by geographic area, Domestic (U.S. including Puerto
Rico) and Canada. Both reportable segments manufacture, sell and distribute premium branded
bedding products to retail customers and institutional users of bedding products, such as the
hospitality industry. We derived approximately 87.6% of our 2008 net sales from our Domestic
segment.
INDUSTRY
We compete principally in the U.S. wholesale bedding industry, which generated sales of
approximately $6.2 billion in 2008, according to the International Sleep Products Association
(ISPA). While there are over 550 conventional bedding manufacturers in the U.S. according to the
U.S. Census Bureau, six companies (including Simmons) accounted for approximately 68% of the
conventional bedding industrys 2007 wholesale revenues and the top 15 accounted for approximately
81% of the conventional bedding industrys 2007 wholesale revenues, according to Furniture/Today, a
home furnishings industry publication. The remainder of the domestic conventional bedding market
primarily consists of hundreds of smaller independent local and regional manufacturers.
The U.S. bedding industry has been historically characterized by growing unit demand, rising
AUSP, stability in various economic environments, and minimal imports. The compound annual growth
rate of total conventional bedding industry sales has been approximately 5.2% over the last 20
years. However, in 2008, the total conventional bedding industry sales declined 9.1%, the largest
sales decrease since ISPA has been tracking the industry in the mid-1970s.
COMPETITION
We believe that we principally compete against our top competitors on the basis of product
selection, brand recognition, product innovation, quality and customer service programs, including
co-operative advertising, sales force training and marketing assistance. We believe we compare
favorably to our primary competitors in each of these areas. In addition, only a few companies
(including Simmons) have national, company-operated manufacturing and distribution
capabilities. According to Furniture/Today, we are the second largest bedding manufacturer in the
U.S., with an estimated 15.7% share of the industrys wholesale revenues for 2007. In June 2009,
Consolidated Bedding, Inc., the maker of Spring Air mattresses and the sixth largest bedding
manufacturer in the United States in 2007 according to Furniture/Today, filed for Chapter 7
bankruptcy protection and ceased production.
Other than the top six manufacturers, the U.S. bedding industry consists of several smaller
national manufacturers, with the remainder being independent local and regional
manufacturers. These local and regional manufacturers generally focus on the sale of lower price
point products. While we primarily manufacture differentiated bedding products targeted for mid-
to upper-end price points, we offer a full line of bedding products to our retailer base.
4
BEDDING PRODUCTS
Our conventional mattress products are targeted to cover a breadth of marketplace price points
(currently $299 to $5,999 per queen set) and offer consumers a wide range of mattress constructions
with varying styles, firmnesses and features which enables us to serve the majority of traditional
and specialty consumer sleep needs.
Our mattress products are produced utilizing one or a combination of technologies and
construction techniques, including Pocketed Coil® springs, patented Advanced Pocketed
Coil springs, open coil innersprings, gel, latex, visco-elastic, and/or polyurethane
foam. The majority of our products are manufactured utilizing our Pocketed Coil® springs,
which were originally developed by us in 1925. The Pocketed Coil® springs are made of
heavy gauge steel, pre-compressed, then placed in a durable, non-allergenic soft fabric
encasements. Pocketed Coil® springs work independently from each other to reduce motion
across the sleep surface, resulting in better conformability to the sleeping body and the reduction
of motion transferred across the bed from one partner to the other. This technology was upgraded
with our patented Advanced Pocketed Coil spring technology, which was introduced in
October 2003 and utilizes stranded wire for each coil to provide significantly more durability and
enhanced motion separation benefits.
Every conventional mattress we manufacture features our innovative no flip design, which we
were the first to distribute nationally in 2000. This patented design offers enhanced sleep
benefits and product durability, along with the consumer convenience of never having to flip the
mattress. All of our mattress products were re-engineered during 2007 to comply with the U.S.
Consumer Product Safety Commissions (CPSC) new open flame resistance standard that went into
effect on July 1, 2007.
The Beautyrest® mattress, our flagship premium product featuring the Pocketed
Coil® springs, has been our primary brand since we introduced the Pocketed Coil®
spring in 1925 and we expect it to continue generating the majority of our sales. In January 2007,
we introduced a new Beautyrest® 2007 product line, which offers higher coil densities and
improved comfort features.
In July 2006, we first introduced the Beautyrest Black® product line, which targets
the $1,999 $5,999 queen retail price points, and uses our exclusive and patented Advanced
Pocketed Coil spring. The Beautyrest Black® product line is targeted to those
consumers seeking to indulge themselves with the ultimate in luxury with the very latest
technologies. In February 2009, we updated our Beautyrest Black® product line.
In January 2008, we first introduced the Beautyrest NxG product line, which targets
the $1,999 $3,499 queen retail price points, and combines the patented NxG Advanced
Memory Foam with our Pocketed Coil® springs. The Beautyrest NxG product line
also features our patent pending EvenLoft design that utilizes a body contouring stretch
knit fabric.
In July 2008, we first introduced the Beautyrest Studio product line, which targets
the $499 $799 queen retail price points, to provide a new lower price point entry into the
Beautyrest® Pocketed Coil® spring technology. The Beautyrest Studio
line features a European low profile design along with soft knit fabrics.
Our DeepSleep® product line is targeted at the queen retail price points under $1,000
for the value conscious consumers. The DeepSleep® product line is constructed utilizing
durable open coil innersprings and soft fabrics. After June 2009, distribution of this product line
will be replaced by our new BeautySleep® product line, which was introduced in February
2009. The BeautySleep® product line, which targets the $399 $799 queen retail price
points, features open coil innersprings combined with foam encasement, soft knit fabrics, visco
memory foam and BackGuard® support. The BeautySleep® product line aggressively
targets consumers who are seeking a well-recognized brand name product at velocity price points.
Our specialty bedding products include the ComforPedic by Simmons line, memory foam
bedding line made with a patented NxG Advanced Memory Foam, and the Natural
Care® line. Our ComforPedic by Simmons product line retails at $1,799 $4,999
queen retail price points. Our environmentally-friendly Natural Care® product line
contains natural rubber tree based latex plus soy enhanced based foam. The Natural Care®
product line retails at $1,099 $4,999 queen retail price points.
Domestically, we also manufacture and sell Simmons® branded crib mattresses,
featuring interlocking coil construction for support and comfort that is durable enough to last
through the toddler years, and Simmons® branded juvenile soft good products, including
items such as vinyl contour changing pads and terry covers, vinyl replacement pads, and other
accessory items.
5
CUSTOMERS
Our strong brand names and reputation for high quality products, innovation and service to our
customers, together with the attractive retail margins associated with bedding products, have
enabled us to establish a strong customer base for conventional bedding products throughout the
U.S. and Canada and across major distribution channels, including furniture stores, specialty sleep
shops, department stores and rental furniture stores. Additionally, we distribute domestically
juvenile bedding products through mass merchandisers, furniture stores and specialty retailers. We
manufacture and supply bedding to over 15,500 outlets throughout North America, representing
approximately 3,300 retail customers.
We also distribute branded products directly to institutional users of bedding products such
as the hospitality industry and certain agencies of the U.S. government. Major hospitality
accounts include Starwood Hotels & Resorts Worldwide, Inc. (Starwood Hotels), La Quinta Inns,
Inc., Best Western International, Inc., Marriott International, Inc., Choices Hotels International,
Inc. and Wyndham Worldwide Corporation. In 1999, Starwood Hotels selected our Beautyrest®
mattress as a product for their Heavenly Bed® program, which is included in the guest
rooms of their Westin properties.
Our five largest customers accounted for approximately 26% of our product shipments for the
year ended December 27, 2008 with no one customer representing more than 10% of product shipments
for the year.
SALES, MARKETING AND ADVERTISING
Our revenue is principally generated through the wholesale distribution of conventional
bedding products, including mattresses and foundations, to retailers. Our sales are dependent on
our ability to create brand loyalty for our products with the end consumer. Our selling
infrastructure provides retailers with coordinated marketing campaigns, as well as local support
tailored to the competitive environments of each individual market. Our sales force is trained
extensively in advertising, merchandising and salesmanship, all of which increase the value of the
marketing support they provide to retailers. We believe that our focus on better sleep and our
training of our sales associates and our customers retail sales associates differentiates us from
our competitors.
We develop advertising and retail sales incentive programs specifically for individual
retailers. Point-of-sale materials, including mattresses and foundation displays that we design
and supply highlight the differentiating features and benefits of our products. We believe that
our sales training and consumer education programs are the most effective in the industry. We have
designed these programs to teach retail sales associates product knowledge and sales skills.
PATENTS AND TRADEMARKS
We own many trademarks, including Simmons®, Beautyrest®, Beautyrest
Black®, Beautyrest Studio, ComforPedic®, ComforPedic by
Simmons, Natural Care®, BeautySleep®, Deep Sleep®, Pocketed
Coil®, Advanced Pocketed Coil and NxG, most of which are registered or
applied for in the U.S. and in many foreign countries. We protect portions of our manufacturing
equipment and processes under both trade secret and patent law. We possess several patents on the
equipment and processes used to manufacture our Pocketed Coil® and Advanced Pocketed
Coil springs and the duration of our patents range from 2009 through 2028. We do not
consider our overall success to be dependent upon any particular intellectual property rights.
LICENSING
During the late 1980s and early 1990s, we disposed of most of our foreign operations and
secondary domestic lines of business via license arrangements. We now license internationally
(excluding Canada and Puerto Rico) the Simmons® and Beautyrest® trademarks, and
many of our other trademarks, processes and patents to third-party manufacturers which produce and
distribute Simmons® branded conventional bedding products within their designated
territories. These licensing agreements allow us to reduce our exposure to political and economic
risks abroad by minimizing investments in those markets. We have 16 foreign licensees and eight
sub-licensees. These foreign licensees have rights to sell Simmons-branded products in over 100
countries.
Additionally, the Company has ten domestic and Canadian third-party licensees. Some of these
licensees manufacture and distribute juvenile furniture and healthcare-related furniture, and
non-bedding upholstered furniture. Additionally, the Company has licensed the Simmons®
trademark and other trademarks, generally for limited terms, to manufacturers of occasional use
airbeds, futons, comforters, pillows, mattress pads, sheets, blankets, and other products.
Licensing revenue is recorded as earned, based upon the sales of licensed products by our
licensees. For 2008, 2007 and 2006, the Companys licensing agreements as a whole generated
royalties and technology fees of approximately $9.5 million, $10.1 million and $8.7 million,
respectively.
6
SUPPLIERS
We purchase substantially all of our conventional bedding raw materials centrally in order to
maximize economies of scale and volume discounts. The major raw materials that we purchase are
foam, wire, spring components, lumber, insulator pads, innersprings, foundation constructions, and
fabrics and other roll goods consisting of fiber and non-wovens. We obtain a large percentage of
our required raw materials from a small number of suppliers. For the year ended December 27, 2008,
we bought approximately 74% of our raw material needs from ten suppliers. We believe that supplier
concentration is common in the bedding industry.
We have supply agreements with several suppliers including Leggett & Platt, Incorporated
(L&P), Foamex L.P. (Foamex), and National Standard Company. With the exception of certain
products supplied by L&P, Foamex, and National Standard Company, we believe that we can readily
replace supply, if or when the need arises, within 90 days as we have already identified and use
alternative resources.
L&P supplies the majority of certain bedding components (including certain spring components,
insulator pads, wire, fiber, quilt backing and flange material) to the U.S. bedding industry. In
2008, we purchased approximately 30% of our raw materials from L&P. To ensure an adequate supply
of various components, we have entered into agreements with L&P, generally expiring in the year
2010, for the supply of certain spring components. Among other things, these agreements generally
require us to purchase a majority of our requirements of several components from L&P. We intend to
negotiate a new agreement with L&P to extend the term. National Standard Company is our exclusive
supplier for the stranded wire used in our patented Advanced Pocketed Coil
products. Foamex is our exclusive supplier for NxG visco-foam used in our
ComforPedic® and Beautyrest NxG products.
MANUFACTURING AND FACILITIES
We currently operate 21 manufacturing facilities, two of which only manufacture juvenile
bedding, strategically located throughout the U.S., Canada and Puerto Rico. We manufacture most
conventional bedding to order and use just-in-time production techniques in our manufacturing
processes to more efficiently serve our customers needs and to minimize our inventory carrying
costs. We generally schedule, produce and ship almost all of our conventional bedding orders
within five business days of receipt of the order. This rapid delivery capability allows us to
minimize our inventory of finished products and better satisfy customer demand for prompt
shipments.
We invest substantially in new product development, enhancement of existing products and
improved operating processes, which we believe is crucial to maintaining our strong industry
position. Much of this research is performed at the Simmons Institute of Technology and Education
(SITE), our 38,000 square foot research and education center in Atlanta, Georgia. Our marketing
and manufacturing departments work closely with our engineering staff at SITE to develop and test
new products for marketability and durability. Costs associated with the research and development
of new products amounted to approximately $2.9 million, $2.8 million and $2.4 million for 2008,
2007 and 2006, respectively.
We also seek to reduce costs and improve productivity by continually developing more efficient
manufacturing and distribution processes at SITE. At the same time, we work to ensure that we
maintain high quality products by conducting product and materials testing, designing manufacturing
facilities and equipment and improving process engineering and development.
We keep abreast of bedding industry developments through sleep research conducted by industry
groups and by our own research performed by our marketing and engineering departments. We also
participate in the Better Sleep Council, an industry association that promotes awareness of sleep
issues, and ISPA.
7
WARRANTIES AND PRODUCT RETURNS
Our conventional innerspring bedding products generally offer ten-year limited warranties
against manufacturing defects and our conventional specialty bedding products offer 20 to 25 year
limited warranties against manufacturing defects. Our juvenile bedding products generally offer
five-year to lifetime limited warranties against manufacturing defects. We believe that our
warranty terms are generally consistent with those of our primary national competitors. The
historical costs to us of honoring warranty claims have been within managements expectations. We
have also experienced non-warranty returns for reasons generally related to order entry errors and
shipping damage. We resell our non-warranty returned products primarily through as-is furniture
dealers and our World of Sleep Outlets, LLC (World of Sleep) stores.
EMPLOYEES
As of December 27, 2008, we had approximately 2,800 full time employees. Employees at eight
of our 21 manufacturing facilities (approximately 56% of our workforce) are represented by various
labor unions with separate collective bargaining agreements. Our collective bargaining agreements
are typically negotiated for two- to five-year terms.
We consider overall relations with our workforce to be satisfactory. We have had no
labor-related work stoppages in the United States in over 30 years. In August 2008, the Simmons
Canada unionized workforce at our Bramalea, Ontario manufacturing facility commenced a strike
during labor negotiations. We permanently closed the facility in September 2008. As a result of
the labor strike and subsequent facility closure, we shifted our manufacturing production to our
other facilities.
8
SEASONALITY/OTHER
Our third quarter sales are typically higher than our other fiscal quarters. We attribute
this seasonality principally to retailers sales promotions related to the 4th of July and Labor
Day holidays. For the last five years, third quarter sales have represented on average 27% of our
consolidated net sales.
Most of our sales are by short term purchase orders. Because the level of production is
generally prompted to meet customer demand, we have a negligible backlog of orders. Most finished
goods inventories of bedding products are physically stored at manufacturing locations until
shipped.
REGULATORY MATTERS
As a manufacturer of bedding and related products, we use and retain on site small quantities
of liquid cleaning materials and of a number of substances, such as glue, lubricating oil,
solvents, and other petroleum products that are used completely in the production process. Among
other state and federal statues, we are subject to the Clean Water Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act,
the Clean Air Act, similar Canadian statutes and related state and provincial statutes and
regulations. Cleaning materials or lubricants used in the maintenance area are disposed of by
licensed and permitted disposal companies and are in such quantities that do not exceed the very
small generator threshold which does not require additional regulatory documentation. All required
disposal documentation is maintained at the manufacturing facilities. We have made and will
continue to make capital and other expenditures to comply with environmental requirements. As is
the case with manufacturers in general, if a release of hazardous substances occurs on or from our
properties or any associated offsite disposal location, or if contamination from prior activities
is discovered at any of our properties, we may be held liable, the amount of such liability could
be material and our financial condition or results of operations could be materially adversely
affected.
As a result of our efforts to rectify environmental contamination at and in the vicinity of
two former facilities in Jacksonville, Florida and Linden/Elizabeth, New Jersey, the current levels
of contamination have been diminished to levels allowing for natural attenuation and monitoring as
determined by the respective state environmental agencies. Monitoring of the Jacksonville site
will continue through at least 2009 on a quarterly basis and will be reevaluated in the fourth
quarter of the year. Monitoring at the Linden/Elizabeth site is anticipated to be ongoing. While
the current estimate of such liabilities is approximately $0.1 million, future liability for such
matters is difficult to predict.
We have recorded an insignificant reserve based upon our best estimate to reflect our
potential liability for environmental matters. Because of the uncertainties associated with
environmental remediation, the costs incurred with respect to the potential liabilities could
exceed our recorded reserves.
Our bedding and other product lines are subject to various federal, state and provincial laws
and regulations relating to flammability, sanitation and other standards. We believe that we are
in material compliance with all such laws and regulations. Various federal, state and other
regulatory agencies may adopt new laws, rules and regulations and compliance with such new laws,
rules and regulations may increase our costs, alter our manufacturing processes and/or impair the
performance of our products.
9
Our business, financial condition and liquidity, as well an investment in our and our
affiliates securities, involve substantial risks and uncertainties, including those described
below.
Risks Related to Our Liquidity and Restructuring
We are not in compliance with certain covenants under the senior credit facility and the
indenture governing the Subordinated Notes, and as a result we have entered into related
forbearance agreements. If we are unable to successfully complete a restructuring, comply with the
terms of the forbearance agreements, or extend the forbearance period as needed to complete a
restructuring, our payment obligations under the senior credit facility and the Subordinated Notes
may be accelerated, which could lead to a bankruptcy filing. A bankruptcy filing would subject our
business and operations to certain risks and have a negative effect on the value of our debt.
Simmons Beddings senior credit facility requires us to maintain specified consolidated
financial ratios and satisfy certain consolidated financial tests. At September 27, 2008, December
27, 2008 and March 28, 2009, Simmons Bedding was not in compliance with the maximum leverage
financial covenant and certain other covenants contained in its senior credit facility. See
Managements Discussion and Analysis of Financial Condition and Results of Operations Debt
Senior Credit Facility. As a result, as of November 12, 2008, Simmons Bedding has operated under
a forbearance agreement with its senior lenders. Pursuant to the forbearance agreement, the senior
lenders agreed to, among other things, forbear from exercising their default related rights and
remedies under the senior credit facility through March 31, 2009, subject to earlier termination in
some circumstances. Simmons Bedding entered into amendments to the forbearance agreement on March
25, 2009 and May 27, 2009 with its senior lenders, whereby the senior lenders extended their
forbearance period through May 31, 2009 and June 30, 2009, respectively, and upon meeting certain
conditions, a further extension to July 31, 2009. We have incurred fees and expenses in connection
with this forbearance agreement and related amendments. In addition, we have entered into deposit
account control agreements with our senior lenders that may limit our access to cash held in such
accounts in the case of an event of default under the senior credit facility.
On January 15, 2009, Simmons Bedding did not make the scheduled payment of interest due on its
Subordinated Notes resulting in a default under the indenture governing the Subordinated
Notes. See Managements Discussion and Analysis of Financial Condition and Results of Operations
Debt Subordinated Notes. On February 4, 2009, Simmons Bedding and the holders of more than a
majority of the outstanding Subordinated Notes entered into a forbearance agreement, pursuant to
which such holders have agreed to refrain from enforcing their respective rights and remedies under
the Subordinated Notes and the related indenture through March 31, 2009. Simmons Bedding entered
into amendments to the forbearance agreement on March 25, 2009 and May 27, 2009, whereby such
holders extended their forbearance period through May 31, 2009 and June 30, 2009, respectively, and
upon meeting certain additional conditions, a further extension to July 31, 2009. Pursuant to the
terms of the forbearance agreement, such holders have agreed to take any actions that are necessary
to prevent an acceleration of the payments due under the Subordinated Notes during the forbearance
period. Because such holders represent more than a majority of the Subordinated Notes, they have
the power under the indenture to rescind any acceleration of the Subordinated Notes by either the
trustee or the other holders of the Subordinated Notes. We have incurred fees and expenses in
connection with this forbearance agreement and related amendments.
If we are unable to successfully complete a restructuring, comply with the terms of the
forbearance agreements, or extend the forbearance period as needed to successfully complete a
restructuring, our payment obligations under the senior credit facility and the Subordinated Notes
may be accelerated. If there is an acceleration of payments under the senior credit facility or
the Subordinated Notes, then Holdings would be in default under its Discount Notes and Simmons
Holdco would be in default under its Toggle Loan. We would not have the ability to repay any
amounts accelerated under our various debt obligations without obtaining additional equity and/or
debt financing. An acceleration of payments could result in a voluntary filing of bankruptcy by,
or the filing of an involuntary petition for bankruptcy against, Simmons Bedding, THL-SC, Holdings,
Simmons Holdco or any of our affiliates. Due to the possibility of such circumstances occurring,
we are seeking a negotiated restructuring, including a restructuring of our debt obligations and/or
sale of us, our affiliates or our assets, which could occur pursuant to a pre-packaged,
pre-arranged or voluntary bankruptcy filing.
Any bankruptcy by or against us or our affiliates would subject our business and operations to
various risks, including (i) the incurrence of significant costs, including expenses for legal
counsel and professional advisors, (ii) difficulty maintaining or increasing our sales, (iii)
difficulty obtaining and maintaining relationships with dealers, suppliers and vendors, which may
require us to pay them on a current cash basis, (iv) difficulty in maintaining our manufacturing
operations, (v) difficulty in retaining and motivating key employees or recruiting new employees,
(vi) difficulty in maintaining or obtaining sufficient financing to fund our operations and any
reorganization plan and meet future obligations, (vii) potential defaults under our contractual
obligations such as leases and (viii) the incurrence of cancellation of indebtedness income that is
equal to or in excess of our accrued net operating losses and that could result in an increase in
our cash tax payments and our effective tax rate and reduce our cash flows from operations. In
addition, we may not be able to successfully develop or consummate a plan of reorganization that is
acceptable to the bankruptcy court and our creditors, investors and other stakeholders. Any
bankruptcy filing would adversely impact the ability of Simmons Bedding, THL-SC, Holdings or
Simmons Holdco to repay their respective debt. Any debt or equity holder of Simmons Bedding,
Holdings or Simmons Holdco could suffer the loss of a significant part or all of its loan or
investment as a result of a bankruptcy filing.
10
We and our affiliates currently have substantial indebtedness that we or our affiliates may be
unable to extend, refinance or repay, and we are seeking to implement a restructuring. Any
restructuring could have a negative impact on our business and liquidity and investments in the
debt and equity securities of Simmons Bedding, Holdings, and Simmons Holdco. In addition, a
restructuring may not be successful. A restructuring or a failure to implement a restructuring
could result in a bankruptcy filing, which would have a material adverse effect on our business,
financial conditions, liquidity and operations, raise substantial doubt about our ability to
continue as a going concern and effect the value of our debt.
We currently have a substantial amount of debt that we may be unable to extend, refinance or
repay. If we are unable to refinance or extend our debt, or such debt is accelerated due to our
default because we are unable to comply with the terms of the forbearance agreements or otherwise,
or if we are unable to extend the forbearance periods as needed to successfully complete a
restructuring, our assets will not be sufficient to repay such debt in full, and our available cash
flow will not be adequate to maintain our current operations. A special committee of independent
directors was formed by our board of directors to evaluate and oversee proposals for a
restructuring and/or sale of Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of our
affiliates or the assets of Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of our
affiliates, which could likely occur pursuant to a pre-packaged, pre-arranged or voluntary filing
of bankruptcy. Such bankruptcy filing could have the material adverse impacts described above. In
addition, any restructuring may require us to obtain debtor-in-possession financing which may not
be available in the amounts required, on acceptable terms, on a timely basis or at all. Current
credit market conditions could make it more difficult to obtain acceptable debtor-in-possession
financing or to refinance our indebtedness as part of any restructuring. If we are unable to
obtain any requisite debtor-in-possession financing, we may not be able to successfully implement
our restructuring. There can be no assurance that we will be successful in implementing a
restructuring.
Even if we are successful in implementing a restructuring, the terms of such restructuring
could have a negative impact on our business and liquidity, including (i) limiting our ability to
borrow additional amounts for working capital, capital expenditures, debt service or refinancing or
to fund operations, (ii) limiting our ability to use or prohibiting our use of any operating cash
flow to pay dividends to service our or Simmons Holdcos debt or fund our business, (iii) limiting
our ability to capitalize on our business opportunities and react to competitive pressures and
regulatory changes and (iv) limiting our ability or increasing the costs to refinance our debt. In
addition, if the restructuring and any related bankruptcy filing involves the sale of Simmons
Bedding or its assets, we may not have any remaining operating assets to generate cash flow to
repay the debt of Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates and
the proceeds may not be sufficient to repay such debt in full, and, as a result, any debt or equity
holder of Simmons Bedding, Simmons or Simmons Holdco could suffer the loss of a significant part or
all of its loan or investment.
If we are unable to successfully complete a restructuring, comply with the terms of the
forbearance agreements or extend the forbearance periods prior to a successful completion of a
restructuring, our senior lenders and holders of Subordinated Notes will be entitled to accelerate
their debt upon the termination of the forbearance agreements. If there is an acceleration of
payments under the senior credit facility, then Simmons Bedding would be in default under its
Subordinated Notes, Holdings would be in default under its Discount Notes, and Simmons Holdco would
be in default under its Toggle Loan. We would not have the ability to repay any amounts
accelerated under our various debt obligations without obtaining additional equity and/or debt
financing. An acceleration of payments could result in a voluntary filing of bankruptcy by Simmons
Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates or the filing of an involuntary
petition for bankruptcy against Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of our
affiliates, which would have the material adverse impacts described above.
Our financial statements have been prepared assuming that we will continue as a going
concern. However, if we do not retain the necessary financing to meet our obligations and pay our
liabilities when they come due or restructure our debt in a manner satisfactory to our lenders, it
could result in a voluntary filing of bankruptcy by Simmons Bedding, THL-SC, Holdings, Simmons
Holdco or any of our affiliates or the filing of an involuntary petition for bankruptcy against
Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates, which would have the
material adverse impacts described above.
The factors described in this Annual Report on Form 10-K, including in the footnotes to our
consolidated financial statements, raise substantial doubt about our ability to continue as a going
concern. Our financial statements do not include any adjustments that might result from this
uncertainty. In addition, our independent registered public accounting firm has included an
explanatory paragraph expressing substantial doubt about our ability to continue as a going concern
in their audit report for the fiscal year ended December 27, 2008. No assurances can be made
regarding our ability to satisfy our liquidity and working capital requirements, to obtain the
necessary financing to meet our obligations and pay our liabilities when they come due or our
ability to successfully complete a restructuring. Failure to successfully implement a restructuring
on a timely basis or at all would result in depleting our available funds and not being able to pay
our obligations when they become due and continue as a going concern. Failure to satisfy such
obligations and our other liquidity and working capital requirements could result in a voluntary
filing of bankruptcy by Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates
or the filing of an involuntary petition for bankruptcy against Simmons Bedding, THL-SC, Holdings,
Simmons Holdco or any of our affiliates, which would have the material adverse impacts described
above.
11
We have received a notice of defaults under the indenture governing the Discount Notes and we
may receive additional notices under our debt obligations in the future. If we are unable to cure
these defaults under the Discount Notes, payment under our Discount Notes could be accelerated, and
could result in further defaults under the senior credit facility and the Subordinated Notes, as
well as a default under the Toggle Loan or our other debt obligations.
On April 14, 2009, we received a notice sent on behalf of holders of the Discount Notes,
purporting to own more than 25% of the $269.0 million principal amount of the outstanding Discount
Notes, pursuant to which such holders have notified us that our failure to furnish to the holders
of the Discount Notes (i) a Quarterly Report on Form 10-Q for the quarter ended September 27, 2008
and (ii) an Annual Report on Form 10-K for the fiscal year ended December 27, 2008, each as
required under the indenture governing the Discount Notes, constitutes defaults thereunder. Under
the indenture governing the Discount Notes, we have until June 13, 2009 to cure these defaults. In
addition, having received the notice, if we fail to cure these defaults by June 13, 2009, the
forbearance periods under both the forbearance agreements pertaining to the senior credit facility
and the Subordinated Notes will terminate. By the filing of this Annual Report on Form 10-K for
fiscal year ended December 27, 2008 and the simultaneous filing of the Quarterly Report on Form
10-Q for the quarter ended September 27, 2008, we have cured these defaults within the specified
cure period. We have not filed the Quarterly Report on Form 10-Q for the first quarter ended March
28, 2009, and we may receive further notices of default related to such failure or other defaults
under the Discount Notes or the Toggle Loan.
If we are unable to cure these or any other defaults, payments under our debt obligations
could be accelerated, and result in defaults under the senior credit facility, the Subordinated
Notes, the Discount Notes, the Toggle Loan or our other debt obligations. A default or an
acceleration of payments under our debt obligations could result in a voluntary filing of
bankruptcy by Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates or the
filing of an involuntary petition for bankruptcy against Simmons Bedding, THL-SC, Holdings, Simmons
Holdco or any of our affiliates, which would have the material adverse impacts described above.
The senior credit facility and the indentures related to our debt instruments contain various
covenants which limit managements discretion in the operation of our business.
The senior credit facility and the indentures related to the Subordinated Notes, the Discount
Notes and the Toggle Loan and the existing forbearance agreements related to the senior credit
facility and the Subordinated Notes contain various provisions which limit managements discretion
in managing our business by, among other things, restricting our ability to:
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borrow money; |
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pay dividends on stock or repurchase stock; |
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make certain types of investments and other restricted payments; |
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create liens; |
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sell certain assets or merge with or into other companies; |
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enter into certain transactions with affiliates; |
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sell stock in certain of our subsidiaries; and |
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restrict dividends or other payments from our subsidiaries. |
In addition, the senior credit facility requires Simmons Bedding to meet certain financial
ratios. Covenants in the senior credit facility require Simmons Bedding to use a portion of the
proceeds it receives in specified debt or equity issuances to repay outstanding borrowings under
its senior credit facility.
12
Even if we are able to refinance or extend our indebtedness or enter into a successful
restructuring plan, our substantial indebtedness could still adversely affect our financial health
and reduce the cash available to support our business and operations.
On a consolidated basis, we are currently highly leveraged. As of December 27, 2008, we had
$988.2 million of total indebtedness outstanding and less than $0.1 million available on our
revolving loan under our senior credit facility. Even if we are able to successfully complete a
restructuring, we may still maintain some indebtedness. Any indebtedness could have important
consequences. For example, it could:
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make it more difficult for Simmons to satisfy its obligations with respect to our outstanding debt, and a failure to comply
with any financial and other restrictive covenants could result in an event of default under our debt instruments and
agreements; |
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increase our vulnerability to general adverse economic and industry conditions; |
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require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby
reducing the availability of our cash flow to fund working capital, capital expenditures, acquisitions and investments and
other general corporate purposes; |
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limit our flexibility in planning for, or reacting to, changes in our business and the markets in which we operate; |
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increase our vulnerability to interest rate increases, as borrowings under the senior credit facility and certain other
debt are at variable rates, resulting from financial market conditions, ratings downgrades or other factors; |
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place us at a competitive disadvantage compared to our competitors that have less debt; and |
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limit, among other things, our ability to borrow additional funds. |
In addition, we may be able to incur additional indebtedness in the future. If new debt is
added, the related risks described above could intensify.
Each of Holdings and Simmons Holdco is a holding company with no operations. Each of Holdings
and Simmons Holdco may not have access to the cash flow and other assets of its subsidiaries that
may be needed to make payments on its respective debt obligations.
Holdings is a holding company that conducts no operations. Its primary assets are deferred
financing fees and the capital stock of THL-SC, which in turn is a holding company that conducts no
operations and the only assets of which are the capital stock of Simmons Bedding. Simmons Holdco
is our parent company and it has no material assets other than its ownership of our capital
stock. Operations are conducted through Simmons Bedding and its subsidiaries, and Holdings
ability to make payments on the Discount Notes and Simmons Holdcos ability to make payments on the
Toggle Loan are solely dependent on the earnings and distribution of funds from Simmons Bedding and
its subsidiaries through loans, dividends or otherwise. However, none of Holdings or Simmons
Holdcos subsidiaries is obligated to make capital contributions, dividends, loans or other
payments available to it for payment on the Discount Notes or the Toggle Loan. The terms of the
senior credit facility and the forbearance agreements significantly restrict Simmons Bedding from
paying dividends and otherwise transferring assets to Holdings or to Simmons Holdco, except for
administrative, legal and accounting services. Further, the Subordinated Notes significantly
restrict Simmons Bedding and its subsidiaries from paying dividends to Holdings or to Simmons
Holdco and otherwise transferring assets to Holdings or to Simmons Holdco. Given the restrictions
in Simmons Beddings existing debt instruments, we currently anticipate that, in order to pay
interest on or the principal amount at maturity of the Discount Notes or Toggle Loan, we would be
required to adopt one or more alternatives, such as refinancing all of our indebtedness, selling
our equity securities or the equity securities or assets of Simmons Bedding, or seeking capital
contributions or loans from our affiliates. There can be no assurance that any of the foregoing
actions could be effected as part of the restructuring on satisfactory terms, if at all, or that
any of the foregoing actions would enable us to refinance our indebtedness or pay interest on or
the principal amount of the Discount Notes or Toggle Loan, or that any of such actions would be
permitted by the terms of any other debt instruments of ours or our subsidiaries then in
effect. In addition, it is likely that any restructuring that we would implement would not enable
us to make any further payments on the Discount Notes or Toggle Loan, and as a result, any equity
or debt holder of Simmons Bedding, Holdings or Simmons Holdco could suffer the loss of a
significant part or all of its loan or investment.
13
The actions of Simmons Holdcos controlling stockholder could conflict with the interests of
the holders of our debt.
Simmons Holdcos stockholders include affiliates of THL, affiliates of Fenway Partners and
certain members of our management and directors. As of December 27, 2008, affiliates of THL owned
71.1% of all voting stock. THL has the ability to elect all of the members of our board of
directors, subject to certain voting agreements under our stockholders agreement, appoint new
management and approve any action requiring the approval of our stockholders. The directors have
the corporate authority, subject to any restrictions under our debt and forbearance agreements, to
make decisions affecting our capital structure, including the issuance of additional indebtedness,
the terms of any restructuring and the declaration of dividends. In February 2007, Simmons Holdco
borrowed $300.0 million under the Toggle Loan to distribute $278.3 million to certain of Holdings
then existing stockholders. In 2004, the net proceeds of the issuance of the $269.0 million
aggregate amount of the Discount Notes were used to pay a dividend to stockholders. In addition,
transactions may be pursued that could enhance THLs equity investment while involving risks to our
interests or the interests of our investors. In particular, these and other actions of Simmons
Holdcos controlling stockholder could negatively impact the debt or equity holders of Simmons
Bedding, Holdings or Simmons Holdco.
We are vulnerable to interest rate risk with respect to our debt, which could lead to an
increase in interest expense and reduce our cash available for operations.
We are subject to interest rate risk in connection with our variable rate
indebtedness. Interest rate changes could increase the amount of our interest payments and thus
negatively impact our future earnings and cash flows. Our annual interest expense on our floating
rate indebtedness will increase by $0.5 million for each 1/8th percentage point increase in
interest rates.
Risks Related to Our Business
Deteriorating economic conditions could negatively affect our revenues and profitability.
General U.S. and world economic conditions have weakened significantly, and we expect this
weakness to continue in 2009. The unemployment rate is expected to continue to rise, consumer
confidence and spending, including spending on larger homes or second homes, has decreased
dramatically and the stock market remains extremely volatile. In addition, tightening credit
markets and related interest rate increases for, and limitations on availability of, consumer
credit could negatively impact consumer purchases of our mattresses. Given these expected economic
conditions, it will be more difficult for us to grow revenue and achieve profitability. In the
fourth quarter of 2008, we significantly lowered our projected future operating results for both
our Domestic and Canada reporting units based on deterioration of consumer spending and increased
material costs. In addition, in an economic recession or under other adverse economic conditions,
customers and vendors may be more likely to fail to meet contractual terms or their payment
obligations. Such failures will impact our cash flow and ability to repay our indebtedness. A
further decline in economic conditions may have continued material adverse effect on our business.
We operate in the highly competitive bedding industry, and if we are unable to compete
successfully, we may lose customers and our sales may decline.
The bedding industry is highly competitive. There are approximately 550 bedding manufacturers
in the U.S. The top six manufacturers (including us) accounted for approximately 68% of the
conventional bedding industrys wholesale revenues in 2007 and the top 15 accounted for 81% of
wholesale revenues, according to Furniture/Today, an industry publication. The highly competitive
nature of the bedding industry means we are continually subject to the potential loss of market
share or the inability to gain market share, difficulty in raising prices, and margin
reductions. We may not be able to compete effectively in the future. In addition, some of our
principal competitors may be less highly-leveraged, have greater access to financial or other
resources, have lower cost operations and/or be better able to withstand changing market
conditions.
14
Regulatory requirements relating to our products may increase our costs, alter our
manufacturing processes and impair our product performance.
Our products are and will continue to be subject to regulation in the U.S. and Canada by
various federal, state, provincial and local regulatory authorities. In addition, other
governments and agencies in other jurisdictions regulate the sale and distribution of our
products. Compliance with these regulations may negatively impact our business. For example, the
products manufactured, distributed and sold by the Company come within the scope of several
provisions of the Consumer Product Safety Improvement Act of 2008 (CPSIA), which was signed into
law on August 14, 2008. CPSIA Section 102 requires that as of November 12, 2008, a Certificate of
Compliance (COC) issued by the manufacturer accompany all products subject to regulation by the
CPSC, that the COC be provided to all distributors and retailers to whom such regulated product is
shipped, and that the COC be available for inspection upon request of the CPSC. All of the
products subject to regulation by the CPSC that we manufacture were accompanied by a COC in advance
of the November 12, 2008 deadline, and we are able to produce the COCs upon request, in accordance
with current federal law. Further, CPSIA Section 101 establishes limitations on the levels of lead
that may be present in certain products intended for use by children; similarly, CPSIA Section 108
regulates the levels of certain phthalates which may be present in certain products intended for
use by children. Many of the juvenile products manufactured or distributed by us are subject to and
comply with these regulations. We are currently preparing to meet the requirements of CPSIA
Section 104, which final rule is to be issued August 14, 2009. CPSIA Section 104 will require
registration of certain childrens products. We will continue to monitor rulemaking by the CPSC
and to work toward compliance with additional requirements of the CPSIA, particularly with respect
to juvenile products sold by us, and expect to be in full compliance in advance of the respective
effective dates. We incurred and will continue to incur significant costs related to the new
standards. In addition, the CPSC and other regulatory agencies may also adopt new laws, rules and
regulations relating to other standards. Our product solutions will not necessarily meet all
future standards. Compliance with such new laws, rules and regulations may increase our costs,
alter our manufacturing processes and impair the performance of our products. Further, any
bankruptcy filing by or against us could adversely affect our ability to comply with new laws,
rules or regulations on a timely basis.
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Legal and regulatory requirements may impose costs or charges on us that impair our business
and reduce our profitability.
Our marketing and advertising practices could become the subject of proceedings before
regulatory authorities or the subject of claims by other parties which could require us to alter or
end these practices or adopt new practices that are not as effective or are more expensive. In
addition, our operations are subject to federal, state, provincial and local laws and regulations
relating to pollution, environmental protection, occupational health and safety and labor and
employee relations. We may not be in complete compliance with all such requirements at all
times. Under various environmental laws, we may be held liable for the costs of remediation of
releases of hazardous substances at any properties currently or previously owned or operated by us
or at any site to which we sent hazardous substances for disposal. Such liability may be imposed
without fault, and the amount of such liability could be material. We are subject to investigation
under various labor and employment laws and regulations by both governmental entities and employees
and former employees. Should liability be imposed as a result of such activity, particularly in
the context of class or multi-plaintiff litigation, our profitability could be reduced. Further,
any bankruptcy filing by or against us or our affiliates would result in significant expense for
legal counsel and professional advisors.
Our new product launches may not be successful, which could cause a decline in our market
share and our level of profitability.
Each year we invest significant time and resources in research and development to improve our
product offerings. In addition, we incur increased costs in the near term associated with the
introduction of new product lines, including training of our employees in new manufacturing, sales
processes, and the production and placement of new floor samples for our customers. We are subject
to a number of risks inherent in new product introductions, including development delays, failure
of new products to achieve anticipated levels of market acceptance, and costs associated with
failed product introductions. In addition, we have a limited ability to increase prices on
existing products, and any failure of new product introductions may reduce our ability to sell our
products at appropriate price levels. Further, any bankruptcy filing by or against us or our
affiliates could adversely affect our ability to improve our product offerings.
We may experience further fluctuations in our operating results due to seasonality, which
could make sequential quarter to quarter comparison an unreliable indication of our performance.
We have historically experienced and expect to continue to experience seasonal and quarterly
fluctuations in net sales and operating income. Our third quarter sales are typically higher than
our other fiscal quarters. We attribute this seasonality principally to retailers sales
promotions related to the 4th of July and Labor Day holidays. This seasonality means that
a sequential quarter to quarter comparison may not be a good indication of our performance or how
we will perform in the future.
We rely on a relatively small number of suppliers and third-party providers, and if we
experience difficulty with a major supplier or a major third-party provider, we may have difficulty
finding alternative sources. This could disrupt our business.
We purchase substantially all of our conventional bedding raw materials centrally to obtain
volume discounts and achieve economies of scale. We obtain a large percentage of our raw materials
from a small number of suppliers. For the year ended December 27, 2008, we purchased approximately
74% of our raw materials from ten suppliers. As a result of the current economic climate, our
suppliers have experienced and may in the future experience disruptions in their relationships with
their suppliers, which disrupt their ability to provide us with requisite supplies and negatively
impact our manufacturing. Any future supply disruptions could adversely affect our ability to
manufacture our products and sales.
We have supply agreements with several suppliers including L&P, Foamex, and National Standard
Company. However, there is no guarantee that we will be able to renew these agreements. With the
exception of certain products of L&P, Foamex and National Standard Company, we believe that we can
readily replace our supply, if or when the need arises, within 90 days as we have already
identified and use alternative resources.
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L&P supplies the majority of certain bedding components (including certain spring components,
insulator pads, wire, fiber, quilt backing and flange material) to the U.S. bedding industry. In
2008, we purchased approximately 30% of our raw materials from L&P. To ensure an adequate supply
of various components, we have entered into agreements with L&P, generally expiring in the year
2010, for the supply of certain spring components. Among other things, these agreements generally
require us to purchase a majority of our requirements of several components from L&P. National
Standard Company is our exclusive supplier for the stranded wire used in our Advanced Pocketed
Coil products. Foamex is our exclusive supplier for NxG visco-foam used in all
of our Comforpedic® and Beautyrest NxG products.
Because we may not be able to find alternative sources for some of these components on terms
as favorable to us as we currently receive, or at all, our business, financial condition and
results of operations could be impaired if we lose L&P, Foamex or National Standard Company as a
supplier. Further, if we do not reach committed levels of purchases, various additional payments
could be required to be paid to L&P, and certain sales volume rebates or exclusivity to certain
products could be lost.
Additionally, our domestic operations primarily utilize two third-party logistics providers
which, in the aggregate, accounted for approximately 62% of our outbound wholesale shipments for
the year ended December 27, 2008.
Any bankruptcy filing by or against us or our affiliates could adversely affect our ability to
obtain new or maintain existing relationships with suppliers and third-party providers. Any
instability of, or change in our relationship with, these providers could materially disrupt our
business.
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We are subject to fluctuations in the cost and availability of raw materials, which could
increase our costs or disrupt our production.
The major raw materials that we purchase for production are foam, wire, spring components,
lumber, cotton, insulator pads, innersprings, foundation constructions, fabrics and roll goods
consisting of fiber, ticking and non-wovens. The price and availability of these raw materials, as
well as the cost of fuel to transport our products to market, are subject to market conditions
affecting supply and demand. Our material costs continue to be impacted by the higher prices for
steel and petroleum based products, which principally affects the cost of foam, innerspring and
foundation components. During 2007 and 2008, the cost of these components remained elevated above
historical averages. Further, the price of lumber we obtain from Canada has increased as a result
of increased tariffs and may increase due to adverse fluctuations in exchange rates. Additionally,
during 2007 and 2008, our distribution costs were negatively impacted by the rapid rise in diesel
prices. Our financial condition and results of operations may be impaired by further increases in
raw material and diesel costs to the extent we are unable to pass those higher costs on to our
customers. In addition, if these materials are not available on a timely basis or at all, we may
not be able to produce our products, and our sales may decline.
Because we depend on our significant customers, a decrease or interruption in their business
with us could reduce our sales and profits.
Our top five customers collectively accounted for approximately 26% of our bedding shipments
for the year ended December 27, 2008. Most of our customer arrangements are by purchase order or
are terminable at will. Several of our customer arrangements are governed by long-term supply
agreements. A substantial decrease or interruption in business from our significant customers
could result in a reduction in net sales, an increase in bad debt expense or the loss of future
business, any of which could impair our business, financial condition or results of
operations. Additionally, the expiration of a long-term supply agreement could result in the loss
of future business, or the payment of additional amounts to secure a contract renewal or an
increase in required advertising support, any of which could impair our business, financial
condition or results of operations. Further, if our customers seek bankruptcy protection, they
could act to terminate all or a portion of their business with us, originate new business with our
competitors and terminate or assign our long-term supply agreements, which could impair our results
of operations. Any loss of revenue from our major customers, including the non-payment or late
payment of our invoices, could materially adversely affect our business, results of operations and
financial condition.
Retailers may, and in the past some of our retailers did, consolidate, undergo restructurings
or reorganizations, or realign their affiliations. These events may result, and have temporarily
resulted, in a decrease in the number of stores that carry or carried our products, an increase in
the ownership concentration in the retail industry, and/or our being required to record significant
bad debt expense. Retailers may decide to carry only a limited number of brands of mattress
products, which could affect our ability to sell our products to them on favorable terms, if at
all, and could negatively impact our business, financial condition or results of operations. Any
bankruptcy by or against us or our affiliates could adversely affect our relationship with
retailers, which could impair our business, financial condition or results of operations.
If our cost cutting measures are not successful, we may become less competitive.
A variety of factors could prevent us from achieving our goal of better aligning our product
offerings and cost structure with customer needs in the current business environment through
reducing our operating expenses and eliminating redundancies. For example, our efforts to
consolidate our plants could cause our other facilities to have to operate above optimal capacity
and could increase distribution expenses. If we receive unanticipated orders, these incremental
volumes could be unprofitable due to the higher costs of operating above our optimal capacity. In
addition, we may not be able to sufficiently increase capacity to meet any increased demand. As a
result, we may not achieve our expected cost savings in the time anticipated, or at all. In such
case, our results of operations and profitability may be negatively impacted, making us less
competitive and potentially causing us to lose market share.
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A change or deterioration in labor relations or the inability to renew our collective
bargaining agreements could disrupt our business operations and increase our costs, which could
negatively impact sales and decrease our profitability.
At eight of our 21 manufacturing facilities our employees (approximately 56% of our workforce)
are represented by various labor unions with separate collective bargaining agreements. Our
collective bargaining agreements are typically negotiated for two- to five-year terms. We may not
be able to renew these contracts on a timely basis or on favorable terms. It is possible that
labor union efforts to organize employees at additional non-union facilities may be successful. It
is also possible that we may experience labor-related work stoppages in the future. Any of these
developments could disrupt our business operations or increase costs, which could negatively impact
our sales and profitability.
The loss of the services of any member of our executive leadership team could impair our
ability to execute our business strategy and negatively impact our business, financial condition
and results of operations.
We depend on the continued services of our executive leadership team, including Stephen
Fendrich, our President and Chief Operating Officer; Dominick Azevedo, our Executive Vice President
Sales; William Creekmuir, our Executive Vice President and Chief Financial Officer; Kristen
McGuffey, our Executive Vice President and General Counsel; Timothy Oakhill, our Executive Vice
President Marketing and Licensing; and Kimberly Samon, our Executive Vice President Human
Resources. The loss of any of our key officers could impair our ability to execute our business
strategy and negatively impact our business, financial condition and results of operations. We
have non-compete agreements with our executive leadership team. We do not carry key man insurance
for any of our management executives. Any bankruptcy filing by or against us or our affiliates
could adversely affect our ability to retain and motivate our executive leadership team or other
key employees.
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Our international operations are subject to foreign exchange, tariff and tax risks and our
ability to expand in certain international markets is limited by the terms of licenses we have
granted to manufacture and sell Simmons products.
We currently conduct significant operations in Canada. Our Canadian operations are subject to
fluctuations in currency exchange rates, the potential imposition of trade restrictions, and tariff
and other tax increases. We have also limited our ability to independently expand in certain
international markets where we have granted licenses to manufacture and sell Simmons
products. Fluctuations in the currency exchange rate between the U.S. dollar and the Canadian
dollar may affect our shareholders equity and our financial condition or results of operations. In
addition, as a result of a recent tax treaty between the United States and Canada, the withholding
tax on transfers of cash from our Canadian operations to our U.S. operations has increased
substantially which could impact our results of operations.
We have substantial funds held at few financial institutions that exceed the insurance
coverage offered by the FDIC, the loss of which would have a severe negative affect on our
operations and liquidity.
As of December 27, 2008, we had approximately $54.9 million held in accounts at few financial
institutions in the United States, Canada and Puerto Rico. Although the FDIC insures deposits in
banks and thrift institutions up to $250,000 per eligible account, the amount that we have
deposited at these banks substantially exceeds the FDIC limit. If any of the financial
institutions where we have deposited funds were to fail, we may lose some or all of our deposited
funds that exceed the FDICs $250,000 insurance coverage limit. Such a loss would have a severe
negative effect on our operations and liquidity.
We have retirement plans that are currently under funded and we will be required to make cash
payments to the plans, reducing the cash available for our business.
We have a registered combined non-contributory defined benefit and defined contribution
pension plan for substantially all of the employees of Simmons Canada and a retirement compensation
arrangements (RCA) for certain senior officials of Simmons Canada. As of December 27, 2008, the
projected benefit obligation exceeded the fair value of the plan assets of the defined benefit
segment of the pension plan (Pension Plan) by $2.9 million. As of December 27, 2008, the fair
value of the plan assets exceeded the projected benefit obligation of the RCA by $0.7 million. We
expect to make estimated minimum funding contributions totaling approximately $1.1 million in 2009
related to the Pension Plan. No contributions are expected for the RCA in 2009. We also have
unfunded supplemental executive retirement plans (SERP) for certain former executives. As of
December 27, 2008, we had a liability of $3.1 million related to the SERP and anticipate making
contributions to the SERP of $0.2 million in 2009. If the performance of the assets in the Pension
Plan do not meet our expectations, or if other actuarial assumptions are modified, our future cash
payments to the Pension Plan could be higher than we expected.
If we are not able to protect or maintain our trademarks, patents, trade secrets and other
intellectual property, we may not be able to prevent competitors from developing similar products
or from marketing in a manner that capitalizes on our trademarks, patents and other intellectual
property.
Brands and branded products are very important to our business. We have a large number of
well-known trademarks and service marks registered in the U.S., Canada and abroad, and we continue
to pursue many pending applications to register marks domestically and internationally. We also
have a significant portfolio of patents and patent applications that have been issued or are being
pursued both domestically and abroad. In addition, certain marks, trade secrets, know-how and
other proprietary materials that we use in our business are not registered or subject to patent
protection. Our intellectual property is important to the design, manufacture, marketing and
distribution of our products and services.
To compete effectively with other companies, we must maintain the proprietary nature of our
owned and licensed intellectual property and maintain our trade secrets, know-how and other
proprietary materials. Despite our efforts, we cannot eliminate the following risks:
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it may be possible for others to circumvent our trademarks and service marks, patents and other rights; |
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our products and promotional materials, including trademarks, service marks, may now or in the future violate the
proprietary rights of others; |
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we may be prevented from using our own trademarks, service marks, product designs or manufacturing technology, if
challenged; |
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it may be cost prohibitive to enforce or defend our trademarks, service marks, patents and other rights; |
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our pending applications regarding trademarks, service marks and patents may not result in marks being registered or
patents being issued; |
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we may be unable to protect our technological advantages when our patents expire; and |
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our trade secrets, know-how and other proprietary materials may be revealed to the public or our competitors and no longer
provide protection for the related intellectual property. |
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The nature and value of our intellectual property may be affected by a change in law
domestically or abroad. In light of the political and economic circumstances in certain foreign
jurisdictions, our rights may not be enforced or enforceable in foreign countries even if they are
validly issued or registered.
While we do not believe that our overall success depends upon any particular intellectual
property rights, any inability to maintain the proprietary nature of our intellectual property
could have a material negative effect on our business. For example, an action to enforce our
rights, or an action brought by a third party challenging our rights, could impair our financial
condition or results of operations, either as a result of a negative ruling with respect to our
use, the validity or enforceability of our intellectual property or through the time consumed and
legal costs involved in bringing or defending such an action.
We may face exposure to product liability claims, which could reduce our liquidity and
profitability and reduce consumer confidence in our products.
We face an inherent business risk of exposure to product liability claims if the use of any of
our products results in personal injury or property damage. In the event that any of our products
prove to be defective or if they are determined not to meet state or federal legal requirements, we
may be required to recall or redesign those products, which could be costly and impact our
profitability. We maintain insurance against product liability claims, but such coverage may not
continue to be available on terms acceptable to us and such coverage may not be adequate to cover
types of liabilities actually incurred. A successful claim brought against us if not fully covered
by available insurance coverage, or any claim or product recall that results in significant adverse
publicity against us, could have a material negative effect on our business and/or result in
consumers purchasing fewer of our products, which could also reduce our liquidity and
profitability.
An increase in our return rates or an inadequacy in our warranty reserves could reduce our
liquidity and profitability.
Our return rates may not remain within our historical levels. An increase in return rates
could significantly impair our liquidity and profitability. We also generally provide our
customers with a limited warranty against manufacturing defects on our conventional innerspring and
specialty bedding products of ten and 20 to 25 years, respectively. Our juvenile bedding products
generally have warranty periods ranging from five years to a lifetime. The historical costs to us
of honoring warranty claims have been within managements expectations. However, as we have
released new products in recent years, many new products are fairly early in their product life
cycles. Because our products have not been in use by our customers for the full warranty period,
we rely on the combination of historical experience and product testing for the development of our
estimate for warranty claims. However, our actual level of warranty claims could prove to be
greater than the level of warranty claims we estimated based on our products performance during
product testing. We have also experienced non-warranty returns for reasons generally related to
order entry errors, shipping damage, and to accommodate customers. If our warranty and
non-warranty reserves are not adequate to cover future claims, their inadequacy could reduce our
liquidity and profitability.
Additional terrorist attacks in the U.S. or against U.S. targets or actual or threats of war
or the escalation of current hostilities involving the U.S. or its allies could negatively impact
our business, financial condition or results of operations.
Additional terrorist attacks in the U.S. or against U.S. targets, or threats of war or the
escalation of current hostilities involving the U.S. or its allies, or military or trade
disruptions impacting our domestic or foreign suppliers of components of our products, may impact
our operations, including, but not limited to, causing supply chain disruptions and decreased sales
of our products. These events could also cause an increase in oil or other commodity prices, which
could adversely affect our raw materials or transportation costs. More generally, any of these
events could cause consumer confidence and spending to decrease. These events also could cause or
act to prolong an economic recession in the U.S. or abroad. Any of these occurrences could have a
significant impact on our business, financial condition or results of operations.
An outbreak of swine flu or a pandemic, or the threat of a pandemic, may adversely impact our
ability to produce and deliver our products or may adversely impact consumer demand.
A significant outbreak of swine flu, or a similar pandemic, or even a perceived threat of such
an outbreak, could cause significant disruptions to our supply chain, manufacturing capability,
corporate support infrastructure or distribution system that could adversely impact our ability to
produce and deliver products. Similarly, such events could cause significant adverse impacts on
consumer confidence and consumer demand generally. Any of these occurrences could have a
significant impact on our business, financial condition or results of operations.
|
|
|
ITEM 1B. |
|
UNRESOLVED STAFF COMMENTS. |
None.
21
Our corporate offices are located at One Concourse Parkway, Atlanta, Georgia 30328. We also
maintain corporate offices in Ontario, Canada for our Canadian operations and a research and
development facility in Atlanta, Georgia. The following table sets forth selected information
regarding our manufacturing facilities as of December 27, 2008 (square footage in thousands):
|
|
|
|
|
|
|
|
|
SQUARE |
|
|
|
LOCATIONS |
|
FOOTAGE |
|
|
Title |
United States |
|
|
|
|
|
|
Agawam, Massachusetts (Springfield) |
|
|
129.0 |
|
|
Leased |
Aurora, Colorado (Denver) |
|
|
129.0 |
|
|
Leased |
Charlotte, North Carolina |
|
|
175.0 |
|
|
Leased |
Compton, California (Los Angeles) |
|
|
223.4 |
|
|
Leased |
DFW Airport, Texas (Dallas) |
|
|
213.0 |
|
|
Leased |
Fredericksburg, Virginia |
|
|
128.5 |
|
|
Leased |
Hazleton, Pennsylvania |
|
|
214.8 |
|
|
Leased |
Honolulu, Hawaii |
|
|
63.3 |
|
|
Leased |
Janesville, Wisconsin |
|
|
290.2 |
|
|
Owned |
Mableton, Georgia (Atlanta) (2) |
|
|
148.3 |
|
|
Leased |
Neenah, Wisconsin (1) |
|
|
40.0 |
|
|
Leased |
Salt Lake City, Utah |
|
|
77.5 |
|
|
Leased |
San Leandro, California |
|
|
257.0 |
|
|
Leased |
Shawnee Mission, Kansas (Kansas City) |
|
|
130.0 |
|
|
Owned |
Sumner, Washington (Seattle) |
|
|
150.0 |
|
|
Leased |
Tolleson, Arizona (Phoenix) |
|
|
103.4 |
|
|
Leased |
Waycross, Georgia |
|
|
217.5 |
|
|
Owned |
York, Pennsylvania (1) |
|
|
29.0 |
|
|
Leased |
|
|
|
|
|
|
|
Canada |
|
|
|
|
|
|
Kirkland, Quebec |
|
|
157.4 |
|
|
Leased |
Bramalea, Ontario (2) |
|
|
227.1 |
|
|
Leased |
Calgary, Alberta |
|
|
130.0 |
|
|
Owned |
Delta, British Columbia |
|
|
76.2 |
|
|
Leased |
|
|
|
|
|
|
|
Puerto Rico |
|
|
|
|
|
|
Trujillo Alto, Puerto Rico |
|
|
50.0 |
|
|
Owned |
|
|
|
|
|
|
|
|
|
3,359.6 |
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
These facilities only manufacture juvenile products. |
|
(2) |
|
The Bramalea, Ontario and Mableton, Georgia facilities ceased production in August and
September 2008, respectively. The Mableton, Georgia facility lease expired on May 31, 2009 and the
Bramalea, Ontario facility lease will expire on August 31, 2012. |
We believe that our facilities, taken as a whole, have adequate productive capacity and
sufficient manufacturing equipment to conduct business at levels exceeding current demand.
In addition, as of December 27, 2008, we operated seven retail outlet stores through our World
of Sleep subsidiary. In the first quarter of 2009, we closed one of the retail outlet stores.
|
|
|
ITEM 3. |
|
LEGAL PROCEEDINGS. |
From time to time, we have been involved in various legal proceedings. In November
2008, three former employees filed a wrongful dismissal class action against our subsidiary,
Simmons Canada Inc., on behalf of themselves and a proposed class comprised of the unionized former
employees who were terminated as a result of our closure of our Bramalea, Ontario facility in
September 2008. We have entered into tentative settlement agreements with the plaintiffs, however,
the agreement will not be final until certain conditions are met, including plaintiffs obtaining
leave of court to dismiss the case. Based on the settlement agreements, we have recognized an
expense which is included as restructuring charges on our 2008 consolidated statement of operations
and comprehensive income. With the exception of this matter, we believe that all current
litigation is routine in nature, incidental to the conduct of our business and not material.
|
|
|
ITEM 4. |
|
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS. |
Not applicable.
22
PART II
|
|
|
ITEM 5. |
|
MARKET FOR REGISTRANTS COMMON EQUITY AND RELATED STOCKHOLDER MATTERS. |
There is no established public trading market for any class of our common equity. As of
December 27, 2008, there was one holder of record for our common stock. As of December 27, 2008,
there were 56 holders of record of class A common stock and 115 holders of record of class B common
stock of Simmons Holdco, which owns 100% of our common stock.
During 2007, Simmons Holdco paid $278.3 million of merger consideration to then existing class
A stockholders. Any payment of future dividends or distributions and the amounts thereof will be
dependent upon our earnings, fiscal requirements and other factors deemed relevant by our board of
directors. Our ability to pay dividends is restricted by the terms of the forbearance agreements,
senior credit facility, Discount Notes and Subordinated Notes.
|
|
|
ITEM 6. |
|
SELECTED FINANCIAL DATA. |
SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OTHER OPERATING DATA
Set forth below is our selected historical consolidated financial and other operating
data. We derived our historical statement of operations and balance sheet data for 2004, 2005,
2006, 2007 and 2008 from our audited consolidated financial statements.
As a result of the SCUSA Disposition and Canada Acquisition, the historical consolidated
financial and other data for the periods presented exclude SCUSAs operating results for the
periods subsequent to August 2006 and include Simmons Canadas operating results for the periods
subsequent to November 2006.
The accompanying selected historical consolidated financial and other operating data contain
all adjustments that, in the opinion of management, are necessary to present fairly our financial
position for the periods presented. All adjustments in the periods presented herein are normal and
recurring in nature unless otherwise disclosed. The information presented below should be read in
conjunction with our Managements Discussion and Analysis of Financial Condition and Results of
Operations, and our audited consolidated financial statements and related notes and other
financial information appearing elsewhere herein.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended |
|
|
|
Dec. 27, |
|
|
Dec. 29, |
|
|
Dec. 30, |
|
|
Dec. 31, |
|
|
Dec. 25, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
|
(52 Weeks) |
|
|
(52 Weeks) |
|
|
(52 Weeks) |
|
|
(53 Weeks) |
|
|
(52 Weeks) |
|
|
|
(Amounts in millions) |
|
Statement of Operations Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
1,028.7 |
|
|
$ |
1,126.8 |
|
|
$ |
961.6 |
|
|
$ |
855.3 |
|
|
$ |
869.9 |
|
Cost of goods sold (1) |
|
|
648.8 |
|
|
|
676.3 |
|
|
|
544.2 |
|
|
|
488.1 |
|
|
|
477.1 |
|
Selling, general and administrative expenses (1) |
|
|
328.9 |
|
|
|
346.2 |
|
|
|
311.1 |
|
|
|
293.6 |
|
|
|
309.6 |
|
Amortization of intangibles |
|
|
6.3 |
|
|
|
6.1 |
|
|
|
5.7 |
|
|
|
5.7 |
|
|
|
4.9 |
|
Goodwill and trademark impairments (2) |
|
|
547.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on the sale of Sleep Country USA |
|
|
|
|
|
|
|
|
|
|
(43.3 |
) |
|
|
|
|
|
|
|
|
Other (3) (4) |
|
|
0.7 |
|
|
|
(10.0 |
) |
|
|
(7.9 |
) |
|
|
(8.5 |
) |
|
|
(1.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
(503.6 |
) |
|
|
108.3 |
|
|
|
152.0 |
|
|
|
76.3 |
|
|
|
79.5 |
|
Interest expense |
|
|
73.5 |
|
|
|
76.2 |
|
|
|
81.2 |
|
|
|
70.7 |
|
|
|
44.3 |
|
Interest income |
|
|
(0.4 |
) |
|
|
(0.5 |
) |
|
|
(1.3 |
) |
|
|
(0.3 |
) |
|
|
(0.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
(576.7 |
) |
|
|
32.6 |
|
|
|
72.0 |
|
|
|
5.9 |
|
|
|
35.3 |
|
Income tax expense (benefit) |
|
|
(84.5 |
) |
|
|
8.7 |
|
|
|
24.4 |
|
|
|
2.6 |
|
|
|
11.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
(492.2 |
) |
|
$ |
23.9 |
|
|
$ |
47.6 |
|
|
$ |
3.3 |
|
|
$ |
23.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Working capital (5) |
|
$ |
34.5 |
|
|
$ |
11.7 |
|
|
$ |
6.4 |
|
|
$ |
17.0 |
|
|
$ |
18.0 |
|
Cash and cash equivalents |
|
|
54.9 |
|
|
|
27.5 |
|
|
|
20.8 |
|
|
|
24.6 |
|
|
|
24.2 |
|
Total assets (2) (6) (7) |
|
|
890.8 |
|
|
|
1,477.7 |
|
|
|
1,373.7 |
|
|
|
1,280.8 |
|
|
|
1,307.3 |
|
Total debt |
|
|
988.2 |
|
|
|
901.5 |
|
|
|
896.8 |
|
|
|
907.8 |
|
|
|
917.7 |
|
Total common stockholders equity (deficit) (6)
(7) |
|
|
(362.3 |
) |
|
|
188.2 |
|
|
|
149.9 |
|
|
|
104.3 |
|
|
|
102.8 |
|
|
|
Other Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA (8) |
|
$ |
84.2 |
|
|
$ |
139.4 |
|
|
$ |
182.0 |
|
|
$ |
104.3 |
|
|
$ |
102.7 |
|
Non-cash stock compensation expense |
|
|
(0.4 |
) |
|
|
0.1 |
|
|
|
0.8 |
|
|
|
|
|
|
|
3.3 |
|
Transaction
related expenditures, including
cost of products sold |
|
|
1.4 |
|
|
|
4.6 |
|
|
|
1.7 |
|
|
|
0.6 |
|
|
|
8.8 |
|
Financial restructuring charges |
|
|
4.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating restructuring charges |
|
|
16.4 |
|
|
|
|
|
|
|
|
|
|
|
0.3 |
|
|
|
13.5 |
|
Management fees |
|
|
1.8 |
|
|
|
1.7 |
|
|
|
1.7 |
|
|
|
1.6 |
|
|
|
1.7 |
|
Capital expenditures |
|
|
17.1 |
|
|
|
25.1 |
|
|
|
13.6 |
|
|
|
6.8 |
|
|
|
18.2 |
|
23
|
|
|
(1) |
|
Certain general and administrative costs were reclassified from selling, general
and administrative expenses to cost of products sold. Selling, general and administrative expense
decreased and cost of products sold increased $5.4 million and $4.8 million for 2005 and 2004,
respectively. |
|
(2) |
|
In the fourth quarter of fiscal 2008, we significantly lowered our projected future
operating results for both our Domestic and Canada reporting units based on deterioration of
consumer spending and increased material costs. Based on the lower projected future operating
results, we determined that the forecasted earnings and cash flows of the reporting units no longer
supported their goodwill and trademark carrying values. As a result, non-cash pretax goodwill and
trademark impairment charges were recognized for our Domestic reporting unit of $294.0 million and
$225.8 million, respectively, and non-cash pretax goodwill and trademark impairment charges were
recognized for our Canada reporting unit of $9.9 million and $17.9 million, respectively. |
|
(3) |
|
Includes the following items to the extent applicable for the periods presented: stock
based compensation expense, restructuring charges, transaction expense, and licensing revenues. |
|
(4) |
|
In the first quarter of fiscal 2006, we adopted Statement of Financial Accounting Standard
(SFAS) No. 123 (revised 2004), Share-Based Payments (SFAS 123R). Under SFAS 123R, the fair
value of our stock-based compensation awards on the date of grant are recognized as an expense
over the vesting period. Prior to the adoption of SFAS 123R, we used the intrinsic value method
to account for our stock based awards for our employees and directors in accordance with
Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees (APB 25),
as permitted by SFAS No. 123, Accounting for Stock-Based Compensation. Under APB 25,
compensation cost was measured at the date of grant as the excess of the fair value of the award
over the purchase price and recognized as an expense over the vesting period. Upon adoption of
SFAS 123R, we made a one-time cumulative adjustment of less than $0.1 million to record an
estimate of future forfeitures on all outstanding restricted stock awards. |
|
(5) |
|
Defined as current assets (excluding cash and assets held for sale), less current
liabilities (excluding current maturities of long-term debt and liabilities held for sale). |
|
(6) |
|
In the first quarter of 2007, we adopted FASB Interpretation 48, Accounting for Uncertainty
in Income Taxes (FIN 48). FIN 48 prescribes a recognition threshold and measurement criteria
for the financial statement recognition and measurement of a tax position taken or expected to
be taken in a tax return. FIN 48 also provides guidance on derecognition, classification,
interest and penalties, accounting in interim periods, disclosure and transition. As a result
of the adoption of FIN 48, we recognized an $18.3 million increase in our liability for
uncertain tax positions. This was accounted for as a decrease in retained earnings of $2.2
million, and increases in goodwill and deferred tax assets of $12.6 million and $3.5 million,
respectively. |
|
(7) |
|
In the fourth quarter of 2007, we adopted Statement of Financial Accounting Standards No.
158, Employers Accounting for Defined Benefit Pension and Other Postretirement Plans an
amendment of FASB Statements No. 87, 88, 106 and 132(R) (SFAS 158). SFAS 158 requires the
recognition of the overfunded or underfunded status of a defined benefit post retirement plan as
an asset or liability on the Companys balance sheet and the recognition of changes in the
funded status in the year in which the changes occur through comprehensive income. SFAS 158
also requires the measurement of the funded status of a plan as of the date of the Companys
year end balance sheet. This pronouncement does not require prior periods to be restated to
reflect the impact of SFAS 158. The Company adopted SFAS 158 on December 29, 2007. The
adoption of the pronouncement reduced accumulated other comprehensive income by $0.4 million and
did not impact the Companys results of operations or cash flows. |
|
(8) |
|
Earnings before interest, taxes, depreciation and amortization (EBITDA) is a non-GAAP
financial measure that we define as net income before interest expense, income taxes,
depreciation, amortization and impairment charges. We use EBITDA, adjusted for other unusual,
non-cash or non-recurring items, as a tool to measure our operating performance and, after
applying various adjustments, as a basis for determining the following: |
|
|
the allocation of our resources; |
|
|
|
the return on investment of acquisitions and major cash expenditures; |
|
|
|
the compensation of our management; |
|
|
|
the vesting of our restricted stock and stock options; |
|
|
|
the valuation of our common stock; and |
|
|
|
our compliance with debt covenants. |
24
We use EBITDA as a tool for measuring our operating performance because we are and have
historically had a highly-leveraged capital structure which results in significant interest
expense and minimal cash tax expense. We believe EBITDA provides useful information to the
holders of our notes and security analysts by assisting them in making informed investment
decisions as we have historically been valued and sold based upon multiples of EBITDA. EBITDA
differs from Adjusted EBITDA, which is defined by our senior credit facility (see Managements
Discussion and Analysis of Financial Condition and Results of Operations Liquidity and Capital
Resources).
EBITDA has important limitations as an analytical tool, and should not be considered in
isolation or as a substitute for analysis of our results as reported under GAAP. For example,
EBITDA does not reflect:
|
|
our cash expenditures, or future requirements, for capital expenditures or contractual commitments; |
|
|
|
changes in, or cash requirements for, our working capital needs; |
|
|
|
the significant interest expense, or the cash requirements necessary to service interest or principal payments, on our
debts and Simmons Holdco debts; |
|
|
|
tax payments that represent a reduction in cash available to us; and |
|
|
|
any cash requirements for the assets being depreciated and amortized that may have to be replaced in the future. |
Because of these and other limitations, we report our results under GAAP and use EBITDA to
measure our performance. The following table presents for the periods set forth below a
reconciliation of our net income (loss) to EBITDA (amounts in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended |
|
|
|
Dec. 27, |
|
|
Dec. 29, |
|
|
Dec. 30, |
|
|
Dec. 31, |
|
|
Dec. 25, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
(492.2 |
) |
|
$ |
23.9 |
|
|
$ |
47.6 |
|
|
$ |
3.3 |
|
|
$ |
23.8 |
|
Depreciation and amortization |
|
|
39.9 |
|
|
|
30.6 |
|
|
|
28.7 |
|
|
|
27.7 |
|
|
|
23.1 |
|
Goodwill and trademark impairments |
|
|
547.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes |
|
|
(84.5 |
) |
|
|
8.7 |
|
|
|
24.4 |
|
|
|
2.6 |
|
|
|
11.5 |
|
Interest expense |
|
|
73.5 |
|
|
|
76.2 |
|
|
|
81.2 |
|
|
|
70.7 |
|
|
|
44.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA |
|
$ |
84.2 |
|
|
$ |
139.4 |
|
|
$ |
182.0 |
|
|
$ |
104.3 |
|
|
$ |
102.7 |
|
25
|
|
|
ITEM 7. |
|
MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. |
OVERVIEW
We are one of the worlds largest mattress manufacturers, manufacturing and marketing a broad
range of products under our well-recognized brand names. The majority of our products are
conventional innerspring mattresses and foundations that utilize our Pocketed Coil® and
Advanced Pocketed Coil technologies and are marketed under our Beautyrest®,
Beautyrest Studio, Beautyrest Black®, and Beautyrest NxG brand
names. In addition, we manufacture and market open coil innerspring products under our
DeepSleep® and BeautySleep® brand names, specialty (non-innerspring)
visco-elastic products that utilize a patented NxG Advanced Memory Foam under our
ComforPedic by Simmons brand name and specialty products made from natural latex foam
under our Natural Care® brand name. We manufacture, sell and distribute our premium
branded bedding products principally to retail and hospitality customers throughout the U.S. and
Canada. Additionally, we license our intellectual property to international companies that
manufacture and sell our premium branded bedding products throughout the world and to U.S. and
Canadian manufacturers and distributors of bedding accessories, furniture, water beds, airbeds and
other products. We sell products through a diverse North American base of approximately 3,300
retailers, representing over 15,500 outlets, including furniture stores, specialty sleep shops,
department stores, furniture rental stores, mass merchandisers and juvenile specialty stores.
In November 2006, we purchased Simmons Canada, a former licensee of Simmons and one of the
largest bedding manufacturers in Canada. In August 2006, we sold our specialty sleep retail
stores, SCUSA, and now operate only as a manufacturer and distributor of bedding products
principally to retailers or hospitality customers. Following the acquisition of Simmons Canada and
disposition of SCUSA, we have two reportable segments organized by geographic area, Domestic (U.S.
including Puerto Rico) and Canada. In 2008, we derived approximately 87.6% of our net sales from
our Domestic segment.
In June 2007, we also expanded our specialty bedding platform by acquiring the
ComforPedic® brand of specialty mattresses and pillows which utilize NxG
Advanced Memory Foam. Also during 2007, we re-engineered all of our products to be compliant with
the CPSCs new open flame resistance standard for the bedding industry that went into effect on
July 1, 2007 and rolled the new compliant products out to our customers during the first half of
2007. In the process, we incurred $6.7 million of one-time manufacturing costs related to the
conversion and the rollout of new products, including inefficiencies that occurred as a result of
the disruption of our production processes. Our re-engineered products have added flame-retardant
materials which have increased the costs our products. Additionally, we incurred $19.2 million of
incremental selling costs (floor sample discounts, marketing materials, etc.) in comparison to 2006
related to the rollout of our new products to our customers.
During 2008, our Domestic conventional bedding net sales decreased $94.2 million, or 9.4%,
compared to 2007. We attribute the decrease to an overall mattress industry downturn as a result of
slowing consumer spending.
Our material costs continued to be impacted by the higher prices for steel and petroleum based
products, which principally affects the cost of our foam, innerspring and foundation
components. During 2007 and 2008, the cost of these components remained elevated above historical
averages. Additionally, our distribution costs were negatively impacted by the rapid rise in
diesel prices during these periods. Due to the significant increase in inflation we experienced
during the last half of 2007 and throughout 2008, we have taken steps to eliminate costs from our
overall cost structure and have plans to further eliminate additional costs from our future cost
structure to help offset the inflation. In 2008, we completed two salaried workforce reductions
and closed two conventional bedding manufacturing facilities located in Mableton, Georgia and
Bramalea, Ontario. In September 2008, our Chairman and Chief Executive Officer, Charles R. Eitel,
resigned and his duties were assumed by Stephen G. Fendrich, our President and Chief Operating
Officer, and the executive committee of our board of directors. As a result of these actions, we
incurred pre-tax restructuring charges associated with severance and fringe benefits and lease
facility costs totaling $10.2 million in 2008.
In addition, to partially offset inflationary pressures, we implemented a price increase for
our Domestic innerspring products that targets retail price points above $1,000 and all foundations
in November 2007 and implemented a price increase for our Domestic innerspring products that
targets retail price points below $1,000 in March 2008. In June 2008, we implemented a further
price increase on our Beautyrest®, ComforPedic by SimmonsTM and Natural
Care® products and foundations. These price increases in the aggregate raised our prices
on average by 9.7%.
26
As of December 27, 2008, Simmons Bedding was not in compliance with certain covenants of its
$540.0 million senior credit facility and was operating under a forbearance agreement with Simmons
Beddings senior lenders. On January 15, 2009, Simmons Bedding did not make a scheduled payment of
interest due on its Subordinated Notes resulting in a default under the indenture governing the
Subordinated Notes. As a result, we entered into a forbearance agreement with more than a majority
of the outstanding Subordinated Notes holders, pursuant to which such noteholders have agreed to
refrain from enforcing their respective rights and remedies under the Subordinated Notes and the
related indenture. Both forbearance agreements, as amended, with our senior lenders and the
noteholders provide a forbearance period through June 30, 2009 and, upon meeting certain
conditions, a further extension to July 31, 2009. We incurred fees and expenses in connection with
the forbearance agreements and related amendments.
As a condition to the forbearance agreement with our senior lenders, we initiated a financing
restructuring process in December 2008. A special committee of independent directors was formed by
our board of directors on January 23, 2009 to evaluate and oversee proposals for restructuring our
debt obligations, including seeking additional debt or equity capital and evaluating various
strategic alternatives of the Company. There can be no assurance that we will be successful in
implementing a restructuring. If we are unable to successfully complete a restructuring, comply
with the terms of the forbearance agreements, or extend the forbearance periods as needed to
successfully complete a restructuring, our payment obligations under the senior credit facility and
the Subordinated Notes may be accelerated. If there is an acceleration of payments under the
senior credit facility or the Subordinated Notes, then Holdings would be in default under its
Discount Notes and Simmons Holdco would be in default under its Toggle Loan. We would not have the
ability to repay any amounts accelerated under our various debt obligations without obtaining
additional equity and/or debt financing. An acceleration of payments could result in a voluntary
filing of bankruptcy by, or the filing of an involuntary petition for bankruptcy against, Simmons
Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates. Due to the possibility of such
circumstances occurring, we are seeking a negotiated restructuring, including a restructuring of
our debt obligations and/or sale of us, our affiliates or our assets, which could occur pursuant to
a pre-packaged, pre-arranged or voluntary bankruptcy filing. Any bankruptcy filing could have a
material adverse effect on our business, financial condition, liquidity and results of
operations. The considerations above raise substantial doubt about our ability to continue as a
going concern. For further information regarding our debt covenant violations and related
forbearance agreements please see Item 1A Risk Factors Risks Related to Our Liquidity and Item
7 Managements Discussion and Analysis of Financial Conditions and Results of Operations
Liquidity and Capital Resources.
27
CRITICAL ACCOUNTING POLICIES
In preparing our consolidated financial statements in conformity with GAAP, we must make
decisions that impact the reported amounts and the related disclosures. Those decisions include
the selection of the appropriate accounting principles to be applied and the assumptions on which
to base estimates and judgments that affect the reported amounts of assets, liabilities, revenues
and expenses and related disclosure of contingent assets and liabilities. We base our estimates on
historical experience and on various other assumptions that we believe to be reasonable under the
circumstances, the results of which form the basis for making judgments about the carrying values
of assets and liabilities that are not readily apparent from other sources. Actual results may
differ from these estimates under different assumptions or conditions. We evaluate our estimates
and judgments on an on-going basis. We believe the critical accounting policies described below
require managements more significant judgments, assumptions and estimates.
Allowance for doubtful accounts. We maintain allowances for doubtful accounts for estimated
losses resulting from the inability of our customers to make required payments. If the financial
condition of our customers were to deteriorate, resulting in an impairment of their ability to make
payments, additional allowances may be required. We evaluate the adequacy of the allowance on a
periodic basis. The evaluation includes consideration of a review of historical loss experience,
the aging of the receivable balances, adverse situations that may affect a customers ability to
pay the receivable, and prevailing economic conditions. If the result of the evaluation of the
reserve requirements differs from the actual aggregate allowance, adjustments are made to the
allowance. This evaluation is inherently subjective, as it requires estimates that are susceptible
to revision as more information becomes available. As of December 27, 2008 and December 29, 2007,
our accounts receivable balance was $95.9 million and $120.0 million, net of the allowances for
doubtful accounts, discounts and returns of $5.4 million and $4.6 million, respectively. For 2008,
2007 and 2006, we recorded provisions for bad debt of $7.8 million (0.8% of net sales), $4.3
million (0.4% of net sales) and $1.0 million (0.1% of net sales), respectively, in our results of
operations.
Impairment of goodwill. We test goodwill for impairment at the reporting unit level on an
annual basis in the fourth quarter by comparing the fair value of its reporting units to their
carrying values. Additionally, goodwill is tested for impairment between annual tests if an event
occurs or circumstances change that would more likely than not reduce the fair value of an entity
below its carrying value. These events or circumstances could include a significant change in the
business climate, legal factors, operating performance indicators, competition, sale or disposition
of a significant portion of the business or other factors. The performance of the test involves a
two-step process. The first step of the impairment test involves comparing the fair values of the
applicable reporting units with their aggregate carrying values, including goodwill. If the
carrying amount exceeds the fair value of the reporting unit, we perform the second step of the
goodwill impairment test to determine the amount of impairment loss. The second step of the
goodwill impairment test involves comparing the implied fair value of the affected reporting units
goodwill with the carrying value of that goodwill.
Determining the fair value of a reporting unit is judgmental in nature and requires the use of
significant estimates and assumptions including revenue growth rates and operating margins,
discount rates and future market conditions, among others. Fair value of our reporting units is
generally determined based on an equal weighting of the market approach and income approach
methodologies. The market approach estimates fair value by applying multiples of potential
earnings, such as EBITDA, of similar public entities. Management believes this approach is
appropriate because it provides a fair value using multiples from entities with operations and
economic characteristics similar to our reporting units. The income approach is based on projected
future debt-free cash flow that is discounted to present value using factors that consider the
timing and risk of the future cash flows. Management believes this approach is appropriate because
it provides a fair value estimate based upon the reporting units expected long-term operating and
cash flow performance. The income approach also incorporates the potential impact of cyclical
downturns, anticipated changes in product sales mix and inflation and other changes in product
costs that could occur in the reporting unit and its industry. The income approach is based on a
reporting units five year projections of operating results and cash flows that are discounted
using the estimate of the market based weighted average cost of capital for the bedding
industry. The future operating projections are based on consideration of past performance and the
projections and assumptions used in our current operating plans. Such assumptions are subject to
change as a result of changing economic and competitive conditions.
28
In the fourth quarter of 2008, we significantly lowered our projected future operating results
for both our Domestic and Canada reporting units based on deterioration of consumer spending and
increased material costs. Our five year projections of operating results assumed that the current
economic downturn would continue through 2009, followed by recovery in the second half of 2010
through 2011, and long-term industry growth rates for 2012 and beyond. Operating margin
assumptions during the five year projection periods were consistent with the Companys historical
averages. We used a 17% discount rate to calculate the terminal value of our reporting units,
which was higher than the 14% discount rate used in 2007. Our discount rate increased principally
as a result of higher risk premiums associated with the our debt due to the combination of the
Company being in violation of certain debt covenants and disruptions in the credit market as of the
testing date. A one percentage point increase in the discount rate would have decreased the fair
value of the Domestic and Canada reporting units by $15.0 million and $2.0 million,
respectively. A one percentage point decrease in the discount rate would have increased the fair
value of the Domestic and Canada reporting units by $15.0 million and $2.5 million,
respectively. We used a long-term growth factor of 4% to calculate the terminal value of its
reporting units, which is consistent with the rate used in 2007. Based on the lower projected
future operating results, we determined that the forecasted earnings and cash flows of the
reporting units no longer supported their carrying value of goodwill. As a result, non-cash pretax
goodwill impairment charges were recognized for our Domestic and Canada reporting units of $294.0
million and $9.9 million, respectively. We did not recognize any goodwill or trademark impairment
charges for 2007 and 2006.
Intangible Assets. Definite-lived intangible assets are amortized using the straight-line
method, which we believe is most appropriate, over their estimated period of benefit, ranging from
ten to twenty-five years. Since we have the intent and ability to renew our trademarks and our
branded products have a long history of being a market leader in the bedding industry, we
determined that our trademarks will generate cash flows for an indefinite period of time and
consider trademarks to be indefinite-lived intangible assets. Indefinite-lived intangible assets
are not amortized. We review the useful lives of definite-lived and indefinite-lived intangible
assets every reporting period.
We evaluate indefinite-lived intangible assets for impairment at least annually or whenever
events or circumstances indicate their carrying value might be impaired. The carrying value of an
indefinite-lived intangible asset is considered impaired when its carrying value exceeds its fair
market value. In such an event, an impairment loss is recognized equal to the amount of that
excess.
Fair value of our trademarks is determined using a relief of royalty method. The relief of
royalty method assumes that, in lieu of ownership, a company would be willing to pay a royalty in
order to exploit the related benefits of the trademarks. This approach is dependent on a number of
factors, including estimate of future operating projections, royalty rates for trademarks, and a
discount rate. The future operating projections are based on consideration of past performance and
the projections and assumptions used in our current operating plans. Such assumptions are subject
to change as a result of changing economic and competitive conditions. The royalty rate is based
on a combination of our existing agreements to license its trademarks to third-parties and licenses
within the furniture and household products industry. The discount rate is based upon the estimate
of the market based weighted average cost of capital for the bedding industry. As a result of our
lowering our projected future operating results due to deterioration of consumer spending and
increased material costs, we recognized a trademark impairment charge in 2008 related to our
Domestic and Canada reporting segments of $225.8 million and $17.9 million, respectively. We did
not recognize any trademark impairment charges in 2007 and 2006.
Warranty accrual. The conventional innerspring bedding products that we currently manufacture
generally include a ten-year non-prorated warranty. The conventional specialty bedding products
that we currently manufacture generally include a non-prorated warranty of 20 to 25 years. Our
juvenile bedding products have warranty periods ranging from five years to a lifetime. We record
the estimated cost of warranty claims when products are sold. Our new products undergo extensive
quality control testing and are primarily constructed using similar techniques and materials of our
historical products. Therefore, we estimate the cost of warranty claims based on historical sales
and warranty returns and the current average costs to settle a warranty claim. We include the
estimated impact of recoverable salvage value in the calculation of the current average costs to
settle a warranty claim.
29
The following table presents a reconciliation of our warranty accrual for fiscal years 2008,
2007 and 2006 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 27, |
|
|
December 29, |
|
|
December 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Balance at beginning of year |
|
$ |
4,291 |
|
|
$ |
3,668 |
|
|
$ |
3,009 |
|
Additional warranties issued |
|
|
2,853 |
|
|
|
2,466 |
|
|
|
1,627 |
|
Accruals related to pre-existing warranties (including change in estimate) |
|
|
22 |
|
|
|
296 |
|
|
|
98 |
|
Warranty settlements |
|
|
(2,403 |
) |
|
|
(2,139 |
) |
|
|
(1,066 |
) |
|
|
|
|
|
|
|
|
|
|
Balance at end of year |
|
$ |
4,763 |
|
|
$ |
4,291 |
|
|
$ |
3,668 |
|
|
|
|
|
|
|
|
|
|
|
Co-operative advertising and rebate programs. We enter into agreements with many of our
customers to provide funds for advertising and promotion of our products. We also enter into
volume and other rebate programs with certain customers whereby funds may be rebated to the
customer based on meeting certain sales targets or other metrics. When sales are made to these
customers, we record accrued liabilities pursuant to these agreements. Based on achievement of
sales levels, management regularly assesses these liabilities based on forecasted and actual sales
and claims. In assessing the liabilities, management makes judgment decisions based on its
knowledge of customer purchasing habits to determine whether all the co-operative advertising
earned will be used by the customer and whether the customer will meet the requirements to receive
rebates. Additionally, management must determine whether the co-operative advertising costs meet
the requirement for classification as selling, general and administrative expense versus a
reduction of sales. Co-operative advertising costs are classified as a selling expense when the
customer provides proof of advertising our products and our payments to the customer are less than
or equal to the cost of the advertisement. Costs of our co-operative advertising and rebate
programs totaled $148.3 million, $146.4 million and $126.5 million for 2008, 2007 and 2006,
respectively.
30
Pensions. We have a registered combined non-contributory defined benefit and defined
contribution pension plan for substantially all of the employees of Simmons Canada. Under the
Pension Plan, benefits are based upon an employees earnings and years of credited service. The
registered defined benefit plan is funded based on the funding requirements of applicable
government regulations. In addition, we have retirement compensation arrangements (RCA) for
certain senior officials of Simmons Canada which provide retirement benefits in addition to the
Pension Plan. As of December 27, 2008, the projected benefit obligation exceeded the fair value of
the plan assets of the Pension Plan by $2.9 million. As of December 27, 2008, the fair value of
the plan assets exceeded the projected benefit obligation of the RCA by $0.7 million. We expect to
make estimated minimum funding contributions totaling approximately $1.1 million in 2009 related to
the Pension Plan. No contributions are expected for the RCA in 2009. We also have unfunded SERP
for certain former executives. As of December 27, 2008, we had a liability of $3.1 million related
to the SERP and anticipate making contributions to the SERP of $0.2 million in 2009. Pension
expenses and the pension obligations are actuarially determined and are affected by our assumptions
with respect to the discount rate for obligations, the future rate of increase in compensation
levels, and the long term rate of return on plan assets. The assumed discount rate is based upon a
portfolio of high-grade corporate bonds, which are used to develop a yield curve. This yield curve
is applied to the expected duration of the pension obligation. The rate of increase in
compensation levels is based on our assessment of the current and future economic environment and
overall salary trends. The expected long-term rate of return considers the allocation of plan
assets, the historical performance of total plan assets, and economic and other indicators of
future performance.
Income taxes. In the first quarter of 2007, we adopted FIN 48, which prescribes a recognition
threshold and measurement criteria for the financial statement recognition and measurement of a tax
position taken or expected to be taken in a tax return. FIN 48 also provides guidance on
derecognition, classification, interest and penalties, accounting in interim periods, disclosure
and transition. As a result of the adoption of FIN 48, we recognized an $18.3 million increase in
our liability for uncertain tax positions. This was accounted for as a decrease in retained
earnings of $2.2 million, and increases in goodwill and deferred tax assets of $12.6 million and
$3.5 million, respectively.
Our annual tax rate is based on our income, statutory tax rates and tax planning opportunities
available to us in the various jurisdictions in which we operate. Significant judgment is required
in determining our annual tax expense and in evaluating our tax positions. We establish reserves
to remove some or all of the tax benefit of any of our tax positions at the time we determine that
the positions become uncertain based upon one of the following: (i) the tax position is not more
likely than not to be sustained, (ii) the tax position is more likely than not to be sustained,
but for a lesser amount, or (iii) the tax position is more likely than not to be sustained, but
not in the financial period in which the tax position was originally taken. For purposes of
evaluating whether or not a tax position is uncertain, (i) we presume the tax position will be
examined by the relevant taxing authority that has full knowledge of all relevant information,
(ii) the technical merits of a tax position are derived from authorities such as legislation and
statutes, legislative intent, regulations, rulings and case law and their applicability to the
facts and circumstances of the tax position, and (iii) each tax position is evaluated without
considerations of the possibility of offset or aggregation with other tax positions taken. We
adjust these reserves, including any impact on the related interest and penalties, in light of
changing facts and circumstances, such as the progress of a tax audit.
A number of years may elapse before a particular matter for which we have established a
reserve is audited and finally resolved. The number of years with open statutes varies depending
on the tax jurisdiction. The tax benefit that has been previously reserved because of a failure to
meet the more likely than not recognition threshold would be recognized in our income tax expense
in the first interim period when the uncertainty disappears under any one of the following
conditions: (i) the tax position is more likely than not to be sustained, (ii) the tax position,
amount, and/or timing is ultimately settled through negotiation or litigation, or (iii) the statute
of limitations for the tax position has expired.
31
Tax law may require items to be included in the tax return at different times than when these
items are reflected in the consolidated financial statements. As a result, the annual tax rate
reflected in our consolidated financial statements is different than that reported in our tax
return (our cash tax rate). Some of these differences are permanent, such as expenses that are not
deductible in our tax return, and some differences reverse over time, such as depreciation
expense. These timing differences create deferred tax assets and liabilities. Deferred tax assets
and liabilities are determined based on temporary differences between the financial reporting and
tax bases of assets and liabilities. The tax rates used to determine deferred tax assets or
liabilities are the enacted tax rates in effect for the year in which the differences are expected
to reverse. Based on the evaluation of all available information, we recognize future tax
benefits, such as net operating loss carryforwards, to the extent that realizing these benefits is
considered more likely than not. We will have to generate $54.1 million of taxable income to fully
recognize the tax benefits of our net operating loss carryforwards for federal income tax purposes
of $18.9 million as of December 27, 2008. We will have to generate $108.5 million of taxable
income to fully recognize the tax benefits of our net operating loss carryforwards for state income
tax purposes of $7.7 million as of December 27, 2008.
We evaluate our ability to realize the tax benefits associated with deferred tax assets by
analyzing our forecasted taxable income using both historical and projected future operating
results, the reversal of existing temporary differences, taxable income in prior carryback years
(if permitted) and the availability of tax planning strategies. A valuation allowance is required
to be established unless we determine that it is more likely than not that we will ultimately
realize the tax benefit associated with a deferred tax asset. As of December 27, 2008 and December
29, 2007, we had a valuation allowance on our deferred tax assets of $22.8 million and $9.3
million, respectively.
Additionally, deferred tax liabilities are not recorded for undistributed earnings of our
foreign subsidiaries that are deemed to be indefinitely reinvested in the foreign jurisdiction.
32
Self-Insurance liabilities. We retain a portion of the risks related to our general
liability, product liability, automobile, workers compensation and health insurance programs. The
exposure for unpaid claims and associated expenses, including incurred but not reported losses,
generally is estimated with the assistance of external actuaries and by considering pending claims
and historical trends and data. The estimated accruals for these liabilities could be affected if
future occurrences or loss developments significantly differ from utilized assumptions. The
estimated liability associated with settling unpaid claims is included in accrued liabilities. As
of December 27, 2008 and December 29, 2007, we had recorded $5.7 million and $5.3 million for
liabilities for exposures to unpaid self-insured claims.
Litigation and contingent liabilities. From time to time, we are parties to or targets of
lawsuits, claims, investigations and proceedings, including product liability, personal injury,
patent and intellectual property, commercial, contract, environmental, health and safety, and
employment matters, which are handled and defended in the ordinary course of business. We accrue a
liability for such matters when it is probable that a liability has been incurred and the amount
can be reasonably estimated. We believe the amounts reserved are adequate for such pending matters;
however, results of operations could be negatively affected by significant litigation adverse to
us.
RESULTS OF OPERATIONS
|
|
The following table sets forth historical consolidated financial information as a percent of
net sales: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended |
|
|
|
Dec. 27, |
|
|
Dec. 29, |
|
|
Dec. 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
|
Net sales |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
Cost of products sold |
|
|
63.1 |
% |
|
|
60.0 |
% |
|
|
56.6 |
% |
|
|
|
|
|
|
|
|
|
|
Gross margin |
|
|
36.9 |
% |
|
|
40.0 |
% |
|
|
43.4 |
% |
Selling, general and administrative |
|
|
32.0 |
% |
|
|
30.7 |
% |
|
|
32.4 |
% |
Goodwill impairments |
|
|
29.5 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
Trademark impairments |
|
|
23.7 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
Restructuring charges |
|
|
1.0 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
Gain on sale of SCUSA |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
-4.5 |
% |
Amortization of intangibles |
|
|
0.6 |
% |
|
|
0.5 |
% |
|
|
0.6 |
% |
Licensing revenues |
|
|
-0.9 |
% |
|
|
-0.9 |
% |
|
|
-0.9 |
% |
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
-49.0 |
% |
|
|
9.6 |
% |
|
|
15.8 |
% |
Interest expense |
|
|
7.1 |
% |
|
|
6.8 |
% |
|
|
8.5 |
% |
Interest income |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
-0.1 |
% |
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
-56.1 |
% |
|
|
2.8 |
% |
|
|
7.4 |
% |
Income tax expense (benefit) |
|
|
-8.2 |
% |
|
|
0.8 |
% |
|
|
2.5 |
% |
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
-47.9 |
% |
|
|
2.1 |
% |
|
|
5.0 |
% |
|
|
|
|
|
|
|
|
|
|
YEAR ENDED DECEMBER 27, 2008 COMPARED TO YEAR ENDED DECEMBER 29, 2007
Net Sales. Our net sales decreased $98.1 million, or 8.7%, to $1,028.7 million for 2008
compared to $1,126.8 million for 2007 principally due to a decline in our Domestic net sales. Our
Domestic segment net sales decreased $94.2 million, or 9.4%, to $908.2 million (includes $7.3
million of inter-segment net sales) for 2008 compared to $1,002.4 million (includes $0.9 million of
inter-segment net sales) for 2007. Our Domestic segment net sales declined primarily as a result
of decreases in our conventional bedding unit volume of 14.1%, or $136.5 million, which was offset
slightly by an increase in our average unit selling price (AUSP) of 5.6%, or $46.4 million,
compared to 2007. Our Domestic segment unit volume decreased principally due to an overall U.S.
mattress industry downturn as a result of slowing consumer spending in the current economic
recession. Our improvement in Domestic segment AUSP was primarily attributable to (i) our product
price increases implemented in November 2007, March 2008 and June 2008 and (ii) a shift in our
product sales mix to our higher priced products.
Our Canada segment net sales increased $2.5 million, or 2.0%, to $127.8 million for 2008
compared to $125.3 million for 2007. In local currency, our Canada segment net sales decreased for
2008 by 0.1% compared to 2007. The sales decrease was due to a decline in conventional bedding
AUSP of 3.5%, partially offset by an increase in conventional bedding unit volume of 5.2%. Our
Canada segment unit volume increased principally due to the success of our 2008 Canadian product
line, introduced in the first quarter of 2008, and promotional pricing. Our Canadian segment AUSP
decreased principally due to promotional pricing and a shift in sales mix to lower priced
products. In September 2008, we implemented a price increase on our Canadian product lines.
33
Gross Profit. Our consolidated gross profit decreased $70.7 million to $379.9 million (36.9%
of consolidated net sales) for 2008 compared to $450.6 million (40.0% of consolidated net sales)
for 2007. Our Domestic segment gross profit decreased $60.8 million to $351.0 million (38.6% of
Domestic segment net sales) for 2008 compared to $411.8 million (41.1% of Domestic segment net
sales) for 2007. Our Domestic segment gross margin decrease of 2.5 percentage points for 2008
compared to 2007 was due principally to an increase in our conventional bedding material cost per
unit and manufacturing cost per unit of 12.3% and 5.5%, respectively. Our material cost per unit
increased primarily due to (i) the addition of flame retardant materials to meet the CPSCs open
flame resistance standard which went into effect July 1, 2007; (ii) inflation in the costs of raw
materials, particularly in the prices of steel and foam; and (iii) a change in our sales mix to
products with higher material content. Our manufacturing cost per unit increased principally due
to our fixed manufacturing costs being absorbed by fewer units.
Our Canada segment gross profit decreased $9.9 million to $28.9 million (22.6% of Canada
segment net sales) for 2008 compared to $38.8 million (31.0% of Canada segment net sales) for
2007. Our Canada segment gross margin decreased 8.4 percentage points due primarily to (i) the
purchasing of product from the Domestic segment following the closure of our Bramalea, Ontario
facility at a higher cost than to produce the product; (ii) a shift in sales mix to products with
lower gross margin; (iii) inflation in material costs; and (iv) manufacturing inefficiencies
related to the new product line introduced in January 2008.
Selling, General and Administrative Expenses (SG&A). Our consolidated SG&A decreased $17.3
million to $328.9 million (32.0% of consolidated net sales) for 2008 compared to $346.3 million
(30.7% of consolidated net sales) for 2007. Our Domestic segment SG&A decreased $19.6 million to
$301.8 million (33.2% of Domestic segment net sales) for 2008 compared to $321.3 million (32.1% of
Domestic segment net sales) for 2007. In 2007, our Domestic segment incurred significantly higher
product rollout costs as a result of the introduction of our current Beautyrest® product
line in 2007. As a result of not introducing a new Beautyrest® product line and other
cost savings initiatives, our Domestic segment had $24.0 million less fixed selling and brand
development expenses for 2008 compared to 2007. Our Domestic segment also had lower salaries and
fringe benefits of $3.8 million in 2008 compared to 2007 principally due to reduced management
bonus expense and less employees. Partially offsetting these decreases in 2008, our Domestic
segment had higher volume variable selling and distribution expenses of $0.9 million despite lower
sales volumes principally due to a $6.8 million increase in co-operative advertising expense. Our
co-operative advertising expense increased due to a shift in our sales mix to customer and products
with higher subsidies and more co-operative advertising costs being classified as a selling expense
rather than a reduction of sales for 2008 compared to 2007. Our Domestic SG&A for 2008 compared to
2007 also included an increase of (i) bad debt expense of $3.5 million primarily as a result of
Mattress Discounters Corp. filing for reorganization under Chapter 11 of the Bankruptcy Code in
August 2008; (ii) depreciation expense of $1.6 million principally due to the implementation of our
new enterprise resource planning (ERP) system; and (iii) consulting and professional fees of $0.7
million principally due to costs incurred related to the forbearance agreements and associated debt
restructuring activities. In addition, our Domestic SG&A for 2008 included a one-time retiree
healthcare plan curtailment charge of $1.5 million associated with the closure of our Mableton,
Georgia facility in September 2008.
Our Canada segment SG&A increased $2.9 million to $27.8 million (21.7% of Canada segment net
sales) for 2008 from $25.0 million (19.9% of Canada segment net sales) for 2007. Our Canada
segment SG&A increased principally due to a $1.7 million pension plan curtailment/contractual
termination benefits charge in 2008 as a result of the closure of our Bramalea, Ontario facility in
September 2008. In addition, our Canada segment SG&A for 2008 increased due to higher distribution
expense as a result of increased sales volumes, increased diesel fuel costs and more miles driven
following the shift of Bramalea, Ontario production to other manufacturing facilities.
Goodwill and Trademark Impairment Charges. During 2008, we recognized a total non-cash
charge of $547.6 million related to the impairment of goodwill and trademarks associated with our
Domestic and Canada reporting units. The impairment resulted from our 2008 annual impairment
testing of goodwill and trademarks performed in the fourth quarter of 2008. The impairment charges
were a result of our lowering our projected future operating results due to decreases in consumer
spending and increased material costs. No such impairments were identified in 2007.
34
Restructuring Charges. For 2008, we recognized pretax restructuring costs of
$10.2 million. No such costs were recognized for 2007. The restructuring charges primarily relate
to (i) severance and benefits in connection with two salaried workforce reductions announced and
completed in 2008 in response to the downturn in the economy since the second half of 2007 and (ii)
severance, benefits and lease facility costs associated with the closure of our Mableton, Georgia
and Bramalea, Ontario manufacturing facilities announced and completed in 2008.
Amortization of Intangibles. For 2008, amortization of intangibles increased $0.2 million to
$6.3 million from $6.1 million for 2007.
Licensing Revenues. For 2008, licensing revenues decreased $0.6 million, or 5.8%, to $9.5
million from $10.1 million for 2007. In 2007, we recognized additional royalties generated from
licensee sales audits of previous years. No additional royalties were recognized from sales audits
in 2008.
Interest Expense. For 2008, interest expense decreased $2.7 million to $73.5 million from
$76.2 million for 2007. The decreased interest expense was primarily due to lower LIBOR base rates
on our senior credit facility. Our non-cash interest expense, which includes accretion of our
Discount Notes and the amortization of deferred financing fees, increased $2.5 million to $25.1
million for 2008 compared to $22.6 million for 2007.
Interest Income. For 2008, interest income decreased $0.1 million to $0.4 million from $0.5
million for 2007.
Income Taxes. The combined federal, state, and foreign effective income tax rate of (14.7)%
for 2008 differs from the federal statutory rate of 35.0% primarily due to goodwill impairment
deductions for book purposes that are not deductible for tax purposes. The combined federal,
state, and foreign effective income tax rate of 26.6% for 2007 differs from the federal statutory
rate of 35.0% primarily due to a decrease in the U.S. multi-state and Canada federal tax rates
applied to deferred items and the reversal of valuation allowances, partially offset by an increase
in our liabilities for uncertain tax positions.
35
YEAR ENDED DECEMBER 29, 2007 COMPARED TO YEAR ENDED DECEMBER 30, 2006
Net Sales. Our net sales increased $165.2 million, or 17.2%, to $1,126.8 million for 2007
compared to $961.6 million for 2006. Our consolidated net sales for 2007 included $125.4 million
of net sales associated with our Canada segment, which was acquired in November 2006 ($12.7 million
of net sales included in our consolidated net sales for 2006). Our consolidated net sales for 2006
included $49.0 million of net sales associated with our retail operations, which were sold in
August 2006. Our Domestic segment net sales, which exclude the net sales associated with our
Canada segment and our former retail operations, increased $102.4 million, or 11.4%, to $1,002.4
million for 2007 compared to $900.0 million for 2006. Our Domestic segment net sales improved
primarily as a result of increases in our conventional bedding unit volume of 10.6%, or $91.3
million, and our AUSP of 1.3%, or $12.8 million, compared to 2006. Our Domestic segment unit
volume increased principally due to strong demand for our Beautyrest®, Beautyrest
BlackTM and DeepSleep® products, which we attribute to more effective marketing
and brand development. Additionally, our sales growth benefited from our products being
competitive across a broad range of price points, effective selling practices and strong customer
relationships. Our improvement in Domestic segment AUSP was primarily attributable to the increase
in products at higher price points exceeding the increase in products sold at lower price points.
Gross Profit. Our consolidated gross profit increased $33.1 million to $450.6 million (40.0%
of consolidated net sales) for 2007 compared to $417.5 million (43.4% of consolidated net sales)
for 2006. Our decline in consolidated gross margin was principally due to the sale of our former
retail operations in August 2006, which sold products at higher gross margins than our wholesale
operations, and the acquisition of Simmons Canada in November 2006, which sells products at lower
gross margins than our Domestic segment. Our consolidated gross profit for 2007 included a full
year of gross profit from our Canada segment, acquired November 2006, of $38.8 million (31.0% of
Canada segment net sales), an increase of $35.3 million compared to 2006. Our consolidated gross
profit for 2006 included $32.9 million of gross profit associated with our former retail operations
(net of eliminations between our wholesale and retail operations), which operated with a gross
margin of 67.2% during that period.
Our Domestic segment gross profit increased $30.7 million to $411.8 million (41.1% of Domestic
segment net sales) for 2007 compared to $381.1 million (42.3% of Domestic segment net sales) for
2006. Our Domestic segment gross margin decrease of 1.2 percentage points for 2007 compared to
2006 was due principally to an increase in our conventional bedding material cost per unit and
manufacturing cost per unit of 5.9% and 0.3%, respectively. Our material cost per unit increased
primarily due to the addition of flame retardant materials to meet the CPSCs new regulations
relating to open flame resistance standards for the mattress industry that became effective on July
1, 2007 and the change in our sales mix to products with higher material content. Our
manufacturing cost per unit increased principally due to manufacturing inefficiencies during the
first half of 2007 of $4.4 million resulting from the transition to the new product lines and
one-time conversion costs of $2.3 million related to complying with the CPSCs new open flame
resistance standard.
SG&A. Our consolidated SG&A increased $34.4 million to $346.3 million (30.7% of consolidated
net sales) for 2007 compared to $311.8 million (32.4% of consolidated net sales) for 2006. Our
consolidated SG&A for 2007 included $24.9 million of expenses related to our Canada segment (19.9%
of Canada segment net sales) acquired in November 2006, an increase of $22.5 million compared to
2006. Our consolidated SG&A for 2006 included $28.2 million of expenses associated with our former
retail operations (45.9% of retail net sales). Our Domestic segment SG&A increased $40.1 million
to $321.3 million (32.1% of Domestic segment net sales) for 2007 from $281.2 million (31.2% of
Domestic segment net sales) for 2006. Our Domestic segment SG&A increased due principally to
higher (i) product roll-out costs of $19.2 million resulting primarily from the roll-out of the
Beautyrest® 2007 product line that occurred in the first half of 2007; (ii) variable
selling expenses of $9.2 million due to incremental unit volume partially offset by lower co-op
advertising expenditures due to a shift in sales mix; (iii) consulting and professional fees of
$6.5 million due primarily to implementation of a new ERP system, implementation of various cost
savings initiatives, and assistance with acquisition integration; (iv) bad debt expense of $3.4
million as a result of increased customer bankruptcies and the overall economic environment; and
(iv) salaries and fringe benefits of $3.3 million principally due to increased headcount, partially
offset by lower management bonuses.
36
Amortization of Intangibles. For 2007, amortization of intangibles increased $0.5 million to
$6.1 million from $5.7 million for 2006.
Licensing Revenues. For 2007, licensing revenues increased $1.4 million, or 16.0%, to $10.1
million from $8.7 million for 2006. Licensing revenues increased principally as a result of
additional royalties generated from licensee sales audits of previous years.
Interest Expense. For 2007, interest expense decreased $5.1 million to $76.2 million from
$81.3 million for 2006. Interest expense for 2006 included deferred financing fees and refinancing
costs of $6.0 million that were expensed due to the refinancing of our senior credit facility in
May 2006 (the Refinancing). Excluding the expenses associated with the Refinancing, interest
expense increased $0.9 million for 2007 compared to 2006 due principally to more accretion of our
Discount Notes. Our non-cash interest expense, which includes accretion of our Discount Notes and
the amortization of deferred financing fees, increased $1.2 million to $22.6 million for 2007
compared to $21.4 million for 2006.
Interest Income. For 2007, interest income decreased $0.8 million to $0.5 million from $1.3
million for 2006.
Income Taxes. The combined federal, state, and foreign effective income tax rate of 26.6% for
2007 differs from the federal statutory rate of 35.0% primarily due to a decrease in the U.S.
multi-state and Canada federal tax rates applied to deferred items and the reversal of valuation
allowances, partially offset by an increase in our liabilities for uncertain tax positions. The
combined federal, state, and foreign effective income tax rate of 33.9% for 2006 differs from the
federal statutory rate of 35.0% primarily due to a larger book versus tax gain on the sale of
SCUSA, partially offset by an increase in tax reserves and the effect of state income taxes.
37
LIQUIDITY AND CAPITAL RESOURCES
Our principal sources of cash to fund liquidity needs have been (i) cash provided by operating
activities of Simmons Bedding and its subsidiaries and (ii) borrowings available under Simmons
Beddings senior credit facility. Restrictive covenants in our debt agreements and forbearance
agreements restrict our ability to pay cash dividends and make other distributions. Our primary
use of funds consists of payments for funding working capital increases, capital expenditures,
customer supply agreements, principal and interest for our debt, distributions to service Simmons
Holdcos debt, and acquisitions. As of December 27, 2008, we had $54.9 million of cash on hand and
less than $0.1 million of availability to borrow under Simmons Beddings revolving loan
facility. As of May 2, 2009, we had $57.5 million of cash on hand.
As of December 27, 2008, Simmons Bedding was not in compliance with certain covenants of its
$540.0 million senior credit facility and was operating under a forbearance agreement with Simmons
Beddings senior lenders. On January 15, 2009, Simmons Bedding did not make a scheduled payment of
interest due on its Subordinated Notes resulting in a default under the indenture governing the
Subordinated Notes. As a result, we entered into a forbearance agreement with more than a majority
of the outstanding Subordinated Notes holders, pursuant to which such noteholders have agreed to
refrain from enforcing their respective rights and remedies under the Subordinated Notes and the
related indenture. Both forbearance agreements, as amended, with our senior lenders and the
noteholders provide a forbearance period through June 30, 2009 and, upon meeting certain
conditions, a further extension to July 31, 2009. We incurred fees and expenses in connection with
the forbearance agreements and related amendments.
As a condition to the forbearance agreement with our senior lenders, we initiated a financing
restructuring process in December 2008. A special committee of independent directors was formed by
our board of directors on January 23, 2009 to evaluate and oversee proposals for restructuring our
debt obligations, including seeking additional debt or equity capital and evaluating various
strategic alternatives of the Company. There can be no assurance that we will be successful in
implementing a restructuring. If we are unable to successfully complete a restructuring, comply
with the terms of the forbearance agreements, or extend the forbearance periods as needed to
successfully complete a restructuring, our payment obligations under the senior credit facility and
the Subordinated Notes may be accelerated. If there is an acceleration of payments under the
senior credit facility or the Subordinated Notes, then Holdings would be in default under its
Discount Notes and Simmons Holdco would be in default under its Toggle Loan. We would not have the
ability to repay any amounts accelerated under our various debt obligations without obtaining
additional equity and/or debt financing. An acceleration of payments could result in a voluntary
filing of bankruptcy by, or the filing of an involuntary petition for bankruptcy against, Simmons
Bedding, THL-SC, Holdings, Simmons Holdco or any of our affiliates. Due to the possibility of such
circumstances occurring, we are seeking a negotiated restructuring, including a restructuring of
our debt obligations and/or sale of us, our affiliates or our assets, which could occur pursuant to
a pre-packaged, pre-arranged or voluntary bankruptcy filing. Any bankruptcy filing could have a
material adverse effect on our business, financial condition, liquidity and results of
operations. The considerations above raise substantial doubt about our ability to continue as a
going concern.
There are substantial risks related to our liquidity. For further information regarding these
risks, please see Item 1A Risk Factors Risks Related to Our Liquidity.
The following table summarizes our changes in cash (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended |
|
|
|
December 27, |
|
|
December 29, |
|
|
December 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Statement of cash flow data: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows provided by (used in): |
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities |
|
$ |
13.4 |
|
|
$ |
66.2 |
|
|
$ |
102.3 |
|
Investing activities |
|
|
(17.1 |
) |
|
|
(40.4 |
) |
|
|
(74.2 |
) |
Financing activities |
|
|
32.8 |
|
|
|
(20.9 |
) |
|
|
(31.6 |
) |
Effect of exchange rate changes on cash |
|
|
(1.7 |
) |
|
|
1.9 |
|
|
|
(0.3 |
) |
|
|
|
|
|
|
|
|
|
|
Change in cash and cash equivalents |
|
|
27.4 |
|
|
|
6.7 |
|
|
|
(3.8 |
) |
Cash and cash equivalents |
|
|
|
|
|
|
|
|
|
|
|
|
Beginning of year |
|
|
27.5 |
|
|
|
20.8 |
|
|
|
24.6 |
|
|
|
|
|
|
|
|
|
|
|
End of year |
|
$ |
54.9 |
|
|
$ |
27.5 |
|
|
$ |
20.8 |
|
|
|
|
|
|
|
|
|
|
|
38
Year Ended December 27, 2008 Compared With the Year Ended December 29, 2007
Cash flows from operating activities. For 2008 compared to 2007, our cash flows from
operations decreased $52.8 million. The decrease in our cash flow from operations resulted
principally from our lower operating results combined with a $9.1 million increase in our working
capital (excluding deferred debt issuance costs classified as a current asset in 2008). Our
operating results declined in 2008 principally due to lower sales volumes combined with inflation
in our material costs resulting in lower gross profit. Our working capital (excluding deferred
debt issuance costs), as a percentage of annual net sales, increased to 2.0% as of December 27,
2008 compared to 1.0% as of December 29, 2007. Our working capital increased principally due to a
decrease in accounts payable and accrued liabilities of $40.8 million as a result of our sales
decrease and timing of vendor and customer payments.
Cash flows used in investing activities. For 2008, our cash flow used in investing activities
included $17.1 million for purchases of property, plant and equipment compared to $25.1 million in
2007. For 2007, our cash used in investing activities also included $15.4 million for the
ComforPedic Acquisition.
Cash flows provided by (used in) financing activities. For 2008, our financing activities
resulted in a $32.8 million source of cash due to borrowings under Simmons Beddings revolving loan
facility of $64.5 million, which was partially offset by dividend payments to Simmons Holdco of
$29.1 million for the payment of interest on Simmons Holdcos Toggle Loan. For 2007, our financing
activities resulted in a $20.9 million use of cash due principally to a $15.0 million voluntary
payment on Simmons Beddings senior credit facility and a $5.0 million dividend to Simmons Holdco.
Year Ended December 29, 2007 Compared With the Year Ended December 30, 2006
Cash flows from operating activities. For 2007 compared to 2006, our cash flows from
operations decreased $36.1 million. The decrease in cash flow from operations resulted primarily
from our working capital being a $5.2 million use of cash in 2007 compared to being a $10.6 million
source of cash in 2006. Our working capital, as a percentage of net sales, increased to 1.0% as of
December 27, 2008 compared to 0.7% as of December 29, 2007. Our working capital was a use of cash
in 2007 principally due to a $27.9 million increase in our accounts receivable balance as a result
of (i) our sales growth and (ii) our days sales outstanding slowing to 41 days at December 27, 2008
compared to 35 days at December 29, 2007. Our days sales outstanding slowed principally due to
customer sales mix and more customers paying based on invoice terms instead of paying early to
receive a cash discount. Partially offsetting the increase in receivables, our accrued liabilities
increased $21.8 million for 2007 compared to 2006 as a result of the timing of cash payments.
Cash flows used in investing activities. For 2007, our cash flows used in investing
activities included $25.1 million for purchases of property, plant and equipment and $15.4 million
for the ComforPedic Acquisition. For 2006, our cash used in investing activities included the
purchase of Simmons Canada for $113.1 million, net of cash acquired, and capital expenditures of
$13.6 million, which were partially offset by the proceeds from the sale of SCUSA of $52.4
million. Our increased purchases of property, plant and equipment in 2007 was principally due to
an ongoing upgrade to our Domestic segment ERP system and new manufacturing equipment to help meet
increased demand for our products.
Cash flows used in financing activities. For 2007, our financing activities resulted in a
$20.9 million use of cash due principally to a $15.0 million voluntary payment on our senior credit
facility and a $5.0 million dividend to Simmons Holdco. For 2006, our financing activities
resulted in a $31.6 million use of cash due principally to mandatory and voluntary payments on our
senior credit facility totaling $29.9 million.
39
Debt
As of December 27, 2008, our debt outstanding was $988.2 million compared to $901.5 million
as of December 29, 2007. Our outstanding debt was primarily Simmons Beddings senior credit
facility and Subordinated Notes and Holdcos Discount Notes.
Senior Credit Facility
The senior credit facility provides for a $75.0 million revolving loan facility and a $465.0
million tranche D term loan facility. The revolving loan under the senior credit facility will
expire on the earlier of (a) December 19, 2009 or (b) as revolving credit commitments under the
facility terminate. As of December 27, 2008, under the revolving loan facility, Simmons Bedding
had $64.5 million of borrowings and $10.4 million that was reserved for its reimbursement
obligations with respect to outstanding letters of credit. Simmons Bedding incurs an unused line
fee of 0.50% per annum on the unused portion of its revolving loan facility.
The tranche D term loans under the senior credit facility will expire on December 19,
2011. The tranche D term loan has a mandatory principal payment of $113.5 million on March 31,
2011 and quarterly mandatory principal payments of $117.2 million from June 30, 2011 through
maturity on December 19, 2011. Depending on Simmons Beddings leverage ratio, it may be required
to prepay a portion of the tranche D term loan with up to 50% of its excess cash flow (as defined
in the senior credit facility) from each fiscal year. Simmons Bedding was not required to prepay a
portion of the tranche D term loan in fiscal year 2008.
The senior credit facility bears interest at our choice of the Eurodollar Rate or Base Rate
(both as defined), plus the applicable interest rate margins. The weighted average interest rate
per annum in effect as of December 27, 2008 for the tranche D term loan was 9.6%. The senior
credit facility is guaranteed by THL-SC and all of Simmons Beddings material domestic
subsidiaries. Simmons Bedding has pledged substantially all of its assets to the senior credit
facility.
The senior credit facility requires Simmons Bedding to maintain certain financial ratios,
including cash interest coverage (adjusted EBITDA to cash interest expense) and total leverage (net
debt to adjusted EBITDA) ratios. Adjusted EBITDA (as defined in the senior credit facility)
differs from the term EBITDA as it is commonly used. In addition to adjusting net income to
exclude interest expense, income taxes, depreciation and amortization, Adjusted EBITDA, as we
interpreted the definition of Adjusted EBITDA from the senior credit facility, also adjusts net
income by excluding items or expenses not typically excluded in the calculation of EBITDA such as
management fees; other non-cash items reducing consolidated net income (including, without
limitation, non-cash purchase accounting adjustments and debt extinguishment costs); any
extraordinary, unusual or non-recurring gains or losses or charges or credits; and any reasonable
expenses or charges related to any issuance of securities, investments permitted, permitted
acquisitions, recapitalizations, asset sales permitted or indebtedness permitted to be incurred;
less other non-cash items increasing consolidated net income (loss), all of the foregoing as
determined on a consolidated basis for Simmons Bedding in conformity with GAAP.
The financial covenants are as follows:
1) |
|
A minimum cash interest coverage ratio, with compliance levels ranging from cash interest
coverage of no less than 2.75:1.00 for December 27, 2008 and 3.00:1.00 from March 31, 2009
through each fiscal quarter ending thereafter. |
2) |
|
A maximum leverage ratio, with compliance levels ranging from total leverage of no greater
than 4.50:1.00 for December 27, 2008 and 4.00:1.00 from March 31, 2009 through each fiscal
quarter ending thereafter. |
As of September 27, 2008, Simmons Bedding was not in compliance with the maximum leverage
financial covenant and certain other covenants contained in its senior credit facility. In
response thereto, Simmons Bedding was unable to negotiate a waiver of such defaults with its senior
lenders and entered into the First Forbearance Agreement and Second Amendment to the Second Amended
and Restated Credit and Guaranty Agreement (First Forbearance Agreement) on November 12, 2008 and
the Second Forbearance Agreement and Third Amendment to the Second Amended and Restated Credit and
Guaranty Agreement and First Amendment to the Pledge and Security Agreement (the Second
Forbearance Agreement) on December 10, 2008 with its senior lenders. Based on the terms of the
First Forbearance Agreement, the senior lenders agreed to, among other things, forbear from
exercising their default-related rights and remedies under the senior credit facility against
Simmons Bedding through December 10, 2008, provided that Simmons Bedding satisfied certain
conditions. The Second Forbearance Agreement extended the forbearance period through March 31,
2009, subject to earlier termination in some circumstances. Simmons Bedding entered into (i) that
certain First Amendment to Second Forbearance Agreement; Fourth Amendment to the Second Amended and
Restated Credit and Guaranty Agreement and Second Amendment to the Pledge and Security Agreement
(the First Amendment to the Second Forbearance Agreement) on March 25, 2009, pursuant to which
the senior lenders extended the forbearance period under the Second Forbearance Agreement through
May 31, 2009 and, upon satisfaction of certain conditions, July 31, 2009 and (ii) that certain
Second Amendment to Second Forbearance Agreement; Fifth Amendment to the Second Amended and
Restated Credit and Guaranty and Third Amendment to the Pledge and Security Agreement (the Second
Amendment to the Second Forbearance Agreement and, together with the First Amendment to the Second
Forbearance Agreement, the Amendment to the Second Forbearance Agreement) on May 27, 2009,
pursuant to which the senior lenders extended the forbearance period under the Second Forbearance
Agreement through June 30, 2009 and, upon satisfaction of certain conditions, July 31, 2009.
40
During the forbearance period, the senior lenders will provide no additional loans or
financial accommodation to Simmons Bedding except for the issuance, renewal, extension or
replacement of letters of credit and revolving loans provided in certain limited circumstances
related to the letters of credit as set forth in the forbearance agreements. In addition, Simmons
Bedding will not be permitted to, directly or indirectly, incur indebtedness or liens, make
investments or restricted junior payments, or consummate any asset sales, except in the ordinary
course of business, during the forbearance period.
During the forbearance period under the First Forbearance Agreement, the applicable margin on
the revolving loans and tranche D term loans increased 2.0% per annum above the rate otherwise
applicable. The Second Forbearance Agreement amended the senior credit facility to, among other
things:
|
|
Increase the applicable margin for both the revolving loans and the tranche D term loans to either Base Rate plus 5.285%
per annum or Eurodollar Rate plus 6.285% per annum; |
|
|
|
Establish a floor for the Base Rate and Eurodollar Rate of 3.25% and 4.25%, respectively, per annum at the earlier of the
termination of the Second Forbearance Agreement or March 31, 2009; |
|
|
|
Eliminate the 2% per annum penalty rate applicable to overdue payments of principal or interest; and |
|
|
|
Make interest payable on the revolving loans and tranche D term loans as of the last business calendar day of each month. |
The Second Forbearance Agreement also required Simmons Bedding to enter into deposit account
control agreements with respect to all its bank accounts, with certain exceptions. The Second
Forbearance Agreement included certain covenants including:
|
|
Minimum liquidity requirements whereby Simmons Bedding will maintain a daily cash balance of not less than $2.5 million for
any two consecutive business days and an average daily cash balance of not less than $7.5 million for any five consecutive
business days; |
|
|
|
Provide a long-term business plan to the senior lenders by January 7, 2009; |
|
|
|
Commence a process to solicit new debt and/or equity investment by January 9, 2009; |
|
|
|
Provide a potential restructuring proposal to the senior lenders by January 26, 2009; and |
|
|
|
Increased financial reporting requirements. |
As of December 27, 2008, Simmons Bedding was in compliance with the covenant requirements of
the Second Forbearance Agreement.
The Amendment to the Second Forbearance Agreement amended the senior credit facility to, among
other things, increase the applicable margin for both revolving loans and tranche D term loans to
either Base Rate plus 6.25% per annum or Eurodollar Rate plus 7.25% per annum.
During the forbearance period, as extended by the Amendment to the Second Forbearance
Agreement, Simmons Bedding met its requirements, in addition to the other covenants set forth in
the Second Forbearance Agreement, to (a) provide the legal and financial advisors to the senior
lenders with weekly updates on the ongoing restructuring process and (b) facilitate a meeting
between certain senior lenders and the selected bidders before April 17, 2009.
In connection with the First Forbearance Agreement, Simmons Bedding agreed to pay (a) the
senior lenders who approved the agreement a forbearance fee equal to 0.125% of the aggregate
outstanding amount of such lenders outstanding debt under the senior credit facility and (b) the
fees and expenses of the lenders counsel in connection with the First Forbearance Agreement. In
connection with the Second Forbearance Agreement, Simmons Bedding agreed to pay (a) the senior
lenders who approved the agreement a forbearance fee equal to 0.5% of the aggregate outstanding
amount of such lenders outstanding debt under the senior credit facility and (b) the fees and
expenses of the lenders counsel and financial advisor in connection with the Second Forbearance
Agreement. The Company capitalized the lender fees of $3.3 million, of which $1.3 million were
paid in 2009, and expensed the third party fees associated with the forbearance agreements.
41
Subordinated Notes
Simmons Beddings Subordinated Notes bear interest at the rate of 7.875% per annum, which is
payable semi-annually in cash in arrears on January 15 and July 15. The Subordinated Notes mature
on January 15, 2014 and are subordinated in right of payment to all existing and future senior
indebtedness of Simmons Bedding.
The Subordinated Notes are redeemable at our option beginning January 15, 2009 at prices
decreasing from 103.9% of the principal amount thereof to par on January 15, 2012 and
thereafter. We are not required to make mandatory redemption or sinking fund payments with respect
to the Subordinated Notes.
Simmons Bedding did not make a scheduled payment of $7.9 million of interest due on January
15, 2009 on the Subordinated Notes resulting in an event of default under the indenture governing
the Subordinated Notes. Such event of default enabled the holders of the Subordinated Notes to
declare the full amount of the Subordinated Notes immediately due and payable. On February 4,
2009, Simmons Bedding and more than a majority of the outstanding Subordinated Notes holders
approved a Forbearance Agreement to the indenture governing the Subordinated Notes (Subordinated
Forbearance Agreement), pursuant to which such noteholders have agreed to refrain from enforcing
their respective rights and remedies under the Subordinated Notes and the related indenture through
March 31, 2009. In connection with the Subordinated Forbearance Agreement, Simmons Bedding agreed
to pay the fees and expenses of the legal and financial advisors of the committee to the
noteholders. Simmons Bedding entered into amendments to the Subordinated Forbearance Agreement on
March 25, 2009 and May 27, 2009, whereby a majority of the noteholders extended their forbearance
period through May 31, 2009 and June 30, 2009, respectively, and upon meeting certain conditions, a
further extension to July 31, 2009. Pursuant to the terms of the Subordinated Forbearance
Agreement, the noteholders party to the Subordinated Forbearance Agreement have the obligation to
take any actions that are necessary to prevent an acceleration of the payments due under the
Subordinated Notes during the forbearance period. Because the noteholders party to the
Subordinated Forbearance Agreement represent more than a majority of the Subordinated Notes, they
have the power under the indenture to rescind any acceleration of the Subordinated Notes by either
the trustee or the minority holders of the Subordinated Notes. In consideration for their entry
into the amendment to the Subordinated Forbearance Agreement, the noteholders party to the
Subordinated Forbearance Agreement received an amendment fee equal to 0.5% of the aggregate
outstanding amount of such holders Subordinated Notes.
The indenture for the Subordinated Notes requires Simmons Bedding to comply with certain
restrictive covenants, including restrictions on dividends, and limitations on the occurrence of
indebtedness, certain payments and distributions, and sales of Simmons Beddings assets and stock.
Discount Notes
Our Discount Notes, with an aggregate principal amount at maturity of $269.0 million, bear
interest at the rate of 10.0% per annum payable semi-annually in cash in arrears on June 15 and
December 15 of each year commencing on June 15, 2010. Prior to December 15, 2009, interest accrues
on the Discount Notes in the form of an increase in the accreted value of the Discount Notes. Our
ability to make payments on the Discount Notes is dependent on the earnings and distribution of
funds from Simmons Bedding to Holdings. Simmons Bedding is prohibited from making certain
distributions under the forbearance agreements.
The Discount Notes are redeemable at the our option beginning December 15, 2009 at prices
decreasing from 105.0% of the principal amount thereof to par on December 15, 2012 and
thereafter. We are not required to make mandatory redemption or sinking fund payments with respect
to the Discount Notes.
If any of the Discount Notes are outstanding on June 15, 2010, we are obligated to redeem for
cash a portion of each Discount Note then outstanding in an amount equal to (i) the excess of the
aggregate amount of accrued and unpaid interest and original issue discount on the Discount Notes
over (ii) the issue price of the Discount Notes multiplied by the yield to maturity of the Discount
Notes (the Mandatory Principal Redemption Amount) plus a premium equal to 5.0% (one-half of the
coupon) of the Mandatory Principal Redemption Amount. No partial redemption or repurchase of the
Discount Notes pursuant to any other provision of the indenture will alter the our obligation to
make this redemption with respect to any Discount Notes then outstanding. Assuming no redemptions
prior to June 15, 2010, we would be obligated to make a mandatory principal payment of $90.2
million and an interest and premium payment of $18.0 million on June 15, 2010.
42
The indenture for the Discount Notes requires Holdings to comply with certain restrictive
covenants, including a restriction on dividends; and limitations on the incurrence of indebtedness,
certain payments and distributions, and sales of Holdings assets and stock. Pursuant to the
reporting covenants contained in the indentures governing Discount Notes, we agreed to furnish its
holders of the Discount Notes all quarterly and annual reports that would be required to be filed
with the SEC if we were required to file such reports. We failed to timely file our Quarterly
Reports on Form 10-Q for the quarters ended September 27, 2008 and March 28, 2009 and our Annual
Report on Form 10-K for the fiscal year ending December 27, 2008 (the Financial Reports) with the
SEC resulting in the Companys non-compliance with the reporting covenants. The Company has 60
days after receiving notice from the lenders to cure the non-compliance by providing such
information to the lenders. If the Company was unable to cure the non-compliance, there would be
an event of default under the indenture governing the Discount Notes.
On April 14, 2009, we received a notice sent on behalf of holders of the Discount Notes,
purporting to own more than 25% of the $269.0 million principal amount of the outstanding Discount
Notes, pursuant to which such holders have notified us that our failure to furnish to the holders
of the Discount Notes (i) a Quarterly Report on Form 10-Q for the third quarter ended September 27,
2008 and (ii) an Annual Report on Form 10-K for the fiscal year ended December 27, 2008, each as
required under the indenture governing the Discount Notes, constitutes defaults thereunder. With
the filing of this Annual Report on Form 10-K for the fiscal year ending December 27, 2008 along
with the filing of the Quarterly Report on Form 10-Q for the third quarter ended September 27,
2008, we have cured these defaults. We have not received notice of non-compliance with the
reporting covenant for the Quarterly Report on Form 10-Q for the first quarter ended March 28,
2009. If we receive such notice and were unable to cure the non-compliance within 60 days of
receiving such notice, there would be an event of default under the indenture governing the
Subordinated Notes.
43
Toggle Loan
We do not guarantee or have any of our assets pledged as collateral under Simmons Holdcos
$300 million Toggle Loan. The Toggle Loan is structurally subordinated in right of payment to any
of our existing and future liabilities. Although we are not obligated to make cash distributions to
service principal and interest on the Toggle Loan, Simmons Holdco is dependent on our cash flow to
meet the interest and principal payments under the Toggle Loan. The Toggle Loan is not included in
our financial statements. During 2008, we provided $29.1 million of cash to Simmons Holdco,
reflected as a dividend in our financial statements, so that Simmons Holdco could pay interest on
the Toggle Loan, repurchase shares of its common stock, and pay operating expenses of Simmons
Holdco. Under the terms of the credit agreement governing the Toggle Loan, Simmons Holdco may
elect to pay future interest in cash or add such interest to the principal amount of the Toggle
Loan. However, the Second Forbearance Agreement, as amended, prohibits the Company from making
distributions to its parent companies during the forbearance period, except in the ordinary course
of business. Accordingly, Simmons Holdco has elected to make its February and August 2009 interest
payments on the Toggle Loan by adding such interest to the principal amount of the Toggle
Loan. The Toggle Loan matures in February 2012. An acceleration of indebtedness under the senior
credit facility, Subordinated Notes or Discount Notes would trigger an event of default under the
Toggle Loan.
Contractual Obligations and Commercial Commitments
The following table sets forth our contractual obligations and other commercial commitments as
of December 27, 2008 (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payment Due by Year |
|
Contractual obligations: |
|
Total |
|
|
2009 |
|
|
2010-2011 |
|
|
2012-2013 |
|
|
Thereafter |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt (1) |
|
$ |
988.2 |
|
|
$ |
975.2 |
|
|
$ |
1.0 |
|
|
$ |
1.1 |
|
|
$ |
10.9 |
|
Interest payments on long-term debt (2) |
|
|
330.8 |
|
|
|
67.1 |
|
|
|
166.4 |
|
|
|
68.8 |
|
|
|
28.5 |
|
Operating leases |
|
|
72.8 |
|
|
|
17.9 |
|
|
|
24.4 |
|
|
|
16.9 |
|
|
|
13.6 |
|
Component purchase commitments |
|
|
67.6 |
|
|
|
30.6 |
|
|
|
37.0 |
|
|
|
|
|
|
|
|
|
Other (3) |
|
|
22.5 |
|
|
|
3.5 |
|
|
|
19.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total contractual obligations |
|
$ |
1,481.9 |
|
|
$ |
1,094.3 |
|
|
$ |
247.8 |
|
|
$ |
86.8 |
|
|
$ |
53.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other commercial commitments: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Standby letters of credit |
|
$ |
10.4 |
|
|
$ |
10.4 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Includes $23.9 million of original issue discount on the Discount Notes. |
|
(2) |
|
Anticipated interest payments based on current interest rates and amounts outstanding as of
December 27, 2008. |
|
(3) |
|
Represents potential earn-out payments related to the
ComforPedic Acquisition. |
In addition, under the terms of the management agreement entered into in connection with the
THL Acquisition, Simmons Bedding is required to pay an affiliate of THL an aggregate fee of no less
than $1.5 million a year. The second forbearance agreement prohibits us from paying the THL
management fee in cash subsequent to December 10, 2008. Under the terms of the management
agreement, it will be terminated by THL upon the consummation of an equity offering and Simmons
Bedding will be required to pay THL a termination fee equal to the net present value of the fees
payable to THL for a period of seven years from the date of termination. In connection with our
restructuring efforts, we have agreed to reimburse the directors of THL for certain legal
fees. The management fee is not included in the contractual obligations table.
In 2008, we provided Simmons Holdco $29.1 million of cash in the form of a dividend so that
Simmons Holdco could pay cash interest on the Toggle Loan. Simmons Holdco has elected to make its
February and August 2009 interest payments on the Toggle Loan by adding such interest to the
principal amount of the Toggle Loan. Simmons Holdco may elect to pay future interest in cash or
add such interest to the principal amount of the Toggle Loan. The Toggle Loan matures in February
2012. Although we are not an obligor on or guarantor of the Toggle Loan, nor are we obligated to
make cash distributions to service principal and interest on the Toggle Loan, Simmons Holdco is
dependent on us to make cash distributions to it to make future cash interest and principal
payments to service its debt. The interest payment on the Toggle Loan is not included in the
contractual obligations table.
Because we are uncertain as to if or when settlements may occur, the contractual obligation
table does not reflect our FIN 48 net liability of $17.6 million related to uncertain tax
positions. Details regarding this liability are presented in Note B of the Notes to the
Consolidated Financial Statements of this Form 10-K.
We anticipate making contributions to the Pension Plan and FAS 106 Plans of approximately $1.1
million and $0.7 million, respectively, in 2009 and no contributions are expected for the RCA in
2009. The contributions principally represent contributions required by funding
regulations. Details regarding this liability are presented in Note O of the Notes to the
Consolidated Financial Statements of this Form 10-K.
44
SEASONALITY/OTHER
Our third quarter sales are typically higher than our other fiscal quarters. We attribute
this seasonality principally to retailers sales promotions related to the 4th of July and Labor
Day holidays. For the last five years, third quarter sales have represented on average 27% of our
consolidated net sales.
Most of our sales are by short term purchase orders. Because our level of production is
generally prompted to meet customer demand, we have a negligible backlog of orders. Most finished
goods inventories of bedding products are physically stored at manufacturing locations until
shipped (usually within days of manufacture).
RECENTLY ISSUED ACCOUNTING STANDARDS
See Note B in the Notes to our Consolidated Financial Statements in Item 8 for a full
description of recent accounting pronouncements, including the expected dates of adoption and
estimated effects on our results of operations and financial condition, which is incorporated
herein by reference.
FORWARD LOOKING STATEMENTS
Safe Harbor statement under the Private Securities Litigation Reform Act of 1995.
This Annual Report on Form 10-K includes forward-looking statements that reflect our current
views about future events and financial performance. Words such as estimates, expects,
anticipates, projects, plans, intends, believes, forecasts and variations of such words
or similar expressions that predict or indicate future events, results or trends, or that do not
relate to historical matters, identify forward-looking statements. The forward-looking statements
in this report speak only as of the date of this report. These forward-looking statements are
expressed in good faith and Simmons believes there is a reasonable basis for them. However, there
can be no assurance that the events, results or trends identified in these forward-looking
statements will occur or be achieved. Investors should not rely on forward-looking statements
because they are subject to a variety of risks, uncertainties, and other factors that could cause
actual results to differ materially from Simmonss expectations. These factors include, but are
not limited to: (i) competitive pressures in the bedding industry; (ii) general economic and
industry conditions; (iii) the success of our new products and the future costs to rollout such
products; (iv) legal and regulatory requirements; (v) interest rate and credit market risks;
(vi) compliance with covenants in, and any defaults under, our debt agreements or instruments;
(vii) our ability to comply with the terms of the forbearance agreements, including meeting
restructuring milestones, obtain further extensions to the forbearance periods or to develop and
implement an organized financial restructuring on acceptable terms, on a timely basis or at all, as
well as compliance by the lenders and note holders with the terms of the forbearance agreements;
(viii) increased cost of credit and associated fees resulting from the forbearance extensions and
any waiver or modification of the senior credit facility by the lenders or any waiver or
modification of the Subordinated Notes or other indebtedness; (ix) Simmons being required to
immediately repay all amounts outstanding under the senior credit facility resulting from the
noncompliance with the covenants which could in turn result in a default under the indebtedness of
Simmons as well as Simmons Holdcos indebtedness; (x) our relationships with and viability of its
suppliers; (xi) fluctuations in our costs of raw materials and energy prices; (xii) our
relationship with and viability of significant customers and licensees; (xiii) our ability to
increase prices on our products and the effect of these price increases on its unit sales; (xiv) an
increase in our return rates and warranty claims; (xv) our labor relations; (xvi) encroachments on
our intellectual property; (xvii) our product liability claims; (xviii) our level of indebtedness;
(xix) foreign currency exchange rate risks; (xx) our future acquisitions; (xxi) our ability to
achieve the expected benefits from any personnel realignments; (xxii) higher bad debt expense as a
result of increased customer bankruptcies due to instability in the economy and slowing consumer
spending; (xxiii) our ability to maintain sufficient liquidity to operate its business; and (xxiv)
other risks and factors identified from time to time in our reports filed with the SEC.
All forward-looking statements attributable to us or persons acting on our behalf apply only
as of the date of this Annual Report on Form 10-K and are expressly qualified in their entirety by
the cautionary statements included in this Annual Report on Form 10-K. Except as may be required
by law, we undertake no obligation to publicly update or revise forward-looking statements which
may be made to reflect events or circumstances after the date made or to reflect the occurrence of
unanticipated events.
45
|
|
|
ITEM 7A. |
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK. |
The following discussion about our risk-management activities includes forward-looking
statements that involve risk and uncertainties. Actual results could differ materially from those
projected in the forward-looking statements. See Item 1 Business Forward-Looking Statements for
additional information.
Market Risk
The principal market risks to which we are exposed that may adversely affect our results of
operations and financial position include changes in future foreign currency exchange rates,
interest rates, commodity prices and equity prices. We seek to minimize or manage these market
risks through normal operating and financing activities and through the use of derivative
instruments, where practicable. We do not trade or use instruments with the objective of earning
financial gains on the market fluctuations, nor do we use instruments where there are not
underlying exposures.
Foreign Currency Exposures
As a result of our acquisition of Simmons Canada, our earnings are affected by fluctuations in
the value of Canadian dollar (Simmons Canadas functional currency) as compared to the currencies
of Simmons Canadas foreign denominated purchases (principally the U.S. dollar). Foreign currency
forward contracts are used in some instances as economic hedges against the earnings effects of
such fluctuations. The Company had no forward contracts outstanding at December 27, 2008.
Interest Rate Risk
We are exposed to market risks from changes in interest rates. Our senior credit facility and
certain of our other debt instruments are floating rate debt. We currently do not have a hedging
program in place to manage fluctuations in long-term interest rates.
On December 27, 2008, we had floating rate debt of $533.4 million. All other factors
remaining unchanged, a hypothetical 10% increase or decrease in interest rates on our floating rate
debt would impact our income before income taxes by $4.2 million in 2008.
Commodity Price Risk
The major raw materials that we purchase for production are foam, wire, spring components,
lumber, cotton, insulator pads, innerspring, foundation constructions, fabrics and roll goods
consisting of foam, fiber, ticking and non-wovens. The price and availability of these raw
materials are subject to market conditions affecting supply and demand. In particular, the price
of many of our goods can be impacted by fluctuations in petrochemical and steel
prices. Additionally, our distribution costs can be impacted by fluctuations in diesel prices. We
currently do not have a hedging program in place to manage fluctuations in commodity prices.
Equity Price Risk
Our defined benefit plans hold investments in both equity and fixed income securities. Our
annual contribution amount to such plans is dependent upon, among other things, the return on the
plans assets. The annual contribution amount could increase if equity prices decrease. Our
estimated contributions to the plans for 2009 are $1.1 million.
46
|
|
|
ITEM 8. |
|
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA. |
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholder of Simmons Company:
In our opinion, the consolidated financial statements listed in the index appearing under Item
15(a)(1) present fairly, in all material respects, the financial position of Simmons Company and
its subsidiaries at December 27, 2008 and December 29, 2007, and the results of their operations
and their cash flows for each of the three years in the period ended December 27, 2008 in
conformity with accounting principles generally accepted in the United States of America. In
addition, in our opinion, the financial statement schedule listed in the index appearing under Item
15(a)(2) presents fairly, in all material respects, the information set forth therein when read in
conjunction with the related consolidated financial statements. These financial statements and
financial statement schedule are the responsibility of the Companys management. Our responsibility
is to express an opinion on these financial statements and financial statement schedule based on
our audits. We conducted our audits of these statements in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.
The accompanying consolidated financial statements have been prepared assuming the Company will
continue as a going concern. As discussed in Note A to the consolidated financial statements, the
Companys non-compliance with its debt covenants, its inability to make scheduled debt repayments
and uncertainty about the ability to obtain alternative financing arrangements within the next
twelve months raise substantial doubt about the Companys ability to continue as a going concern.
Managements plans in regards to these matters are also described in Note A. The consolidated
financial statements do not include any adjustments that might result from the outcome of these
uncertainties.
As discussed in Note B to the consolidated financial statements, Simmons Company and its
subsidiaries changed their method of accounting for uncertainty in income taxes as of December 31,
2006 and their method of accounting for defined benefit pension and other postretirement plans as
of December 29, 2007.
/s/ PricewaterhouseCoopers LLP
April 9, 2009, except for Note S to the consolidated financial statements, as to which the date is
May 27, 2009
47
SIMMONS COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended |
|
|
|
December 27, |
|
|
December 29, |
|
|
December 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
|
Net sales |
|
$ |
1,028,700 |
|
|
$ |
1,126,841 |
|
|
$ |
961,625 |
|
Cost of products sold |
|
|
648,804 |
|
|
|
676,255 |
|
|
|
544,164 |
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
379,896 |
|
|
|
450,586 |
|
|
|
417,461 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses |
|
|
328,928 |
|
|
|
346,252 |
|
|
|
311,839 |
|
Goodwill impairments |
|
|
303,885 |
|
|
|
|
|
|
|
|
|
Trademark impairments |
|
|
243,672 |
|
|
|
|
|
|
|
|
|
Restructuring charges |
|
|
10,248 |
|
|
|
|
|
|
|
|
|
Gain on sale of Sleep Country USA |
|
|
|
|
|
|
|
|
|
|
(43,311 |
) |
Amortization of intangibles |
|
|
6,304 |
|
|
|
6,146 |
|
|
|
5,655 |
|
Licensing revenues |
|
|
(9,499 |
) |
|
|
(10,085 |
) |
|
|
(8,691 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
883,538 |
|
|
|
342,313 |
|
|
|
265,492 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
(503,642 |
) |
|
|
108,273 |
|
|
|
151,969 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
73,479 |
|
|
|
76,182 |
|
|
|
81,265 |
|
Interest income |
|
|
(402 |
) |
|
|
(521 |
) |
|
|
(1,337 |
) |
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
(576,719 |
) |
|
|
32,612 |
|
|
|
72,041 |
|
Income tax expense (benefit) |
|
|
(84,508 |
) |
|
|
8,663 |
|
|
|
24,427 |
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
(492,211 |
) |
|
|
23,949 |
|
|
|
47,614 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss): |
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustment |
|
|
(25,998 |
) |
|
|
21,774 |
|
|
|
(2,729 |
) |
Changes in retirement plans liabilities,
net of tax benefit of $1,362 |
|
|
(2,748 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income (loss) |
|
$ |
(520,957 |
) |
|
$ |
45,723 |
|
|
$ |
44,885 |
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements.
48
SIMMONS COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
December 27, |
|
|
December 29, |
|
|
|
2008 |
|
|
2007 |
|
|
|
|
|
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
54,930 |
|
|
$ |
27,520 |
|
Accounts receivable, less allowances for doubtful receivables,
discounts and returns of $5,409 and $4,550 |
|
|
95,932 |
|
|
|
119,984 |
|
Inventories |
|
|
31,838 |
|
|
|
35,207 |
|
Deferred debt issuance costs |
|
|
13,791 |
|
|
|
|
|
Deferred income taxes |
|
|
3,119 |
|
|
|
5,953 |
|
Prepaid expenses |
|
|
8,141 |
|
|
|
11,167 |
|
Other current assets |
|
|
9,735 |
|
|
|
8,161 |
|
|
|
|
|
|
|
|
Total current assets |
|
|
217,486 |
|
|
|
207,992 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net |
|
|
86,492 |
|
|
|
87,449 |
|
Goodwill |
|
|
228,325 |
|
|
|
540,126 |
|
Intangible assets, net |
|
|
340,471 |
|
|
|
604,547 |
|
Other assets |
|
|
18,023 |
|
|
|
37,539 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
890,797 |
|
|
$ |
1,477,653 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY |
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
Current maturities of debt |
|
$ |
975,152 |
|
|
$ |
772 |
|
Accounts payable |
|
|
50,064 |
|
|
|
72,484 |
|
Accrued liabilities |
|
|
77,997 |
|
|
|
96,366 |
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
1,103,213 |
|
|
|
169,622 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
|
13,036 |
|
|
|
900,716 |
|
Deferred income taxes |
|
|
98,761 |
|
|
|
190,321 |
|
Other |
|
|
38,114 |
|
|
|
28,842 |
|
|
|
|
|
|
|
|
Total liabilities |
|
|
1,253,124 |
|
|
|
1,289,501 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies (Notes K and P) |
|
|
|
|
|
|
|
|
|
|
Stockholders equity: |
|
|
|
|
|
|
|
|
Common stock, $0 01 par value: authorized - 1,000 shares;
issued - 100 shares |
|
|
1 |
|
|
|
1 |
|
Additional paid-in capital |
|
|
100,190 |
|
|
|
100,613 |
|
Retained earnings (deficit) |
|
|
(452,596 |
) |
|
|
68,714 |
|
Accumulated other comprehensive income (loss) |
|
|
(9,922 |
) |
|
|
18,824 |
|
|
|
|
|
|
|
|
Total stockholders equity (deficit) |
|
|
(362,327 |
) |
|
|
188,152 |
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity (deficit) |
|
$ |
890,797 |
|
|
$ |
1,477,653 |
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements.
49
SIMMONS COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS EQUITY
(In thousands, except share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (Loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common |
|
|
Net Unrealized Gain |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
|
|
|
|
Stock |
|
|
(Loss) From |
|
|
Total |
|
|
|
Common |
|
|
Common |
|
|
Paid-In |
|
|
Retained |
|
|
Deferred |
|
|
Held in |
|
|
Currency |
|
|
Benefit |
|
|
Stockholders |
|
|
|
Shares |
|
|
Stock |
|
|
Capital |
|
|
Earnings |
|
|
Comp. |
|
|
Treasury |
|
|
Translation |
|
|
Plans |
|
|
Equity |
|
December 31, 2005* |
|
|
100 |
|
|
|
1 |
|
|
|
102,382 |
|
|
|
4,648 |
|
|
|
(361 |
) |
|
|
(2,457 |
) |
|
|
134 |
|
|
|
|
|
|
|
104,347 |
|
Net income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
47,614 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
47,614 |
|
Foreign currency translation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,729 |
) |
|
|
|
|
|
|
(2,729 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income (loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
47,614 |
|
|
|
|
|
|
|
|
|
|
|
(2,729 |
) |
|
|
|
|
|
|
44,885 |
|
Issuance of common stock held in treasury |
|
|
|
|
|
|
|
|
|
|
13 |
|
|
|
(301 |
) |
|
|
|
|
|
|
542 |
|
|
|
|
|
|
|
|
|
|
|
254 |
|
Stock compensation expense |
|
|
|
|
|
|
|
|
|
|
760 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
760 |
|
Adoption of Statement of Financial Standard 123R |
|
|
|
|
|
|
|
|
|
|
(361 |
) |
|
|
|
|
|
|
361 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax windfall resulting from restricted stock awards |
|
|
|
|
|
|
|
|
|
|
49 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49 |
|
Purchase of treasury stock, at cost |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(434 |
) |
|
|
|
|
|
|
|
|
|
|
(434 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 30, 2006* |
|
|
100 |
|
|
|
1 |
|
|
|
102,843 |
|
|
|
51,961 |
|
|
|
|
|
|
|
(2,349 |
) |
|
|
(2,595 |
) |
|
|
|
|
|
|
149,861 |
|
Net income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,949 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,949 |
|
Foreign currency translation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21,774 |
|
|
|
|
|
|
|
21,774 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,949 |
|
|
|
|
|
|
|
|
|
|
|
21,774 |
|
|
|
|
|
|
|
45,723 |
|
Stock compensation expense |
|
|
|
|
|
|
|
|
|
|
93 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
93 |
|
Adoption of Statement of Financial Standard 158 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(355 |
) |
|
|
(355 |
) |
Retirement of treasury stock |
|
|
|
|
|
|
|
|
|
|
(2,350 |
) |
|
|
|
|
|
|
|
|
|
|
2,350 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividend to Simmons Holdco, Inc. (See Note P) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,963 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,963 |
) |
Adoption of FIN 48 (See Note B) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,233 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,233 |
) |
Tax windfall resulting from restricted stock awards |
|
|
|
|
|
|
|
|
|
|
27 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27 |
|
Purchase of treasury stock, at cost |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 29, 2007 |
|
|
100 |
|
|
$ |
1 |
|
|
$ |
100,613 |
|
|
$ |
68,714 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
19,179 |
|
|
$ |
(355 |
) |
|
$ |
188,152 |
|
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(492,211 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(492,211 |
) |
Foreign currency translation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(25,998 |
) |
|
|
|
|
|
|
(25,998 |
) |
Change in
retirement plans liabilities, net of tax benefit of $1,362 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,748 |
) |
|
|
(2,748 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(492,211 |
) |
|
|
|
|
|
|
|
|
|
|
(25,998 |
) |
|
|
(2,748 |
) |
|
|
(520,957 |
) |
Stock compensation benefit |
|
|
|
|
|
|
|
|
|
|
(423 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(423 |
) |
Dividend to Simmons Holdco, Inc. (See Note P) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(29,099 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(29,099 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 27, 2008 |
|
|
100 |
|
|
$ |
1 |
|
|
$ |
100,190 |
|
|
$ |
(452,596 |
) |
|
$ |
|
|
|
$ |
|
|
|
$ |
(6,819 |
) |
|
$ |
(3,103 |
) |
|
$ |
(362,327 |
) |
|
|
|
* |
|
Recast to give effect to the merger (see Note C) |
The accompanying notes are an integral part
of these consolidated financial statements.
50
SIMMONS COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended |
|
|
|
December 27, |
|
|
December 29, |
|
|
December 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
(492,211 |
) |
|
$ |
23,949 |
|
|
$ |
47,614 |
|
Adjustments to reconcile net income (loss) to net cash provided by operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
39,855 |
|
|
|
30,625 |
|
|
|
28,688 |
|
Goodwill impairment |
|
|
303,885 |
|
|
|
|
|
|
|
|
|
Trademark impairment |
|
|
243,672 |
|
|
|
|
|
|
|
|
|
Stock compensation expense (benefit) |
|
|
(423 |
) |
|
|
93 |
|
|
|
760 |
|
Provision for bad debts, net |
|
|
7,788 |
|
|
|
556 |
|
|
|
(117 |
) |
Provision for deferred income taxes |
|
|
(85,300 |
) |
|
|
6,673 |
|
|
|
23,110 |
|
Gain on sale of Sleep Country USA |
|
|
|
|
|
|
|
|
|
|
(43,311 |
) |
Non-cash interest expense |
|
|
25,083 |
|
|
|
22,583 |
|
|
|
27,322 |
|
Net changes in operating assets and liabilities, net of effects of
business acquisitions and dispositions: |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
12,035 |
|
|
|
(24,351 |
) |
|
|
5,429 |
|
Inventories |
|
|
2,493 |
|
|
|
(7,366 |
) |
|
|
4,954 |
|
Other current assets |
|
|
919 |
|
|
|
31 |
|
|
|
(3,233 |
) |
Accounts payable |
|
|
(21,386 |
) |
|
|
11,328 |
|
|
|
14,557 |
|
Accrued liabilities |
|
|
(19,045 |
) |
|
|
14,136 |
|
|
|
4,265 |
|
Other, net |
|
|
(3,918 |
) |
|
|
(12,074 |
) |
|
|
(7,770 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
|
13,447 |
|
|
|
66,183 |
|
|
|
102,268 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property, plant and equipment |
|
|
(17,103 |
) |
|
|
(25,055 |
) |
|
|
(13,553 |
) |
Purchase of certain assets of Comfor Products, Inc. |
|
|
|
|
|
|
(15,379 |
) |
|
|
|
|
Purchase of Simmons Canada, net of cash aquired |
|
|
|
|
|
|
|
|
|
|
(113,098 |
) |
Proceeds from the sale of Sleep Country USA, net |
|
|
|
|
|
|
|
|
|
|
52,417 |
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(17,103 |
) |
|
|
(40,434 |
) |
|
|
(74,234 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Borrowings on tranche D term loan |
|
|
|
|
|
|
|
|
|
|
480,000 |
|
Payments on tranche D term loan |
|
|
|
|
|
|
(15,000 |
) |
|
|
|
|
Repayments on tranche C term loan |
|
|
|
|
|
|
|
|
|
|
(369,933 |
) |
Repayment of senior unsecured term loan |
|
|
|
|
|
|
|
|
|
|
(140,000 |
) |
Borrowings on the revolving credit facility |
|
|
64,532 |
|
|
|
|
|
|
|
|
|
Payments of other debt, net |
|
|
(724 |
) |
|
|
(950 |
) |
|
|
(477 |
) |
Dividends to Simmons Holdco, Inc. |
|
|
(29,099 |
) |
|
|
(4,963 |
) |
|
|
|
|
Excess tax benefits from stock-based compensation |
|
|
|
|
|
|
27 |
|
|
|
49 |
|
Payments of debt issuance costs |
|
|
(1,944 |
) |
|
|
|
|
|
|
(1,039 |
) |
Other |
|
|
|
|
|
|
(1 |
) |
|
|
(181 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities |
|
|
32,765 |
|
|
|
(20,887 |
) |
|
|
(31,581 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net effect of exchange rate changes on cash |
|
|
(1,699 |
) |
|
|
1,874 |
|
|
|
(291 |
) |
|
|
|
|
|
|
|
|
|
|
Change in cash and cash equivalents |
|
|
27,410 |
|
|
|
6,736 |
|
|
|
(3,838 |
) |
Cash and cash equivalents, beginning of year |
|
|
27,520 |
|
|
|
20,784 |
|
|
|
24,622 |
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of year |
|
$ |
54,930 |
|
|
$ |
27,520 |
|
|
$ |
20,784 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental cash flow information: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest, net of amounts capitalized |
|
$ |
50,499 |
|
|
$ |
49,625 |
|
|
$ |
58,504 |
|
|
|
|
|
|
|
|
|
|
|
Cash paid for income taxes |
|
$ |
1,067 |
|
|
$ |
1,347 |
|
|
$ |
1,569 |
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements.
51
Simmons Company Notes to Consolidated Financial Statements
NOTE A BASIS OF PRESENTATION, LIQUIDITY AND ABILITY TO CONTINUE AS A GOING CONCERN
Company
Simmons Company and its subsidiaries (collectively the Company or Simmons) is one of the
worlds largest mattress manufacturers, manufacturing and marketing a broad range of products under
our well-recognized brand names, including Beautyrest®, Beautyrest Black TM,
ComforPedic by SimmonsTM, Natural Care®, Beautyrest BeginningsTM,
BeautySleep®, and Deep Sleep®. The Company manufactures, sells and distributes
its premium branded bedding products principally to retail and hospitality customers, throughout
the U.S. and Canada, and licenses its intellectual property to international companies that
manufacture and sell the Companys premium branded bedding products throughout the
world. Additionally, the Company has licensed its intellectual property to U.S. and Canadian
manufacturers and distributors of bedding accessories, furniture, air beds and other products. The
Company sells products through a diverse North American base of approximately 3,300 retailers,
representing over 15,500 outlets, including furniture stores, specialty sleep shops, department
stores, furniture rental stores, mass merchandisers and juvenile specialty stores.
Simmons Company (Simmons Company or Holdings) is a holding company with no material assets
other than its ownership of the common stock of its wholly-owned subsidiary, THL-SC Bedding Company
(THL-SC), which is also a holding company with no material assets other than its ownership of the
common stock of its wholly-owned subsidiary, Simmons Bedding Company. All of Simmons Companys
business operations are conducted by Simmons Bedding Company and its subsidiaries (collectively
Simmons Bedding). Simmons Bedding is a wholly-owned subsidiary of Simmons Company as a result of
Holdings acquisition of Simmons Holdings, Inc. on December 19, 2003 (the THL Acquisition).
During 2006, the Company sold its subsidiary Sleep Country USA, LLC (SCUSA), which operated
specialty sleep stores, and purchased Simmons Canada Inc. (Simmons Canada), a former licensee of
Simmons and one of the largest bedding manufacturers in Canada (see Note D Acquisitions and
Dispositions).
During 2007, the Company acquired certain assets of Comfor Products, Inc. (the ComforPedic
Acquisition), a specialty producer of foam mattresses and pillows, for $15.4 million (including
transaction expenses) plus additional cash and equity consideration based on future operating
performance (see Note D Acquisitions and Dispositions).
In February 2007, the Company merged with another entity to become a wholly-owned subsidiary
of Simmons Holdco, Inc. (Simmons Holdco), a holding company established to borrow $300.0 million
under a senior unsecured loan (Toggle Loan) to fund a distribution of $278.3 million to the then
existing class A stockholders of the Company (see Note C Merger and Distribution to
Stockholders).
Liquidity
As of December 27, 2008, the Company had $54.9 million of cash and cash equivalents and no
availability to borrow additional amounts from its revolving loan under Simmons Beddings senior
credit facility. The Companys outstanding borrowings consisted of Simmons Beddings senior credit
facility of $529.5 million, Simmons Beddings Subordinated Notes, Simmons Beddings industrial
revenue bonds of $13.6 million, and Holdings Discount Notes.
As of December 27, 2008, Simmons Bedding was operating under a forbearance agreement with a
majority of its senior lenders as a result of Simmons Bedding failing to meet certain covenants of
the senior credit facility as of September 27, 2008. Pursuant to the forbearance agreement, the
senior lenders agreed to, among other things, forbear from exercising their default related rights
and remedies under the senior credit facility through March 31, 2009, subject to earlier
termination in some circumstances. Simmons Bedding entered into amendments to the forbearance
agreement on March 25, 2009 and May 27, 2009 with its senior lenders, whereby the senior lenders
extended their forbearance period through May 31, 2009 and June 30, 2009, respectively, and upon
meeting certain conditions, a further extension to July 31, 2009.
52
Simmons Company Notes to Consolidated Financial Statements
On January 15, 2009, Simmons Bedding did not make a scheduled payment of interest due on
its Subordinated Notes resulting in a default under the indenture governing the Subordinated
Notes. On February 14, 2009 such default matured into an event of default, which enabled the
holders of the Subordinated Notes to declare the full amount of the Subordinated Notes immediately
due and payable. On February 4, 2009, Simmons Bedding and a majority of the outstanding
Subordinated Notes holders entered into a forbearance agreement, pursuant to which those
noteholders have agreed to refrain from enforcing their respective rights and remedies under the
Subordinated Notes and the related indenture through March 31, 2009. Simmons Bedding entered into
amendments to the forbearance agreement on March 25, 2009 and May 27, 2009 with a majority of the
Subordinated Notes holders, whereby those noteholders extended their forbearance period through May
31, 2009 and June 30, 2009, respectively, and upon meeting certain conditions, a further extension
to July 31, 2009. Pursuant to the terms of the forbearance agreement, the noteholders party to the
Subordinated Forbearance Agreement have the obligation to take any actions that are necessary to
prevent an acceleration of the payments due under the Subordinated Notes during the forbearance
period. Because the noteholders party to the Subordinated Forbearance Agreement represent more
than a majority of the Subordinated Notes, they have the power under the indenture to rescind any
acceleration of the Subordinated Notes by either the trustee or the minority holders of the
Subordinated Notes.
Simmons Company failed to file its Quarterly Reports on Form 10-Q for the quarters ended
September 27, 2008 and March 28, 2009 and its Annual Report on Form 10-K for the fiscal year ended
December 27, 2008 (the Financial Reports) with the SEC resulting in the non-compliance with the
reporting covenants of the Subordinated Notes, Discount Notes and Toggle Loan. The Company has 60
days after receiving notice from the lenders to cure the non-compliance by providing such
information to the lenders. On April 14, 2009, Holdings received notification of non-compliance
from the holders of the Discount Notes. With the filing of this Annual Report on Form 10-K for the
fiscal year ending December 27, 2008 along with the filing of the Quarterly Report on Form 10-Q for
the third quarter ended September 27, 2008, the Company has cured these defaults. The Company has
not received notice of non-compliance with the reporting covenant for the Quarterly Report on Form
10-Q for the first quarter ended March 28, 2009. If the Company received such notice and were
unable to cure the non-compliance within 60 days of receiving such notice, there would be an event
of default under the indenture governing the Subordinated Notes. The Company has not received
notification of non-compliance from the Toggle Loan lenders.
As a condition to the forbearance agreement with the senior lenders, the Company initiated a
financing restructuring process in December 2008. A special committee of independent directors was
formed by our board of directors on January 23, 2009 to evaluate and oversee proposals for
restructuring its debt obligations, including seeking additional debt or equity capital and
evaluating various strategic alternatives of the Company. There can be no assurance that the
Company will be successful in implementing a restructuring. If the Company is unable to
successfully complete a restructuring, comply with the terms of the forbearance agreements, or
extend the forbearance periods as needed to successfully complete a restructuring, Simmons
Beddings payment obligations under the senior credit facility and the Subordinated Notes may be
accelerated. If there is an acceleration of payments under the senior credit facility or the
Subordinated Notes, then Holdings would be in default under its Discount Notes and Simmons Holdco
would be in default under its Toggle Loan. Simmons Bedding, Holdings, and Simmons Holdco would not
have the ability to repay any amounts accelerated under their various debt obligations without
obtaining additional equity and/or debt financing. An acceleration of payments could result in a
voluntary filing of bankruptcy by, or the filing of an involuntary petition for bankruptcy against,
Simmons Bedding, THL-SC, Holdings, Simmons Holdco or any of their affiliates. Due to the
possibility of such circumstances occurring, the Company is seeking a negotiated restructuring,
including a restructuring of its debt obligations and/or sale of the Company, its affiliates or its
assets, which could occur pursuant to a pre-packaged, pre-arranged or voluntary bankruptcy
filing. Any bankruptcy filing could have a material adverse effect on the Companys business,
financial condition, liquidity and results of operations. The considerations above raise
substantial doubt about the Companys ability to continue as a going concern. At December 27,
2008, the Company has recorded all amounts outstanding under the senior credit facility,
Subordinated Notes and Discount Notes as a current liability in the accompanying consolidated
balance sheet. The unamortized debt issuance costs associated with the senior credit facility,
Subordinated Notes and Discount Notes were recorded as a current asset in the accompanying
consolidated balance sheet at December 27, 2008 (see Note J Debt, which contains further
information on the Companys debt and the related forbearance agreements).
Basis of Presentation
The accompanying consolidated financial statements include the accounts of Simmons Company and
its wholly- and majority-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated in the preparation of the consolidated financial statements. The
fiscal year of the Company ends on the last Saturday in December. The fiscal years for the
consolidated financial statements presented consist of 52-week periods.
The accompanying consolidated financial statements have been prepared in conformity
with accounting principles generally accepted in the United States of America (GAAP) and are
presented on the basis that the Company is a going concern. The going concern assumption
contemplates the realization of assets and the satisfaction of liabilities in the normal course
of business. Such financial statements include estimates and assumptions that affect the reported
amount of assets and liabilities, and the amounts of revenues and expenses. Actual results could
differ from those estimates.
53
Simmons Company Notes to Consolidated Financial Statements
NOTE B PRINCIPAL ACCOUNTING POLICIES
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with an initial maturity of three months
or less to be cash equivalents. Cash equivalents are stated at cost, which approximates market
value.
ACCOUNTS RECEIVABLE AND ALLOWANCE FOR DOUBTFUL ACCOUNTS
Accounts receivable consists of trade receivables and miscellaneous receivables recorded net
of customer credits and allowances for doubtful receivables, discounts and returns. The Company
maintains allowances for estimated losses resulting from the inability of its customers to make
required payments. If the financial condition of the Companys customers were to deteriorate,
resulting in an impairment of their ability to make payments, additional allowances may be
required. The Company evaluates the adequacy of the allowance on a periodic basis. The evaluation
includes historical loss experience, the aging of the receivable balances, adverse situations that
may affect the customers ability to pay the receivable, and prevailing economic conditions. If
the evaluation of the reserve requirements differs from the actual aggregate allowance, adjustments
are made to the allowance. This evaluation is inherently subjective, as it requires estimates that
are susceptible to revision as more information becomes available. Our allowance for doubtful
accounts was $3.6 million and $2.7 million as of December 27, 2008 and December 29, 2007,
respectively. The Company recorded provisions for bad debt of $7.8 million, $4.3 million and $1.0
million for 2008, 2007 and 2006, respectively.
INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out method) or net realizable
value. The cost of inventories includes raw materials, direct labor and manufacturing overhead
costs. The Company expenses abnormal amounts of idle facility costs, freight and handling costs as
incurred. The Company allocates fixed production overheads to conversion costs based on the normal
capacity of the production facilities. The Company provides inventory reserves for excess,
obsolete or slow-moving inventory based on changes in customer demand, technology developments and
other economic factors.
CUSTOMER SUPPLY AGREEMENTS
The Company from time to time enters into long-term supply agreements with its customers. The
Company capitalizes any initial cash or credit memos provided to its customers that are subject to
refundability and reduce sales for any initial cash or credit memos provided to its customers that
are not subject to refundability. The capitalized costs are included in other assets in the
accompanying consolidated balance sheets and are amortized as a reduction of sales based on the
terms of the supply agreements. The terms of the supply agreements generally range from one to
five years. The consideration used for long-term supply agreements are included in the net change
in operating activities other, net in the accompanying consolidated statements of cash flows.
Amortization related to these contracts was $16.1 million, $10.6 million and $12.3 million in 2008,
2007 and 2006, respectively.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment is recorded at cost less accumulated depreciation. Depreciation
expense is determined principally using the straight-line method over the estimated useful lives
for financial reporting and accelerated methods for income tax purposes. Expenditures that
substantially increase asset values or extend useful lives are capitalized. Expenditures for
maintenance and repairs are expensed as incurred. Leasehold improvements are depreciated no longer
than the lease term, except when the lease renewal has been determined to be reasonably assured and
failure to renew the lease imposes a penalty on the Company. When property items are retired or
otherwise disposed of, amounts applicable to such items are removed from the related asset and
accumulated depreciation accounts and any resulting gain or loss is credited or charged to
income. Useful lives are generally as follows:
|
|
|
|
|
Buildings and improvements |
|
10 - 45 years |
Leasehold improvements |
|
2 - 12 years |
Machinery and equipment |
|
2 - 15 years |
Office furniture and equipment |
|
3 - 7 years |
Computer software costs which are capitalized consist of (a) certain external direct costs of
materials and services incurred in developing or obtaining internal use software and (b) payroll
and payroll-related costs for employees who are directly associated with and who devote time to the
project. Costs incurred during the preliminary project stage or for data conversion activities,
training, maintenance, or overhead are expensed as incurred. Costs that cannot be separated
between maintenance of, and relatively minor upgrades and enhancements to, internal use software
are also expensed as incurred. The capitalized computer software costs are included in office
furniture and equipment and start depreciating when the software is substantially complete and
placed in service.
54
Simmons Company Notes to Consolidated Financial Statements
GOODWILL
The Company tests goodwill for impairment at the reporting unit level on an annual basis in
the fourth quarter by comparing the fair value of its reporting units to their carrying
values. Additionally, goodwill is tested for impairment between annual tests if an event occurs or
circumstances change that would more likely than not reduce the fair value of an entity below its
carrying value. These events or circumstances could include a significant change in the business
climate, legal factors, operating performance indicators, competition, sale or disposition of a
significant portion of the business or other factors. The performance of the test involves a
two-step process. The first step of the impairment test involves comparing the fair values of the
applicable reporting units with their aggregate carrying values, including goodwill. If the
carrying amount exceeds the fair value of the reporting unit, the Company performs the second step
of the goodwill impairment test to determine the amount of impairment loss. The second step of the
goodwill impairment test involves comparing the implied fair value of the affected reporting units
goodwill with the carrying value of that goodwill.
Determining the fair value of a reporting unit is judgmental in nature and requires the use of
significant estimates and assumptions including revenue growth rates and operating margins,
discount rates and future market conditions, among others. Fair value of the Companys reporting
units is generally determined based on an equal weighting of the market approach and income
approach methodologies. The market approach estimates fair value by applying multiples of
potential earnings, such as EBITDA, of similar public entities. Management believes this approach
is appropriate because it provides a fair value using multiples from entities with operations and
economic characteristics similar to the Companys reporting units. The income approach is based on
projected future debt-free cash flow that is discounted to present value using factors that
consider the timing and risk of the future cash flows. Management believes this approach is
appropriate because it provides a fair value estimate based upon the reporting units expected
long-term operating and cash flow performance. The income approach also incorporates the potential
impact of cyclical downturns, anticipated changes in product sales mix and inflation and other
changes in product costs that could occur in the reporting unit and its industry. The income
approach is based on a reporting units five year projections of operating results and cash flows
that are discounted using the estimate of the market based weighted average cost of capital for the
bedding industry. The future operating projections are based on consideration of past performance
and the projections and assumptions used in the Companys current operating plans. Such
assumptions are subject to change as a result of changing economic and competitive conditions. As
a result of the Company lowering of its projected future operating results due to deterioration of
consumer spending and increased material costs, the Company recognized a goodwill impairment charge
in 2008 related to its Domestic and Canada reporting units of $294.0 million and $9.9 million,
respectively. The Company did not recognize any goodwill impairment charges in 2007 and 2006.
INTANGIBLE ASSETS
Definite-lived intangible assets are amortized using the straight-line method, which the
Company believes is most appropriate, over their estimated period of benefit, ranging from ten to
twenty-five years. Since the Company has the intent and ability to renew its trademarks and the
Companys branded products have a long history of being a market leader in the bedding industry,
the Company determined that its trademarks will generate cash flows for an indefinite period of
time and consider trademarks to be indefinite-lived intangible assets. Indefinite-lived intangible
assets are not amortized. The Company reviews the useful lives of definite-lived and
indefinite-lived intangible assets every reporting period.
The Company evaluates indefinite-lived intangible assets for impairment at least annually or
whenever events or circumstances indicate their carrying value might be impaired. The carrying
value of an indefinite-lived intangible asset is considered impaired when its carrying value
exceeds its fair market value. In such an event, an impairment loss is recognized equal to the
amount of that excess.
Fair value of the Companys trademarks is determined using a relief of royalty method. The
relief of royalty method assumes that, in lieu of ownership, a company would be willing to pay a
royalty in order to exploit the related benefits of the trademarks. This approach is dependent on
a number of factors, including estimate of future operating projections, royalty rates for
trademarks, and a discount rate. The future operating projections are based on consideration of
past performance and the projections and assumptions used in the Companys current operating
plans. Such assumptions are subject to change as a result of changing economic and competitive
conditions. The royalty rate is based on a combination of the Companys existing agreements to
license its trademarks to third-parties and licenses within the furniture and household products
industry. The discount rate is based upon the estimate of the market based weighted average cost
of capital for the bedding industry. As a result of the Company lowering of its projected future
operating results due to deterioration of consumer spending and increased material costs, the
Company recognized a trademark impairment charge in 2008 related to its Domestic and Canada
reporting segments of $225.8 million and $17.9 million, respectively. The Company did not
recognize any trademark impairment charges in 2007 and 2006.
55
Simmons Company Notes to Consolidated Financial Statements
IMPAIRMENT OF LONG-LIVED ASSETS
The Company reviews all of its long-lived assets for impairment whenever events or
circumstances indicate their carrying value may not be recoverable. Management reviews whether
there has been impairment by comparing anticipated undiscounted future cash flows from operating
activities with the carrying value of the asset. The factors considered by management in this
assessment include operating results, trends and prospects, as well as the effects of obsolescence,
demand, competition and other economic factors. If impairment is deemed to exist, management would
record an impairment charge equal to the excess of the carrying value over the fair value of the
impaired assets.
DEBT ISSUANCE COSTS
The Company capitalizes costs associated with the issuance of debt and amortizes the cost as
additional interest expense over the lives of the debt using the effective interest rate
method. Upon prepayment of the related debt, the Company recognizes a proportional amount of the
related debt issuance costs as additional interest expense. Amortization of debt issuance costs of
$2.1 million, $2.0 million and $7.6 million in 2008, 2007 and 2006, respectively, is included as a
non-cash component of interest expense in the accompanying consolidated statements of operations
and comprehensive income (loss). Included in the 2006 amortization of debt issuance costs are $5.0
million of costs expensed in connection with the Company amending its senior credit facility and
repaying the senior unsecured term loan in 2006.
TREASURY STOCK
Common stock repurchased by the Company is recorded at cost as a reduction of stockholders
equity. The Company uses the first-in first-out method of determining the cost of treasury stock
that is subsequently reissued. The difference between the cost of treasury stock and the
reissuance price is added or deducted from additional paid in capital or retained earnings.
REVENUE RECOGNITION
The Company recognizes revenue, net of estimated returns, when title and risk of ownership
passes, which is generally upon delivery of shipments. An insignificant portion of the Companys
revenue is derived from inventory held on consignment with certain customers. The Company
recognizes revenue on inventory held on consignment when the title and risk of ownership have
transferred to the customer, which is when the inventory held on consignment is used. The Company
accrues for estimated costs of warranties, co-op advertising costs, promotional monies and cash
discounts at the time the corresponding sales are recognized. Sales are presented net of cash
discounts, rebates, returns and certain consideration provided to customers such as co-operative
advertising funds, promotional monies, and amortization of supply agreements. The Company uses
historical trend information regarding returns to reduce sales for estimated future returns. The
Company provides an allowance for bad debts for estimated uncollectible accounts receivable, which
is included in selling, general and administrative expenses in the accompanying consolidated
statements of operations and comprehensive income (loss).
REBATES
The Company provides volume rebates to certain customers for the achievement of various
purchase volume levels. The Company recognizes a liability for the rebate at the point of revenue
recognition for the underlying revenue transactions that result in progress by the customer towards
earning the rebate. Measurement of the liability is based on the estimated number of customers
that will ultimately earn the rebates. Once the rebate is earned, the Company provides the
customer cash or a credit memo that is netted against the accounts receivable balance. Rebates
were $36.5 million, $36.4 million and $20.2 million in 2008, 2007 and 2006, respectively, and are
included as a reduction of sales in the accompanying consolidated statements of operations and
comprehensive income (loss).
PRODUCT DELIVERY COSTS
The Company incurred $58.9 million, $60.6 million and $54.4 million in shipping and handling
costs associated with the delivery of finished mattress products to its customers in 2008, 2007 and
2006, respectively. These costs are included in selling, general and administrative expenses in
the accompanying consolidated statements of operations and comprehensive income (loss).
56
Simmons Company Notes to Consolidated Financial Statements
STOCK BASED EMPLOYEE COMPENSATION
The Company adopted the provisions of Statement of Financial Accounting Standard (SFAS) No.
123 (Revised 2004), Share Based Payment (SFAS 123R) on January 1, 2006 (the first day of the 2006
first quarter). Under SFAS 123R, the fair value of the Companys stock based awards on the date
of grant are recognized as an expense over the vesting period. Fair value of the stock is
determined by the Companys board of directors. Simmons Holdcos enterprise value fluctuates based
upon its operating performance, changes in market multiples for comparable publicly traded
companies and changes in transaction multiples paid for companies with similar operations as the
Company.
The Company used the modified prospective application method of transition under SFAS
123R. Under the modified prospective application method, the Company applies SFAS 123R for new
awards granted after January 1, 2006 and for unvested awards as of January 1, 2006. Upon adoption
of SFAS 123R, the Company made a one-time cumulative adjustment of less than $0.1 million to record
an estimate of the future forfeitures on all outstanding equity awards. Additionally, the Company
netted its deferred compensation related to awards issued prior to the adoption of SFAS 123R
against additional paid in capital.
FOREIGN CURRENCY
Subsidiaries located outside of the U.S. use the local currency as the functional
currency. Assets and liabilities are translated at exchange rates in effect at the consolidated
balance sheet date and income and expense accounts at average exchange rates during the
year. Resulting translation adjustments are recorded directly to accumulated other comprehensive
income (loss), a separate component of stockholders equity and are not tax effected since they
relate to investments, which are permanent in nature. Foreign currency transactions gains and
losses are recognized as incurred in selling, general and administrative expenses in the
accompanying consolidated statements of operations and comprehensive income (loss). The Company
recognized a foreign currency transaction loss of $1.0 million for 2008, gain of $0.6 million in
2007, and loss of $0.5 million in 2006.
PRODUCT DEVELOPMENT COSTS
Costs associated with the development of new products and changes to existing products are
charged to expense as incurred. These costs amounted to approximately $2.9 million, $2.8 million
and $2.4 million in 2008, 2007 and 2006, respectively. Such costs are included in selling, general
and administrative expense in the accompanying consolidated statements of operations and
comprehensive income (loss).
ADVERTISING COSTS
The Company records the cost of advertising, including co-operative advertising, as an expense
or a reduction of sales when incurred or no later than when the advertisement appears or the event
is run. Co-operative advertising costs are recorded as a selling expense when the customer
provides proof of advertising the Companys products and the payments made to the customer are less
than or equal to the cost of the advertisement. Co-operative advertising costs are recorded as a
reduction of sales whenever the costs do not meet the criteria for classification as a selling
expense. Advertising costs which were recorded as a reduction of sales in the accompanying
consolidated statements of operations and comprehensive income (loss) were $23.6 million, $28.6
million and $24.6 million in 2008, 2007 and 2006, respectively. Advertising costs which were
recorded as selling, general and administrative expenses in the accompanying consolidated
statements of operations and comprehensive income (loss) were $91.6 million, $87.0 million and
$89.8 million in 2008, 2007 and 2006, respectively.
57
Simmons Company Notes to Consolidated Financial Statements
INCOME TAXES
Income taxes are accounted for under the asset and liability method. Deferred tax assets and
liabilities are recognized for the estimated future tax consequences attributable to differences
between the financial statement carrying amounts of existing assets and liabilities and their
respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates in
effect for the year in which those temporary differences are expected to be recovered or settled.
The effect on deferred tax assets and liabilities of a change in tax rate is recognized in income
in the period that includes the enactment date. Valuation allowances are established when
necessary to reduce deferred tax assets to the amounts more likely than not to be realized. As of
December 27, 2008 and December 29, 2007, we had valuation allowances of $22.9 million and $9.3
million, respectively, against the deferred tax assets related to certain tax loss and certain tax
credit carryforwards.
The determination of the Companys provision for income taxes requires significant judgment,
the use of estimates, and the interpretation and application of complex tax laws. Significant
judgment is required in assessing the timing and amounts of deductible and taxable items and the
probability of sustaining uncertain tax positions. The benefit of uncertain tax positions are
recorded in the Companys financial statements only after determining a more-likely-than-not
probability that the uncertain tax positions will withstand challenge, if any, from taxing
authorities. When facts and circumstances change, management reassesses these probabilities and
records any changes in the financial statements as appropriate.
In the first quarter of 2007, the Company adopted FASB Interpretation 48, Accounting for
Uncertainty in Income Taxes (FIN 48). FIN 48 clarifies the accounting for income tax by
prescribing a minimum recognition threshold a tax position is required to meet before being
recognized in the financial statements. FIN 48 also provides guidance on derecognition,
measurement, classification, interest and penalties, accounting in interim periods, disclosure and
transition. As a result of the adoption of FIN 48, the Company initially recognized an $18.3
million increase in its liability for uncertain tax positions on the first day of its fiscal year
2007. This was accounted for as a decrease in retained earnings of $2.2 million, and increases in
goodwill and deferred tax assets of $12.6 and $3.5 million, respectively.
WARRANTIES
The conventional innerspring bedding products that the Company currently manufactures
generally include a non-prorated warranty of ten years. The conventional specialty bedding
products that the Company currently manufactures generally include a non-prorated warranty of
twenty to twenty-five years. The Companys juvenile bedding products have warranty periods ranging
from five years to a lifetime. The Company records the estimated cost of warranty claims when its
products are sold. The Companys new products undergo extensive quality control testing and are
generally constructed using similar techniques and materials of our historical products. Therefore,
the Company estimates the cost of warranty claims based on historical sales and warranty returns
and the current average costs to settle a warranty claim. The Company includes the estimated
impact of recoverable salvage value in the calculation of the current average costs to settle a
warranty claim.
The following table presents a reconciliation of the Companys warranty accrual for 2008, 2007
and 2006 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 27, |
|
|
December 29, |
|
|
December 30, |
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Balance at beginning of year |
|
$ |
4,291 |
|
|
$ |
3,668 |
|
|
$ |
3,009 |
|
Additional warranties issued |
|
|
2,853 |
|
|
|
2,466 |
|
|
|
1,627 |
|
Accruals related to pre-existing warranties (including change in estimate) |
|
|
22 |
|
|
|
296 |
|
|
|
98 |
|
Warranty settlements |
|
|
(2,403 |
) |
|
|
(2,139 |
) |
|
|
(1,066 |
) |
|
|
|
|
|
|
|
|
|
|
Balance at end of year |
|
$ |
4,763 |
|
|
$ |
4,291 |
|
|
$ |
3,668 |
|
|
|
|
|
|
|
|
|
|
|
58
Simmons Company Notes to Consolidated Financial Statements
PENSION AND OTHER POST-EMPLOYMENT BENEFITS
Pension expense and obligations are actuarially determined and are affected by the Companys
assumptions with respect to the discount rate for obligations, the future rate of increase in
compensation levels, and the long term rate of return on plan assets. The assumed discount rate is
based upon a portfolio of high-grade corporate bonds, which are used to develop a yield
curve. This yield curve is applied to the expected duration of the pension obligation. The rate
of increase in compensation levels is based on the Companys assessment of the current and future
economic environment and overall salary trends. The expected long-term rate of return considers
the allocation of plan assets, the historical performance of total plan assets, and economic and
other indicators of future performance.
In September 2006, the FASB issued Statement of Financial Accounting Standards No. 158,
Employers Accounting for Defined Benefit Pension and Other Postretirement Plans an amendment of
FASB Statements No. 87, 88, 106 and 132(R) (SFAS 158). SFAS 158 requires the recognition of the
overfunded or underfunded status of a defined benefit post retirement plan as an asset or liability
on the Companys consolidated balance sheet and the recognition of changes in the funded status in
the year in which the changes occur through comprehensive income. SFAS 158 also requires the
measurement of the funded status of a plan as of the date of the Companys year end consolidated
balance sheet. This pronouncement does not require prior periods to be restated to reflect the
impact of SFAS 158. The Company adopted SFAS 158 on December 29, 2007. The adoption of the
pronouncement did not impact the Companys results of operations or cash flows.
The following table summarizes the incremental effect of SFAS 158 adoption on the individual
line items in the consolidated balance sheet at December 29, 2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Before |
|
|
SFAS |
|
|
After |
|
|
|
adoption of |
|
|
158 Adjust- |
|
|
adoption of |
|
|
|
SFAS 158 |
|
|
ments |
|
|
SFAS 158 |
|
Other assets |
|
$ |
37,833 |
|
|
$ |
(294 |
) |
|
$ |
37,539 |
|
Total assets |
|
|
1,477,947 |
|
|
|
(294 |
) |
|
|
1,477,653 |
|
Other liabilities |
|
|
28,453 |
|
|
|
389 |
|
|
|
28,842 |
|
Deferred income taxes |
|
|
190,649 |
|
|
|
(328 |
) |
|
|
190,321 |
|
Total liabilities |
|
|
1,289,440 |
|
|
|
61 |
|
|
|
1,289,501 |
|
Accumulated other comprehense income |
|
|
19,179 |
|
|
|
(355 |
) |
|
|
18,824 |
|
Total stockholders equity |
|
|
188,507 |
|
|
|
(355 |
) |
|
|
188,152 |
|
Total liabilities and stockholders equity |
|
|
1,477,947 |
|
|
|
(294 |
) |
|
|
1,477,653 |
|
ENVIRONMENTAL COSTS
Environmental expenditures that relate to current operations are expensed or capitalized when
it is probable that a liability exists and the amount or range of amounts can be reasonably
estimated. Remediation costs that relate to an existing condition caused by past operations are
accrued when it is probable that the costs will be incurred and can be reasonably estimated.
59
Simmons Company Notes to Consolidated Financial Statements
FINANCIAL INSTRUMENTS AND SIGNIFICANT CONCENTRATIONS OF RISK
The carrying amount of the Companys financial instruments, consisting of cash and cash
equivalents, accounts receivable, accounts payable and certain other liabilities, approximate fair
value due to their relatively short maturities.
Under Statement of Financial Accounting Standard (SFAS) No. 157, Fair Value Measurements
(SFAS 157), fair value is defined as the exit price, or the amount that would be received to sell
an asset or paid to transfer a liability in an orderly transaction between market participants as
of the measurement date. SFAS 157 also establishes a hierarchy for inputs used in measuring fair
value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by
requiring that the most observable inputs be used when available. Observable inputs are inputs
market participants would use in valuing the asset or liability developed based on market data
obtained from sources independent of the Company. Unobservable inputs are inputs that reflect the
Companys assumptions about the factors market participants would use in valuing the asset or
liability developed based upon the best information available in the circumstances. The hierarchy
is broken down into three levels:
Level 1 Quoted prices (unadjusted) in active markets for identical assets or liabilities;
Level 2 Quoted prices for similar assets or liabilities in active markets, quoted prices for
identical or similar assets or liabilities in markets that are not active, and inputs (other than
quoted prices) that are observable for the asset or liability, either directly or indirectly;
Level 3 Unobservable inputs for which little or no market activity exists.
The fair value of the Companys tranche D term loan, Subordinated Notes and Discount
Notes is based on Level 1 inputs, quoted market prices as of December 27, 2008, which management
believes incorporates the Companys nonperformance risk and credit risk. The following table
compares the carrying values and estimated fair values of the Companys tranche D term loan,
Subordinated Notes and Discount Notes at December 27, 2008 (in millions).
|
|
|
|
|
|
|
|
|
|
|
Carrying |
|
|
Estimated |
|
|
|
Value |
|
|
Fair Value |
|
Tranche D term loan |
|
$ |
465.0 |
|
|
$ |
245.1 - $267.4 |
|
Subordinated notes |
|
$ |
200.0 |
|
|
$ |
54.6 |
|
Discount notes |
|
$ |
245.1 |
|
|
$ |
44.1 |
|
Cash and cash equivalents are maintained with several major financial institutions in the
U.S., Canada and Puerto Rico. Deposits held with banks may exceed the amount of insurance provided
on such deposits. Generally, these deposits may be redeemed upon demand. Additionally, the
Company monitors the financial condition of such institutions and considers the risk of loss
remote.
The Companys accounts receivable arise from sales to numerous customers in a variety of
markets principally throughout the U.S., Canada and Puerto Rico. The Company performs periodic
credit evaluations of its customers financial condition and generally does not, in most cases,
require collateral. The Companys five largest customers aggregated approximately 26%, 23% and 25%
of sales for each of 2008, 2007 and 2006, respectively, and no single customer accounted for over
10% of the sales in any of those years.
The Company uses short-term foreign currency swaps within the normal course of business as
economic hedges principally to manage foreign currency exchange rate risk. The Company recognizes
foreign currency swaps as either an asset or liability measured at its fair value. The changes in
fair value of the foreign currency swaps are recognized through current period income. The
counterparties to the Companys foreign currency swap agreements are major financial institutions.
The Company has not experienced non-performance by any of its counterparties. As of December 27,
2008, the Company had no foreign currency swaps outstanding.
SELF-INSURANCE
The Company retains a portion of the risks related to its general liability, product
liability, automobile, workers compensation and health insurance programs. The exposure for
unpaid claims and associated expenses, including incurred but not reported losses, generally is
estimated with the assistance of external actuaries and by factoring in pending claims and
historical trends and data. The estimated accruals for these liabilities could be affected if
future occurrences or loss developments significantly differ from utilized assumptions. The
estimated liability associated with settling unpaid medical and workers compensation claims is
included in accrued liabilities. As of December 27, 2008 and December 29, 2007, the Company had a
liability for exposures to unpaid self-insured claims of $5.7 million and $5.3 million,
respectively.
60
Simmons Company Notes to Consolidated Financial Statements
RECENTLY ISSUED ACCOUNTING STANDARDS
In September 2006, the Financial Accounting Standards Board (FASB) issued SFAS No. 157, Fair
Value Measurements (SFAS 157). SFAS 157 addresses the measurement of fair value by companies
when they are required to use a fair value measure for recognition or disclosure purposes under
GAAP. SFAS 157 provides a common definition of fair value to be used throughout GAAP, which is
intended to make the measurement of fair value more consistent and comparable and improve
disclosures about those measures. SFAS 157 clarifies the principal that fair value should be based
on the assumptions market participants would use when pricing an asset or liability and establishes
a fair value hierarchy that prioritizes the information used to develop those assumptions. In
February 2008, the FASB issued Financial Statement Position (FSP) No. 157-1, Application of FASB
Statement No. 157 to FASB Statement No. 13 and Other Accounting Pronouncements That Address Fair
Value Measurements for Purposes of Lease Classification or Measurement under Statement 13, which
removed leasing transactions accounted for under Statement 13 and related guidance from the scope
of SFAS 157, and FSP No. 157-2, Partial Deferral of the Effective Date of Statement 157 (FSP
157-2), which deferred the effective date of SFAS 157 for all non-financial assets and
liabilities, except those that are recognized or disclosed in the financial statements at fair
value at least annually, to fiscal years beginning after November 15, 2008. The Company
implemented SFAS 157 for financial assets and liabilities at the beginning of its fiscal year 2008
and elected to defer the adoption of SFAS 157 for non-financial assets and liabilities until the
beginning of its fiscal year 2009 as allowed under FSP 157-2. The implementation of SFAS 157 for
financial assets and liabilities did not have a material impact on the Companys consolidated
financial position and results of operations. The Company is still assessing the impact that
adopting SFAS 157 for non-financial assets and liabilities will have to its consolidated financial
position and results of operations. The major categories of non-financial assets and liabilities
that are measured at fair value, for which the Company has not yet applied the provisions of SFAS
157, are as follows: reporting units measured at fair value in the first step of the Companys
goodwill impairment testing and indefinite-lived intangible assets measured at fair value for
impairment testing. In October 2008, the FASB issued FASB Staff Position No. FAS 157-3,
Determining the Fair Value of a Financial Asset When the Market for that Asset Is Not Active (FSP
157-3), which clarifies the application of SFAS 157 as it relates to the valuation of financial
assets in a market that is not active for those financial assets. This guidance was effective in
October 2008 and includes those periods for which financial statements have not been issued. The
Company currently does not have financial assets that are valued using inactive markets; therefore,
FSP 157-3 will not have an impact on the Companys consolidated financial statements and results of
operations.
In December 2007, the FASB issued SFAS 141 (Revised 2007), Business Combinations (SFAS
141R). SFAS 141R replaces FASB Statement No. 141, Accounting for Business Combinations. SFAS
141R requires that the acquisition method of accounting be used in all business combinations and
for an acquirer to be identified for each business combination. SFAS 141R defines the acquirer as
the entity that obtains control of one or more businesses in the business combination and
establishes the acquisition date as the date that the acquirer achieves control. It requires an
acquirer to recognize the assets acquired, the liabilities assumed, and any noncontrolling interest
in the acquiree at the acquisition date, measured at their fair values as of that date. SFAS 141R
will be effective for the Companys business combinations for which the acquisition date is on or
after the beginning of fiscal year 2009. The impact on the Company of adopting SFAS 141R will
depend on the nature, terms and size of the business combinations completed after the effective
date.
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated
Financial Statements (SFAS 160). SFAS 160 amends ARB No. 51, Consolidated Financial
Statements. SFAS 160 establishes accounting and reporting standards for the noncontrolling
interest in a subsidiary and for the deconsolidation of a subsidiary. It clarifies that a
noncontrolling interest in a subsidiary is an ownership interest in the consolidated entity that
should be reported as equity in the consolidated financial statements. SFAS 160 is effective for
the Company as of the beginning of fiscal year 2009. The Company currently does not have a
non-controlling interest in a subsidiary; therefore, the adoption of SFAS 160 will not have an
impact on the Companys consolidated financial statements and results of operations.
61
Simmons Company Notes to Consolidated Financial Statements
In March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative Instruments and
Hedging Activities (SFAS 161). SFAS 161 enhances the disclosure framework of FASB Statement No.
133, Accounting for Derivative Instruments and Hedging Activities, as amended (SFAS 133). SFAS
161 expands the disclosures to provide an enhanced understanding of (1) how and why an entity uses
derivative instruments; (2) how derivative instruments and related hedged items are accounted for
under SFAS 133 and its related interpretations; and (3) how derivative instruments affect an
entitys financial position, financial performance, and cash flows. SFAS 161 is effective for the
Company as of the beginning of fiscal year 2009. The Company currently has no derivative
instruments; therefore, the adoption of SFAS 161 will not have an impact on the Companys
disclosures.
In December 2008, the FASB issued FASB Staff Position FSP 132(R)-1, Employers Disclosures
about Postretirement Benefit Plan Assets (FSP 132(R)-1), which provides additional guidance on an
employers disclosures about plan assets of a defined benefit pension or other post retirement
plan. This interpretation is effective for financial statements issued for fiscal years ending
after December 15, 2009. The Company is in the process of evaluating the impact of this guidance
on its disclosures.
In April 2008, the FASB issued FASB Staff Position No. 142-3, Determination of the Useful
Lives of Intangible Assets (FSP
142-3), which amends the factors that should be considered in developing renewal or extension
assumptions used to determine the useful life of a recognized intangible asset under SFAS 142,
Goodwill and Other Intangible Assets. This staff position will be effective for the Company at the
beginning of fiscal year 2009. The Company is in the process of evaluating the impact of this
guidance on its consolidated financial statements and results of operations.
62
Simmons Company Notes to Consolidated Financial Statements
NOTE C MERGER AND DISTRIBUTION TO STOCKHOLDERS
On February 9, 2007, Simmons Company completed a merger with Simmons Merger Company, a
wholly-owned subsidiary of Simmons Holdco, with Simmons Company being the surviving entity and a
wholly-owned subsidiary of Simmons Holdco (the Merger). As a result of the Merger, the Companys
treasury stock and the issued and outstanding class A and class B common stock were retired and the
Company issued 100 shares of new common stock with a $0.01 par value to Simmons Holdco. After the
Merger, the ownership structure of Simmons Holdco was identical to the ownership structure of
Simmons Company prior to the Merger. The Merger was treated for accounting purposes as a
recapitalization whereby the historical common stock and additional paid-in capital have been
recast as if the Merger occurred retroactively.
In the Merger, class A stockholders of the Company also received merger consideration equal to
their remaining invested capital plus a preferred return on their invested capital. Additionally,
Simmons Holdco assumed the rights and obligations of the Companys Equity Incentive Plan
(Incentive Plan) and all restricted stock issuances and stock options granted under the Incentive
Plan. Since the Incentive Plan provides a compensation incentive for the employees of the Company
to perform services, the stock-based compensation expense related to the awards issued under the
Incentive Plan is recorded as an expense of the Company and a contribution of capital to the
Company by Simmons Holdco.
In connection with the Merger, Simmons Holdco borrowed $300.0 million under the Toggle Loan to
fund $278.3 million of merger consideration distributed to the Companys then existing class A
stockholders. For further information on the Toggle Loan (see Note P Commitments and
Contingencies).
NOTE D ACQUISITIONS AND DISPOSITIONS
2007 Purchase of Certain Assets of CP Holdco, Inc. (Comfor Products)
On June 29, 2007, the Company acquired certain intellectual property and other assets of
Comfor Products (the ComforPedic Acquisition), a specialty producer of foam mattresses and
pillows, for $15.4 million (including transaction expenses) plus additional cash and equity
consideration based on future operating performance. Following the acquisition, the Company began
marketing and selling foam mattresses and pillows under the ComforPedic by SimmonsTM brand
name.
The Company recorded the acquisition using the purchase method of accounting and, accordingly,
the purchase price has been allocated to the assets acquired and liabilities assumed based on their
estimated fair market values. All future payments attributable to the purchase price will be
recorded as additional goodwill.
2006 Purchase of Simmons Canada Inc. (Simmons Canada)
On November 15, 2006, the Company acquired Simmons Canada, a former licensee of the Company
and a leading manufacturer of mattresses in Canada, for $113.1 million in cash (the Canada
Acquisition). The Canada Acquisition was funded from cash on hand and $20 million of borrowings
on the Companys revolving loan. Simmons Canada is now a wholly-owned subsidiary of the Company
and the results of operations of Simmons Canada have been included in the Companys consolidated
financial statements since the November 15, 2006 acquisition date. The Canada Acquisition provides
the Company with direct access to the conventional mattress and foundations market in Canada where
Simmons Canada was already one of the leading mattress manufacturers by selling Simmons branded
products.
The Company recorded the Canada Acquisition using the purchase method of accounting and,
accordingly, the purchase price has been allocated to the assets acquired and liabilities assumed
based on their fair values. Fair value of the assets and liabilities assumed was determined based
on, but not limited to, discounted expected future cash flows for trademarks and non-contractual
customer relationships and current replacement costs for fixed assets.
The following table summarizes the allocation of the purchase price to the fair values of the
assets acquired and liabilities assumed as of the date of the acquisition (in thousands):
|
|
|
|
|
|
|
November 15, |
|
|
|
2006 |
|
Current assets |
|
$ |
27,279 |
|
Property, plant and equipment |
|
|
17,773 |
|
Goodwill |
|
|
33,381 |
|
Other intangibles |
|
|
62,802 |
|
Other assets |
|
|
800 |
|
|
|
|
|
Total assets acquired |
|
|
142,035 |
|
|
|
|
|
Current liabilities |
|
|
(16,945 |
) |
Non-current liabilities |
|
|
(11,991 |
) |
|
|
|
|
Total liabilities assumed |
|
|
(28,936 |
) |
|
|
|
|
Purchase price net of cash acquired |
|
$ |
113,099 |
|
|
|
|
|
63
Simmons Company Notes to Consolidated Financial Statements
The intangible assets acquired include non-contractual customer relationships of $17.7
million and trademarks of $45.1 million. The non-contractual customer relationships have a
weighted average life of twenty years and will be amortized using the straight line method, which
best reflects the utilization of the economic benefits of the agreements. The trademarks have an
indefinite life. Goodwill includes a portion of value for assembled workforce which is not
separately classified from goodwill. The purchased intangibles and goodwill are not deductible for
income tax purposes.
Since the Canada Acquisition was a purchase of stock, the respective tax bases of the assets
and liabilities were not changed. As a result, a net deferred tax liability was recorded as of the
acquisition date to reflect the difference between the fair value of the assets and liabilities
under purchase accounting and the historical tax bases of the assets and liabilities. The reversal
of such differences in the future will be recorded through the tax provision.
2006 Sale of SCUSA
On August 29, 2006, the Company sold its subsidiary, SCUSA, to an affiliate of The Sleep
Train, Inc. (Sleep Train) for net cash proceeds of $52.4 million (SCUSA Disposition). The
Company recorded a net gain of $43.3 million. This disposition resulted in the Company selling all
of its retail bedding segment assets.
Concurrent with the sale of SCUSA, the Company entered into a multi-year supply agreement with
Sleep Train which will result in the Company having a significant ongoing interest in the cash
flows of SCUSA. Since the Company has an ongoing interest in the cash flows of SCUSA, the Company
did not report the gain on disposition or SCUSAs results of operations as discontinued operations
in the accompanying consolidated statements of operations and comprehensive income (loss).
Pro Forma Financial Data
The ComforPedic Acquisition is not considered significant to the Companys consolidated
balance sheet and consolidated statements of operations and comprehensive income
(loss). Therefore, pro forma information has not been presented.
The unaudited pro forma consolidated net sales and net income for 2006 were $1,019.3 million
and $18.9 million, respectively, and assume that both the Canada Acquisition and the SCUSA
Disposition were completed as of the beginning of the Companys 2006 fiscal year.
The pro forma data may not be indicative of the results that would have been obtained had
these events actually occurred at the beginning of the period presented, nor does it intend to be a
projection of future results.
NOTE E RESTRUCTURING CHARGES
In June and October 2008, the Company announced workforce reductions in response to the
downturn in the economy since the second half of 2007. These workforce reductions were completed
in 2008. Associates terminated under these announced workforce reductions were offered certain
benefits including severance, outplacement services and health insurance. The Company recognized a
pre-tax restructuring charge for severance and benefits of $3.8 million in 2008 related to these
planned workforce reductions, which will be payable through March 2010. The Company will not incur
expenses after March 2010 associated with these workforce reductions.
On August 15, 2008, the Bramalea, Ontario facilitys office and production workers, all
members of the Canada Auto Workers Union Local 513 (CAW 513), ceased work and commenced a strike
against the facility. As the strike continued, the Company evaluated its various alternatives, and
decided to initiate the actions required to permanently shut down the facility due to the financial
impact of the strike and its effect on customers and revenues. The closure of the Ontario Plant
was announced on September 8, 2009. In connection with the facility closure, the National
Automobile, Aerospace, Transportation and General Workers Union of Canada and its Local 513 filed
an unfair labor practice charge and three former production employees filed a wrongful
termination claim against the Company on behalf of themselves and a class of similarly situated
former employees. In June 2009, the Company entered into tentative settlement agreements as to
both disputes, although certain conditions, including obtaining leave of court to dismiss the class
action must be met before the settlements will be final. An estimated settlement amount has been
recorded as part of the restructuring severance and benefits.
64
Simmons Company Notes to Consolidated Financial Statements
In September 2008, the Company announced and completed the closure of its Mableton, Georgia
manufacturing facility. The decision to close the Mableton facility resulted from the current
macroeconomic environment and lower manufacturing requirements.
The Company recognized a pre-tax restructuring charge in 2008 related to the closure of the
facilities of $4.7 million, which consisted of $2.4 million in severance and benefits and $2.3
million in lease facility costs. In addition to the costs recognized in 2008, the Company
anticipates incurring certain other cash charges related to the closure of the facilities that will
be expensed as incurred. These additional charges include cost principally related to maintaining
the unoccupied leased facilities and the relocation of manufacturing equipment. While the estimate
of these costs, in total, is not yet final, the Company currently expects
that the costs will total approximately $1.4 million to be incurred through the first quarter
of 2010.
In September 2008, Charles R. Eitel resigned as Chairman and Chief Executive Officer of the
Company and entered into a written separation agreement with the Company. Mr. Eitel assumed the
role of Vice Chairman of the Board of Directors. The Company recorded a restructuring charge in
2008 of $1.7 million related to severance and benefits payable until September 2010 under the
separation agreement.
65
Simmons Company Notes to Consolidated Financial Statements
The following table represents the pre-tax restructuring charges related to the above
initiatives, including facility closures and organizational changes, recognized during the fiscal
year ended December 27, 2008, for each operating segment (in thousands):
|
|
|
|
|
|
|
Year Ended |
|
|
|
December 27, |
|
|
|
2008 |
|
Domestic |
|
$ |
5,988 |
|
Canada |
|
|
4,260 |
|
|
|
|
|
Total |
|
$ |
10,248 |
|
|
|
|
|
The Company incurred no restructuring charges in 2007 and 2006.
The following table reconciles the accrued restructuring charges discussed above for the year
ended December 27, 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at |
|
|
|
|
|
|
|
|
|
|
Foreign |
|
|
Balance at |
|
|
|
December 29, |
|
|
|
|
|
|
Cash |
|
|
Currency |
|
|
December 27, |
|
|
|
2007 |
|
|
Expense |
|
|
Reduction |
|
|
Translation |
|
|
2008 |
|
Severance and benefit costs |
|
$ |
|
|
|
$ |
7,964 |
|
|
$ |
(2,831 |
) |
|
$ |
(202 |
) |
|
$ |
4,931 |
|
Facility lease costs |
|
|
|
|
|
|
2,284 |
|
|
|
(446 |
) |
|
|
(241 |
) |
|
|
1,597 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued restructuring charges |
|
$ |
|
|
|
$ |
10,248 |
|
|
$ |
(3,277 |
) |
|
$ |
(443 |
) |
|
$ |
6,528 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NOTE F INVENTORIES
Inventories consisted of the following as of December 27, 2008 and December 29, 2007 (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Raw materials |
|
$ |
19,066 |
|
|
$ |
22,669 |
|
Work-in-progress |
|
|
1,009 |
|
|
|
1,122 |
|
Finished goods |
|
|
11,763 |
|
|
|
11,416 |
|
|
|
|
|
|
|
|
|
|
$ |
31,838 |
|
|
$ |
35,207 |
|
|
|
|
|
|
|
|
66
Simmons Company Notes to Consolidated Financial Statements
NOTE G PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consisted of the following as of December 27, 2008 and December
29, 2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Land, building and improvements |
|
$ |
30,400 |
|
|
$ |
31,770 |
|
Leasehold improvements |
|
|
11,719 |
|
|
|
8,541 |
|
Machinery and equipment |
|
|
57,790 |
|
|
|
50,036 |
|
Office furniture and equipment |
|
|
36,619 |
|
|
|
28,640 |
|
Construction in progress |
|
|
1,784 |
|
|
|
8,570 |
|
|
|
|
|
|
|
|
|
|
|
138,312 |
|
|
|
127,557 |
|
Less accumulated depreciation |
|
|
(51,820 |
) |
|
|
(40,108 |
) |
|
|
|
|
|
|
|
|
|
$ |
86,492 |
|
|
$ |
87,449 |
|
|
|
|
|
|
|
|
Depreciation expense for 2008, 2007 and 2006 was $16.9 million, $13.3 million and $10.1
million, respectively. Interest capitalized in 2008 and 2007 was less than $0.1 million in 2008
and $0.8 million in 2007. No interest was capitalized for 2006. The unamortized computer software
costs included in office furniture and equipment at December 27, 2008 and December 29, 2007 was
$17.8 million and $11.8 million, respectively. The amortization of computer software costs
included within depreciation expense for 2008, 2007 and 2006 was $3.4 million, $1.8 million and
$1.5 million, respectively.
NOTE H GOODWILL AND OTHER INTANGIBLE ASSETS
Intangible assets consisted of the following as of December 27, 2008 and December 29, 2007 (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
|
Weighted |
|
|
Gross |
|
|
|
|
|
|
|
|
|
|
Gross |
|
|
|
|
|
|
Net |
|
|
|
Average |
|
|
Carrying |
|
|
Accumulated |
|
|
Net Carrying |
|
|
Carrying |
|
|
Accumulated |
|
|
Carrying |
|
|
|
Life |
|
|
Amount |
|
|
Amortization |
|
|
Amount |
|
|
Amount |
|
|
Amortization |
|
|
Amount |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Definite-lived intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patents |
|
|
24 |
|
|
$ |
34,484 |
|
|
$ |
(6,743 |
) |
|
$ |
27,741 |
|
|
$ |
34,484 |
|
|
$ |
(5,312 |
) |
|
$ |
29,172 |
|
Customer
relationships |
|
|
21 |
|
|
|
95,033 |
|
|
|
(20,337 |
) |
|
|
74,696 |
|
|
|
98,998 |
|
|
|
(15,807 |
) |
|
|
83,191 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
129,517 |
|
|
$ |
(27,080 |
) |
|
$ |
102,437 |
|
|
$ |
133,482 |
|
|
$ |
(21,119 |
) |
|
$ |
112,363 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Indefinite-lived intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trademarks |
|
|
|
|
|
$ |
238,034 |
|
|
|
|
|
|
|
|
|
|
$ |
492,184 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The aggregate amortization expense associated with the definite-lived intangible assets for
the year ended December 27, 2008 was $6.3 million. The estimated amortization expense for
definite-lived intangible assets for each of next five years is $6.2 million.
In the fourth quarter of 2008, the Company significantly lowered its projected future
operating results for both its Domestic and Canada reporting units based on deterioration of
consumer spending and increased material costs. The Companys five year projections of operating
results assumed that the current economic downturn would continue through 2009, followed by
recovery in the second half of 2010 through 2011, and long-term industry growth rates for 2012 and
beyond. Operating margin assumptions during the five year projection periods were consistent with
the Companys historical averages. The Company used a 17% discount rate to calculate the terminal
value of its reporting units, which was higher than the 14% discount rate used in 2007. The
Companys discount rate increased principally as a result of higher risk premiums associated with
the Companys debt due to the combination of the Company being in violation of a debt covenant and
disruptions in the credit market as of the testing date. A one percentage point increase in the
discount rate would have decreased the fair value of the Domestic and Canada reporting units by
$15.0 million and $2.0 million, respectively. A one percentage point decrease in the discount rate
would have increased the fair value of the Domestic and Canada reporting units by $15.0 million and
$2.5 million, respectively. The Company used a long-term growth factor of 4% to calculate the
terminal value of its reporting units, which is consistent with the rate used in 2007. Based on
the lower projected future operating results, the Company determined that the forecasted earnings
and cash flows of the reporting units no longer supported their carrying value of goodwill. As a
result, non-cash pretax goodwill impairment charges were recognized for its Domestic and Canada
reporting units of $294.0 million and $9.9 million, respectively. Also, as a result of the
Companys lowered projected future operating results, the carrying value of its trademarks
exceeded their fair value. As a result, non-cash pretax trademark impairment charges were
recognized for its Domestic and Canada reporting segments of $225.8 million and $17.9 million,
respectively. The Company did not recognize any goodwill or trademark impairment charges for 2007
and 2006.
67
Simmons Company Notes to Consolidated Financial Statements
The table below shows the changes in the carrying amount of goodwill by the reportable segment
for the year ended December 27, 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Consolidated |
|
Balance as of December 29, 2007 |
|
$ |
500,221 |
|
|
$ |
39,905 |
|
|
$ |
540,126 |
|
Goodwill impairment |
|
|
(294,000 |
) |
|
|
(9,885 |
) |
|
|
(303,885 |
) |
Foreign currency translation adjustment |
|
|
|
|
|
|
(7,901 |
) |
|
|
(7,901 |
) |
Other |
|
|
(15 |
) |
|
|
|
|
|
|
(15 |
) |
|
|
|
|
|
|
|
|
|
|
Balance as of December 27, 2008 |
|
$ |
206,206 |
|
|
$ |
22,119 |
|
|
$ |
228,325 |
|
|
|
|
|
|
|
|
|
|
|
NOTE I ACCRUED LIABILITIES
Accrued liabilities consisted of the following as of December 27, 2008 and December 29, 2007
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Accrued wages and benefits |
|
$ |
20,945 |
|
|
$ |
21,845 |
|
Accrued advertising and incentives |
|
|
22,471 |
|
|
|
40,576 |
|
Accrued interest |
|
|
14,107 |
|
|
|
13,592 |
|
Other accrued expenses |
|
|
20,474 |
|
|
|
20,353 |
|
|
|
|
|
|
|
|
|
|
$ |
77,997 |
|
|
$ |
96,366 |
|
|
|
|
|
|
|
|
NOTE J DEBT
Debt consisted of the following as of December 27, 2008 and December 29, 2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Senior credit facility: |
|
|
|
|
|
|
|
|
Revolving loan |
|
$ |
64,532 |
|
|
$ |
|
|
Tranche D term loan |
|
|
465,000 |
|
|
|
465,000 |
|
|
|
|
|
|
|
|
Total senior credit facility |
|
|
529,532 |
|
|
|
465,000 |
|
7.875% senior subordinated notes due 2014 |
|
|
200,000 |
|
|
|
200,000 |
|
10.0% senior discount notes due 2014,
net of discount of $23,894 and $46,835,
respectively |
|
|
245,106 |
|
|
|
222,165 |
|
Other, including capital lease obligations |
|
|
13,550 |
|
|
|
14,323 |
|
|
|
|
|
|
|
|
|
|
|
988,188 |
|
|
|
901,488 |
|
Less current maturities of debt |
|
|
(975,152 |
) |
|
|
(772 |
) |
|
|
|
|
|
|
|
|
|
$ |
13,036 |
|
|
$ |
900,716 |
|
|
|
|
|
|
|
|
68
Simmons Company Notes to Consolidated Financial Statements
Senior Credit Facility
The senior credit facility provides for a $75.0 million revolving loan facility and a $465.0
million tranche D term loan facility. The revolving loan under the senior credit facility will
expire on the earlier of (a) December 19, 2009 or (b) as revolving credit commitments under the
facility terminate. As of December 27, 2008, under the revolving loan facility, the Company had
$64.5 million of borrowings and $10.4 million that was reserved for the Companys reimbursement
obligations with respect to outstanding letters of credit. The Company incurs an unused line fee
of 0.50% per annum on the unused portion of its revolving loan facility.
The tranche D term loans under the senior credit facility will expire on December 19, 2011.
The tranche D term loan has a mandatory principal payment of $113.5 million on March 31, 2011 and
quarterly mandatory principal payments of $117.2 million from June 30, 2011 through maturity on
December 19, 2011. Depending on Simmons Beddings leverage ratio, it may be required to prepay a
portion of the tranche D term loan with up to 50% of its excess cash flow (as defined in the senior
credit facility) from each fiscal year. The Company was not required to prepay a portion of the
tranche D term loan in fiscal year 2008.
The senior credit facility bears interest at the Companys choice of the Eurodollar Rate or
Base Rate (both as defined), plus the applicable interest rate margins. The weighted average
interest rate per annum in effect as of December 27, 2008 for the tranche D term loan was 9.6%.
The senior credit facility is guaranteed by THL-SC and all of Simmons Beddings material domestic
subsidiaries, and Simmons Bedding has pledged substantially all of its assets to the senior credit
facility.
The senior credit facility requires Simmons Bedding to maintain certain financial ratios,
including cash interest coverage (adjusted EBITDA to cash interest expense) and total leverage (net
debt to adjusted EBITDA) ratios. Adjusted EBITDA (as defined in the senior credit facility)
differs from the term EBITDA as it is commonly used. In addition to adjusting net income to
exclude interest expense, income taxes, depreciation and amortization, Adjusted EBITDA, as the
Company interpreted the definition of Adjusted EBITDA from the senior credit facility, also adjusts
net income by excluding items or expenses not typically excluded in the calculation of EBITDA
such as management fees; other non-cash items reducing consolidated net income (including, without
limitation, non-cash purchase accounting adjustments and debt extinguishment costs); any
extraordinary, unusual or non-recurring gains or losses or charges or credits; and any reasonable
expenses or charges related to any issuance of securities, investments permitted, permitted
acquisitions, recapitalizations, asset sales permitted or indebtedness permitted to be incurred,
less other non-cash items increasing consolidated net income (loss), all of the foregoing as
determined on a consolidated basis for Simmons Bedding in conformity with GAAP.
The financial covenants are as follows:
|
|
|
1) |
|
A minimum cash interest coverage ratio, with compliance levels ranging from cash
interest coverage of no less than 2.75:1.00 for December 27, 2008 and 3.00:1.00 from
March 31, 2009 through each fiscal quarter ending thereafter.
|
|
2) |
|
A maximum leverage ratio, with compliance levels ranging from total leverage of no
greater than 4.50:1.00 for December 27, 2008 and 4.00:1.00 from March 31, 2009 through
each fiscal quarter ending thereafter.
|
69
Simmons Company Notes to Consolidated Financial Statements
For the quarter ended September 27, 2008, Simmons Bedding was not in compliance with the
maximum leverage financial covenant and certain other covenants contained in its senior credit
facility. In response thereto, Simmons Bedding was unable to negotiate a waiver of such defaults
with its senior lenders and entered into the First Forbearance Agreement and Second Amendment to
the Second Amended and Restated Credit and Guaranty Agreement (First Forbearance Agreement) on
November 12, 2008 and the Second Forbearance Agreement and Third Amendment to the Second Amended
and Restated Credit and Guaranty Agreement and First Amendment to the Pledge and Security Agreement
(the Second Forbearance Agreement) on December 10, 2008 with its senior lenders. Based on the
terms of the First Forbearance Agreement, the senior lenders agreed to, among other things, forbear
from exercising their default-related rights and remedies under the senior credit facility against
Simmons Bedding through December 10, 2008, provided that Simmons Bedding satisfied certain
conditions. The Second Forbearance Agreement extended the forbearance period through March 31,
2009, subject to earlier termination in some circumstances. Simmons Bedding entered into (i) that
certain First Amendment to Second Forbearance Agreement; Fourth Amendment to the Second Amended and
Restated Credit and Guaranty Agreement and Second Amendment to the Pledge and Security Agreement
(the First Amendment to the Second Forbearance Agreement) on March 25, 2009, pursuant to which
the senior lenders extended the forbearance period under the Second Forbearance Agreement through
May 31, 2009 and, upon satisfaction of certain conditions, July 31, 2009 and (ii) that certain
Second Amendment to Second Forbearance Agreement; Fifth Amendment to the Second Amended and
Restated Credit and Guaranty Agreement and Third Amendment to the Pledge and Security Agreement
(the Second Amendment to the Second Forbearance Agreement and, together with the First Amendment
to the Second Forbearance Agreeement, the Amendment to the Second Forbearance Agreement) on May
27, 2009, pursuant to which the senior lenders extended the forbearance period under the Second
Forbearance Agreement through June 30, 2009 and, upon satisfaction of certain conditions, July 31,
2009.
During the forbearance period, the senior lenders will provide no additional loans or
financial accommodation to Simmons Bedding except for the issuance, renewal, extension or
replacement of letters of credit and revolving loans provided in certain
limited circumstances related to the letters of credit as set forth in the forbearance
agreements. In addition, Simmons Bedding will not be permitted to, directly or indirectly, incur
indebtedness or liens, make investments or restricted junior payments, or consummate any asset
sales, except in the ordinary course of business, during the forbearance period.
70
Simmons Company Notes to Consolidated Financial Statements
During the forbearance period under the First Forbearance Agreement, the applicable margin on
the revolving loans and tranche D term loans increased 2.0% per annum above the rate otherwise
applicable. The Second Forbearance Agreement amended the senior credit facility to, among other
things:
|
|
Increase the applicable margin for both the revolving loans and the tranche D term loans to either Base Rate plus 5.285%
per annum or Eurodollar Rate plus 6.285% per annum; |
|
|
|
Establish a floor for the Base Rate and Eurodollar Rate of 3.25% and 4.25%, respectively, per annum at the earlier of the
termination of the Second Forbearance Agreement or March 31, 2009; |
|
|
|
Eliminate the 2% per annum penalty rate applicable to overdue payments of principal and interest; and |
|
|
|
Make interest payable on the revolving loans and tranche D term loans as of the last business calendar day of each month. |
The Second Forbearance Agreement also required Simmons Bedding to enter into deposit account
control agreements with respect to all its bank accounts, with certain exceptions. The Second
Forbearance Agreement included certain covenants including:
|
|
Minimum liquidity requirements whereby Simmons Bedding will maintain a daily cash balance of not less than $2.5 million for
any two consecutive business days and an average daily cash balance of not less than $7.5 million for any five consecutive
business days; |
|
|
|
Provide a long-term business plan to the senior lenders by January 7, 2009; |
|
|
|
Commence a process to solicit new debt and/or equity investment by January 9, 2009; |
|
|
|
Provide a potential restructuring proposal to the senior lenders by January 26, 2009; and |
|
|
|
Increased financial reporting requirements. |
As of December 27, 2008, the Company was in compliance with the covenant requirements of the
Second Forbearance Agreement.
The Amendment to the Second Forbearance Agreement amended the senior credit facility to, among
other things, increase the applicable margin for both revolving loans and tranche D term loans to
either Base Rate plus 6.25% per annum or Eurodollar Rate plus 7.25% per annum.
During the forbearance period, as extended by the Amendment to the Second Forbearance
Agreement, Simmons Bedding met its requirement, in addition to the other covenants set forth in the
Second Forbearance Agreement, to (a) provide the legal and financial advisors to the senior lenders
with weekly updates on the ongoing restructuring process and (b) facilitate a meeting between
certain senior lenders and the selected bidders before April 17, 2009.
In connection with the First Forbearance Agreement, Simmons Bedding agreed to pay (a) the
senior lenders who approved the agreement a forbearance fee equal to 0.125% of the aggregate
outstanding amount of such lenders outstanding debt under the senior credit facility and (b) the
fees and expenses of the lenders counsel in connection with the First Forbearance Agreement. In
connection with the Second Forbearance Agreement, Simmons Bedding agreed to pay (a) the senior
lenders who approved the agreement a forbearance fee equal to 0.5% of the aggregate outstanding
amount of such lenders outstanding debt under the senior credit facility and (b) the fees and
expenses of the lenders counsel and financial advisor in connection with the Second Forbearance
Agreement. The Company capitalized the lender fees of $3.3 million, of which $1.3 million will be
paid in 2009, and expensed the third party fees associated with the forbearance agreements.
71
Simmons Company Notes to Consolidated Financial Statements
Subordinated Notes
Simmons Beddings Subordinated Notes bear interest at the rate of 7.875% per annum, which is
payable semi-annually in cash in arrears on January 15 and July 15. The Subordinated Notes mature
on January 15, 2014 and are subordinated in right of payment to all existing and future senior
indebtedness of Simmons Bedding.
The Subordinated Notes are redeemable at the option of the Company beginning January 15, 2009
at prices decreasing from 103.9% of the principal amount thereof to par on January 15, 2012 and
thereafter. The Company is not required to make mandatory redemption or sinking fund payments with
respect to the Subordinated Notes.
Simmons Bedding did not make a scheduled payment of $7.9 million of interest due on January
15, 2009 on the Subordinated Notes resulting in an event of default under the indenture governing
the Subordinated Notes. Such event of default enabled the holders of the Subordinated Notes to
declare the full amount of the Subordinated Notes immediately due and payable. On February 4,
2009, Simmons Bedding and a majority of the outstanding Subordinated Notes holders approved a
Forbearance Agreement to the Indenture (Subordinated Forbearance Agreement), pursuant to which
such noteholders have agreed to refrain from enforcing their respective rights and remedies under
the Subordinated Notes and the related indenture through March 31, 2009. In connection with the
Subordinated Forbearance Agreement, Simmons Bedding agreed to pay the fees and expenses of the
legal and financial advisors of the committee to the noteholders. Simmons Bedding entered into
amendments to the Subordinated Forbearance Agreement on March 25, 2009 and May 27, 2009, whereby
the majority of the outstanding Subordinated Notes holders extended their forbearance period
through May 31, 2009 and June 30, 2009, respectively, and upon meeting certain conditions, a
further extension to July 31, 2009. Pursuant to the terms of the Subordinated Forbearance
Agreement, the noteholders party to the Subordinated Forbearance Agreement have the obligation to
take any actions that are necessary to prevent an acceleration of the payments due under the
Subordinated Notes during the forbearance period. Because the noteholders party to the
Subordinated Forbearance Agreement represent more than a majority of the Subordinated Notes, they
have the power under the indenture to rescind any acceleration of the Subordinated Notes by either
the trustee or the minority holders of the Subordinated Notes. In consideration for their entry
into the amendment to the Subordinated Forbearance Agreement, the noteholders party to the
Subordinated Forbearance Agreement received an amendment fee equal to 0.5% of the aggregate
outstanding amount of such holders Subordinated Notes.
The indenture for the Subordinated Notes requires Simmons Bedding to comply with certain
restrictive covenants, including restrictions on dividends, and limitations on the occurrence of
indebtedness, certain payments and distributions, and sales of Simmons Beddings assets and stock.
Discount Notes
The Companys senior discount notes, with an aggregate principal amount at maturity of $269.0
million, bear interest at the rate of 10.0% per annum payable semi-annually in cash in arrears on
June 15 and December 15 of each year commencing on June 15, 2010. Prior to December 15, 2009,
interest accrues on the Discount Notes in the form of an increase in the accreted value of the
Discount Notes. The Companys ability to make payments on the Discount Notes is dependent on the
earnings and distribution of funds from Simmons Bedding to Holdings.
The Discount Notes are redeemable at the Companys option beginning December 15, 2009 at
prices decreasing from 105.0% of the principal amount thereof to par on December 15, 2012 and
thereafter. The Company is not required to make mandatory redemption or sinking fund payments with
respect to the Discount Notes.
72
Simmons Company Notes to Consolidated Financial Statements
If any of the Discount Notes are outstanding on June 15, 2010, the Company is obligated to
redeem for cash a portion of each Discount Note then outstanding in an amount equal to (i) the
excess of the aggregate amount of accrued and unpaid interest and original issue discount on the
Discount Notes over (ii) the issue price of the Discount Notes multiplied by the yield to maturity
of the Discount Notes (the Mandatory Principal Redemption Amount) plus a premium equal to 5.0%
(one-half of the coupon) of the Mandatory Principal Redemption Amount. No partial redemption or
repurchase of the Discount Notes pursuant to any other provision of the indenture will alter the
obligation of the Company to make this redemption with respect to any Discount Notes then
outstanding. Assuming no redemptions prior to June 15, 2010, the Company would be obligated to
make a mandatory principal payment of $90.2 million and an interest and premium payment of $18.0
million on June 15, 2010.
The indenture for the Discount Notes requires Holdings to comply with certain restrictive
covenants, including a restriction on dividends; and limitations on the incurrence of indebtedness,
certain payments and distributions, and sales of Holdings assets and stock. Pursuant to the
reporting covenants contained in the indentures governing Discount Notes, the Company agreed to
furnish its holders of the Discount Notes all quarterly and annual reports that would be required
to be filed with the SEC if the Company was required to file such reports. Simmons Company failed
to file its Financial Reports with the SEC resulting in the Companys non-compliance with the
reporting covenants. The Company has 60 days after receiving notice from the lenders to cure the
non-compliance by providing such information to the lenders. If the Company was unable to cure the
non-compliance, there would be an event of default under the indenture governing the Discount
Notes.
On April 14, 2009, the Company received a notice sent on behalf of holders of the Discount
Notes, purporting to own more
than 25% of the $269.0 million principal amount of the outstanding Discount Notes, pursuant to
which such holders have notified the Company that its failure to furnish to the holders of the
Discount Notes (i) a Quarterly Report on Form 10-Q for the third quarter ended September 27, 2008
and (ii) an Annual Report on Form 10-K for the fiscal year ended December 27, 2008, each as
required under the indenture governing the Discount Notes, constitutes defaults thereunder. With
the filing of this Annual Report on Form 10-K for the fiscal year ending December 27, 2008 along
with the filing of the Quarterly Report on Form 10-Q for the third quarter ended September 27,
2008, the Company has cured these defaults. The Company has not received notice of non-compliance
with the reporting covenant for the Quarterly Report on Form 10-Q for the first quarter ended March
28, 2009. If the Company receives such notice and were unable to cure the non-compliance within 60
days of receiving such notice, there would be an event of default under the indenture governing the
Discount Notes.
73
Simmons Company Notes to Consolidated Financial Statements
Toggle Loan
The Company does not guarantee or have any of our assets pledged as collateral under Simmons
Holdcos $300 million Toggle Loan. The Toggle Loan is structurally subordinated in right of
payment to any of the Companys existing and future liabilities. Although the Company is not
obligated to make cash distributions to service principal and interest on the Toggle Loan, Simmons
Holdco is dependent on the Companys cash flow to meet the interest and principal payments under
the Toggle Loan. The Toggle Loan is not included in the Companys financial statements. During
the 2008, the Company provided $29.1 million of cash to Simmons Holdco, reflected as a dividend in
the financial statements of the Company, so that Simmons Holdco could pay interest on the Toggle
Loan, repurchase shares of its common stock, and pay operating expenses of Simmons Holdco. Under
the terms of the credit agreement governing the Toggle Loan, Simmons Holdco may elect to pay future
interest in cash or add such interest to the principal amount of the Toggle Loan. However, the
Second Forbearance Agreement, as amended, prohibits the Company from making distributions to its
parent companies during the forbearance period, except in the ordinary course of business.
Accordingly, Simmons Holdco has elected to make its February and August 2009 interest payments on
the Toggle Loan by adding such interest to the principal amount of the Toggle Loan. The Toggle
Loan matures in February 2012. An acceleration of indebtedness under the senior credit facility,
Subordinated Notes or Discount Notes would trigger an event of default under the Toggle Loan.
Aggregate Long-Term Debt Maturities
As a result of Simmons Bedding not being in compliance with the covenants of the senior credit
facility and the forbearance period ends within one year of December 27, 2008, the Company has
recorded all amounts outstanding under the senior credit facility as a current portion of debt as
of December 27, 2008 in the accompanying consolidated balance sheet. Since the Subordinated Notes
and Discount Notes contain default provisions whereby the note holders can accelerate amounts due
under both notes if the senior lenders accelerate amounts due under the senior credit facility, the
Company recorded all amounts outstanding under the Subordinated Notes and Discount Notes as a
current portion of debt as of December 27, 2008 in the accompanying 2008 consolidated balance
sheet.
Future maturities of debt, exclusive of the Discount Notes unamortized original issue discount
of $23.9 million, as of December 27, 2008 are as follows (in thousands):
|
|
|
|
|
2009 |
|
$ |
975,152 |
|
2010 |
|
|
513 |
|
2011 |
|
|
513 |
|
2012 |
|
|
709 |
|
2013 |
|
|
400 |
|
Thereafter |
|
|
10,901 |
|
|
|
|
|
|
|
$ |
988,188 |
|
|
|
|
|
NOTE K LEASES AND OTHER COMMITMENTS
The Company leases certain manufacturing, office, show room, research and outlet retail
facilities and equipment under operating leases. The Companys lease expense was $24.3 million,
$23.6 million and $25.3 million for 2008, 2007 and 2006, respectively. The Companys lease expense
for 2006 included $5.8 million associated with the Companys retail operations, which were disposed
of in August 2006 (see Note D Acquisitions and Dispositions).
The following is a schedule of the future minimum rental payments required under operating
leases that have initial or remaining non-cancelable lease terms in excess of one year as of
December 27, 2008 (in thousands):
|
|
|
|
|
2009 |
|
$ |
17,946 |
|
2010 |
|
|
13,624 |
|
2011 |
|
|
10,774 |
|
2012 |
|
|
9,140 |
|
2013 |
|
|
7,741 |
|
Thereafter |
|
|
13,614 |
|
|
|
|
|
|
|
$ |
72,839 |
|
|
|
|
|
74
Simmons Company Notes to Consolidated Financial Statements
The Company has the option to renew certain manufacturing facility leases, with the longest
renewal period extending through 2027. Most of the operating leases provide for increased rent
payments tied to increases in general price levels.
The Company has various purchase commitments with certain suppliers in which the Company is
committed to purchase approximately $30.6 million of raw materials from these vendors in 2009. If
the Company does not reach the committed level of purchases, various additional payments could be
required to be paid to these suppliers or certain sales volume rebates could be lost.
NOTE L LICENSING
The Company licenses internationally (excluding Canada) the Simmons® and Beautyrest®
trademarks, and many of its other trademarks, processes and patents to third-party manufacturers
which produce and distribute Simmons® branded conventional bedding products within their designated
territories. These licensing agreements allow the Company to reduce exposure to political and
economic risks abroad by minimizing investments in those markets. The Company has 16 foreign
licensees and eight sub-licensees. These foreign licensees have rights to sell Simmons-branded
products in over 100 countries.
Additionally, the Company has ten domestic and Canadian third-party licensees. Some of these
licensees manufacture and distribute juvenile furniture and healthcare-related furniture, and
non-bedding upholstered furniture. Additionally, the Company has licensed the Simmons® trademark
and other trademarks, generally for limited terms, to manufacturers of occasional use airbeds,
futons, comforters, pillows, mattress pads, blankets, and other products.
Licensing revenues are recorded as earned, based upon the sales of licensed products by the
Companys licensees. For 2008, 2007 and 2006 the Companys licensing agreements as a whole
generated royalties and technology fees of approximately $9.5 million, $10.1 million and $8.7
million, respectively.
NOTE M STOCK BASED COMPENSATION
Under Simmons Holdcos incentive plans, the Company is authorized to grant up to 821,775
shares of class B common stock of Simmons Holdco as options, restricted stock, warrants or other
stock based awards to the management, directors and consultants of the Company. Vesting of awards
is subject to the achievement of performance and service criteria. As of December 27, 2008, the
Company had issued restricted stock awards, stock option awards and warrants under the incentive
plans. Since the Company determined in 2008 that it was unlikely to meet future vesting
performance targets for the unvested awards, the Company reversed all previously recognized
compensation expense and accruals associated with the unvested awards. Non-cash stock compensation
expense/(benefit) recorded in connection with the awards was $(0.4) million for 2008, less than
$0.1 million for 2007 and $0.8 million for 2006. The Company paid $0.1 million and $0.7 million in
2008 and 2007, respectively, to settle vested stock based awards.
NOTE N INCOME TAXES
The components of the provision for income taxes are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current tax provision |
|
|
|
|
|
|
|
|
|
|
|
|
Federal |
|
$ |
|
|
|
$ |
595 |
|
|
$ |
1,115 |
|
State |
|
|
563 |
|
|
|
595 |
|
|
|
147 |
|
Foreign |
|
|
214 |
|
|
|
785 |
|
|
|
148 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
777 |
|
|
|
1,975 |
|
|
|
1,410 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred tax provision |
|
|
|
|
|
|
|
|
|
|
|
|
Federal |
|
|
(74,586 |
) |
|
|
9,899 |
|
|
|
22,485 |
|
State |
|
|
(4,762 |
) |
|
|
(1,745 |
) |
|
|
637 |
|
Foreign |
|
|
(5,952 |
) |
|
|
(1,481 |
) |
|
|
(12 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
(85,300 |
) |
|
|
6,673 |
|
|
|
23,110 |
|
|
|
|
|
|
|
|
|
|
|
Benefit applied to reduce (increase) goodwill |
|
|
15 |
|
|
|
15 |
|
|
|
(93 |
) |
|
|
|
|
|
|
|
|
|
|
Income tax expense (benefit) |
|
$ |
(84,508 |
) |
|
$ |
8,663 |
|
|
$ |
24,427 |
|
|
|
|
|
|
|
|
|
|
|
75
Simmons Company Notes to Consolidated Financial Statements
Income (loss) before income taxes consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
$ |
(535,657 |
) |
|
$ |
29,538 |
|
|
$ |
71,704 |
|
Foreign |
|
|
(41,062 |
) |
|
|
3,074 |
|
|
|
337 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(576,719 |
) |
|
$ |
32,612 |
|
|
$ |
72,041 |
|
|
|
|
|
|
|
|
|
|
|
The reconciliation of the statutory federal income tax rate to the effective income tax rate
for 2008, 2007 and 2006 provision for income taxes is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes at U.S. federal statutory rate |
|
$ |
(201,851 |
) |
|
$ |
11,414 |
|
|
$ |
25,214 |
|
State income taxes, net of U.S. federal benefit |
|
|
(5,796 |
) |
|
|
330 |
|
|
|
1,092 |
|
Goodwill and trademark impairments |
|
|
106,859 |
|
|
|
|
|
|
|
|
|
Book-tax difference on sale of SCUSA |
|
|
|
|
|
|
|
|
|
|
(3,186 |
) |
Valuation allowances, net of reversals |
|
|
14,058 |
|
|
|
(637 |
) |
|
|
2,325 |
|
Tax loss credit benefits not previously recognized |
|
|
(2,241 |
) |
|
|
39 |
|
|
|
(2,332 |
) |
Reversal of other tax accruals FIN 48 changes |
|
|
1,259 |
|
|
|
1,186 |
|
|
|
1,257 |
|
Meals and entertainment |
|
|
555 |
|
|
|
824 |
|
|
|
338 |
|
Change in tax rate used to measure deferred taxes |
|
|
416 |
|
|
|
(3,698 |
) |
|
|
|
|
General business tax credits |
|
|
(332 |
) |
|
|
(319 |
) |
|
|
(324 |
) |
Other, net |
|
|
2,565 |
|
|
|
(476 |
) |
|
|
43 |
|
|
|
|
|
|
|
|
|
|
|
Income tax expense (benefit) |
|
$ |
(84,508 |
) |
|
$ |
8,663 |
|
|
$ |
24,427 |
|
|
|
|
|
|
|
|
|
|
|
Components of the Companys net deferred income tax liability as of December 27, 2008 and
December 29, 2007 is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
|
|
|
|
|
|
|
|
Current deferred income taxes: |
|
|
|
|
|
|
|
|
Accounts receivable |
|
$ |
1,540 |
|
|
$ |
1,260 |
|
Accrued liabilities, not currently deductible |
|
|
4,589 |
|
|
|
5,636 |
|
Prepaids and other assets not currently taxable |
|
|
(1,342 |
) |
|
|
(1,193 |
) |
Inventory bases differences |
|
|
449 |
|
|
|
250 |
|
Valuation allowance |
|
|
(2,117 |
) |
|
|
|
|
|
|
|
|
|
|
|
Current deferred income tax assets |
|
|
3,119 |
|
|
|
5,953 |
|
Non-current deferred income taxes: |
|
|
|
|
|
|
|
|
Property bases differences |
|
|
(7,884 |
) |
|
|
(9,332 |
) |
Intangibles bases differences |
|
|
(109,656 |
) |
|
|
(202,618 |
) |
Retirement accruals |
|
|
3,674 |
|
|
|
2,240 |
|
Net operating loss carryforwards |
|
|
27,901 |
|
|
|
11,971 |
|
Income tax credit carryforwards |
|
|
13,361 |
|
|
|
13,808 |
|
Other noncurrent accrued liabilities, not currently deductible |
|
|
1,861 |
|
|
|
2,877 |
|
Deferred income |
|
|
(7,275 |
) |
|
|
|
|
Valuation allowance |
|
|
(20,743 |
) |
|
|
(9,267 |
) |
|
|
|
|
|
|
|
Noncurrent deferred income tax liabilities |
|
|
(98,761 |
) |
|
|
(190,321 |
) |
|
|
|
|
|
|
|
Net deferred income tax liability |
|
$ |
(95,642 |
) |
|
$ |
(184,368 |
) |
|
|
|
|
|
|
|
76
Simmons Company Notes to Consolidated Financial Statements
As of December 27, 2008, the Company had U.S. federal net operating loss carryforwards of
$54.1 million. If not used, these carryforwards will expire in varying amounts between 2023 and
2028. Additionally, as of December 27, 2008, the Company had state net operating loss
carryforwards of $108.5 million and Canadian net operating loss carryforwards of $10.8 million. If
not used, state operating loss carryforwards will expire in varying amounts between 2009 and 2028,
and the Canadian net operating loss will expire in 2028.
As of December 27, 2008, the Company had $4.9 million of general business tax credits, $4.3
million of foreign tax credits, and $1.8 million of minimum tax credits available to offset future
payments of U.S. federal income tax. If not used, the general business and foreign tax credits
will expire in varying amounts between 2013 and 2028. The minimum tax credits can be carried
forward indefinitely. The Company also had $2.3 million of state income tax credits, expiring in
varying amounts between 2009 and 2025 and $0.1 million of non-U.S. tax credits available to offset
future payments of foreign income tax, which can be carried forward indefinitely. A change in
ownership of the Company could potentially limit the utilization of the Companys net operating
losses and tax credit carryforwards.
Realization of the tax benefits of net operating loss carryforwards and tax credit
carryforwards is dependent upon the companys ability to generate sufficient future taxable income
in the appropriate taxing jurisdictions and within the applicable carryforward periods. After
giving consideration to current forecasts of future taxable income and the expiration period of the
carryforward tax benefits, the Company has recorded valuation allowances to offset substantially
all net deferred income tax assets.
As of December 27, 2008, a valuation allowance of $22.9 million was recorded for the deferred
tax assets related to the following carryforward tax benefits: federal net operating losses ($5.9
million), certain state net operating losses ($6.6 million), foreign tax credits ($3.8 million),
general business tax credits ($2.4 million), certain state income tax credits ($2.3 million),
federal minimum tax credits ($1.8 million), and foreign jurisdiction income tax credits ($0.1
million). The Company established the valuation allowance for its foreign tax credit carryforwards
in the fourth quarter of 2006. As a direct result of the acquisition of Simmons Canada and the
impact of such acquisition on the Companys calculation of net foreign source income, the Company
does not believe at the present time that it will be able to fully utilize its foreign tax credits.
With respect to state tax benefit carryforwards, the valuation allowance that was originally
established in 2005 has been adjusted to reflect additional state tax benefits recognized in 2006,
2007 and 2008 for which the Company does not believe it is more-likely-than-not that such benefits
will be realized after giving consideration to the expiration period of the state tax benefit
carryforwards and current forecasts of future state taxable income.
As of December 29, 2007, the Company had a valuation allowance of $9.3 million for the
deferred tax assets related to the following carryforward tax benefits: foreign tax credits ($2.8
million), certain state net operating loss carryforwards ($4.2 million), certain state income tax
credits ($2.2 million), and foreign jurisdiction income tax credits ($0.1 million).
Cumulative undistributed losses of the Companys international subsidiaries totaled
approximately $12.2 million as of December 27, 2008.
In the normal course of business, the Company provides for uncertain tax positions and the
related interest and penalties and adjusts its unrecognized tax benefits and accrued interest and
penalties accordingly. As of December 27, 2008, the total gross amount of unrecognized tax benefits
was $19.9 million. Included therein was $17.7 million of net tax benefits that, if recognized,
would impact the Companys effective tax rate. As of December 29, 2007, the total gross amount of
unrecognized tax benefits was $20.1 million. Included therein was $6.6 million of net tax benefits
that, if recognized, would impact the Companys effective tax rate. A reconciliation of the
beginning and ending balance of unrecognized tax benefits follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
Beginning balance |
|
$ |
20,113 |
|
|
$ |
21,397 |
|
Additions: |
|
|
|
|
|
|
|
|
Positions taken during the current year |
|
|
1,554 |
|
|
|
1,103 |
|
Positions taken during a prior period |
|
|
149 |
|
|
|
406 |
|
Translation adjustments |
|
|
|
|
|
|
302 |
|
Reductions: |
|
|
|
|
|
|
|
|
Positions taken during a prior period |
|
|
(943 |
) |
|
|
(2,656 |
) |
Reductions resulting from lapse of statutes of limitation |
|
|
(374 |
) |
|
|
(439 |
) |
Settlement with tax authorities |
|
|
(292 |
) |
|
|
|
|
Translation adjustments |
|
|
(328 |
) |
|
|
|
|
|
|
|
|
|
|
|
Ending balance |
|
$ |
19,879 |
|
|
$ |
20,113 |
|
|
|
|
|
|
|
|
77
Simmons Company Notes to Consolidated Financial Statements
The Company does not expect any significant changes to the unrecognized tax benefits within
twelve months of the reporting date.
The Company classifies interest and penalties related to uncertain income tax positions as
income tax expense. As of
December 27, 2008 and December 29, 2007, the Companys uncertain tax positions included
interest of $0.9 million and $0.7 million, and penalties of $0.5 million and $0.3 million,
respectively.
The Company and its subsidiaries file income tax returns in the U.S., Canada, and Puerto Rico,
as well as in multiple state and provincial jurisdictions therein. With few exceptions, the
Company is no longer subject to income tax examinations by any taxing authorities for years prior
to 1999. The Company is not currently under any U.S., Canada, or Puerto Rico federal income tax
audit, nor have there been any notices received of any such anticipated audits. The Company and
its subsidiaries are however subjected to occasional state audits. None of the current state
income tax audits include any proposed adjustments that would be considered significant,
individually or in total, for which reserves have not already been accrued.
78
Simmons Company Notes to Consolidated Financial Statements
NOTE O RETIREMENT PLANS
PENSION AND POST RETIREMENT PLANS
In connection with the Canada Acquisition, the Company assumed Simmons Canadas registered
combined non-contributory defined benefit and defined contribution pension plan for substantially
all of the employees of Simmons Canada. Under the registered defined benefit plan segment
(Pension Plan), benefits are based upon an employees earnings and years of credited service.
The registered defined benefit plan is funded based on the funding requirements of applicable
government regulations. In addition, the Company assumed Simmons Canadas retirement compensation
arrangements (RCA) for certain senior officials of Simmons Canada which provide retirement
benefits in addition to the registered defined benefit plan.
The Company also provides post retirement health care and life insurance benefits (FAS 106
Plans) for a small group of current and former employees. The Company accrues the cost of
providing post retirement benefits, including medical and life insurance coverage, during the
active service period for certain employees. The FAS 106 Plans are unfunded.
The measurement of the Pension Plan, RCA and FAS 106 Plans was as of December 27, 2008 and
December 29, 2007 for each respective period. The following table sets forth summarized
information for the funded status of the Pension Plan, RCA and FAS 106 Plans (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Plan |
|
|
RCA Plan |
|
|
FAS 106 Plans |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Change in benefit obligation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net benefit obligation at
beginning of year |
|
$ |
24,892 |
|
|
$ |
21,208 |
|
|
$ |
4,024 |
|
|
$ |
3,255 |
|
|
$ |
1,970 |
|
|
$ |
2,054 |
|
Service cost |
|
|
997 |
|
|
|
1,496 |
|
|
|
7 |
|
|
|
16 |
|
|
|
35 |
|
|
|
34 |
|
Interest cost |
|
|
1,126 |
|
|
|
1,159 |
|
|
|
166 |
|
|
|
179 |
|
|
|
162 |
|
|
|
121 |
|
Actuarial (gain)/ loss |
|
|
(3,756 |
) |
|
|
(2,093 |
) |
|
|
(309 |
) |
|
|
195 |
|
|
|
6,726 |
|
|
|
(170 |
) |
Gross benefits paid |
|
|
(971 |
) |
|
|
(897 |
) |
|
|
(236 |
) |
|
|
(255 |
) |
|
|
(724 |
) |
|
|
(69 |
) |
Curtailments/contractual
termination benefits |
|
|
1,728 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,476 |
) |
|
|
|
|
Effect of currency exchange rates |
|
|
(4,991 |
) |
|
|
4,019 |
|
|
|
(773 |
) |
|
|
634 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net benefit obligation at end of
year |
|
$ |
19,025 |
|
|
$ |
24,892 |
|
|
$ |
2,879 |
|
|
$ |
4,024 |
|
|
$ |
5,693 |
|
|
$ |
1,970 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in plan assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of plan assets at
beginning of year |
|
$ |
23,305 |
|
|
$ |
18,551 |
|
|
$ |
5,284 |
|
|
$ |
4,578 |
|
|
$ |
|
|
|
$ |
|
|
Actual return on plan assets |
|
|
(3,581 |
) |
|
|
(127 |
) |
|
|
(474 |
) |
|
|
97 |
|
|
|
|
|
|
|
|
|
Actual employer contributions |
|
|
1,840 |
|
|
|
2,134 |
|
|
|
28 |
|
|
|
4 |
|
|
|
725 |
|
|
|
69 |
|
Gross benefits paid (actual) |
|
|
(972 |
) |
|
|
(897 |
) |
|
|
(236 |
) |
|
|
(255 |
) |
|
|
(725 |
) |
|
|
(69 |
) |
Effect of currency exchange rates |
|
|
(4,464 |
) |
|
|
3,644 |
|
|
|
(1,011 |
) |
|
|
860 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of plan assets at end
of year |
|
$ |
16,128 |
|
|
$ |
23,305 |
|
|
$ |
3,591 |
|
|
$ |
5,284 |
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Funded status of plan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Surplus (deficit) at end of year |
|
$ |
(2,897 |
) |
|
$ |
(1,587 |
) |
|
$ |
712 |
|
|
$ |
1,260 |
|
|
$ |
(5,693 |
) |
|
$ |
(1,970 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
79
Simmons Company Notes to Consolidated Financial Statements
The following table sets forth the amounts recognized in the accompanying consolidated balance
sheets (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Plan |
|
|
RCA Plan |
|
|
FAS 106 Plans |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Amounts recognized in the
consolidated balance sheet |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Noncurrent asset |
|
$ |
|
|
|
$ |
|
|
|
$ |
712 |
|
|
$ |
1,260 |
|
|
$ |
|
|
|
$ |
|
|
Current liability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(723 |
) |
|
|
(2,695 |
) |
Noncurrent liability |
|
|
(2,897 |
) |
|
|
(1,587 |
) |
|
|
|
|
|
|
|
|
|
|
(4,970 |
) |
|
|
725 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net amount recognized at end of
period |
|
$ |
(2,897 |
) |
|
$ |
(1,587 |
) |
|
$ |
712 |
|
|
$ |
1,260 |
|
|
$ |
(5,693 |
) |
|
$ |
(1,970 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amounts recognized in accumulated
other
comprehensive income (loss)
before taxes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrecognized transition obligation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
872 |
|
|
|
1,488 |
|
Net actuarial gain (loss) |
|
|
(452 |
) |
|
|
905 |
|
|
|
(545 |
) |
|
|
(294 |
) |
|
|
2,954 |
|
|
|
(170 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated other comprehensive
income (loss) |
|
$ |
(452 |
) |
|
$ |
905 |
|
|
$ |
(545 |
) |
|
$ |
(294 |
) |
|
$ |
3,826 |
|
|
$ |
1,318 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accumulated benefit obligation of the Pension Plan was $17.3 million and $22.6 million as
of December 27, 2008 and December 29, 2007, respectively.
The actuarial present value of the benefit obligation of the Pension Plan, RCA and FAS 106
Plans as of December 27, 2008 and December 29, 2007 were determined based on the following weighted
average assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Plan |
|
|
RCA Plan |
|
|
FAS 106 Plans |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Weighted-average assumptions
used to determine net pension obligations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discount rate |
|
|
6.5 |
% |
|
|
5.3 |
% |
|
|
6.3 |
% |
|
|
5.3 |
% |
|
|
6.3 |
% |
|
|
6.1 |
% |
Rate of compensation increase |
|
|
3.5 |
% |
|
|
3.5 |
% |
|
|
3.0 |
% |
|
|
3.0 |
% |
|
|
N/A |
|
|
|
N/A |
|
80
Simmons Company Notes to Consolidated Financial Statements
The net periodic cost related to the Pension Plan, RCA and FAS 106 Plans included the
following components (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Plan |
|
|
RCA Plan |
|
|
FAS 106 Plans |
|
|
|
|
|
|
|
|
|
|
|
Period |
|
|
|
|
|
|
|
|
|
|
Period |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
from |
|
|
|
|
|
|
|
|
|
|
from |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nov. 15, |
|
|
|
|
|
|
|
|
|
|
Nov. 15, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 to |
|
|
|
|
|
|
|
|
|
|
2006 to |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dec. 30, |
|
|
|
|
|
|
|
|
|
|
Dec. 30, |
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Components of net
periodic cost |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service cost |
|
$ |
997 |
|
|
$ |
1,496 |
|
|
$ |
174 |
|
|
$ |
7 |
|
|
$ |
16 |
|
|
|
3 |
|
|
$ |
35 |
|
|
$ |
34 |
|
|
$ |
32 |
|
Interest cost |
|
|
1,126 |
|
|
|
1,159 |
|
|
|
131 |
|
|
|
166 |
|
|
|
179 |
|
|
|
20 |
|
|
|
162 |
|
|
|
121 |
|
|
|
102 |
|
Amortization of
transition obligation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
233 |
|
|
|
248 |
|
|
|
248 |
|
Amortization of loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
37 |
|
|
|
|
|
|
|
|
|
Expected return on plan
assets |
|
|
(1,372 |
) |
|
|
(2,093 |
) |
|
|
(156 |
) |
|
|
(147 |
) |
|
|
195 |
|
|
|
(20 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
Curtailment/contractual
termination benefits |
|
|
1,728 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,472 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net periodic cost |
|
$ |
2,479 |
|
|
$ |
562 |
|
|
$ |
149 |
|
|
$ |
26 |
|
|
$ |
390 |
|
|
$ |
3 |
|
|
$ |
1,939 |
|
|
$ |
403 |
|
|
$ |
382 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
81
Simmons Company Notes to Consolidated Financial Statements
The one time curtailment gain of $0.6 million and a contractual termination benefits charge of
$2.3 million both related to the pension plan as a result of the closure of our Bramalea, Ontario
plant. The one time curtailment loss of $1.5 million related to the FAS 106 Plans resulted from
the closure of our Atlanta, Georgia plant (see Note E Restructuring Charges).
The other changes in plan assets and benefit obligations recognized in other comprehensive
income included the following pre-tax components (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension |
|
|
RCA |
|
|
FAS 106 |
|
|
|
Plan |
|
|
Plan |
|
|
Plans |
|
|
|
2008 |
|
|
2008 |
|
|
2008 |
|
Other changes in plan assets and benefit obligations
recognized in other comprehensive income |
|
|
|
|
|
|
|
|
|
|
|
|
Current year actuarial loss |
|
$ |
(1,183 |
) |
|
$ |
(308 |
) |
|
$ |
(4,249 |
) |
Amortization of transition obligation |
|
|
|
|
|
|
|
|
|
|
232 |
|
Amortization of (gain) loss |
|
|
|
|
|
|
|
|
|
|
37 |
|
Effect of currency exchange rates |
|
|
(105 |
) |
|
|
(27 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total loss recognized in other comprehensive income |
|
$ |
(1,288 |
) |
|
$ |
(335 |
) |
|
$ |
(3,980 |
) |
|
|
|
|
|
|
|
|
|
|
The estimated net loss for the Pension Plan and RCA Plan that will be amortized from
accumulated other comprehensive income into net periodic benefit cost over the next fiscal year
will be zero and $0.1 million, respectively. The estimated net loss and transition obligation for
the FAS 106 Plans that will be amortized from accumulated other comprehensive income into net
periodic benefit cost over the next fiscal year are $0.2 million and $0.2 million, respectively.
The obligations and net periodic cost for the FAS 106 Plans are determined based on
assumptions relating to health care cost increases. These assumptions do not have a significant
effect on the obligations or net periodic cost. A 1% increase or decrease in the assumed health
care cost trend rate would not have a material effect on the obligations or components of net
periodic cost.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Plan |
|
|
RCA Plan |
| |
FAS 106 Plans |
|
|
|
|
|
|
|
|
|
|
|
Period |
|
|
|
|
|
|
|
|
|
|
Period |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
from |
|
|
|
|
|
|
|
|
|
|
from |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nov. 15, |
|
|
|
|
|
|
|
|
|
|
Nov. 15, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 to |
|
|
|
|
|
|
|
|
|
|
2006 to |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dec. 30, |
|
|
|
|
|
|
|
|
|
|
Dec. 30, |
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
|
2008 |
|
|
2007 |
|
|
2006 |
|
Weighted-average
assumptions used to determine net pension
costs for the period |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Discount rate |
|
|
5.5 |
% |
|
|
5.0 |
% |
|
|
5.0 |
% |
|
|
5.3 |
% |
|
|
5.0 |
% |
|
|
5.0 |
% |
|
|
6.3 |
% |
|
|
6.1 |
% |
|
|
6.0 |
% |
Expected return on
plan assets |
|
|
7.0 |
% |
|
|
7.0 |
% |
|
|
7.0 |
% |
|
|
3.5 |
% |
|
|
3.5 |
% |
|
|
3.5 |
% |
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
Rate of
compensation
increase |
|
|
3.0 |
% |
|
|
3.5 |
% |
|
|
3.5 |
% |
|
|
3.0 |
% |
|
|
3.0 |
% |
|
|
3.0 |
% |
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
The assumed discount rate is based upon a portfolio of high-grade corporate bonds, which are
used to develop a yield curve. This yield curve is applied to the expected duration of the pension
obligation.
The allocation, by asset category, of the assets of the Pension Plan and RCA as of December
27, 2008 and December 29, 2007 was as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Plan |
|
|
RCA Plan |
|
|
|
2008 |
|
|
2007 |
|
|
2008 |
|
|
2007 |
|
Equity securities |
|
|
59.0 |
% |
|
|
55.7 |
% |
|
|
59.0 |
% |
|
|
55.8 |
% |
Debt securities |
|
|
37.2 |
% |
|
|
32.6 |
% |
|
|
37.4 |
% |
|
|
33.2 |
% |
Cash |
|
|
3.8 |
% |
|
|
11.7 |
% |
|
|
3.6 |
% |
|
|
11.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
82
Simmons Company Notes to Consolidated Financial Statements
The Companys investment strategy for the Pension Plan and RCA is to maximize the long-term
rate of return on plan assets within an acceptable level of risk. The Pension Plan investment
policy establishes a target allocation range for each asset class and the fund is managed using
these guidelines. The target allocation of the plans is 60% equity securities and 40% debt
securities. The plans use a number of investment approaches including equity and fixed income
funds in which the underlying securities are marketable in order to achieve this target allocation.
The expected rate of return was determined by modeling the expected long-term rates of return for
each asset class held by the plan based on current economic conditions.
The following table sets forth the expected benefit payments related to the Pension Plan and
the RCA to be paid out in the periods indicated (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension |
|
|
RCA |
|
|
FAS 106 |
|
Year |
|
Plan |
|
|
Plan |
|
|
Plans |
|
2009 |
|
$ |
960 |
|
|
$ |
233 |
|
|
$ |
723 |
|
2010 |
|
|
870 |
|
|
|
233 |
|
|
|
699 |
|
2011 |
|
|
910 |
|
|
|
233 |
|
|
|
670 |
|
2012 |
|
|
976 |
|
|
|
233 |
|
|
|
653 |
|
2013 |
|
|
1,060 |
|
|
|
241 |
|
|
|
528 |
|
2014-2018 |
|
|
6,513 |
|
|
|
1,273 |
|
|
|
1,968 |
|
The Company anticipates making contributions to the Pension Plan and FAS 106 Plans of
approximately $1.1 million and $0.7 million, respectively, in 2009 and no contributions are
expected for the RCA in 2009. The contributions to the Pension Plan principally represent
contributions required by funding regulations.
OTHER PLANS
The Company has a defined contribution 401(k) plan for substantially all of its U.S. employees
other than certain union employees that participate in multi-employer pension plans sponsored by a
union. In 2008, 2007 and 2006, the Company made contributions to the 401(k) plan and the defined
contribution segment of the Pension Plan in the aggregate of $4.7 million, $4.6 million and $4.1
million, respectively.
The Company also makes contributions to multi-employer pension plans in the U.S. and Canada
sponsored by various unions for the Companys employees who are members of a union. In 2008, 2007
and 2006, the Company made contributions of $1.6 million, $1.9 million and $1.7 million,
respectively, in the aggregate to such plans. In addition, the Company maintains unfunded
supplemental executive retirement plans (SERP) for certain employees and former employees of the
Company. The Company had an accrued liability of $3.1 million and $3.2 million as of December 27,
2008 and December 29, 2007, respectively for the SERP.
83
Simmons Company Notes to Consolidated Financial Statements
NOTE P COMMITMENTS AND CONTINGENCIES
From time to time, the Company has been involved in various legal proceedings. In November
2008, three former employees filed a wrongful dismissal class action against the Companys
subsidiary, Simmons Canada Inc., on behalf of themselves and a proposed class comprised of the
unionized former employees who were terminated as a result of the Companys closure of its
Bramalea, Ontario facility in September 2008. In June 2009, the Company entered into tentative
settlement agreements with the plaintiffs, however, the agreement will not be final until certain
conditions are met, including plaintiffs obtaining leave of court to dismiss the case. With the
exception of this matter, the Company believes that all litigation is routine in nature and
incidental to the conduct of the Companys business, and that none of this litigation, if
determined adversely to the Company, would have a material adverse effect on the Companys
financial condition or results of its operations.
The Company does not guarantee or have any of our assets pledged as collateral under Simmons
Holdcos $300 million Toggle Loan. The Toggle Loan is structurally subordinated in right of
payment to any of the Companys existing and future liabilities. Although the Company is not
obligated to make cash distributions to service principal and interest on the Toggle Loan, Simmons
Holdco is dependent on the Companys cash flow to meet the interest and principal payments under
the Toggle Loan. The Toggle Loan is not included in the Companys financial statements. During
the 2008, the Company provided $29.1 million of cash to Simmons Holdco, reflected as a dividend in
the financial statements of the Company, so that Simmons Holdco could pay interest on the Toggle
Loan, repurchase shares of its common stock, and pay operating expenses of Simmons Holdco. Under
the terms of the credit agreement governing the Toggle Loan, Simmons Holdco may elect to pay future
interest in cash or add such interest to the principal amount of the Toggle Loan. However, the
Second Forbearance Agreement, as amended, prohibits the Company from making distributions to its
parent companies during the forbearance period, except in the ordinary course of
business. Accordingly, Simmons Holdco has elected to make its February and August 2009 interest
payments on the Toggle Loan by adding such interest to the principal amount of the Toggle
Loan. The Toggle Loan matures in February 2012. An acceleration of indebtedness under the senior
credit facility, Subordinated Notes or Discount Notes would trigger an event of default under the
Toggle Loan.
NOTE Q SEGMENT INFORMATION
As a result of the Canada Acquisition and SCUSA Disposition (see Note D Acquisition and
Disposition), the Company has determined that it has two reportable segments organized by
geographic area, Domestic (including Puerto Rico) and Canada. Both segments manufacture, sell and
distribute premium branded bedding products to retail customers and institutional users of bedding
products, such as the hospitality industry.
The Company evaluates segment performance and allocates resources based on net sales and
Adjusted EBITDA. Adjusted EBITDA differs from the term EBITDA as it is commonly used. In addition
to adjusting net income to exclude interest expense, income taxes, depreciation and amortization,
Adjusted EBITDA also adjusts net income by excluding items or expenses not typically excluded in
the calculation of EBITDA such as management fees and unusual or non-recurring items as defined
by the Companys senior credit facility. Management believes the aforementioned approach is the
most informative representation of how management evaluates performance. Adjusted EBITDA does not
represent net income or cash flow from operations as those terms are defined by GAAP and does not
necessarily indicate whether cash flows will be sufficient to fund cash needs.
The following table summarizes our segment information for the years ended December 27, 2008,
December 29, 2007, and December 30, 2006 (in thousands):
84
Simmons Company Notes to Consolidated Financial Statements
Year Ended December 27, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Eliminations |
|
|
Totals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales to external customers |
|
$ |
900,875 |
|
|
$ |
127,825 |
|
|
$ |
|
|
|
$ |
1,028,700 |
|
Intersegment net sales |
|
|
7,282 |
|
|
|
|
|
|
|
(7,282 |
) |
|
|
|
|
Adjusted EBITDA |
|
|
105,790 |
|
|
|
9,945 |
|
|
|
|
|
|
|
115,735 |
|
Depreciation and amortization expense |
|
|
34,285 |
|
|
|
5,570 |
|
|
|
|
|
|
|
39,855 |
|
Expenditures for long-lived assets |
|
|
14,949 |
|
|
|
2,154 |
|
|
|
|
|
|
|
17,103 |
|
Assets |
|
|
909,704 |
|
|
|
114,527 |
|
|
|
(133,434 |
) |
|
|
890,797 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation of net loss to Adjusted EBITDA: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(457,073 |
) |
|
$ |
(35,138 |
) |
|
$ |
|
|
|
$ |
(492,211 |
) |
Depreciation and amortization |
|
|
34,285 |
|
|
|
5,570 |
|
|
|
|
|
|
|
39,855 |
|
Income tax expense (benefit) |
|
|
(78,278 |
) |
|
|
(6,230 |
) |
|
|
|
|
|
|
(84,508 |
) |
Interest expense |
|
|
65,570 |
|
|
|
7,909 |
|
|
|
|
|
|
|
73,479 |
|
Goodwill impairment |
|
|
294,000 |
|
|
|
9,885 |
|
|
|
|
|
|
|
303,885 |
|
Trademark impairment |
|
|
225,800 |
|
|
|
17,872 |
|
|
|
|
|
|
|
243,672 |
|
Transaction expenses including integration costs |
|
|
1,441 |
|
|
|
|
|
|
|
|
|
|
|
1,441 |
|
Non-recurring professional service fees |
|
|
500 |
|
|
|
|
|
|
|
|
|
|
|
500 |
|
Restructuring charges |
|
|
5,988 |
|
|
|
4,260 |
|
|
|
|
|
|
|
10,248 |
|
Financial reorganization charges |
|
|
4,859 |
|
|
|
|
|
|
|
|
|
|
|
4,859 |
|
Operational reorganization charges |
|
|
2,745 |
|
|
|
3,420 |
|
|
|
|
|
|
|
6,165 |
|
Management fees |
|
|
(885 |
) |
|
|
2,725 |
|
|
|
|
|
|
|
1,840 |
|
Non-cash stock compensation expense |
|
|
(423 |
) |
|
|
|
|
|
|
|
|
|
|
(423 |
) |
ERP system implementation costs |
|
|
1,776 |
|
|
|
240 |
|
|
|
|
|
|
|
2,016 |
|
Loss (gain) on foreign currency transactions |
|
|
1,748 |
|
|
|
(757 |
) |
|
|
|
|
|
|
991 |
|
State taxes in lieu of income taxes |
|
|
664 |
|
|
|
|
|
|
|
|
|
|
|
664 |
|
Product regulatory compliance |
|
|
2,774 |
|
|
|
|
|
|
|
|
|
|
|
2,774 |
|
Other |
|
|
299 |
|
|
|
189 |
|
|
|
|
|
|
|
488 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
105,790 |
|
|
$ |
9,945 |
|
|
$ |
|
|
|
$ |
115,735 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
85
Simmons Company Notes to Consolidated Financial Statements
Year Ended December 29, 2007
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Eliminations |
|
|
Totals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales to external customers |
|
$ |
1,001,491 |
|
|
$ |
125,350 |
|
|
$ |
|
|
|
$ |
1,126,841 |
|
Intersegment net sales |
|
|
913 |
|
|
|
|
|
|
|
(913 |
) |
|
|
|
|
Adjusted EBITDA |
|
|
136,934 |
|
|
|
20,033 |
|
|
|
|
|
|
|
156,967 |
|
Depreciation and amortization expense |
|
|
25,808 |
|
|
|
4,817 |
|
|
|
|
|
|
|
30,625 |
|
Expenditures for long-lived assets |
|
|
21,877 |
|
|
|
3,178 |
|
|
|
|
|
|
|
25,055 |
|
Assets |
|
|
1,436,944 |
|
|
|
178,048 |
|
|
|
(137,339 |
) |
|
|
1,477,653 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation of net income to Adjusted EBITDA: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
21,580 |
|
|
$ |
2,369 |
|
|
$ |
|
|
|
$ |
23,949 |
|
Depreciation and amortization |
|
|
25,808 |
|
|
|
4,817 |
|
|
|
|
|
|
|
30,625 |
|
Income tax expense |
|
|
9,339 |
|
|
|
(676 |
) |
|
|
|
|
|
|
8,663 |
|
Interest expense |
|
|
68,226 |
|
|
|
7,956 |
|
|
|
|
|
|
|
76,182 |
|
Transaction expenses including integration costs |
|
|
4,336 |
|
|
|
266 |
|
|
|
|
|
|
|
4,602 |
|
Non-recurring professional service fees |
|
|
3,062 |
|
|
|
|
|
|
|
|
|
|
|
3,062 |
|
Operational reorganization charges |
|
|
2,111 |
|
|
|
319 |
|
|
|
|
|
|
|
2,430 |
|
Product regulatory compliance |
|
|
2,260 |
|
|
|
|
|
|
|
|
|
|
|
2,260 |
|
Management fees |
|
|
(2,849 |
) |
|
|
4,524 |
|
|
|
|
|
|
|
1,675 |
|
Non-cash stock compensation expense |
|
|
93 |
|
|
|
|
|
|
|
|
|
|
|
93 |
|
ERP system implementation costs |
|
|
1,575 |
|
|
|
|
|
|
|
|
|
|
|
1,575 |
|
(Gain) loss on foreign currency transactions |
|
|
(1,044 |
) |
|
|
453 |
|
|
|
|
|
|
|
(591 |
) |
State taxes in lieu of income taxes |
|
|
844 |
|
|
|
|
|
|
|
|
|
|
|
844 |
|
Other |
|
|
1,593 |
|
|
|
5 |
|
|
|
|
|
|
|
1,598 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
136,934 |
|
|
$ |
20,033 |
|
|
$ |
|
|
|
$ |
156,967 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
86
Simmons Company Notes to Consolidated Financial Statements
Year Ended December 30, 2006
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Other* |
|
|
Eliminations |
|
|
Totals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales to external customers |
|
$ |
887,356 |
|
|
$ |
12,724 |
|
|
$ |
61,545 |
|
|
$ |
|
|
|
$ |
961,625 |
|
Intersegment net sales |
|
|
12,627 |
|
|
|
|
|
|
|
|
|
|
|
(12,627 |
) |
|
|
|
|
Adjusted EBITDA |
|
|
141,362 |
|
|
|
1,931 |
|
|
|
6,077 |
|
|
|
(86 |
) |
|
|
149,284 |
|
Depreciation and amortization expense |
|
|
27,221 |
|
|
|
591 |
|
|
|
876 |
|
|
|
|
|
|
|
28,688 |
|
Expenditures for long-lived assets |
|
|
11,627 |
|
|
|
147 |
|
|
|
1,779 |
|
|
|
|
|
|
|
13,553 |
|
Assets |
|
|
1,345,668 |
|
|
|
142,363 |
|
|
|
|
|
|
|
(114,377 |
) |
|
|
1,373,654 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation of net income to Adjusted EBITDA: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
13,768 |
|
|
$ |
(78 |
) |
|
$ |
34,010 |
|
|
$ |
(86 |
) |
|
$ |
47,614 |
|
Depreciation and amortization |
|
|
27,221 |
|
|
|
591 |
|
|
|
876 |
|
|
|
|
|
|
|
28,688 |
|
Income tax expense |
|
|
10,922 |
|
|
|
15 |
|
|
|
13,490 |
|
|
|
|
|
|
|
24,427 |
|
Interest expense |
|
|
80,319 |
|
|
|
927 |
|
|
|
19 |
|
|
|
|
|
|
|
81,265 |
|
Gain on sale of Sleep Country USA |
|
|
|
|
|
|
|
|
|
|
(43,311 |
) |
|
|
|
|
|
|
(43,311 |
) |
Transaction expenses including integration costs |
|
|
815 |
|
|
|
432 |
|
|
|
453 |
|
|
|
|
|
|
|
1,700 |
|
Operational reorganization charges |
|
|
4,727 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,727 |
|
Product regulatory compliance |
|
|
673 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
673 |
|
Management fees |
|
|
1,113 |
|
|
|
240 |
|
|
|
306 |
|
|
|
|
|
|
|
1,659 |
|
Non-cash stock compensation expense |
|
|
760 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
760 |
|
Loss (gain) on foreign currency transactions |
|
|
745 |
|
|
|
(196 |
) |
|
|
|
|
|
|
|
|
|
|
549 |
|
State taxes in lieu of income taxes |
|
|
486 |
|
|
|
|
|
|
|
234 |
|
|
|
|
|
|
|
720 |
|
Other |
|
|
(187 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(187 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
141,362 |
|
|
$ |
1,931 |
|
|
$ |
6,077 |
|
|
$ |
(86 |
) |
|
$ |
149,284 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Other consists of retail operations prior to the sale of Sleep Country USA, LLC in August 2006. |
87
Simmons Company Notes to Consolidated Financial Statements
NOTE R RELATED PARTY TRANSACTIONS
In connection with the THL Acquisition, the Company entered into a management agreement (THL
management agreement) with THL pursuant to which THL renders certain advisory and consulting
services to the Company. In consideration of those services, the Company agreed to pay THL
management fees equal to the greater of $1.5 million or an amount equal to 1.0% of the consolidated
Adjusted EBITDA of Simmons Bedding for such fiscal year, but before deduction of any such fee. The
fees are paid semi-annually. The Company also reimburses THL for all out-of-pocket expenses
incurred by THL in connection with their services provided under the THL management
agreement. The second forbearance agreement prohibits the Company from paying the THL management
fee in cash subsequent to December 10, 2008. In connection with our restructuring efforts, we have
agreed to reimburse the directors of THL for certain legal fees.
Included in selling, general and administrative expenses in the accompanying Consolidated
statements of operations and comprehensive income (loss) was $1.8 million for 2008 and $1.7 million
for 2007 and 2006 related to the management fees and expenses for services provided by THL to the
Company. As of December 27, 2008 and December 27, 2007, the Company had accrued management fees
and expenses of $0.6 million and $0.1 million; respectively, in the accompanying consolidated
balance sheets.
NOTE S SUBSEQUENT EVENTS
On November 12, 2008, Simmons Bedding entered into a forbearance agreement with a majority of
its senior lenders to refrain from exercising their default related rights and remedies under the
senior credit facility. Since November 12, 2008, Simmons Bedding entered into another forbearance
agreement with a majority of its senior lenders on December 10, 2008 and amended that forbearance
agreement on March 25, 2009 and May 27, 2009 to, among other things, extend the forbearance period
initially contemplated under the original agreement. The last amendment on May 27, 2009 extended
the forbearance period through June 30, 2009 and, upon meeting certain conditions July 31, 2009.
On January 15, 2009, Simmons Bedding did not make a scheduled payment of interest due on its
Subordinated Notes resulting in a default under the indenture governing the Subordinated Notes. As
a result, Simmons Bedding has subsequently entered into a forbearance agreement with more than a
majority of the outstanding Subordinated Notes holders, pursuant to which such noteholders have
agreed to refrain from enforcing their respective rights and remedies under the Subordinated Notes
and the related indenture. Simmons Bedding entered into amendments to the forbearance agreement on
March 25, 2009 and May 27, 2009 with a majority of its noteholders, whereby those noteholders
extended their forbearance periods through May 31, 2009 and June 30, 2009, respectively, and upon
meeting certain additional conditions, a further extension to July 31, 2009.
As a condition to the forbearance agreement with the senior lenders, the Company initiated a
financing restructuring process in December 2008. A special committee of independent directors was
formed by the Companys board of directors on January 23, 2009 to evaluate and oversee proposals
for restructuring its debt obligations, including seeking additional debt or equity capital and
evaluating various strategic alternatives of the Company. There can be no assurance that the
Company will be successful in implementing a restructuring. If the Company is unable to
successfully complete a restructuring, comply with the terms of the forbearance agreements, or
extend the forbearance periods as needed to successfully complete a restructuring, our payment
obligations under the senior credit facility and the Subordinated Notes may be accelerated. If
there is an acceleration of payments due under the senior credit facility or the Subordinated
Notes, then Holdings would be in default under its Discount Notes and Simmons Holdco would be in
default under its Toggle Loan. Simmons Bedding, Holdings, and Simmons Holdco would not have the
ability to repay any amounts accelerated under their various debt obligations without obtaining
additional equity and/or debt financing. An acceleration of payments could result in a voluntary
filing of bankruptcy by, or the filing of an involuntary petition for bankruptcy against, Simmons
Bedding, THL-SC, Holdings, Simmons Holdco and/or any of their affiliates. Due to the possibility
of such circumstances occurring, the Company is seeking a negotiated restructuring, including a
restructuring of its debt obligations and/or sale of the Company, its affiliates or its assets,
which could occur pursuant to a pre-packaged, pre-arranged or voluntary bankruptcy filing. Any
bankruptcy filing could have a material adverse effect on the Companys business, financial
condition, liquidity and results of operations. The considerations above raise substantial doubt
about the Companys ability to continue as a going concern.
In connection with the closure of the Companys Bramalea, Ontario facility, the National
Automobile, Aerospace, Transportation and General Workers Union of Canada and its Local 513 filed
an unfair labor practice charge and three former production employees filed a wrongful
termination claim against the Company on behalf of themselves and a class of similarly situated
former employees. In June 2009, the Company has entered into tentative settlement agreements as to
both disputes, although certain conditions, including obtaining leave of court to dismiss the class
action must be met before the settlements will be final. An estimated settlement amount has been
recorded in 2008 as part of the restructuring severance and benefits.
88
Simmons Company Notes to Consolidated Financial Statements
NOTE T GUARANTOR / NON-GUARANTOR STATEMENTS
Simmons Beddings Subordinated Notes are fully and unconditionally guaranteed, on a joint and
several basis, and on an unsecured, senior subordinated basis by Holdings and THL-SC (the Parent
Guarantors) and all of Simmons Beddings active domestic subsidiaries (the Subsidiary
Guarantors). All of the Subsidiary Guarantors are 100% owned by Simmons Bedding. None of Simmons
Beddings direct or indirect subsidiaries located in U.S. territories or outside of the United
States guarantee the Subordinated Notes (the Non-Guarantor Subsidiaries). The Supplemental
Consolidating Condensed Financial Statements provide additional guarantor/non-guarantor
information.
Supplemental Consolidating Condensed Statements of Operations
For the Year Ended December 27, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
|
|
|
$ |
(94,782 |
) |
|
$ |
993,727 |
|
|
$ |
137,037 |
|
|
$ |
(7,282 |
) |
|
$ |
1,028,700 |
|
Cost of products sold |
|
|
|
|
|
|
3,400 |
|
|
|
547,389 |
|
|
|
105,297 |
|
|
|
(7,282 |
) |
|
|
648,804 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
(98,182 |
) |
|
|
446,338 |
|
|
|
31,740 |
|
|
|
|
|
|
|
379,896 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and
administrative expenses |
|
|
(11 |
) |
|
|
218,512 |
|
|
|
86,867 |
|
|
|
33,808 |
|
|
|
|
|
|
|
339,176 |
|
Goodwill and trademark
impairments |
|
|
|
|
|
|
|
|
|
|
519,800 |
|
|
|
27,757 |
|
|
|
|
|
|
|
547,557 |
|
Amortization of intangibles |
|
|
|
|
|
|
2,955 |
|
|
|
2,400 |
|
|
|
949 |
|
|
|
|
|
|
|
6,304 |
|
Intercompany fees |
|
|
|
|
|
|
(321,540 |
) |
|
|
318,169 |
|
|
|
3,371 |
|
|
|
|
|
|
|
|
|
Licensing revenues |
|
|
|
|
|
|
(1,427 |
) |
|
|
(7,270 |
) |
|
|
(802 |
) |
|
|
|
|
|
|
(9,499 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11 |
) |
|
|
(101,500 |
) |
|
|
919,966 |
|
|
|
65,083 |
|
|
|
|
|
|
|
883,538 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
11 |
|
|
|
3,318 |
|
|
|
(473,628 |
) |
|
|
(33,343 |
) |
|
|
|
|
|
|
(503,642 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
23,241 |
|
|
|
41,434 |
|
|
|
853 |
|
|
|
7,951 |
|
|
|
|
|
|
|
73,479 |
|
Interest income |
|
|
|
|
|
|
(98 |
) |
|
|
(71 |
) |
|
|
(233 |
) |
|
|
|
|
|
|
(402 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from subsidiaries |
|
|
(477,110 |
) |
|
|
(429,027 |
) |
|
|
|
|
|
|
|
|
|
|
906,137 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes |
|
|
(500,340 |
) |
|
|
(467,045 |
) |
|
|
(474,410 |
) |
|
|
(41,061 |
) |
|
|
906,137 |
|
|
|
(576,719 |
) |
Income tax expense (benefit) |
|
|
(8,129 |
) |
|
|
10,065 |
|
|
|
(80,229 |
) |
|
|
(6,215 |
) |
|
|
|
|
|
|
(84,508 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(492,211 |
) |
|
$ |
(477,110 |
) |
|
$ |
(394,181 |
) |
|
$ |
(34,846 |
) |
|
$ |
906,137 |
|
|
$ |
(492,211 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
89
Simmons Company Notes to Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Operations
For the Year Ended December 29, 2007
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
|
|
|
$ |
(107,928 |
) |
|
$ |
1,098,346 |
|
|
$ |
137,336 |
|
|
$ |
(913 |
) |
|
$ |
1,126,841 |
|
Cost of products sold |
|
|
|
|
|
|
3,205 |
|
|
|
579,627 |
|
|
|
94,336 |
|
|
|
(913 |
) |
|
|
676,255 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
(111,133 |
) |
|
|
518,719 |
|
|
|
43,000 |
|
|
|
|
|
|
|
450,586 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and
administrative expenses |
|
|
(5 |
) |
|
|
226,661 |
|
|
|
92,806 |
|
|
|
26,790 |
|
|
|
|
|
|
|
346,252 |
|
Amortization of intangibles |
|
|
|
|
|
|
2,955 |
|
|
|
2,251 |
|
|
|
940 |
|
|
|
|
|
|
|
6,146 |
|
Intercompany fees |
|
|
|
|
|
|
(335,360 |
) |
|
|
330,054 |
|
|
|
5,306 |
|
|
|
|
|
|
|
|
|
Licensing revenues |
|
|
|
|
|
|
(1,170 |
) |
|
|
(8,058 |
) |
|
|
(857 |
) |
|
|
|
|
|
|
(10,085 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5 |
) |
|
|
(106,914 |
) |
|
|
417,053 |
|
|
|
32,179 |
|
|
|
|
|
|
|
342,313 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
5 |
|
|
|
(4,219 |
) |
|
|
101,666 |
|
|
|
10,821 |
|
|
|
|
|
|
|
108,273 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
20,814 |
|
|
|
46,397 |
|
|
|
913 |
|
|
|
8,058 |
|
|
|
|
|
|
|
76,182 |
|
Interest income |
|
|
|
|
|
|
(93 |
) |
|
|
(117 |
) |
|
|
(311 |
) |
|
|
|
|
|
|
(521 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from subsidiaries |
|
|
37,475 |
|
|
|
106,543 |
|
|
|
|
|
|
|
|
|
|
|
(144,018 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
16,666 |
|
|
|
56,020 |
|
|
|
100,870 |
|
|
|
3,074 |
|
|
|
(144,018 |
) |
|
|
32,612 |
|
Income tax expense (benefit) |
|
|
(7,283 |
) |
|
|
18,545 |
|
|
|
(1,903 |
) |
|
|
(696 |
) |
|
|
|
|
|
|
8,663 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
23,949 |
|
|
$ |
37,475 |
|
|
$ |
102,773 |
|
|
$ |
3,770 |
|
|
$ |
(144,018 |
) |
|
$ |
23,949 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
90
Simmons Company Notes to Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Operations
For the Year Ended December 30, 2006
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
|
|
|
$ |
(94,581 |
) |
|
$ |
1,033,782 |
|
|
$ |
22,470 |
|
|
$ |
(46 |
) |
|
$ |
961,625 |
|
Cost of products sold |
|
|
|
|
|
|
3,069 |
|
|
|
524,801 |
|
|
|
16,340 |
|
|
|
(46 |
) |
|
|
544,164 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
(97,650 |
) |
|
|
508,981 |
|
|
|
6,130 |
|
|
|
|
|
|
|
417,461 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and
administrative expenses |
|
|
235 |
|
|
|
200,966 |
|
|
|
106,372 |
|
|
|
4,266 |
|
|
|
|
|
|
|
311,839 |
|
Amortization of intangibles |
|
|
|
|
|
|
3,222 |
|
|
|
2,324 |
|
|
|
109 |
|
|
|
|
|
|
|
5,655 |
|
Intercompany fees |
|
|
|
|
|
|
(320,490 |
) |
|
|
319,394 |
|
|
|
1,096 |
|
|
|
|
|
|
|
|
|
Gain on sale of SCUSA |
|
|
|
|
|
|
|
|
|
|
(43,311 |
) |
|
|
|
|
|
|
|
|
|
|
(43,311 |
) |
Licensing revenues |
|
|
|
|
|
|
(1,190 |
) |
|
|
(6,733 |
) |
|
|
(768 |
) |
|
|
|
|
|
|
(8,691 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
235 |
|
|
|
(117,492 |
) |
|
|
378,046 |
|
|
|
4,703 |
|
|
|
|
|
|
|
265,492 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
(235 |
) |
|
|
19,842 |
|
|
|
130,935 |
|
|
|
1,427 |
|
|
|
|
|
|
|
151,969 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
19,039 |
|
|
|
61,203 |
|
|
|
904 |
|
|
|
119 |
|
|
|
|
|
|
|
81,265 |
|
Interest income |
|
|
|
|
|
|
(2,168 |
) |
|
|
(140 |
) |
|
|
971 |
|
|
|
|
|
|
|
(1,337 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from subsidiaries |
|
|
60,142 |
|
|
|
118,251 |
|
|
|
|
|
|
|
|
|
|
|
(178,393 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
40,868 |
|
|
|
79,058 |
|
|
|
130,171 |
|
|
|
337 |
|
|
|
(178,393 |
) |
|
|
72,041 |
|
Income tax expense (benefit) |
|
|
(6,746 |
) |
|
|
18,916 |
|
|
|
12,121 |
|
|
|
136 |
|
|
|
|
|
|
|
24,427 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
47,614 |
|
|
$ |
60,142 |
|
|
$ |
118,050 |
|
|
$ |
201 |
|
|
$ |
(178,393 |
) |
|
$ |
47,614 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
91
Simmons Company Notes to Consolidated Financial Statements
Supplemental Consolidating Condensed Balance Sheets
As of December 27, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
|
|
|
$ |
46,255 |
|
|
$ |
2,337 |
|
|
$ |
6,338 |
|
|
$ |
|
|
|
$ |
54,930 |
|
Accounts receivable |
|
|
|
|
|
|
|
|
|
|
75,634 |
|
|
|
21,904 |
|
|
|
(1,606 |
) |
|
|
95,932 |
|
Inventories |
|
|
|
|
|
|
37 |
|
|
|
27,414 |
|
|
|
4,387 |
|
|
|
|
|
|
|
31,838 |
|
Other |
|
|
2,602 |
|
|
|
17,086 |
|
|
|
12,505 |
|
|
|
2,593 |
|
|
|
|
|
|
|
34,786 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
2,602 |
|
|
|
63,378 |
|
|
|
117,890 |
|
|
|
35,222 |
|
|
|
(1,606 |
) |
|
|
217,486 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net |
|
|
|
|
|
|
23,335 |
|
|
|
44,429 |
|
|
|
18,728 |
|
|
|
|
|
|
|
86,492 |
|
Goodwill and other intangibles, net |
|
|
|
|
|
|
68,381 |
|
|
|
439,337 |
|
|
|
61,078 |
|
|
|
|
|
|
|
568,796 |
|
Other assets |
|
|
34,736 |
|
|
|
100,000 |
|
|
|
512 |
|
|
|
8,758 |
|
|
|
(125,983 |
) |
|
|
18,023 |
|
Net investment in and advances to
(from) affiliates |
|
|
(154,430 |
) |
|
|
434,362 |
|
|
|
299,351 |
|
|
|
(1,797 |
) |
|
|
(577,486 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
(117,092 |
) |
|
$ |
689,456 |
|
|
$ |
901,519 |
|
|
$ |
121,989 |
|
|
$ |
(705,075 |
) |
|
$ |
890,797 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS
EQUITY (DEFICIT) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current maturities of long-term
debt |
|
$ |
245,106 |
|
|
$ |
729,533 |
|
|
$ |
300 |
|
|
$ |
213 |
|
|
$ |
|
|
|
$ |
975,152 |
|
Accounts payable and accrued
liabilities |
|
|
129 |
|
|
|
55,714 |
|
|
|
58,212 |
|
|
|
30,172 |
|
|
|
(16,166 |
) |
|
|
128,061 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
245,235 |
|
|
|
785,247 |
|
|
|
58,512 |
|
|
|
30,385 |
|
|
|
(16,166 |
) |
|
|
1,103,213 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
|
|
|
|
|
6,598 |
|
|
|
12,200 |
|
|
|
70,935 |
|
|
|
(76,697 |
) |
|
|
13,036 |
|
Deferred income taxes |
|
|
|
|
|
|
39,930 |
|
|
|
88,782 |
|
|
|
4,775 |
|
|
|
(34,726 |
) |
|
|
98,761 |
|
Other non-current liabilities |
|
|
|
|
|
|
25,113 |
|
|
|
8,319 |
|
|
|
4,682 |
|
|
|
|
|
|
|
38,114 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
245,235 |
|
|
|
856,888 |
|
|
|
167,813 |
|
|
|
110,777 |
|
|
|
(127,589 |
) |
|
|
1,253,124 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity |
|
|
(362,327 |
) |
|
|
(167,432 |
) |
|
|
733,706 |
|
|
|
11,212 |
|
|
|
(577,486 |
) |
|
|
(362,327 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
stockholders equity |
|
$ |
(117,092 |
) |
|
$ |
689,456 |
|
|
$ |
901,519 |
|
|
$ |
121,989 |
|
|
$ |
(705,075 |
) |
|
$ |
890,797 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
92
Simmons Company Notes to Consolidated Financial Statements
Supplemental Consolidating Condensed Balance Sheets
As of December 29, 2007
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
|
|
|
$ |
8,241 |
|
|
$ |
4,087 |
|
|
$ |
15,192 |
|
|
$ |
|
|
|
$ |
27,520 |
|
Accounts receivable |
|
|
|
|
|
|
|
|
|
|
93,399 |
|
|
|
26,726 |
|
|
|
(141 |
) |
|
|
119,984 |
|
Inventories |
|
|
|
|
|
|
37 |
|
|
|
30,041 |
|
|
|
5,129 |
|
|
|
|
|
|
|
35,207 |
|
Other |
|
|
|
|
|
|
9,859 |
|
|
|
13,008 |
|
|
|
2,414 |
|
|
|
|
|
|
|
25,281 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
|
|
|
|
18,137 |
|
|
|
140,535 |
|
|
|
49,461 |
|
|
|
(141 |
) |
|
|
207,992 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net |
|
|
|
|
|
|
24,818 |
|
|
|
38,423 |
|
|
|
24,208 |
|
|
|
|
|
|
|
87,449 |
|
Goodwill and other intangibles, net |
|
|
|
|
|
|
71,335 |
|
|
|
961,552 |
|
|
|
111,786 |
|
|
|
|
|
|
|
1,144,673 |
|
Other assets |
|
|
29,508 |
|
|
|
126,973 |
|
|
|
586 |
|
|
|
3,695 |
|
|
|
(123,223 |
) |
|
|
37,539 |
|
Net investment in and advances to
(from) affiliates |
|
|
380,949 |
|
|
|
910,379 |
|
|
|
287,881 |
|
|
|
(2,219 |
) |
|
|
(1,576,990 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
410,457 |
|
|
$ |
1,151,642 |
|
|
$ |
1,428,977 |
|
|
$ |
186,931 |
|
|
$ |
(1,700,354 |
) |
|
$ |
1,477,653 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS
EQUITY |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current maturities of long-term
debt |
|
$ |
|
|
|
$ |
|
|
|
$ |
300 |
|
|
$ |
472 |
|
|
$ |
|
|
|
$ |
772 |
|
Accounts payable and accrued
liabilities |
|
|
140 |
|
|
|
66,681 |
|
|
|
86,762 |
|
|
|
25,168 |
|
|
|
(9,901 |
) |
|
|
168,850 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
140 |
|
|
|
66,681 |
|
|
|
87,062 |
|
|
|
25,640 |
|
|
|
(9,901 |
) |
|
|
169,622 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
|
222,165 |
|
|
|
665,000 |
|
|
|
12,500 |
|
|
|
87,919 |
|
|
|
(86,868 |
) |
|
|
900,716 |
|
Deferred income taxes |
|
|
|
|
|
|
32,859 |
|
|
|
171,284 |
|
|
|
12,773 |
|
|
|
(26,595 |
) |
|
|
190,321 |
|
Other non-current liabilities |
|
|
|
|
|
|
20,754 |
|
|
|
3,867 |
|
|
|
4,221 |
|
|
|
|
|
|
|
28,842 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
222,305 |
|
|
|
785,294 |
|
|
|
274,713 |
|
|
|
130,553 |
|
|
|
(123,364 |
) |
|
|
1,289,501 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity |
|
|
188,152 |
|
|
|
366,348 |
|
|
|
1,154,264 |
|
|
|
56,378 |
|
|
|
(1,576,990 |
) |
|
|
188,152 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
stockholders equity |
|
$ |
410,457 |
|
|
$ |
1,151,642 |
|
|
$ |
1,428,977 |
|
|
$ |
186,931 |
|
|
$ |
(1,700,354 |
) |
|
$ |
1,477,653 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
93
Simmons Company Notes to Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Cash Flows
For the Year Ended December 27, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
operating activities |
|
$ |
|
|
|
$ |
(35,906 |
) |
|
|
46,765 |
|
|
$ |
2,588 |
|
|
$ |
|
|
|
$ |
13,447 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase of property, plant and
equipment, net |
|
|
|
|
|
|
(4,016 |
) |
|
|
(10,694 |
) |
|
|
(2,393 |
) |
|
|
|
|
|
|
(17,103 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing
activities |
|
|
|
|
|
|
(4,016 |
) |
|
|
(10,694 |
) |
|
|
(2,393 |
) |
|
|
|
|
|
|
(17,103 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Borrowings of senior credit facility |
|
|
|
|
|
|
64,532 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
64,532 |
|
Payment of other long-term
obligations |
|
|
|
|
|
|
|
|
|
|
(302 |
) |
|
|
(422 |
) |
|
|
|
|
|
|
(724 |
) |
Payments of debt issuance costs |
|
|
|
|
|
|
(1,944 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,944 |
) |
Dividend to Simmons Holdco, Inc. |
|
|
(29,099 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(29,099 |
) |
Receipt from (distribution to)
affiliates |
|
|
29,099 |
|
|
|
15,348 |
|
|
|
(37,519 |
) |
|
|
(6,928 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
financing activities |
|
|
|
|
|
|
77,936 |
|
|
|
(37,821 |
) |
|
|
(7,350 |
) |
|
|
|
|
|
|
32,765 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net effect of exchange rate change |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,699 |
) |
|
|
|
|
|
|
(1,699 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in cash and cash equivalents |
|
|
|
|
|
|
38,014 |
|
|
|
(1,750 |
) |
|
|
(8,854 |
) |
|
|
|
|
|
|
27,410 |
|
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning of period |
|
|
|
|
|
|
8,241 |
|
|
|
4,087 |
|
|
|
15,192 |
|
|
|
|
|
|
|
27,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
End of period |
|
$ |
|
|
|
$ |
46,255 |
|
|
$ |
2,337 |
|
|
$ |
6,338 |
|
|
$ |
|
|
|
$ |
54,930 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
94
Simmons Company Notes to Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Cash Flows
For the Year Ended December 29, 2007
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
operating activities |
|
$ |
(311 |
) |
|
$ |
(44,987 |
) |
|
$ |
100,341 |
|
|
$ |
11,140 |
|
|
$ |
|
|
|
$ |
66,183 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase of property, plant and
equipment, net |
|
|
|
|
|
|
(13,648 |
) |
|
|
(8,065 |
) |
|
|
(3,342 |
) |
|
|
|
|
|
|
(25,055 |
) |
Acquisition of certain assets of
Comfor Products, Inc. |
|
|
|
|
|
|
(15,379 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(15,379 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing
activities |
|
|
|
|
|
|
(29,027 |
) |
|
|
(8,065 |
) |
|
|
(3,342 |
) |
|
|
|
|
|
|
(40,434 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments of senior credit facility |
|
|
|
|
|
|
(15,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(15,000 |
) |
Payment of other long-term
obligations |
|
|
|
|
|
|
|
|
|
|
(302 |
) |
|
|
(648 |
) |
|
|
|
|
|
|
(950 |
) |
Repurchase of common stock, net |
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1 |
) |
Dividend to Simmons Holdco, Inc. |
|
|
(4,963 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,963 |
) |
Excess tax benefits from
stock-based compensation |
|
|
27 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27 |
|
Receipt from (distribution to)
affiliates |
|
|
5,248 |
|
|
|
87,413 |
|
|
|
(93,492 |
) |
|
|
831 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
financing activities |
|
|
311 |
|
|
|
72,413 |
|
|
|
(93,794 |
) |
|
|
183 |
|
|
|
|
|
|
|
(20,887 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net effect of exchange rate change |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,874 |
|
|
|
|
|
|
|
1,874 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in cash and cash
equivalents |
|
|
|
|
|
|
(1,601 |
) |
|
|
(1,518 |
) |
|
|
9,855 |
|
|
|
|
|
|
|
6,736 |
|
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning of period |
|
|
|
|
|
|
9,842 |
|
|
|
5,605 |
|
|
|
5,337 |
|
|
|
|
|
|
|
20,784 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
End of period |
|
$ |
|
|
|
$ |
8,241 |
|
|
$ |
4,087 |
|
|
$ |
15,192 |
|
|
$ |
|
|
|
$ |
27,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
95
Simmons Company Notes to Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Cash Flows
For the Year Ended December 30, 2006
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Non-Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
operating activities |
|
$ |
173 |
|
|
$ |
(51,974 |
) |
|
$ |
151,180 |
|
|
$ |
2,889 |
|
|
$ |
|
|
|
$ |
102,268 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase of property, plant and
equipment, net |
|
|
|
|
|
|
(7,990 |
) |
|
|
(5,389 |
) |
|
|
(174 |
) |
|
|
|
|
|
|
(13,553 |
) |
Proceeds from the sale of Sleep
Country USA, net |
|
|
|
|
|
|
52,417 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,417 |
|
Purchase of Simmons Canada |
|
|
|
|
|
|
(122,900 |
) |
|
|
|
|
|
|
9,802 |
|
|
|
|
|
|
|
(113,098 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
investing activities |
|
|
|
|
|
|
(78,473 |
) |
|
|
(5,389 |
) |
|
|
9,628 |
|
|
|
|
|
|
|
(74,234 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Borrowings under new senior
credit facility, net |
|
|
|
|
|
|
480,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
480,000 |
|
Payments of senior credit facility |
|
|
|
|
|
|
(369,933 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(369,933 |
) |
Repayment of senior unsecured
term loan |
|
|
|
|
|
|
(140,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(140,000 |
) |
Payment of other long-term
obligations |
|
|
|
|
|
|
|
|
|
|
(201 |
) |
|
|
(276 |
) |
|
|
|
|
|
|
(477 |
) |
Repurchase of common stock, net |
|
|
(181 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(181 |
) |
Payment of financing fees |
|
|
(41 |
) |
|
|
(998 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,039 |
) |
Excess tax benefits from
stock-based compensation |
|
|
49 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49 |
|
Receipt from (distribution to)
affiliates |
|
|
|
|
|
|
151,395 |
|
|
|
(141,412 |
) |
|
|
(9,983 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
financing activities |
|
|
(173 |
) |
|
|
120,464 |
|
|
|
(141,613 |
) |
|
|
(10,259 |
) |
|
|
|
|
|
|
(31,581 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net effect of exchange rate change |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(291 |
) |
|
|
|
|
|
|
(291 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in cash and cash
equivalents |
|
|
|
|
|
|
(9,983 |
) |
|
|
4,178 |
|
|
|
1,967 |
|
|
|
|
|
|
|
(3,838 |
) |
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning of period |
|
|
|
|
|
|
19,825 |
|
|
|
1,427 |
|
|
|
3,370 |
|
|
|
|
|
|
|
24,622 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
End of period |
|
$ |
|
|
|
$ |
9,842 |
|
|
$ |
5,605 |
|
|
$ |
5,337 |
|
|
$ |
|
|
|
$ |
20,784 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
96
|
|
|
ITEM 9. |
|
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. |
None.
ITEM 9A(T). CONTROLS AND PROCEDURES.
Disclosure Controls and Procedures
The Company maintains a set of disclosure controls and procedures designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Securities Exchange Act of 1934 is recorded, processed, summarized, and reported, within the time
periods specified in SEC rules and forms. An evaluation was carried out under the supervision and
with the participation of the Companys management, including the President and Chief Operating
Officer (President) and the Chief Financial Officer (CFO), of the effectiveness of the
Companys disclosure controls and procedures. Based on that evaluation, the President and CFO have
concluded that the Companys disclosure controls and procedures are effective as of December 27,
2008.
Managements Report on Internal Control over Financial Reporting
Management of the Company is responsible for establishing and maintaining adequate internal
control over financial reporting. The Companys internal control over financial reporting is a
process designed under the supervision of the Companys President and CFO to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of the Companys
financial statements for external purposes in accordance with U.S. generally accepted accounting
principles.
The Companys internal control over financial reporting includes policies and procedures that:
Pertain to the maintenance of records that, in reasonable detail, accurately
and fairly reflect transactions and dispositions of assets of the Company;
Provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with U.S. generally
accepted accounting principles, and that receipts and expenditures of the
Company are being made only in accordance with authorizations of management and
the directors of the Company; and
Provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use or disposition of the Companys assets that could
have a material effect on the Companys financial statements.
Management has assessed the effectiveness of its internal control over financial reporting as
of December 27, 2008 based on the framework established in Internal Control Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on
this assessment, management has determined that the Companys internal control over financial
reporting was effective as of December 27, 2008.
This annual report does not include an attestation report of the Companys registered public
accounting firm regarding internal control over financial reporting. Managements report was not
subject to attestation by the Companys registered public accounting firm pursuant to temporary
rules of the SEC that permit the Company to provide only managements report in this annual report.
Changes in Internal Control over Financial Reporting
There has been no change in our internal control over financial reporting, as defined
in Rules 13a-15(f) and 15d-15(f) of the Exchange Act, identified in connection with the evaluation
that occurred during the fourth quarter of 2008 that has materially affected our internal control
over financial reporting.
97
PART III
ITEM
10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
MANAGEMENT AND DIRECTORS
Our directors and principal officers and their positions and ages as of May 1, 2009 are as
follows:
|
|
|
|
|
|
|
Name |
|
Age |
|
Position |
Stephen G. Fendrich
|
|
|
48 |
|
|
President and Chief Operating Officer |
Dominick A. Azevedo
|
|
|
54 |
|
|
Executive Vice President Sales |
William S. Creekmuir
|
|
|
53 |
|
|
Executive Vice President, Chief Financial Officer, Treasurer and Assistant Secretary |
Kristen K. McGuffey
|
|
|
43 |
|
|
Executive Vice President, General Counsel and Secretary |
Timothy F. Oakhill
|
|
|
46 |
|
|
Executive Vice President Marketing and Licensing |
Kimberly A. Samon
|
|
|
41 |
|
|
Executive Vice President Human Resources and Assistant Secretary |
Mark F. Chambless
|
|
|
52 |
|
|
Senior Vice President Corporate Controller and Assistant Secretary |
Charles R. Eitel
|
|
|
59 |
|
|
Vice Chairman Board of Directors |
Todd M. Abbrecht
|
|
|
40 |
|
|
Director |
William P. Carmichael
|
|
|
65 |
|
|
Director |
David A. Jones
|
|
|
59 |
|
|
Director |
B. Joseph Messner
|
|
|
56 |
|
|
Director |
Scott A. Schoen
|
|
|
50 |
|
|
Director |
George R. Taylor
|
|
|
38 |
|
|
Director |
The present principal occupations and recent employment history of each of our principal
officers and directors listed above is as follows:
Stephen G. Fendrich joined us in February 2003 in connection with our acquisition of SC
Holdings, Inc. (SC Holdings) and has served as President and Chief Operating Officer since
January 2008. In October 2008, Mr. Fendrich assumed leadership of the Company from Mr. Eitel, our
former Chairman and Chief Executive Officer (CEO), while maintaining his current position of
President and Chief Operating Officer. Prior to assuming his current position, Mr. Fendrich served
as Executive Vice President Sales from August 2005 through December 2007 and prior to that served
as President and CEO of our subsidiaries, SC Holdings and SCUSA, which Mr. Fendrich joined in
September 2002. Prior to joining SC Holdings and SCUSA, Mr. Fendrich was Executive Vice President
of Franchise Stores for The Mattress Firm from February 2002 to September 2002. From November 2000
to February 2002, Mr. Fendrich performed consulting work for The Mattress Firm franchises. From
1986 to November 2000, Mr. Fendrich held various positions with The Mattress Firm including Vice
President and Chief Financial Officer and Vice President of Finance and Real Estate. Mr. Fendrich
was one of the founders of The Mattress Firm in 1986.
Dominick A. Azevedo joined us in May 1997 and has served as Executive Vice President Sales
since January 2008. Prior to assuming his current position, Mr. Azevedo served as Senior Vice
President of Sales from July 2007 to January 2008 and served as Senior Vice President of Sales
East from May 2007 to July 2007. Between June 1998 and May 2007, Mr. Azevedo served in various
Vice President of Sales positions for our company. Prior to joining the Company, Mr. Azevedo held
various positions in retail management from 1979 to 1997 for Rhodes Furniture, Huffman Koos and
Dean Carpet.
William S. Creekmuir joined us in April 2000 and serves as Executive Vice President, Chief
Financial Officer, Treasurer and Assistant Secretary. Mr. Creekmuir is our Principal Financial
Officer. Mr. Creekmuir served as one of our directors from April 2000 to August 2004. Prior to
joining us, Mr. Creekmuir served as Executive Vice President, Chief Financial Officer, Secretary
and Treasurer of LADD Furniture, Inc. (LADD), a publicly traded furniture manufacturer. Prior to
joining LADD in 1992, he worked 15 years with the international public accounting firm KPMG in
their audit practice, the last five years of which he was a partner, including partner in charge of
their national furniture manufacturing practice. Mr. Creekmuir is also Chairman of the Statistics
Committee of ISPA, a member of the Board of Advisors to the Martha and Spencer Love School of
Business at Elon University, a member of the Advisory Board of Art Van Furniture, Inc. and a
Certified Public Accountant.
98
Kristen K. McGuffey joined us in November 2001 and has served as Executive Vice President,
General Counsel and Secretary since March 2007. Prior to assuming her current position, Ms.
McGuffey served as Senior Vice President General Counsel and Secretary since August 2002 and
prior to that served as Vice President General Counsel and Assistant Secretary. Prior to joining
us, from March 2000 to October 2001, Ms. McGuffey was employed by Viewlocity, Inc., with the most
recent position of Executive Vice President and General Counsel. From March 1997 to February 2000,
Ms. McGuffey was a partner of and, prior to that, an associate at Morris, Manning & Martin LLP.
Timothy F. Oakhill joined us in January 1997 and has served as Executive Vice President -
Marketing and Licensing since March 2007. Prior to assuming his current position, Mr. Oakhill
served as Senior Vice President Marketing and Licensing since July 2005. Prior July 2005, Mr.
Oakhill served as Vice President International and Domestic Licensing since January 2004. Prior
to January 2004, Mr. Oakhill managed various Simmons brands, including Beautyrest® from August 2003
to January 2004, and BackCare® and Deep Sleep® from January 1997 to August 2003. Prior to joining
us, Mr. Oakhill served as Marketing Manager for Eastman Kodak Company and as an account
supervisor for Bates Worldwide.
Kimberly A. Samon joined us in April 2006 and has served as Executive Vice President Human
Resources and Assistant Secretary since March 2007. Prior to assuming her current position, Ms.
Samon served as Senior Vice President Human Resources and Assistant Secretary. Prior to joining
us, from April 2004 to April 2006, Ms. Samon was a co-founder and partner of the law firm W. Edwin
Litton, LLC and a co-owner and chief executive officer of Olivia Litton International, a human
resource consulting company. From April 2003 to February 2004, Ms. Samon was a Director Human
Resources, East for Fedex Corporations office and print center business unit, formerly Kinkos
Inc. From April 2002 to March 2003, Ms. Samon was a Human Resource Practice Leader for Lacerte
Technologies, Inc. From January 1998 to December 2001, Ms. Samon worked for HQ Global Workplaces,
Inc., in various positions including Senior Vice President and Chief People Office/Labor and
Employment Counsel.
Mark F. Chambless joined us in May 1995 and has served as Senior Vice President, Corporate
Controller and Assistant Secretary since June 2007. Prior to this position, Mr. Chambless served
as Vice President, Corporate Controller and Assistant Secretary from December 2005 to June 2007 and
as Vice President and Corporate Controller from February 2000 to December 2005. Mr. Chambless was
the Corporate Controller from November 1995 through February 2000, and prior to that served as a
Divisional Controller. Mr. Chambless is the Principal Accounting Officer for our company. Prior
to joining us, Mr. Chambless worked nine years at Sealy Corporation where he held various positions
including Plant Controller, Operations Manager and Divisional Controller.
Charles R. Eitel joined us in January 2000 and has served as Vice Chairman of the Board of
Directors since October 2008. Prior to assuming his current position, Mr. Eitel served as our
Chairman of the Board of Directors and Chief Executive Officer from January 2000 through September
2008. Prior to joining us, Mr. Eitel served as President and Chief Operating Officer of Interface,
Inc., a leading global manufacturer and marketer of floor coverings, interior fabrics and
architectural raised floors. Prior to serving as Chief Operating Officer, he held the positions of
Executive Vice President of Interface, President and Chief Executive Officer of the Floor Coverings
Group, and President of Interface Flooring Systems, Inc. Mr. Eitel is also a director of Duke
Realty Corporation. Mr. Eitel is a past Chairman of the Board of Directors of the ISPA.
Todd M. Abbrecht has been a director of our company since December 2003, following the
consummation of the THL Acquisition. Mr. Abbrecht is a Managing Director of Thomas H. Lee
Partners, which he joined in 1992. Prior to joining the firm, Mr. Abbrecht was in the mergers and
acquisitions department of Credit Suisse First Boston. Mr. Abbrecht is also a director of Aramark
Corporation, Dunkin Brands, Inc. and Warner Chilcott Holdings Company, Limited.
99
William P. Carmichael became a director of our company in May 2004. Mr. Carmichael co-founded
The Succession Fund in 1998. Prior to forming The Succession Fund, Mr. Carmichael had 26 years of
experience in various financial positions with global consumer product companies, including Senior
Vice President with Sara Lee Corporation, Senior Vice President and Chief Financial Officer of
Beatrice Foods Company, and Vice President of Esmark, Inc. Mr. Carmichael is also a director of
Cobra Electronics Corporation, The Finish Line, Inc., and Spectrum Brands, Inc. (Spectrum
Brands). Mr. Carmichael is also Chairman of the Board of Trustees of the Columbia Funds Series
Trust, Columbia Funds Master Investment Trust, Columbia Funds Variable Insurance Trust I and
Columbia Funds Series Trust II. Mr. Carmichael is a Certified Public Accountant. Mr. Carmichael
served as a director of Spectrum Brands when it declared bankruptcy on February 3, 2009.
David A. Jones has been a director of our company since December 2003, following the
consummation of the THL Acquisition. Mr. Jones has been Senior Advisor to Oakhill Capital Partners
since February 2008. Mr. Jones served as the non executive Chairman of the Board of Directors of
Spectrum Brands from May 2007 to September 2007 and as the Chairman of the Board of Directors and
Chief Executive Officer of Spectrum Brands from September 1996 to May 2007. From 1996 to April
1998, he also served as President of Spectrum Brands. From 1995 to 1996, Mr. Jones was President,
Chief Executive Officer and Chairman of the Board of Directors of Thermoscan, Inc. Mr. Jones is
also a director of Pentair, Inc.
B. Joseph Messner became a director of our company in August 2004. Mr. Messner served as the
Chairman of the Board of Directors and Chief Executive Officer of Bushnell Outdoor Products from
1999 through September 2008. Mr. Messner was President and CEO of First Alert, Inc. from 1996
through 1999. Mr. Messner is a member of Wind Point Partners Executive Advisor Group.
Scott A. Schoen has been a director of our company since December 2003, following the
consummation of the THL Acquisition. Mr. Schoen is co-President of Thomas H. Lee Partners, which
he joined in 1986. Prior to joining the firm, Mr. Schoen was in the Private Finance Department of
Goldman, Sachs & Co. Mr. Schoen is also a director of The Nielsen Company. Mr. Schoen is a member
of the Board of Trustees of Spaulding Rehabilitation Hospital Network and is also a member of the
Presidents Council of the United Way of Massachusetts Bay. He is also a member of the Advisory
Board of the Yale School of Management and the Yale Development Board. Mr. Schoen served as a
director of Syratech Corporation when it declared bankruptcy on February 16, 2005 and was a
director of Refco Group Ltd. when it declared bankruptcy on October 17, 2005.
George R. Taylor has been a director of our company since December 2003, following the
consummation of the THL Acquisition. Mr. Taylor is a Managing Director at Thomas H. Lee Partners,
which he joined in 1996. Prior to joining the firm, Mr. Taylor was at ABS Capital Partners. Mr.
Taylor is also a director of Progressive Moulded Products, Ltd. Mr. Taylor served as a director of
Syratech Corporation when it declared bankruptcy on February 16, 2005.
100
COMPOSITION OF OUR BOARD OF DIRECTORS
Our board of directors currently consists of seven members. Each of our directors will hold
office until his successor has been elected and qualified. Our executive officers are elected by
and serve at the discretion of our Board of Directors. There are no family relationships between
any of our directors or executive officers. Our independent directors, as defined by the New York
Stock Exchange, are Messrs. Carmichael, Jones, and Messner.
COMMITTEES OF OUR BOARD OF DIRECTORS
Our board of directors has established a special committee, an executive committee, an audit
committee, a compensation committee and a nominating and governance committee.
Special Committee: The members of the special committee are Messrs. Carmichael and
Messner. The special committee was formed by the board of directors on January 23, 2009 for
Simmons Bedding and January 30, 2009 for Simmons Holdco, Holdings and THL-SC to evaluate and
oversee proposals for the restructuring of our debt obligations, including evaluating other
strategic alternatives for Simmons Holdco and its subsidiaries.
Executive Committee: The members of the executive committee are Messrs. Carmichael and
Messner. The executive committee was formed by the board of directors in connection with the
transition of the management of the operations of the Company from Mr. Eitel, our former Chairman
and CEO, to Mr. Fendrich, our President and Chief Operating Officer, on October 1, 2008. The
initial members of the executive committee were Messrs. Jones, Messner and Schoen. On January 23,
2009, Messrs. Jones and Schoen were replaced as members of the committee with Mr. Carmichael. The
committee was formed to perform specific tasks as requested by the board; to provide advice and
guidance to senior management concerning the operations of the company; and to perform regular
reporting to the board on the committees activities.
Audit Committee: The members of the audit committee are Messrs. Carmichael, Jones and
Taylor. The audit committee is governed by a board of directors approved charter stating its
responsibilities. The audit committee oversees management regarding the conduct and integrity of
our financial reporting, systems of internal accounting and financial and disclosure controls. The
audit committee reviews the qualifications, engagement, compensation, independence and performance
of our independent auditors, their conduct of the annual audit and their engagement for any other
services. The audit committee also oversees management regarding our legal and regulatory
compliance and the preparation of an annual audit committee report as required by the SEC. In
addition, the board of directors has determined that William P. Carmichael, an independent
director, is an audit committee financial expert as defined by the SEC rules.
The audit committee has discussed with the independent auditors the matters required to be
discussed by the statement on Auditing Standards No. 61, as amended, as adopted by the Public
Company Accounting Oversight Board (PCAOB) in Rule 3200T. The audit committee has received the
written disclosures and the letter from the independent accountants required by Independence
Standards Board No. 1, as adopted by the PCAOB in Rule 3600T, and has discussed with the
independent accountants the independent accountants independence. Based on such review and
discussions, the audit committee recommended to the board of directors that the audited financial
statements be included in this Annual Report on Form 10-K.
Compensation Committee: The members of the compensation committee are Messrs. Abbrecht and
Schoen. The compensation committee is responsible for our general compensation policies, and in
particular is responsible for setting and administering the policies that govern executive
compensation, including determining and approving the compensation of our senior executive
officers; reviewing and approving management incentive compensation policies and programs; and
reviewing and approving equity compensation programs and exercising discretion over the
administration of such programs.
Nominating and Governance Committee: The members of the nominating and governance committee
are Messrs. Abbrecht, Messner and Schoen. The purpose of the nominating and governance committee is
to identify, screen and review individuals qualified to serve as directors. The nominating and
governance committee also develops and recommends to the board of directors approval of, if
appropriate, and overseeing implementation of our corporate governance guidelines and principles
including the Simmons Code of Ethics for Chief Executive and Senior Financial Officers (Code of
Ethics) and the Simmons Code of Conduct and Ethics. The nominating and governance committee also
reviews on a regular basis our overall corporate governance policies and recommends improvements
when necessary.
From time to time, the board of directors may contemplate establishing other committees.
101
Compensation Committee Interlocks and Insider Participation
None of our executive officers serve as a member of the board of directors or compensation
committee of any entity that has one or more of its executive officers serving as a member of our
board of directors or compensation committee.
CODE OF ETHICS
We have a Code of Ethics within the meaning of 17 CFR Section 229.406 that applies to our CEO,
CFO and Corporate Controller. Our Code of Ethics is available on our website
(www.simmons.com). If we make an amendment to this Code of Ethics, or grant a waiver from
a provision of this Code of Ethics then we will make any required disclosure of such amendment or
waiver on our website or in a current report on Form 8-K filed with the SEC.
102
ITEM 11. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
The following discussion and analysis of compensation arrangements of our named executive
officers for 2008 should be read together with the compensation tables and related disclosures set
forth below. This discussion contains forward looking statements that are based on our current
plans, considerations, expectations and determinations regarding future compensation
programs. Actual compensation programs that we adopt may differ materially from currently planned
programs as summarized in this discussion.
Introduction
We are privately owned and controlled by THL, a private equity fund. THL beneficially owned
approximately 71.1% of our issued and outstanding fully-diluted capital stock as of December 27,
2008, including the period in which the 2008 compensation elements for our executive officers were
determined, and held three of seven seats on our board of directors.
Our compensation strategy, as it relates to named executive officers, has been designed to
support and complement the successful long-term growth of the Company. Our objective in
compensating our executive officers is to increase the enterprise value for our shareholders.
In September 2008, Mr. Eitel, who had served as our Chairman and Chief Executive Officer,
resigned from the Company and his duties were assumed by Mr. Fendrich, our President and Chief
Operating Officer, and the Executive Committee. Mr. Eitel remains a Vice Chairman of our
board. In March 2009, Robert P. Burch, our former Executive Vice President Operations, resigned
from the Company and his duties were assumed by Mr. Fendrich and Mr. Burchs previous direct
reports. Our current executive officers other than Mr. Fendrich are Mr. Creekmuir, our Executive
Vice President, Chief Financial Officer, Treasurer and Assistant Secretary; Mr. Azevedo, our
Executive Vice President Sales; Ms. Samon, our Executive Vice President Human Resources and
Assistant Secretary; Ms. McGuffey, our Executive Vice President, General Counsel and Secretary; and
Mr. Oakhill, our Executive Vice President Marketing and Licensing (collectively referred to as
the executive leadership team or ELT). Our highly compensated named executive officers for
2008, as defined by the SEC, are Messrs. Fendrich, Creekmuir, Burch, Azevedo, Oakhill and Eitel.
Corporate Governance
Compensation Committee Authority
Executive officer compensation is administered by the compensation committee of our board of
directors, which is composed of two members following the resignation of Mr. Eitel in September
2008. Mr. Eitel served on the compensation committee until September 25, 2008. Mr. Schoen has
served as the compensation committee chairman and Mr. Abbrecht has served as a member since the THL
Acquisition. Each member approved the compensation arrangements described in this compensation
discussion and analysis. Our board of directors appoints the compensation committee members and
delegates to the compensation committee the direct responsibility for, among other matters:
|
|
|
approving, in advance, the compensation and employment arrangements for our senior
executive officers; |
|
|
|
|
reviewing and approving management incentive compensation policies and programs; and |
|
|
|
|
reviewing and approving equity compensation programs and exercising discretion over
the administration of such programs. |
The compensation committee met three times in 2008.
103
Role of Compensation Experts
Pursuant to its charter, the compensation committee is authorized to obtain at our expense
compensation surveys, reports on the design and implementation of compensation programs for
directors, officers and employees, and other data and documentation as the compensation committee
considers appropriate. In addition, the compensation committee has the authority to retain and
terminate any outside counsel or other experts or consultants engaged to assist it in the
evaluation of compensation of our directors and executive officers. The compensation committee
relied on past consulting advice, new survey data, as well as the factors below in deciding
executive compensation for 2008:
|
|
|
the qualifications, skills and experience level of the respective executive officer; |
|
|
|
|
the position, role and responsibility of the respective executive officer in the company; and |
|
|
|
|
the general business and particular compensation experience and knowledge of the
compensation committees members. |
Role of Our Executive Officers in the Compensation Process
Prior to his resignation, Mr. Eitel was actively involved in providing recommendations to the
compensation committee in its evaluation and design of 2008 compensation programs for our executive
officers, including the recommendation of individual compensation levels for executive officers
other than himself. Mr. Eitel relied on market data on similar-sized manufacturing companies
provided by survey data and his own personal experience serving in the capacity as our chief
executive officer or executive officer of other companies as well as publicly available information
for comparable compensation guidance. Mr. Eitel provided this specific market information to the
compensation committee. Mr. Eitel attended all of the compensation committees meetings while a
committee member. Ms. Samon, Executive Vice President of Human Resources, worked closely with Mr.
Eitel to offer market data and to prepare recommendations to the compensation committee.
Executive Officer Compensation Strategy and Philosophy
Our executive officer compensation strategy has been designed to attract and retain highly
qualified executive officers and to align their interests with those of investors by linking
significant components of executive officer compensation with the achievement of specific business
and strategic objectives and our overall financial performance. We seek to employ executive
officers who are financially and ethically driven and accordingly, we offer a compensation package
that places a significant amount of total compensation at risk by providing a substantial form of
it as equity incentives. Because we are a mid-size company with significant growth targets, we
also ensure that base salaries for executives are competitive to that of larger companies.
It has been our view that the total compensation for executive officers should consist of the
following components:
|
|
|
base salaries; |
|
|
|
|
annual cash incentive awards; |
|
|
|
|
long-term equity incentive compensation; and |
|
|
|
|
certain perquisites and other benefits |
Historically, we have considered long-term equity incentive compensation to be the most
important element of our compensation program for executive officers. Since the THL Acquisition,
THL has expected our executive management team to significantly increase the enterprise value of
our company. We believe that meaningful equity participation by each executive officer is the
primary motivating factor that will result in significant increases in enterprise value and sales
growth. This belief is reflected in the aggregate awards of restricted stock and stock options
that have been made to our executive officers.
It has been our philosophy that optimal alignment between stockholders and named executive
officers is best achieved by providing a greater amount of total compensation in the form of equity
rather than cash based salary. Accordingly, we have designed total compensation programs for our
executive officers to provide base compensation levels, annual cash incentive award opportunities
and long-term incentive compensation awards that are economically equivalent to typical programs
available for comparable executive officers in similarly sized companies. The compensation
committee determined compensation levels that it concluded were appropriate based on market data,
the general business and particular compensation experience and knowledge of its members gained
from working with private equity owned companies and with public companies.
104
Our 2008 incentive compensation program elements were primarily structured to reward our
executive officers for achieving certain financial and business objectives, including the
following:
|
|
|
achieving company-wide Adjusted EBITDA targets; and |
|
|
|
achieving company-wide sales targets. |
We believe that the attainment of these specific financial objectives assists in the
fulfillment of certain of our strategic objectives, namely:
|
|
|
to increase our enterprise value; |
|
|
|
to grow our company in an efficient manner; and |
|
|
|
to conserve and optimally utilize cash resources for the future growth of our business. |
Components of Compensation
Base Salaries
The base salaries of our named executive officers are reviewed on an annual basis as well as
at the time of a promotion or other material change in responsibilities. Adjustments in base salary
are based on an evaluation of market data, our company-wide performance and the individual
executives contribution to our performance. All executive officers compensation is reviewed in
December for compensation adjustments to take place on January 1 of the following calendar
year. For the 2009 year, our named executive officers elected not to take base salary increases.
Annual Cash Incentive Awards
2008 Management Bonus Plan. Our named executive officers participated in an annual cash
incentive award program, the 2008 Management Bonus Plan. This program is available to
administrative staff and professionals, managers, senior managers and executive officers. The
purpose of each executive officers 2008 Management Bonus Plan was to create financial incentives
aligned with the overriding objective of increasing enterprise value.
In March 2008, the compensation committee approved financial targets established for
us. These targets included the achievement of specified threshold levels of EBITDA, adjusted for
certain non-recurring or non-cash items as allowed under our senior credit facility, (Adjusted
EBITDA) and revenue, adjusted to exclude certain payments to customers recorded as reductions of
revenue under GAAP, (Adjusted Revenue) for our 2008 fiscal year. These financial targets and the
associated performance levels that were established represented the factors that the compensation
committee deemed most important and which, if achieved, would likely result in an increase in
enterprise value. The specific performance levels were determined with reference to our 2008
budget, which we used to manage our day-to-day business and were determined by our board of
directors as representing an aggressive level of growth and financial performance for us in 2008.
Our 2008 financial targets were based on an Adjusted EBITDA target of $204.4 million and an
Adjusted Revenue target of $1,392.9 million.
To be eligible to receive a bonus under the plan, we must achieve 91% of the Adjusted EBITDA
target and 91% of the Adjusted Revenue. The bonus target is weighted 85% toward achieving the
Adjusted EBITDA target and 15% toward achieving the Adjusted Revenue target. The portion of the
bonus target related to Adjusted EBITDA is prorated as follows:
|
|
|
|
|
% of EBITDA Achieved |
|
% of Bonus |
|
91% |
|
|
10% |
|
92% |
|
|
20% |
|
93% |
|
|
30% |
|
94% |
|
|
40% |
|
95% |
|
|
50% |
|
96% |
|
|
60% |
|
97% |
|
|
70% |
|
98% |
|
|
80% |
|
99% |
|
|
90% |
|
100% |
|
|
100% |
|
105
The portion of the bonus target related to Adjusted Revenue was prorated from 0% to 100% for
Adjusted Revenue between $1,253.6 million and $1,392.9 million.
Each executive officer was eligible to receive a bonus factor which was applied to
performance achieved beyond reaching the 100% target. For every percent increase over the
financial target, Mr. Eitels bonus target increases 5% and
Messrs. Fendrichs, Creekmuirs,
Burchs, Azevedos and Oakhills increase 4%.
The following table summarizes, for each highly compensated named executive officer, the
target cash incentive awards under the 2008 Management Bonus Plan. Due to our performance, no cash
incentive awards were due under the 2008 Management Bonus Plan; however, the compensation committee
elected to pay discretionary bonuses, which included certain named executive officers.
|
|
|
|
|
|
|
|
|
Name |
|
Bonus Target |
|
|
Bonus Paid |
|
Charles R. Eitel |
|
$ |
714,000 |
|
|
$ |
|
|
Stephen G. Fendrich |
|
|
350,000 |
|
|
|
100,000 |
|
William S. Creekmuir |
|
|
261,000 |
|
|
|
100,000 |
|
Robert P. Burch |
|
|
204,000 |
|
|
|
37,500 |
|
Dominick A. Azevedo |
|
|
150,000 |
|
|
|
37,500 |
|
Timothy F. Oakhill |
|
|
159,000 |
|
|
|
37,500 |
|
Long-Term Incentive Compensation
Overview
We administer a long-term incentive compensation awards through the Third Amended and Restated
Equity Incentive Plan (Equity Plan). The purpose of the Equity Plan is to provide an incentive
to management to continue their employment over a long term and to align their interests with those
of the Company and its stockholders by providing a stake in our continued growth and success. The
plan permits awards of stock options, stock appreciation rights, restricted stock awards, stock
units and dividend equivalent rights.
We have awarded restricted stock and stock option awards as the primary form of equity
compensation. We have generally considered and made equity awards under three circumstances:
|
|
|
upon hiring new executive officers, vice-presidents and directors; |
|
|
|
as a result of promotion; and |
|
|
|
to existing executive officers, vice-presidents and directors after evaluating
internal equity across the management team. |
Restricted stock and stock option awards that we have granted vest upon attainment of
performance-based measures. Performance-based awards are forfeitable if specified financial
performance targets are not achieved within a specified period of time.
Restricted Stock and Stock Option Practices
We have awarded all stock options to purchase our common stock to executive officers at the
fair value of the common stock on the grant date. We have not back-dated any option awards. The
fair value of all options granted was determined by our board of directors based on a
recommendation from the compensation committee, which utilized a contemporaneous independent
valuation of our common stock provided to us by a third-party valuation firm that the compensation
committee engaged for such purpose.
As a privately owned company, there has been no market for our common stock. Accordingly, in
2008, we had no program, plan or practice pertaining to the time of stock option grants to
executive officers coinciding with the release of material non-public information.
Perquisites and Other Personal Benefits
We provide certain perquisites to our executives. These perquisites provide flexibility to
the executives and increase travel efficiencies, allowing more productive use of executive time, in
turn allowing greater focus on company-related activities. More
detail on these perquisites may be found in the narrative following the Summary Compensation
Table.
106
Compensation Committee Evaluation of Executive Officer Compensation for 2009
In the fourth quarter of 2008, the compensation committee evaluated executive officers pay
and approved the cash bonuses for 2009 as follows:
|
|
|
established 2009 periodic cash bonus targets that are calculated as a
percentage of the participants base salary, with performance metrics which provide for a
range of payments in the given period beginning with no bonus below threshold performance
metrics, and up to additional bonus payouts for exceeding the performance metrics; and |
|
|
|
established performance metrics for achieving a cash bonus which are
directly linked to our 2009 operating budget. |
Based on current market data and conditions, our named executive officers elected to forgo
salary increases in 2009.
Tax Implications of Executive Compensation
We do not believe that Section 162(m) of the Internal Revenue Code, which limits deductions
for executive compensation paid in excess of $1.0 million, would be applicable, and accordingly,
our compensation committee did not consider its impact in determining compensation levels for our
highly compensated executive officers in 2008.
Accounting Implications of Executive Compensation
The Summary Compensation and Director Compensation Tables below used the principles set forth
in SFAS 123R to recognize expense for new awards granted after January 1, 2006 and for unvested
awards as of January 1, 2006. The non-cash stock compensation expense for stock-based awards that
we grant is recognized ratably over the requisite vesting period. We continue to believe that
stock options, restricted stock and other forms of equity compensation are an essential component
of our compensation strategy, and we intend to continue to offer these awards in the future.
107
Summary Compensation Table for Fiscal Years 2008, 2007 and 2006
The following table sets forth the aggregate compensation awarded to, earned by or paid to our
highly compensated executive officers for 2008, 2007 and 2006.
|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
|
Option |
|
|
All Other |
|
|
|
|
Name & Principal Position |
|
Year |
|
|
Salary (1) |
|
|
Bonus (2) |
|
|
Awards (3) |
|
|
Awards(3) |
|
|
Compensation |
|
|
Total |
|
Stephen G.
Fendrich, President
& COO |
|
|
2008 |
|
|
$ |
500,000 |
|
|
$ |
100,000 |
|
|
$ |
(13,095 |
) |
|
$ |
|
|
|
$ |
31,045 |
(4) |
|
|
617,950 |
|
|
|
|
2007 |
|
|
|
330,000 |
|
|
|
84,200 |
|
|
|
5,093 |
|
|
|
|
|
|
|
28,583 |
(4) |
|
|
447,876 |
|
|
|
|
2006 |
|
|
|
315,000 |
|
|
|
264,031 |
|
|
|
28,373 |
|
|
|
|
|
|
|
419,657 |
(4) |
|
|
1,027,061 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William S.
Creekmuir, CFO |
|
|
2008 |
|
|
|
435,000 |
|
|
|
100,000 |
|
|
|
(50,327 |
) |
|
|
|
|
|
|
32,742 |
(5) |
|
|
517,415 |
|
|
|
|
2007 |
|
|
|
422,000 |
|
|
|
107,600 |
|
|
|
19,512 |
|
|
|
|
|
|
|
31,324 |
(5) |
|
|
580,436 |
|
|
|
|
2006 |
|
|
|
405,000 |
|
|
|
339,469 |
|
|
|
67,103 |
|
|
|
|
|
|
|
39,680 |
(5) |
|
|
851,252 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert P. Burch,
EVP Operations |
|
|
2008 |
|
|
|
340,000 |
|
|
|
37,500 |
|
|
|
(29,250 |
) |
|
|
|
|
|
|
29,871 |
(6) |
|
|
378,121 |
|
|
|
|
2007 |
|
|
|
330,000 |
|
|
|
84,200 |
|
|
|
11,375 |
|
|
|
|
|
|
|
37,314 |
(6) |
|
|
462,889 |
|
|
|
|
2006 |
|
|
|
310,000 |
|
|
|
259,840 |
|
|
|
63,376 |
|
|
|
|
|
|
|
73,227 |
(6) |
|
|
706,443 |
|
|
|
Dominick A.
Avezedo, EVP
Sales |
|
|
2008 |
|
|
|
250,000 |
|
|
|
37,500 |
|
|
|
(1,942 |
) |
|
|
(7,040 |
) |
|
|
240,663 |
(7) |
|
|
519,181 |
|
|
|
|
2007 |
|
|
|
190,692 |
|
|
|
32,200 |
|
|
|
(3,668 |
) |
|
|
7,040 |
|
|
|
31,242 |
(7) |
|
|
257,506 |
|
|
|
|
2006 |
|
|
|
165,495 |
|
|
|
67,948 |
|
|
|
7,216 |
|
|
|
|
|
|
|
11,642 |
(7) |
|
|
252,301 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Timothy F. Oakhill,
EVP Marketing |
|
|
2008 |
|
|
|
265,000 |
|
|
|
37,500 |
|
|
|
(12,819 |
) |
|
|
|
|
|
|
91,775 |
(8) |
|
|
382,086 |
|
|
|
|
2007 |
|
|
|
248,333 |
|
|
|
60,300 |
|
|
|
4,492 |
|
|
|
|
|
|
|
62,035 |
(8) |
|
|
375,160 |
|
|
|
|
2006 |
|
|
|
222,000 |
|
|
|
120,790 |
|
|
|
17,557 |
|
|
|
|
|
|
|
20,885 |
(8) |
|
|
381,232 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles R. Eitel,
former Chairman and
CEO |
|
|
2008 |
|
|
|
630,000 |
|
|
|
|
|
|
|
(80,523 |
) |
|
|
|
|
|
|
471,831 |
(9) |
|
|
1,021,308 |
|
|
|
|
2007 |
|
|
|
815,000 |
|
|
|
294,400 |
|
|
|
31,315 |
|
|
|
|
|
|
|
187,482 |
(9) |
|
|
1,328,188 |
|
|
|
|
2006 |
|
|
|
780,000 |
|
|
|
856,239 |
|
|
|
107,364 |
|
|
|
|
|
|
|
243,839 |
(9) |
|
|
1,987,442 |
|
|
|
|
(1) |
|
Reflects annual base salary. |
|
(2) |
|
Reflects management bonus earned for achieving financial performance targets and/or
discretionary bonuses received. |
108
|
|
|
(3) |
|
Reflects the stock based compensation expense recognized under SFAS 123(R). For a discussion of
assumptions made in the valuation, see Note M Stock-Based Compensation to our audited financial
statements included elsewhere in this Annual Report on Form 10-K. In 2008, we determined that the
Company was unlikely to meet future vesting performance targets for the unvested awards, therefore
the unvested awards had no market value as of December 27, 2008 and we reversed all stock
compensation expense recognized in prior years associated with unvested awards in 2008. |
|
(4) |
|
Reflects perquisites that we paid for (i) employer contributions to our 401(k) plan of $13,800,
$6,750 and $6,600 for 2008, 2007 and 2006, respectively; (ii) an annual car allowance of $9,000 for
2008, 2007 and 2006; (iii) life-insurance and long-term disability insurance premiums of $1,582 for
2008 and 2007 and $1,345 for 2006; (iv) financial consulting expense of $5,000 for 2007 and 2006;
(v) annual physical exam of $2,500 for 2008 and $3,375 for 2007; (vi) mattress sets of $1,930,
$1,255 and $4,616 for 2008, 2007 and 2006, respectively; (vii) non-business travel expenses of
$1,143 for 2006; (viii) personal use of the corporate jet of $760 for 2006; (ix) reimbursement of
selling expenses related to the sale of Mr. Fendrichs personal residence of $235,678 for 2006; (x)
relocation allowance of $12,803 for 2006; and (xi) the assumption of taxes for certain taxable
benefits of $2,233, $1,621 and $142,712 for 2008, 2007 and 2006, respectively. |
|
(5) |
|
Reflects perquisites that we paid for (i) employer contributions to our 401(k) plan of $13,800,
$13,500 and $13,200 for 2008, 2007 and 2006, respectively; (ii) an annual car allowance of $9,000
for 2008, 2007 and 2006; (iii) life-insurance and long-term disability insurance premiums of $5,255
for 2008, 2007 and 2006; (iv) mattress sets of $2,837, $1,021 and $3,936 for 2008, 2007 and 2006,
respectively; (v) financial consulting expense of $5,000 for 2006; (vi) fees paid to serve as a
director of a subsidiary of $280 for 2006; and (vii) the assumption of taxes for certain taxable
benefits of $1,850, $2,548 and $3,009 for 2008, 2007 and 2006, respectively. |
|
(6) |
|
Reflects perquisites that we paid for (i) employer contributions to our 401(k) plan of $6,900,
$6,750 and $6,600 for 2008, 2007 and 2006, respectively; (ii) an annual car allowance of $9,000 for
2008, 2007 and 2006; (iii) financial consulting expense of $5,000 for 2008, 2007 and 2006; (iv)
life-insurance and long-term disability insurance premiums of $2,497 for 2008 and 2007 and $2,162
for 2006; (v) annual physical exam of $2,500 for 2008 and 2007 and $4,625 for 2006; (vi)
non-business travel expense of $5,712 and $4,958 for 2007 and 2006, respectively; (vii) mattress
sets of $1,773, $4,654 and $4,194 for 2008, 2007 and 2006, respectively; (viii) relocation
allowance of $23,282 for 2006; and (ix) the assumption of taxes for certain taxable benefits of
$2,201, $1,201 and $13,406 for 2008, 2007, and 2006, respectively. |
|
(7) |
|
Reflects perquisites that we paid for (i) employer contributions to our 401(k) plan of $13,800,
$12,944 and $11,642 for 2008, 2007 and 2006, respectively; (ii) life-insurance and long-term
disability insurance premiums of $5,881 for 2008; (iii) annual physical exam of $3,375 for 2008;
(iv) relocation allowance of $145,664 and $13,458 for 2008 and 2007, respectively; and (v) the
assumption of taxes for certain taxable benefits of $71,943 and $4,840 for 2008 and 2007,
respectively. |
|
(8) |
|
Reflects perquisites that we paid for (i) employer contributions to our 401(k) plan of $13,800,
$13,500 and $13,200 for 2008, 2007 and 2006, respectively; (ii) financial consulting expense of
$5,000 for 2008 and 2007; (iii) life-insurance and long-term disability insurance premiums of
$2,143 for 2008 and $1,203 for 2007 and 2006; (iv) annual physical exam of $2,500 for 2008 and 2007
and $4,000 for 2006; (v) business school tuition and associated travel expense of $67,082 and
$37,180 for 2008 and 2007; (vi) fees paid to serve as a director of a subsidiary of $284 and $560
for 2007 and 2006, respectively; (vii) mattress sets of $1,167 for 2007; and (viii) the assumption
of taxes for certain taxable benefits of $1,250, $1,201 and $1,922 for 2008, 2007 and 2006,
respectively. |
|
(9) |
|
Reflects perquisites that we paid for (i) personal use of corporate jet of $81,410, $116,685
and $160,299 for 2008, 2007 and 2006, respectively; (ii) commuting expenses from Mr. Eitels
principle residence to our corporate headquarters of $23,398, $10,138 and $15,583 for 2008, 2007
and 2006, respectively; (iii) employer contributions to our 401(k) plan of $6,900, $13,500 and
$13,200 for 2008, 2007 and 2006, respectively; (iv) an annual car allowance of $9,000 for 2008 and
$12,000 for 2007 and 2006, respectively; (v) mattress sets of $5,746, $9,104 and $11,691 for 2008,
2007 and 2006, respectively; (vi) life-insurance and long-term disability insurance premiums of
$7,537 for 2008 and $13,742 for 2007 and 2006; (vii) club membership dues of $4,120, $8,743 and
$7,678 for 2008, 2007 and 2006, respectively; (viii) the assumption of taxes for certain taxable
benefits of $13,537, $3,570 and $6,933 for 2008, 2007 and 2006, respectively; (ix) non-business
travel expenses of $2,713 for 2006; (x) severance of $210,000 for 2008; (xi) annual physical exam
of $2,683 for 2008; and (xii) consulting fees of $107,500 for 2008. |
109
Grants of Plan-Based Awards in Fiscal Year 2008
During fiscal year 2008, no grants were made to our named executive officers pursuant to our
equity incentive plans.
Executive Employment Arrangements
Messrs. Eitel and Creekmuir entered into executive employment agreements with us in December
2003, which were amended in 2005 and 2007. Mr. Fendrich entered into an executive employment
agreement with us in December 2007 that was effective January 1, 2008. Messrs. Eitels,
Creekmuirs and Fendrichs agreements have two-year terms with evergreen renewal provisions and
contain usual and customary restrictive covenants, including two-year non-competition provisions,
non-disclosure of proprietary information provisions, provisions relating to non-solicitation/no
hire of employees or customers and non-disparagement provisions. In the event of a termination
without cause or departure for good reason, the terminated executives are entitled to severance
equal to two years salary plus an amount equal to their pro-rated bonus for the year of
termination.
Mr. Burchs offer of employment contained usual and customary restrictive covenants, including
a two-year non-compete, a duty of non-disclosure, and provision relating to non-solicitation/no
hire of employees or customers and non-disparagement. Mr. Burch received no compensation in
connection with his departure from our company in 2009. Messrs. Avezedos and Oakhills offer of
employment contains usual and customary restrictive covenants, including a one-year non-compete, a
duty of non-disclosure, and provision relating to non-solicitation/no hire of employees or
customers and non-disparagement. In the event of a termination with cause or departure for good
reason, Messrs. Avezedo and Oakhill are entitled to severance equal to one year of salary.
Potential Post-Employment Payments and Payments on a Change in Control
The information below describes and quantifies certain compensation that would become payable
under existing arrangements if the named executives employment had terminated on December 27,
2008, given the named executives compensation as of such date and based on our fair value of the
stock price on that date. These benefits are in addition to benefits available generally to
salaried employees, such as distributions under our 401(k) plan and accrued vacation pay. Due to
the number of factors that affect the nature and amount of any benefits provided upon the events
discussed below, any actual amounts paid or distributed may be different. Factors that could
affect these amounts include the timing during the year of any such event and our stock price.
|
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|
|
|
|
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|
|
Other than |
|
|
|
|
|
|
|
|
|
|
|
Cause or |
|
|
|
|
|
|
|
|
|
|
|
Good |
|
|
Justifiable |
|
|
Death and |
|
Name & Principal Position |
|
Benefit |
|
Reason |
|
|
Cause |
|
|
Incapacity |
|
Stephen G. Fendrich, President & COO |
|
Severance(1) |
|
$ |
1,000,000 |
|
|
|
|
|
|
|
|
|
|
|
Health insurance(2) |
|
|
34,138 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William S. Creekmuir, CFO |
|
Severance(1) |
|
|
870,000 |
|
|
|
|
|
|
|
|
|
|
|
Health insurance(2) |
|
|
21,460 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert P. Burch, EVP Operations |
|
Severance(1) |
|
|
680,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dominick A. Azevedo, EVP Sales |
|
Severance(1) |
|
|
250,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Timothy F. Oakhill, EVP Marketing |
|
Severance(1) |
|
|
265,000 |
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
For termination for other than cause or good reason by the Company or for good reason by the
executive, Messrs. Creekmuir, Fendrich and Burch would be entitled to twice their annual salary,
and Messrs. Azevedo and Oakhill would be entitled to their annual salary. |
|
(2) |
|
We shall contribute to Messrs. Creekmuirs and Fendrichs (including dependents) coverage
under our medical, dental and vision plans for a period of up to two years following termination
for other than cause or good reason. After termination, Mr. Creekmuir (including spouse) can
continue his coverage under our medical, dental and vision plans at the executives COBRA rates
until death of the executive and his spouse. |
None of our named executive officers have c provisions in their agreements that provide for a cash
payout in connection with a change of control of the Company.
110
Outstanding Equity Awards at 2008 Fiscal Year-End
The following table reflects all outstanding equity awards held by our named executive
officers as of December 27, 2008:
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards |
|
|
Stock Awards |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive |
|
|
|
Incentive |
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
Plan |
|
|
|
Plan |
|
|
|
|
|
|
|
|
|
|
Incentive |
|
|
Awards: |
|
|
|
Awards: |
|
|
|
|
|
|
|
|
|
|
Plan |
|
|
Market or |
|
|
|
Number of |
|
|
|
|
|
|
|
|
|
|
Awards: |
|
|
Payout |
|
|
|
Securities |
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
Value of |
|
|
|
Underlying |
|
|
|
|
|
|
|
|
|
|
Unearned |
|
|
Unearned |
|
|
|
Unexercised |
|
|
Option |
|
|
Option |
|
|
Shares that |
|
|
Shares that |
|
|
|
Unearned |
|
|
Exercise |
|
|
Expiration |
|
|
have not |
|
|
have not |
|
Name & Principal Position |
|
Options |
|
|
Price |
|
|
Date |
|
|
Vested |
|
|
Vested(4) |
|
Stephen G.
Fendrich, President
& COO |
|
|
30,000 |
|
|
$ |
18.82 |
|
|
|
1/16/2018 |
(1) |
|
|
18,000 |
(3) |
|
|
|
|
William S.
Creekmuir, CFO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
68,824 |
(3) |
|
|
|
|
Robert P. Burch,
EVP Operations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40,001 |
(3) |
|
|
|
|
Dominick A.
Azevedo, EVP Sales |
|
|
6,120 |
|
|
|
18.82 |
|
|
|
1/16/2018 |
(1) |
|
|
2,451 |
(3) |
|
|
|
|
|
|
|
3,440 |
|
|
|
31.33 |
|
|
|
6/1/2017 |
(2) |
|
|
|
|
|
|
|
|
Timothy F. Oakhill,
EVP Marketing |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,900 |
(3) |
|
|
|
|
Charles R. Eitel,
former Chairman and
CEO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
110,117 |
(3) |
|
|
|
|
|
|
|
(1) |
|
Mr. Fendrichs and Mr. Azevedos stock option awards vest ratably over a four year period
based on the Company meeting annual Adjusted EBITDA targets starting in 2008. |
|
(2) |
|
Mr. Azevedos stock option award vests ratably over a four year period based on the Company
meeting annual Adjusted EBITDA targets starting in 2007. |
|
(3) |
|
The unvested restricted stock awards can only vest based on a change of control resulting in
Simmons Holdcos meeting a certain multiple of money target. |
|
(4) |
|
In 2008, we determined that the Company was unlikely to meet future vesting performance
targets for the unvested awards, therefore the unvested awards had no market value as of
December 27, 2008. |
Option Exercises and Stock Vested in 2008
Since the Company failed to meet the awards vesting targets, none of the restricted stock or
stock option awards vested. No stock options were exercised in 2008.
DIRECTOR COMPENSATION
In 2008, directors who also served as employees or who were affiliated with significant
stockholders received no compensation for serving on our board of directors. Non-employee
directors not affiliated with a significant stockholder receive director fees of $25,000 per year
plus an additional $5,000 for each special board or audit, compensation or nominating and
governance committee meeting that they attend in person and an additional $1,000 for such meetings
that they attend telephonically. In addition, non-employee directors not affiliated with a
significant stockholder serving on the executive committee received additional director fees of
$20,000 per month from October 1, 2008 through January 22, 2009. After January 23, 2009, directors
serving on the executive committee received director fees of $7,500 per month and directors serving
on the special committee received director fees of $7,500 per month. For each executive and
special committee meeting, the directors attend after January 23, 2009 an additional $5,000 for the
first day of the meeting and $2,500 for each consecutive additional day for meetings attended in
person and an additional $1,000 for the meetings that they attend telephonically.
All members of our board of directors are reimbursed for their usual and customary expenses
incurred in connection with attending all board and other committee meetings. Upon joining our
board of directors, each of the non-employee directors not affiliated with a significant
stockholder were granted restricted stock awards of 2,500 shares of our class B common stock, which
is subject to time and performance-based vesting.
The following table sets for the aggregate compensation awarded to, earned by or paid to our
directors during 2008.
111
Director Compensation for the 2008 Fiscal Year
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned or |
|
|
Stock |
|
|
|
|
Name |
|
Paid in Cash |
|
|
Awards (1) |
|
|
Total |
|
William P. Carmichael |
|
$ |
57,000 |
|
|
$ |
(1,097 |
) |
|
$ |
55,903 |
|
David A. Jones |
|
|
47,000 |
|
|
|
(1,097 |
) |
|
|
45,903 |
|
B. Joseph Messner |
|
|
44,000 |
|
|
|
(1,097 |
) |
|
|
42,903 |
|
|
|
|
(1) |
|
Reflects the stock based compensation expense recognized under SFAS 123(R). For a discussion
of assumptions made in the valuation, see Note M Stock-Based Compensation to our audited
financial statements included elsewhere in this Annual Report on Form 10-K. In 2008, we
determined that the Company was unlikely to meet future vesting performance targets for the
unvested awards, therefore the unvested awards had no market value as of December 27, 2008 and
we reversed all stock compensation expense recognized in prior years associated with unvested
awards in 2008. |
COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The compensation committee is responsible for our general compensation policies, and in
particular is responsible for setting and administering the policies that govern executive
compensation. The compensation committee evaluates the performance of our ELT and determines the
compensation levels for the same.
The objective of the compensation committee is to establish policies and programs to attract
and retain key executives, and to reward performance by these executives which benefit us. The
primary elements of executive compensation are base salary, annual cash incentive awards, long-term
equity incentive compensation awards and certain other perquisites and other benefits. The salary
is based on factors such as the individual executive officers position, role and level of
responsibility in the Company; the qualifications, skills, performance and experience of the
respective executive officer; and a comparison to similar positions in the Company and in
comparable companies. The annual cash incentive awards are currently based on our performance
measured against attainment of financial objectives. Long-term equity incentive awards generally
have vesting schedules tied to the achievement of our certain financial objectives and are intended
to align managements interests with ours and our stockholders in promoting our long-term
growth. Further information on each of these compensation elements follows.
Salaries
For the other executive officers, base salaries are adjusted annually by the ELT, following a
review by the member of the ELT to whom the executive officer reports. In the course of the
review, performance of the individual with respect to specific objectives is evaluated, as are any
increases in responsibility, and competitive salaries, internally and externally, for similar
positions. The specific objectives for each executive officer are set by the particular ELT member
to whom the executive officer reports, and will vary annually for each executive position based on
our objectives.
112
Annual Cash Bonuses
Certain of our employees are eligible, pursuant to their offers of employment, to receive
annual cash bonuses based on our performance measured against attainment of financial objectives.
Long-Term Equity Incentive Awards
We adopted the Equity Plan and ComforPedic Incentive Plan to provide incentives to our
management and independent directors and our affiliates by granting them restricted stock, warrants
and stock option awards of our class B common stock. These awards granted to management are
intended to provide an incentive for management to continue their employment over a long term and
to align their interests with ours by providing a stake in the same. The compensation committee
recommends grants to the board which determines whether such grants are appropriate. In making
such recommendations, the compensation committee takes into account the total number of shares
available for grant, prior grants outstanding, and estimated requirements for future grants. In
addition, the committee considers the performance of the executive position held and length of
employment with us in determining an individuals award. The compensation committee also
recommends modifications to the terms of award to the board. Individual awards take into account
the individuals level within the organization, scope of responsibilities and performance.
Other Benefits
Periodically, the compensation committee assesses the other benefits provided to our executive
officers and other managers.
The compensation committee continually reviews our compensation programs to ensure the overall
package is competitive, balanced, and that proper incentives and rewards are provided.
The compensation committee has reviewed the compensation discussion and analysis and discussed
that analysis with management. Based on its review and discussions with management, the committee
recommended to our board of directors that the compensation discussion and analysis be included in
the Companys Annual Report on Form 10-K for 2008.
Compensation Committee:
Todd M. Abbrecht
Scott A. Schoen
113
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER
MATTERS.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding our beneficial ownership, by each
member of the board of directors, each of our named executive officers, and each member of our
board of directors and our executive officers as a group. As a result of the Merger, our
securityholders exchanged their shares of Simmons Company for shares of Simmons Holdco that are
identical to the type and number of Simmons Company shares prior to the Merger. Simmons Holdco
outstanding securities consisted of 3,821,099 shares of class A common stock and 684,481 shares of
class B common stock as of June 1, 2009. The class B common stock was issued to employees pursuant
to a restricted stock agreement under the Equity Plan. See Item 13 Certain Relationships and
Related Party Transactions Amended and Restated Certificate of Incorporation of Simmons
Company. The class A common stock and class B common stock generally have identical voting
rights. To our knowledge, each such stockholder has sole voting and investment power as to the
common stock shown unless otherwise noted. Beneficial ownership of the common stock listed in the
table has been determined in accordance with the applicable rules and regulations promulgated under
the Exchange Act.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage |
|
| |
|
|
|
Percentage | |
|
|
|
|
|
|
Class A |
|
|
of Class A |
|
|
Class B |
|
|
of Class B |
|
|
|
|
|
|
|
Common |
|
|
Common |
|
|
Common |
|
|
Common |
|
|
Percent |
|
Name and Address |
|
Stock |
|
|
Stock |
|
|
Stock |
|
|
Stock |
|
|
of Total |
|
Principal Securityholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas H. Lee Partners L.P. and Affiliates (1) |
|
|
3,270,940.05 |
|
|
|
85.6 |
% |
|
|
|
|
|
|
|
% |
|
|
72.6 |
% |
Fenway Partners Capital Fund II, L.P. and
Affiliates (2) |
|
|
387,837.03 |
|
|
|
10.1 |
% |
|
|
|
|
|
|
|
|
|
|
8.6 |
% |
Directors and Executive Officers: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles R. Eitel (3) (5) |
|
|
60,000.00 |
|
|
|
1.6 |
% |
|
|
183,529.00 |
|
|
|
26.8 |
% |
|
|
5.4 |
% |
Dominick A. Azevedo(3) (4) (6) |
|
|
971.48 |
|
|
|
* |
|
|
|
3,440.00 |
|
|
|
* |
|
|
|
* |
|
William S. Creekmuir (3) (4) (5) |
|
|
32,382.75 |
|
|
|
* |
|
|
|
114,706.00 |
|
|
|
16.8 |
% |
|
|
3.3 |
% |
Stephen G. Fendrich (3) (4) (6) |
|
|
|
|
|
|
|
|
|
|
42,500.00 |
|
|
|
6.2 |
% |
|
|
0.9 |
% |
Kristen K. McGuffey (3) (4) |
|
|
4,069.50 |
|
|
|
* |
|
|
|
15,000.00 |
|
|
|
2.2 |
% |
|
|
* |
|
Timothy F. Oakhill (3) (4) |
|
|
3,250.00 |
|
|
|
* |
|
|
|
15,000.00 |
|
|
|
2.2 |
% |
|
|
* |
|
Kimberly A. Samon (3) (4) (6) |
|
|
|
|
|
|
|
|
|
|
11,000.00 |
|
|
|
1.6 |
% |
|
|
* |
|
Todd M. Abbrecht (1) |
|
|
3,270,940.05 |
|
|
|
85.6 |
% |
|
|
|
|
|
|
|
|
|
|
72.6 |
% |
William P. Carmichael (3) |
|
|
|
|
|
|
|
|
|
|
2,500.00 |
|
|
|
* |
|
|
|
* |
|
David A. Jones (3) (5) |
|
|
2,000.00 |
|
|
|
* |
|
|
|
2,500.00 |
|
|
|
* |
|
|
|
* |
|
B. Joseph Messner (3) |
|
|
|
|
|
|
|
|
|
|
2,500.00 |
|
|
|
* |
|
|
|
* |
|
Scott A. Schoen (1) |
|
|
3,270,940.05 |
|
|
|
85.6 |
% |
|
|
|
|
|
|
|
|
|
|
72.6 |
% |
George R. Taylor (1) |
|
|
3,270,940.05 |
|
|
|
85.6 |
% |
|
|
|
|
|
|
|
|
|
|
72.6 |
% |
All directors and named executive officers as a group
(13 persons) (1) (4) |
|
|
3,373,613.78 |
|
|
|
88.3 |
% |
|
|
392,675.00 |
|
|
|
57.4 |
% |
|
|
83.6 |
% |
114
|
|
|
(1) |
|
Includes interests owned by each of Thomas H. Lee Equity Fund V, L.P., Thomas H. Lee Parallel
Fund V, L.P., Thomas H. Lee Equity (Cayman) Fund V. L.P., Thomas H. Lee Investors Limited
Partnership, 1997 Thomas H. Lee Nominee Trust, Great-West Investors LP, Putnam Investment Holdings,
LLC, Putnam Investments Employees Securities Company I, LLC, and Putnam Investments Employees
Securities Company II, LLC. Thomas H. Lee Equity Fund V, L.P. and Thomas H. Lee Parallel Fund V,
L.P. are Delaware limited partnerships, whose general partner is THL Equity Advisors V, LLC, a
Delaware limited liability company. Thomas H. Lee Equity (Cayman) Fund V, L.P. is an exempted
limited partnership formed under the laws of the Cayman Islands, whose general partner is also THL
Equity Advisors V, LLC, which is registered in the Cayman Islands as a foreign company. Thomas H.
Lee Investors Limited Partnership (f/k/a THL-CCI Limited Partnership) is a Massachusetts limited
partnership, whose general partner is THL Investment Management Corp., a Massachusetts
corporation. Thomas H. Lee Advisors, LLC, a Delaware limited liability company, is the general
partner of Thomas H. Lee Partners, a Delaware limited partnership, which is the sole member of THL
Equity Advisors V, LLC. The 1997 Thomas H. Lee Nominee Trust is a trust with US Bank, N.A. serving
as Trustee. Thomas H. Lee has voting and investment control over common shares owned of record by
the 1997 Thomas H. Lee Nominee Trust. |
|
|
|
Scott A. Schoen is co-President of Thomas H. Lee Advisors, LLC and a Vice President of THL
Investment Management
Corp. Todd M. Abbrecht is a Managing Director of Thomas H. Lee Advisors, LLC and a vice
president of THL Investment Management Corp. George R. Taylor is a Managing Director of Thomas
H. Lee Advisors, LLC. Each of Messrs. Schoen, Abbrecht and Taylor may be deemed to beneficially
own class A common shares held of record by Thomas H. Lee Equity Fund V, L.P., Thomas H. Lee
Parallel Fund V, L.P. and Thomas H. Lee Equity (Cayman) Fund V. L.P. Furthermore, each of
Messrs. Schoen and Abbrecht may be deemed to beneficially own class A common shares held of
record by Thomas H. Lee Investors Limited Partnership. Each of these individuals disclaims
beneficial ownership of such common shares except to the extent of their pecuniary interest
therein. |
|
|
|
The address of Thomas H. Lee Equity Fund V, L.P., Thomas H. Lee Parallel Fund V, L.P., Thomas H.
Lee Equity (Cayman) Fund V, L.P., Thomas H. Lee Investors Limited Partnership, the 1997 Thomas
H. Lee Nominee Trust, Scott A. Schoen, Todd M. Abbrecht and George R. Taylor is 100 Federal
Street, Boston, Massachusetts 02110. |
|
|
|
Putnam Investment Holdings, LLC, Putnam Investments Employees Securities Company I, LLC and
Putnam Investments Employees Securities Company II, LLC are co-investment entities of Thomas H.
Lee Partners and each disclaims beneficial ownership of any securities other than the securities
held directly by such entity. The address for the Putnam entities is One Post Office Square,
Boston, Massachusetts 02109. |
|
|
|
The address of Great-West Investors LP is c/o Great-West Life & Annuity Insurance Company, 8515
C. Orchard Road 3T2, Greenwood Village, Colorado 80111. |
115
|
|
|
(2) |
|
Includes interest owned by Simmons Holdings, LLC; FPIP, LLC and FPIP Trust, LLC. Peter Lamm
and Richard Dresdale have voting and/or investment control over the shares held by Fenway Partners
Capital Fund II, L.P. The address for Fenway Capital Fund II, L.P. is 152 West 57th Street, 59th
Floor, New York, New York 10019. |
|
(3) |
|
The address of Charles R. Eitel, Dominick A. Azevedo, William S. Creekmuir, Stephen G.
Fendrich, Kristen K. McGuffey, Timothy F. Oakhill, Kimberly A. Samon, David A. Jones, William P.
Carmichael, and B. Joseph Messner is c/o Simmons Company, One Concourse Parkway, Suite 800,
Atlanta, Georgia 30328. |
|
(4) |
|
Pursuant to a securityholders agreement, the CEO or, in absence of a CEO, the CFO has the
voting power of the employees and executive officers as to their Class A and vested Class B
common stock shown. For the unvested Class B shares, the employees and executive officers are
required to vote their common stock in the same manner as the majority stockholder. |
|
(5) |
|
Includes shares held in trust for or by immediate family members. |
|
(6) |
|
Excludes 30,000 shares, 2,000 shares and 9,560 shares of class B common stock that may be
acquired upon the vesting and exercise of non-qualified stock options held by Mr. Fendrich, Ms.
Samon, and Mr. Azevedo, respectively. All of Mr. Fendrichs and Ms. Samons stock options and
6,120 of Mr. Azevedo stock options vest ratably over a four year period based on the Company
meeting certain annual Adjusted EBITDA targets starting in 2008. Mr. Azevedos remaining stock
options vest ratably over a four year period based on the Company meeting certain annual Adjusted
EBITDA targets starting in 2007. Since the Company did not meet the Adjusted EBITDA target for
2007 and 2008, 7,500 of Mr. Fendrichs stock options, 500 of Ms. Samons stock options, and 3,250
of Mr. Azevedos stock options did not vest and can only vest based on the change of control
provisions of the stock option agreement. |
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth information as of December 27, 2008 regarding our equity
compensation plans. The plans pursuant to which we may make equity grants is the Equity Plan that
was approved by our board of directors and securityholders on November 30, 2006 and The Simmons
Manufacturing Co., LLCs Comfor-Pedic Division Incentive Plan (ComforPedic Incentive Plan). As a
result of the Merger, our Equity Plan was assumed by Simmons Holdco.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
|
|
|
|
|
|
|
|
|
securities |
|
|
|
Number of |
|
|
|
|
|
|
remaining available |
|
|
|
securities to be |
|
|
|
|
|
|
for future issuance |
|
|
|
issued upon |
|
|
Weighted-average |
|
|
under equity |
|
|
|
exercise of |
|
|
exercise price of |
|
|
compensation |
|
|
|
outstanding |
|
|
outstanding |
|
|
plans (excluding |
|
|
|
options, warrants |
|
|
options, warrants |
|
|
securities reflected |
|
|
|
and rights |
|
|
and rights |
|
|
in column (a)) |
|
Plan Category |
|
(a) |
|
|
(b) |
|
|
(c) |
|
Equity compensation
plans approved by
security holders |
|
|
118,670 |
|
|
$ |
23.54 |
|
|
|
29,993 |
|
Column (a) of the table excludes restricted stock awards issued under the Equity Plan, which
authorizes the board of directors to grant up to 821,775 shares of class B common stock through
options, restricted stock awards, or other awards to our employees, directors and consultants. As
of December 27, 2008, we had issued restricted stock awards and stock options under the Equity Plan
and warrants under the ComforPedic Incentive Plan. The shares shown in column (c) are remaining
shares of class B common stock available for issuance after taking into consideration the shares of
class B common stock issued as a restricted stock award or underlying stock options and warrants
granted.
116
ITEM
13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
SEC regulations require that we disclose any transaction, or series of similar transactions,
since the beginning of 2008, or any contemplated transactions, in which the Company was or is to be
a participant, in whom the amount involved exceeds $120,000 and in which any of the following
persons had or will have a direct or indirect material interest:
|
|
our directors or nominees for director; |
|
|
|
our executive officers; |
|
|
|
persons owning more than 5% of our outstanding voting securities; or |
|
|
|
|
the immediate family members of any of the persons identified in the preceding three
bullets. |
The SEC refers to these types of transactions as related person transactions and to the
persons listed in the bullets as related persons. The SEC is concerned about related person
transactions because such transactions, if not properly monitored, may present risks of conflicts
of interest or the appearance of conflicts of interest.
Review and Approval of Related Person Transactions. We review all relationships and
transactions in which the Company and our directors and executive officers or their immediate
family members are participants to determine whether such persons have a direct or indirect
material interest. Our legal department, working together with our outside legal advisors, is
responsible for the development and implementation of processes and controls to obtain information
from our directors and executive officers with respect to related person transactions and for then
determining, based on the facts and circumstances, whether we or a related person has a direct or
indirect material interest in the transaction. Each director and executive officer annually
completes a questionnaire to identify their related interests and persons, and to notify us of
changes in that information. As required under SEC rules, transactions that are determined to be
directly or indirectly material to us or a related person are disclosed under this Item of our
Annual Report on Form 10-K.
MANAGEMENT AGREEMENT
Pursuant to the management agreement entered into in connection with the THL Acquisition, THL
Managers V, LLC renders certain advisory and consulting services to Simmons Bedding. In
consideration of those services, Simmons Bedding agreed to pay to THL Managers V, LLC, an affiliate
of Thomas H. Lee Partners L.P., semi-annually, an aggregate per annum management fee equal to the
greater of:
|
|
|
an amount equal to 1.0% of the consolidated earnings before interest, taxes, depreciation
and amortization of Simmons Bedding for such fiscal year, but before deduction of any such
fee. |
Simmons Bedding paid management fees, inclusive of expenses, of $1.8 million in 2008.
Simmons Bedding also agreed to indemnify THL Managers V, LLC and its affiliates from and
against all losses, claims, damages and liabilities arising out of or related to the performance by
Thomas H. Lee Partners Managers V, LLC of the services pursuant to the management agreement. In
connection with our restructuring efforts, we have agreed to reimburse the directors of THL for
certain legal fees.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF SIMMONS COMPANY
We have amended and restated our Certificate of Incorporation to eliminate different classes
of common stock. Our second Amended and Restated Certificate of Incorporation previously provided
for two classes of common stock class A common stock, earning a preferred return of 6% per annum,
and class B common stock. Class A common stock was held by THL, Fenway Partners, directors, former
directors and those members of management who elected to acquire such shares in connection with the
THL Acquisition. Our third Amended and Restated Certificate of Incorporation sets forth a single
class of common stock, identical in all respects and entitling the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and restrictions.
SECURITYHOLDERS AGREEMENT AND EQUITY REGISTRATION RIGHTS AGREEMENT
In connection with the Merger, the Securityholders Agreement and the Registration Rights
Agreement were terminated, and substantially similar documents were entered into among Simmons
Holdco and its securityholders.
117
ITEM
14. PRINCIPAL ACCOUNTANT FEES AND SERVICES.
Aggregate fees which were billed to us by our principal accountants, PricewaterhouseCoopers
LLP, for audit services related to the two most recent fiscal years was $984,374 and $925,261 for
2008 and 2007, respectively. Audit services consist of fees for the audit of the Companys annual
consolidated financial statements, the review of financial statements included in the Companys
quarterly Form 10-Q reports, and the services that an independent auditor would customarily provide
in connection with subsidiary audits, statutory requirements, regulatory filings, registration
statements and similar engagements for the fiscal year, such as comfort letters, attest services,
consents, and assistance with review of documents filed with the SEC. Audit Fees also include
advice on accounting matters that arose in connection with or as a result of the audit or the
review of periodic consolidated financial statements and statutory audits the non-U.S.
jurisdictions require. We have not been billed for any services other than audit services for the
two most recent fiscal years.
Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent
Auditor
The Audit Committee is responsible for appointing, setting compensation, and overseeing the
work of the independent auditor. The Audit Committee has established a policy regarding
pre-approval of all audit and permissible non-audit services provided by the independent
auditor. The Audit Committee has approved the pre-authorization of audit and non-audit services up
to $50,000.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a)(1) |
|
The following consolidated financial statements of Simmons Company and its subsidiaries are
included in Part II, Item 8: |
Report of Independent Registered Public Accounting Firm
Consolidated Statements of Operations and Comprehensive Income (Loss) for the years ended
December 27, 2008, December 29, 2007 and December 30, 2006
Consolidated Balance Sheets at December 27, 2008 and December 29, 2007
Consolidated Statements of Changes in Stockholders Equity (Deficit) for the years ended
December 27, 2008, December 29, 2007 and December 30, 2006
Consolidated Statements of Cash Flows for the years ended December 27, 2008, December 29,
2007 and December 30, 2006
Notes to the Consolidated Financial Statements
118
(a)(2) |
|
Financial Statement Schedule |
|
|
|
Schedule II Valuation Accounts |
|
(a)(3) |
|
The exhibits to this report are listed in section (b) of Item 15 below. |
The following exhibits are filed with or incorporated by reference into this Form 10-K. For
the purposes of this exhibit index, references to Simmons Bedding include Simmons Bedding,
both prior to and following the transactions that occurred on December 19, 2003. The
exhibits which are denominated by an asterisk (*) were previously filed as a part of, and are
hereby incorporated by reference from either the (i) Registration Statement on Form S-4 under
the Securities Act of 1933 for Simmons Bedding, File No. 333-76723 (referred to as 1999
S-4), (ii) Quarterly Report on Form 10-Q for the quarter ended September 30, 2000 for
Simmons Bedding (referred to as 9/30/00 10-Q), (iii) Quarterly Report on Form 10-Q for the
quarter ended March 30, 2002 for Simmons Bedding (referred to as 3/30/02 10-Q), (iv) Annual
Report on Form 10-K for the year ended December 28, 2002 for Simmons Bedding (referred to as
2002 10-K), (v) Annual Report on Form 10-K for the year ended December 27, 2003 for Simmons
Bedding (referred to as 2003 10-K), (vi) Current Report on Form 8-K filed September 2, 2004
for Simmons Bedding (referred to as 9/02/04 8-K), (vii) registration statement on Form S-4
under the Securities Act of 1933 for Simmons Company, File No. 333-124138 (referred to as
2005 S-4), (viii) Current Report on Form 8-K filed August 4, 2005 for Simmons Bedding
(referred to as 8/4/05 8-K), (ix) Current Report on Form 8-K filed September 21, 2005 for
Simmons Bedding (referred to as 9/21/05 8-K), (x) Current Report on Form 8-K filed December
13, 2005 for Simmons Bedding (referred to as 12/13/05 8-K), (xi) Current Report on Form 8-K
filed December 19, 2005 for Simmons Bedding (referred to as 12/19/05 8-K), (xii) Current
Report on Form 8-K filed April 4, 2006 for Simmons Company (referred to as 4/6/06 8-K),
(xiii) Current Report on Form 8-K filed April 19, 2006 for Simmons Company (referred to as
4/19/06 8-K), (xiv) Current Report on Form 8-K filed April 24, 2006 for Simmons Company
(referred to as 4/24/06 8-K), (xv) Current Report on Form 8-K filed May 31, 2006 for Simmons
Company (referred to as 5/31/06 8-K), (xvi) Quarterly Report on Form 10-Q for the quarter
ended July 1, 2006 for Simmons Company (referred to as 7/1/06 10-Q), (xvii) Quarterly
Report on Form 10-Q for the quarter ended September 30, 2006 for Simmons Company (referred to
as 9/30/06 10-Q), (xviii) Current Report on Form 8-K filed October 5, 2006 for Simmons
Company (referred to as 10/5/06 8-K), (xix) Current Report on Form 8-K filed December 6,
2006 for Simmons Company (referred to as 12/6/06 8-K), (xx) Current Report on Form 8-K
filed February 12, 2007 (referred to as 2/12/07 8-K), (xxi) Current Report on Form 8-K
filed June 8, 2007 (referred to as 6/8/07 8-K), (xxii) Current Report on Form 8-K filed
December 7, 2007 (referred to as 12/7/07 8-K), (xxiii) Annual Report on Form 10-K for the
year ended December 29, 2007 for Simmons Company (referred to as 2007 10-K), (xxix)
Quarterly Report on Form 10-Q for the quarter ended June 28, 2008 for Simmons Company
(referred to as 6/28/08 10-Q), (xxx) Quarterly Report on Form 10-Q for the quarter ended
September 27, 2008 for Simmons Company (referred to as 9/27/08 10-Q), (xxxi) Current Report
on Form 8-K filed December 10, 2008 for Simmons Company (referred to as 12/10/08 8-K),
(xxxii) Current Report on Form 8-K filed February 17, 2009 for Simmons Company (referred to
as 2/17/09 8-K) and (xxxiii) Current Report on Form 8-K filed March 30, 2009 for Simmons
Company (referred to as 3/30/09 8-K). Exhibits filed herewith have been denoted by a pound
sign (#).
119
EXHIBIT INDEX
|
|
|
Number |
|
Description |
*2.1
|
|
Agreement and Plan of Merger dated as of December 19, 2003, by and between THL Bedding Company and Simmons
Holdings, Inc. (2003 10-K) |
|
|
|
*2.2
|
|
Agreement and Plan of Merger dated as of December 19, 2003, by and between Simmons Company and Simmons
Holdings, Inc. (2003 10-K) |
|
|
|
*3.1
|
|
Amended and Restated Certificate of Incorporation of Simmons Company. (2005 S-4) |
|
|
|
*3.1.1
|
|
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of THL Bedding Holding
Company. (2005 S-4) |
|
|
|
*3.1.2
|
|
Second Amended and Restated Articles of Incorporation of Simmons Company. (12/06/06 8-K) |
|
|
|
*3.1.3
|
|
Third Amended and Restated Certificate of Incorporation of Simmons Company. (2/12/07 8-K) |
|
|
|
*3.2
|
|
Certificate of Ownership and Merger of Simmons Company with and into Simmons Holdings, Inc. (2003 10-K) |
|
|
|
*3.2.1
|
|
The Merger Agreement dated February 7, 2007 by and among Simmons Holdco, Inc., Simmons Merger Company and
Simmons Company. (2/12/07 8-K) |
|
|
|
*3.3
|
|
Amended and Restated By-laws of Simmons Company. (2005 S-4) |
|
|
|
*4.1
|
|
Indenture (including form of note) dated as of December 19, 2003, among Simmons Bedding Company (f/k/a THL
Bedding Company), the Guarantors party thereto and Wells Fargo Bank Minnesota, National Association, as
trustee. (2003 10-K) |
|
|
|
*4.2
|
|
Indenture (including form of note) dated as of December 15, 2004 between Simmons Company and Wells Fargo Bank,
National Association, as trustee. (2005 S-4) |
|
|
|
*4.3
|
|
Exchange and Registration Rights Agreement dated December 15, 2004 among Simmons Company and the Initial
Purchasers. (2005 S-4) |
|
|
|
*10.1
|
|
Lease Agreement at Concourse between Concourse I, Ltd., as Landlord, and Simmons Bedding, as Tenant, dated as
of April 20, 2000, as amended. (9/30/00 10-Q) |
|
|
|
*10.1.1
|
|
Second Amendment to Lease Agreement at Concourse between Teachers Concourse, LLC, as Landlord, and Simmons
Bedding, as Tenant, dated as of October 6, 2006. (9/30/06 10-Q) |
|
|
|
#10.1.2
|
|
Third Amendment to Lease Agreement at Concourse between Teachers Concourse, LLC, as Landlord, and Simmons
Bedding, as Tenant, dated as of October 1, 2008. |
|
|
|
*10.2
|
|
Loan Agreement, dated as of November 1, 1982, between the City of Janesville, Wisconsin and Simmons Bedding, as
successor by merger to Simmons Manufacturing Company, Inc., relating to $9,700,000 City of Janesville,
Wisconsin Industrial Development Revenue Bond, Series A. (1999 S-4) |
|
|
|
*10.3
|
|
Loan Agreement between the City of Shawnee and Simmons Bedding relating to the Indenture of Trust between City
of Shawnee, Kansas and State Street Bank and Trust Company of Missouri, N.A., as Trustee, dated as of December
1, 1996 relating to $5,000,000 Private Activity Revenue Bonds, Series 1996. (1999 S-4) |
|
|
|
*10.4
|
|
Loan Agreement dated as of December 12, 1997 between Simmons Caribbean Bedding, Inc. and Banco Santander Puerto
Rico. (1999 S-4) |
|
|
|
*10.5
|
|
Simmons Retirement Savings Plan adopted February 1, 1987, as amended and restated January 1, 2002. (3/30/02
10-Q) |
|
|
|
*10.5.1
|
|
First Amendment to the Simmons Retirement Savings Plan effective for years beginning after December 31,
2001. (3/30/02 10-Q) |
|
|
|
*10.6
|
|
Retirement Plan for Simmons Company Employees adopted October 31, 1987, as amended and restated May 1,
1997. (3/30/02 10-Q) |
|
|
|
*10.7
|
|
First Amendment to the Retirement Plan for Simmons Company Employees effective for years ending after December
31, 2001. (3/30/02 10-Q) |
120
|
|
|
Number |
|
Description |
*10.8
|
|
Stock Purchase Agreement dated as of November 17, 2003, by and among Simmons Holdings, Inc., THL Bedding
Company and the sellers named therein. (2003 10-K) |
|
|
|
*10.9
|
|
ESOP Stock Sale Agreement dated as of November 21, 2003, by and among Simmons Holdings, Inc., State Street Bank
and Trust Company, solely in its capacity as trustee, of the Simmons Company Employee Stock Ownership Trust,
and THL Bedding Company. (2003 10-K) |
|
|
|
*10.10
|
|
Amendment to Employee Stock Ownership Plan Trust Agreement dated as of December 16, 2003, between Simmons
Company and State Street Bank and Trust Company, as trustee under the Trust Agreement. (2003 10-K) |
|
|
|
*10.11
|
|
Management Agreement dated as of December 19, 2003, by and between Simmons Company and THL Managers V,
LLC. (2003 10-K) |
|
|
|
*10.12
|
|
Senior Manager Restricted Stock Agreement dated as of December 19, 2003, between THL Bedding Company and
Charles R. Eitel. (2003 10-K) |
|
|
|
*10.12.1
|
|
Senior Manager Amended and Restated Restricted Stock Agreement dated as of April 17, 2006, among Simmons
Company and Charles R. Eitel. (4/24/06 8-K) |
|
|
|
*10.12.2
|
|
First Amendment to Amended and Restated Restricted Stock Agreement dated as of January 10, 2007, among Simmons
Company and Charles R. Eitel. (2007 10-K) |
|
|
|
*10.12.3
|
|
Second Amendment dated June 30, 2008 to the Amended and Restated Restricted Stock Agreement dated April 17,
2006 among LLLP Eitel Investments and Simmons Holdco, Inc. (6/28/08 10-Q) |
|
|
|
*10.13
|
|
Senior Manager Restricted Stock Agreement dated as of December 19, 2003, between THL Bedding Company and
William S. Creekmuir. (2003 10-K) |
|
|
|
*10.13.1
|
|
Senior Manager Amended and Restated Restricted Stock Agreement dated as of April 17, 2006, among Simmons
Company and William S. Creekmuir. (4/24/2006 8-K) |
|
|
|
*10.13.2
|
|
First Amendment to Amended and Restated Restricted Stock Agreement dated as of January 10, 2007, among Simmons
Company and William S. Creekmuir. (2007 10-K) |
|
|
|
*10.13.3
|
|
Second Amendment dated June 30, 2008 to the Amended and Restated Restricted Stock Agreement dated April 17,
2006 among William S. Creekmuir and Simmons Holdco, Inc. (6/28/08 10-Q) |
|
|
|
*10.14
|
|
Employment Agreement dated as of December 19, 2003, among THL Bedding Holding Company, Simmons Company and
Charles R. Eitel. (2003 10-K) |
|
|
|
*10.14.1
|
|
Supplement to Employee Agreement dated December 7, 2005 between Charles R. Eitel and Simmons Company and
Simmons Bedding Company. (12/13/05 8-K) |
|
|
|
*10.14.2
|
|
Second Supplement to Employee Agreement dated December 5, 2007 between Charles R. Eitel and Simmons Holdco,
Simmons Company and Simmons Bedding Company. (2007 10-K) |
|
|
|
*10.15
|
|
Employment Agreement dated as of December 19, 2003, among THL Bedding Holding Company, Simmons Company and
William S. Creekmuir. (2003 10-K) |
|
|
|
*10.15.1
|
|
Supplement to Employee Agreement dated December 9, 2005 between William S. Creekmuir and Simmons Company and
Simmons Bedding Company. (12/13/05 8-K) |
|
|
|
*10.15.2
|
|
Second Supplement to Employee Agreement dated December 5, 2007 between William S. Creekmuir and Simmons Holdco,
Simmons Company and Simmons Bedding Company. (2007 10-K) |
|
|
|
*10.16
|
|
Amended and Restated Credit and Guaranty Agreement, dated as of August 27, 2004, among Simmons Bedding Company,
as Company, THL-SC Bedding Company and certain subsidiaries of the Company, as Guarantors, the financial
institutions listed therein, as Lenders, UBS Securities LLC, as Joint Lead Arranger and as Co-Syndication
Agent, Deutsche Bank AG, New York Branch, as Administrative Agent and Collateral Agent, General Electric
Capital Corporation, as Co-Documentation Agent, CIT Lending Services Corporation, as Co-Documentation Agent,
and Goldman Sachs Credit Partners L.P., as Sole Bookrunner, a Joint Lead Arranger and as Co-Syndication
Agent. (9/02/04 8-K) |
121
|
|
|
Number |
|
Description |
*10.16.1
|
|
First Amendment dated December 16, 2005 to the Amended and Restated Credit and Guaranty Agreement dated as of
August 27, 2004. (12/19/05 8-K) |
|
|
|
*10.16.2
|
|
Second Amended and Restated Credit and Guaranty Agreement, dated as of May 25, 2006, among Simmons Bedding
Company, as Company, THL-SC Bedding Company and certain subsidiaries of the Company, as Guarantors, the
financial institutions listed therein, as Lenders, Goldman Sachs Credit Partners L.P., as Sole Bookrunner, Lead
Arranger and Syndication Agent, Deutsche Bank AG, New York Branch, as Administrative Agent and Collateral
Agent, General Electric Capital Corporation, as Co-Documentation Agent and CIT Lending Services Corporation, as
Co-Documentation Agent. (5/31/06 8-K) |
|
|
|
*10.16.3
|
|
First Amendment dated February 9, 2007 to the Second Amended and Restated Credit and Guaranty Agreement dated
May 25, 2006. (2/12/07 8-K) |
|
|
|
*10.16.4
|
|
Second Forbearance Agreement; Third Amendment to the Second Amended and Restated Credit and Guaranty Agreement
and First Amendment to the Pledge and Security Agreement. (12/10/08 8-K) |
|
|
|
*10.16.5
|
|
First Amendment to Second Forbearance Agreement; Fourth Amendment to the Second Amended and Restated Credit and
Guaranty Agreement and Second Amendment to the Pledge and Security Agreement. (3/30/09 8-K) |
|
|
|
*10.17
|
|
Senior Unsecured Term Loan and Guaranty Agreement, dated December 19, 2003, among THL Bedding Company, as
Company, THL-SC Bedding Company and certain subsidiaries of the Company, as Guarantors, the financial
institutions listed therein, as Lenders, Goldman Sachs Credit Partners L.P., as Sole Bookrunner, a Joint Lead
Arranger and as Co-Syndication Agent, UBS Securities LLC, as Joint Lead Arranger and as Co-Syndication Agent,
and Deutsche Bank AG, New York Branch, as Administrative Agent. (2003 10-K) |
|
|
|
*10.18
|
|
Assumption Agreement, dated December 19, 2003, made by Simmons Holdings, Inc., Simmons Company and certain
subsidiaries of Simmons, as Guarantors, in favor of Deutsche Bank, AG, New York Branch, as Administrative Agent
for banks and other financial institutions or entities, the Lenders, parties to the Credit Agreement and Term
Loan Agreement. (2003 10-K) |
|
|
|
*10.19
|
|
Pledge and Security Agreement dated December 19, 2003, between each of the grantors party thereto and Deutsche
Bank AG, New York Branch, as the Collateral Agent. (2003 10-K) |
|
|
|
*10.20
|
|
2002 Stock Option Plan. (2002 10-K) |
|
|
|
*10.21
|
|
Simmons Company Employee Stock Ownership Plan adopted January 31, 1998, as amended and restated December 29,
2001. (3/30/02 10-Q) |
|
|
|
*10.21.1
|
|
First Amendment to the Simmons Company Employee Stock Ownership Plan effective for years ending after December
31, 2001. (3/30/02 10-Q) |
|
|
|
*10.22
|
|
Offer of Employment dated as of July 14, 2005, among Simmons Bedding and Robert P. Burch. (8/4/05 8-K) |
|
|
|
*10.22.1
|
|
Non-Compete Agreement dated as of July 14, 2005, among Simmons Bedding and Robert P. Burch. (8/4/05 8-K) |
|
|
|
*10.23
|
|
Employment Agreement dated as of December 7, 2007 between Simmons Holdco, Inc., Simmons Bedding Company and
Stephen G. Fendrich. (12/7/07 8-K) |
|
|
|
*10.24
|
|
Restricted Stock Agreement dated as of September 9, 2005, between Simmons Company and Robert P.
Burch. (9/21/05 8-K) |
|
|
|
*10.24.1
|
|
Amended and Restated Restricted Stock Agreement dated as of April 17, 2006, among Simmons Company and Robert P.
Burch. (4/24/06 8-K) |
|
|
|
*10.24.2
|
|
First Amendment to Amended and Restated Restricted Stock Agreement dated as of January 10, 2007, among Simmons
Company and Robert P. Burch. (2007 10-K) |
|
|
|
*10.24.3
|
|
Second Amendment dated June 30, 2008 to the Amended and Restated Restricted Stock Agreement dated April 17,
2006 among Robert P. Burch and Simmons Holdco, Inc. (6/28/08 10-Q) |
|
|
|
*10.25
|
|
Restricted Stock Agreement dated as of March 31, 2006, between Simmons Company and Stephen G.
Fendrich. (4/6/06 8-K) |
122
|
|
|
Number |
|
Description |
*10.25.1
|
|
Amended and Restated Restricted Stock Agreement dated as of April 18, 2006, between Simmons Company and Stephen
G. Fendrich. (4/24/06 8-K) |
|
|
|
*10.25.2
|
|
First Amendment to Amended and Restated Restricted Stock Agreement dated as of January 10, 2007, among Simmons
Company and Stephen G. Fendrich. (2007 10-K) |
|
|
|
*10.25.3
|
|
Second Amendment dated June 30, 2008 to the Amended and Restated Restricted Stock Agreement dated March 31,
2006 among Stephen G. Fendrich and Simmons Holdco, Inc. (6/28/08 10-Q) |
|
|
|
*10.26
|
|
General Release and Separation Agreement dated as of March 31, 2006, among Simmons Bedding, Simmons Company and
Rhonda C. Rousch. (4/19/06 8-K) |
|
|
|
*10.27
|
|
Employment Agreement dated as of November 10, 2006, among Simmons Company, Simmons Bedding Company and Gary S.
Matthews. (9/30/06 10-Q) |
|
|
|
*10.28
|
|
Unit Purchase Agreement by and among ST San Diego, LLC, Sleep Country USA, Inc., SC Holdings, Inc. and Simmons
Bedding Company. (7/1/06 10-Q) |
|
|
|
*10.29
|
|
General Release and Separation Agreement dated as of June 7, 2007, among Simmons Bedding, Simmons Company and
Gary S. Matthews. (6/8/07 8-K) |
|
|
|
*10.30
|
|
Amended and Restated Restricted Stock Agreement dated as of April 14, 2006 for December 2003 issuance, between
Simmons Company and Timothy Oakhill. (2007 10-K) |
|
|
|
*10.30.1
|
|
First Amendment to Amended and Restated Restricted Stock Agreement dated as of January 10, 2007, between
Simmons Company and Timothy Oakhill. (2007 10-K) |
|
|
|
*10.31
|
|
Amended and Restated Restricted Stock Agreement dated as of April 14, 2006 for September 2005 issuance, between
Simmons Company and Timothy Oakhill. (2007 10-K) |
|
|
|
*10.31.1
|
|
First Amendment to Amended and Restated Restricted Stock Agreement dated as of January 10, 2007, between
Simmons Company and Timothy Oakhill. (2007 10-K) |
|
|
|
*10.31.2
|
|
Second Amendment dated June 30, 2008 to the Amended and Restated Restricted Stock Agreement dated April 17,
2006 among Timothy F. Oakhill and Simmons Holdco, Inc. (6/28/08 10-Q) |
|
|
|
*10.32
|
|
Restricted Stock Agreement dated as of September 29, 2006, between Simmons Company and Timothy
Oakhill. (10/5/06 8-K) |
|
|
|
*10.32.1
|
|
First Amendment to Amended and Restated Restricted Stock Agreement dated as of January 10, 2007, between
Simmons Company and Timothy Oakhill. (2007 10-K) |
|
|
|
*10.32.2
|
|
Second Amendment dated June 30, 2008 to the Restricted Stock Agreement dated September 29, 2006 among Timothy
F. Oakhill and Simmons Holdco, Inc. (6/28/08 10-Q) |
|
|
|
*10.33
|
|
Employee Letter Agreement dated January 9, 2006 among Simmons Company, Simmons Bedding Company and Timothy F.
Oakhill. (2007 10-K) |
|
|
|
*10.34
|
|
Stock Option Agreement dated January 16, 2008 among Simmons Holdco, Inc. and Stephen G. Fendrich. (2007 10-K) |
|
|
|
*10.34.1
|
|
First Amendment dated June 30, 2008 to the Stock Option Agreement dated January 16, 2008 among Stephen G.
Fendrich and Simmons Holdco, Inc. (6/28/08 10-Q) |
|
|
|
*10.35
|
|
Forbearance Agreement to Indenture. (2/17/09 8-K) |
|
|
|
*10.35.1
|
|
Amendment No. 1 to Forbearance Agreement to Indenture. (3/30/09 8-K) |
|
|
|
*10.36
|
|
General Release and Separation Agreement between Charles R. Eitel, Simmons Holdco, Inc., Simmons Company,
THL-SC Bedding Company, and Simmons Bedding Company dated September 30, 2008. (9/27/08 10-Q) |
|
|
|
#10.37
|
|
Restricted Stock Agreement dated March 31, 2006 between Simmons Company and Dominick A. Azevedo. |
|
|
|
#10.37.1
|
|
Amended and Restated Restricted Stock Agreement dated as of April 17, 2006, between Simmons Company and
Dominick A. Azevedo. |
123
|
|
|
Number |
|
Description |
#10.38
|
|
Stock Options Agreement dated July 11, 2007 between Simmons Holdco, Inc. and Dominick A. Azevedo. |
|
|
|
#10.39
|
|
Stock Options Agreement dated January 16, 2008 between Simmons Holdco, Inc. and Dominick A. Azevedo. |
|
|
|
#10.40
|
|
Employee Letter Agreement dated September 28, 2008 among Simmons Holdco, Inc. and Dominick A. Azevedo. |
|
|
|
#12.1
|
|
Computation of ratio of earnings to fixed charges |
|
|
|
*21.1
|
|
Subsidiaries of Simmons Company (2007 10-K) |
|
|
|
#31.1
|
|
Certification of President and Chief Operating Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
#31.2
|
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
#32.1
|
|
Certification of President and Chief Operating Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
|
|
|
#32.2
|
|
Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
124
SIMMONS COMPANY
SCHEDULE II VALUATION ACCOUNTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Col. A |
|
Col. B |
|
|
Col. C |
|
|
Col. D |
|
|
Col. E |
|
|
|
Balance at |
|
|
|
|
|
|
|
|
|
|
Balance at |
|
|
|
Beginning of |
|
|
|
|
|
|
|
|
|
|
End of |
|
Description |
|
Period |
|
|
Additions |
|
|
Deductions |
|
|
Period |
|
Fiscal year ended December 27, 2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Doubtful accounts |
|
$ |
2,716 |
|
|
$ |
7,788 |
|
|
$ |
6,910 |
|
|
$ |
3,594 |
|
Discounts and returns, net |
|
|
1,834 |
|
|
|
|
|
|
|
19 |
|
|
|
1,815 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
4,550 |
|
|
$ |
7,788 |
|
|
$ |
6,929 |
|
|
$ |
5,409 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal year ended December 29, 2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Doubtful accounts |
|
$ |
1,967 |
|
|
$ |
4,271 |
|
|
$ |
3,522 |
|
|
$ |
2,716 |
|
Discounts and returns, net |
|
|
2,362 |
|
|
|
|
|
|
|
528 |
|
|
|
1,834 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
4,329 |
|
|
$ |
4,271 |
|
|
$ |
4,050 |
|
|
$ |
4,550 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal year ended December 30, 2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Doubtful accounts |
|
$ |
1,661 |
|
|
$ |
958 |
|
|
$ |
652 |
|
|
$ |
1,967 |
|
Discounts and returns, net |
|
|
2,371 |
|
|
|
|
|
|
|
9 |
|
|
|
2,362 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
4,032 |
|
|
$ |
958 |
|
|
$ |
661 |
|
|
$ |
4,329 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
125
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
|
|
|
|
|
|
|
|
|
SIMMONS COMPANY |
|
|
|
|
(Registrant) |
|
|
|
|
|
|
|
|
|
June 10, 2009
|
|
By:
|
|
/s/ William S. Creekmuir
William S. Creekmuir, Executive Vice President,
|
|
|
|
|
|
|
Chief Financial Officer, Treasurer and |
|
|
|
|
|
|
Assistant Secretary (Principal Financial Officer) |
|
|
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints William S. Creekmuir, jointly and severally, his or her attorneys-in-fact,
each with full power of substitution, for him in any and all capacities, to sign any and all
amendments to this Form 10-K, and to file the same, with exhibits thereto and other documents in
connection therewith, with the SEC, hereby ratifying and confirming all that each said
attorneys-in-fact or his substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by
the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
|
|
|
/s/ Stephen G. Fendrich
Stephen G. Fendrich
|
|
June 10,
2009 |
President and Chief Operating Officer |
|
|
(Principal Executive Officer) |
|
|
|
|
|
/s/ Todd M. Abbrecht
Todd M. Abbrecht, Director
|
|
June 10, 2009 |
|
|
|
/s/ William P. Carmichael
William P. Carmichael, Director
|
|
June 10, 2009 |
|
|
|
/s/ Charles R. Eitel
Charles R. Eitel, Vice-Chairman of the Board of Directors
|
|
June 10, 2009 |
|
|
|
/s/ David A. Jones
David A. Jones, Director
|
|
June 10, 2009 |
|
|
|
/s/ B. Joseph Messner
B. Joseph Messner, Director
|
|
June 10, 2009 |
|
|
|
/s/ Scott A. Schoen
Scott A. Schoen, Director
|
|
June 10, 2009 |
|
|
|
|
|
June 10, 2009 |
George R. Taylor, Director |
|
|
|
|
|
/s/ Mark F. Chambless
Mark F. Chambless, Senior Vice President Corporate
|
|
June 10, 2009 |
Controller and Assistant Secretary (Principal Accounting Officer) |
|
|
126
EXHIBIT B-2
Simmons Companys Form 10-Q for the quarter ended June 27, 2009
Please see attached.
Exhibit B-2
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
|
|
|
þ |
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended June 27, 2009
OR
|
|
|
o |
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 333-124138
SIMMONS COMPANY
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
|
|
20-0646221 |
|
|
|
(State or other jurisdiction of incorporation or organization)
|
|
(I.R.S. Employer Identification No.) |
|
|
|
One Concourse Parkway, Suite 800, Atlanta, Georgia
|
|
30328-6188 |
|
|
|
(Address of principal executive offices)
|
|
(Zip Code) |
Registrants telephone number, including area code (770) 512-7700
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes: o No: þ
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes: þ No: o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
|
|
|
|
|
|
|
Large accelerated filer: o
|
|
Accelerated filer: o
|
|
Non-accelerated filer: þ
|
|
Smaller reporting company: o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes: o No: þ
The number of shares of the registrants common stock outstanding as of August 1, 2009: 100
DOCUMENTS OR PARTS THEREOF INCORPORATED BY REFERENCE: None
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Simmons Company and Subsidiaries
Unaudited Condensed Consolidated Statements of Operations
and Comprehensive Income (Loss)
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter Ended |
|
|
Six Months Ended |
|
|
|
June 27, |
|
|
June 28, |
|
|
June 27, |
|
|
June 28, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
218,004 |
|
|
$ |
267,683 |
|
|
$ |
440,571 |
|
|
$ |
544,564 |
|
Cost of products sold |
|
|
123,719 |
|
|
|
166,473 |
|
|
|
251,390 |
|
|
|
333,680 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
94,285 |
|
|
|
101,210 |
|
|
|
189,181 |
|
|
|
210,884 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses |
|
|
68,444 |
|
|
|
81,095 |
|
|
|
137,802 |
|
|
|
169,646 |
|
Restructuring charges |
|
|
6,887 |
|
|
|
1,464 |
|
|
|
14,237 |
|
|
|
1,464 |
|
Amortization of intangibles |
|
|
1,553 |
|
|
|
1,587 |
|
|
|
3,094 |
|
|
|
3,176 |
|
Licensing revenues |
|
|
(1,752 |
) |
|
|
(2,460 |
) |
|
|
(3,875 |
) |
|
|
(5,028 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
75,132 |
|
|
|
81,686 |
|
|
|
151,258 |
|
|
|
169,258 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
19,153 |
|
|
|
19,524 |
|
|
|
37,923 |
|
|
|
41,626 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
24,994 |
|
|
|
17,590 |
|
|
|
47,814 |
|
|
|
35,536 |
|
Interest income |
|
|
(46 |
) |
|
|
(103 |
) |
|
|
(52 |
) |
|
|
(234 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
(5,795 |
) |
|
|
2,037 |
|
|
|
(9,839 |
) |
|
|
6,324 |
|
Income tax expense (benefit) |
|
|
(34 |
) |
|
|
856 |
|
|
|
(857 |
) |
|
|
2,628 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
(5,761 |
) |
|
|
1,181 |
|
|
|
(8,982 |
) |
|
|
3,696 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustment |
|
|
5,190 |
|
|
|
765 |
|
|
|
3,682 |
|
|
|
(4,599 |
) |
Change in retirement plans liabilities |
|
|
120 |
|
|
|
77 |
|
|
|
120 |
|
|
|
77 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income (loss) |
|
$ |
(451 |
) |
|
$ |
2,023 |
|
|
$ |
(5,180 |
) |
|
$ |
(826 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
2
Simmons Company and Subsidiaries
Condensed Consolidated Balance Sheets
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
June 27, |
|
|
December 27, |
|
|
|
2009 |
|
|
2008 * |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
67,341 |
|
|
$ |
54,930 |
|
Accounts receivable, less allowances for doubtful receivables,
discounts and returns of $4,938 and $5,409 |
|
|
100,799 |
|
|
|
95,932 |
|
Inventories |
|
|
31,258 |
|
|
|
31,838 |
|
Deferred financing fees |
|
|
12,468 |
|
|
|
13,791 |
|
Deferred income taxes |
|
|
2,174 |
|
|
|
3,119 |
|
Prepaid expenses |
|
|
11,435 |
|
|
|
8,141 |
|
Other current assets |
|
|
6,780 |
|
|
|
9,735 |
|
|
|
|
|
|
|
|
Total current assets |
|
|
232,255 |
|
|
|
217,486 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net |
|
|
79,862 |
|
|
|
86,492 |
|
Goodwill |
|
|
229,461 |
|
|
|
228,325 |
|
Intangible assets, net |
|
|
339,362 |
|
|
|
340,471 |
|
Other assets |
|
|
15,030 |
|
|
|
18,023 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
895,970 |
|
|
$ |
890,797 |
|
|
|
|
|
|
|
|
|
|
|
* |
|
Derived from the Companys 2008 audited consolidated financial statements, but does not include all
disclosures required by accounting principles generally accepted in the United States of America. |
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
3
Simmons Company and Subsidiaries
Condensed Consolidated Balance Sheets
(In thousands, except share amounts)
|
|
|
|
|
|
|
|
|
|
|
June 27, |
|
|
December 27, |
|
|
|
2009 |
|
|
2008 * |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS DEFICIT |
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
Current maturities of long-term debt |
|
$ |
987,090 |
|
|
$ |
975,152 |
|
Accounts payable |
|
|
37,181 |
|
|
|
50,064 |
|
Accrued liabilities |
|
|
90,735 |
|
|
|
77,997 |
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
1,115,006 |
|
|
|
1,103,213 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
|
12,929 |
|
|
|
13,036 |
|
Deferred income taxes |
|
|
97,135 |
|
|
|
98,761 |
|
Other |
|
|
38,482 |
|
|
|
38,114 |
|
|
|
|
|
|
|
|
Total liabilities |
|
|
1,263,552 |
|
|
|
1,253,124 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders deficit: |
|
|
|
|
|
|
|
|
Common stock, $0.01 par value: authorized - 1,000 shares; issued - 100 shares |
|
|
1 |
|
|
|
1 |
|
Additional paid-in capital |
|
|
100,190 |
|
|
|
100,190 |
|
Accumulated deficit |
|
|
(461,653 |
) |
|
|
(452,596 |
) |
Accumulated other comprehensive loss |
|
|
(6,120 |
) |
|
|
(9,922 |
) |
|
|
|
|
|
|
|
Total stockholders deficit |
|
|
(367,582 |
) |
|
|
(362,327 |
) |
|
|
|
|
|
|
|
Total liabilities and stockholders deficit |
|
$ |
895,970 |
|
|
$ |
890,797 |
|
|
|
|
|
|
|
|
|
|
|
* |
|
Derived from the Companys 2008 audited condensed consolidated financial statements, but does not include all
disclosures required by accounting principles generally accepted in the United States of America. |
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
4
Simmons Company and Subsidiaries
Unaudited Condensed Consolidated Statements of Cash Flows
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 27, |
|
|
June 28, |
|
|
|
2009 |
|
|
2008 |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
(8,982 |
) |
|
$ |
3,696 |
|
Adjustments to reconcile net income (loss) to net cash
used in operating activities: |
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
15,920 |
|
|
|
18,664 |
|
Provision for bad debts |
|
|
2,454 |
|
|
|
1,085 |
|
Provision for deferred income taxes |
|
|
(857 |
) |
|
|
1,277 |
|
Non-cash interest expense |
|
|
13,817 |
|
|
|
12,234 |
|
Non-cash stock compensation expense |
|
|
|
|
|
|
(3 |
) |
Net changes in operating assets and liabilities: |
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(6,322 |
) |
|
|
(10,170 |
) |
Inventories |
|
|
850 |
|
|
|
(4,337 |
) |
Other current assets |
|
|
(293 |
) |
|
|
1,430 |
|
Accounts payable |
|
|
(13,140 |
) |
|
|
(3,068 |
) |
Accrued liabilities |
|
|
12,259 |
|
|
|
(11,111 |
) |
Other, net |
|
|
(2,024 |
) |
|
|
(5,957 |
) |
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
|
13,682 |
|
|
|
3,740 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
Purchases of property, plant and equipment |
|
|
(869 |
) |
|
|
(12,634 |
) |
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(869 |
) |
|
|
(12,634 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
Borrowings on revolving loan |
|
|
|
|
|
|
24,000 |
|
Payments of other debt |
|
|
(107 |
) |
|
|
(285 |
) |
Financing fees |
|
|
(541 |
) |
|
|
|
|
Dividends to Bedding Superholdco |
|
|
(75 |
) |
|
|
(16,519 |
) |
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities |
|
|
(723 |
) |
|
|
7,196 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net effect of exchange rate changes on cash |
|
|
321 |
|
|
|
(526 |
) |
|
|
|
|
|
|
|
Change in cash and cash equivalents |
|
|
12,411 |
|
|
|
(2,224 |
) |
Cash and cash equivalents, beginning of period |
|
|
54,930 |
|
|
|
27,520 |
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of period |
|
$ |
67,341 |
|
|
$ |
25,296 |
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
5
Simmons Company and Subsidiaries
Unaudited Condensed Consolidated Statement of Changes in Stockholders Deficit
(In thousands, except share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive Income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Unrealized Gain |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
(Loss) From |
|
|
Total |
|
|
|
Common |
|
|
Common |
|
|
Paid-In |
|
|
Retained |
|
|
Currency |
|
|
Benefit |
|
|
Stockholders |
|
|
|
Shares |
|
|
Stock |
|
|
Capital |
|
|
Deficit |
|
|
Translation |
|
|
Plans |
|
|
Deficit |
|
December 27, 2008 |
|
|
100 |
|
|
$ |
1 |
|
|
$ |
100,190 |
|
|
$ |
(452,596 |
) |
|
$ |
(6,819 |
) |
|
$ |
(3,103 |
) |
|
$ |
(362,327 |
) |
Net loss |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,982 |
) |
|
|
|
|
|
|
|
|
|
|
(8,982 |
) |
Change in
retirement plans
liabilities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
120 |
|
|
|
120 |
|
Foreign currency
translation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,682 |
|
|
|
|
|
|
|
3,682 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive
income (loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,982 |
) |
|
|
3,682 |
|
|
|
120 |
|
|
|
(5,180 |
) |
Dividend to Bedding
Superholdco |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(75 |
) |
|
|
|
|
|
|
|
|
|
|
(75 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 27, 2009
(unaudited) |
|
|
100 |
|
|
$ |
1 |
|
|
$ |
100,190 |
|
|
$ |
(461,653 |
) |
|
$ |
(3,137 |
) |
|
$ |
(2,983 |
) |
|
$ |
(367,582 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.
6
A. Basis of Presentation, Liquidity and Ability to Continue as a Going Concern
Company
Simmons Company (Holdings) is a holding company with no operating assets. Through its
wholly-owned subsidiary THL-SC Bedding Company, which is also a holding company, Simmons Company
owns the common stock of Simmons Bedding Company. On August 20, 2009, THL-SC Bedding Company filed
a certificate of amendment of certificate of incorporation to change its name to Bedding Holdco
Incorporated (Bedding Holdco). On August 20, 2009, Simmons Holdco, Inc., Holdings parent
company, also filed a certificate of amendment of certificate of incorporation to change its name
to Bedding Superholdco Incorporated (Bedding Superholdco). All of Simmons Companys business
operations are conducted by Simmons Bedding Company and its direct and indirect subsidiaries
(collectively Simmons Bedding). Simmons Company, together with its subsidiaries (collectively
the Company or Simmons Company), is one of the largest bedding manufacturers in North America.
Liquidity
As of June 27, 2009, the Company had $67.3 million of cash and cash equivalents and less than
$0.1 million of availability to borrow additional amounts from its revolving loan under Simmons
Beddings senior credit facility. The Companys outstanding borrowings consisted of Simmons
Beddings senior credit facility of $529.5 million, Simmons Beddings $200.0 million 7.875% senior
subordinated notes (Subordinated Notes), Simmons Beddings other debt of $13.4 million, and
Holdings $257.0 million 10.0% senior discount notes (Discount Notes).
Since September 27, 2008, Simmons Bedding has not been in compliance with certain covenants of
its $540.0 million senior credit facility. After being unable to obtain a waiver or an amendment
from its senior lenders to its senior credit facility, Simmons Bedding entered into an initial and
subsequent forbearance agreement with a majority of its senior lenders pursuant to which the senior
lenders agreed to refrain from enforcing their respective rights and remedies under the senior
credit facility through March 31, 2009, subject to earlier termination in some circumstances.
Simmons Bedding entered into amendments to the forbearance agreement on March 25, 2009, May 27,
2009, June 30, 2009, and August 14, 2009 with its senior lenders, whereby the senior lenders
extended their forbearance period through May 31, 2009, June 30, 2009, August 14, 2009, and August
31, 2009, respectively.
On January 15, 2009 and July 15, 2009, Simmons Bedding did not make its scheduled interest
payments due on its Subordinated Notes resulting in defaults under the indenture governing the
Subordinated Notes. On February 14, 2009, the default associated with the failure to pay the
interest due on January 15, 2009 matured into an event of default, which gave the holders of the
Subordinated Notes the right to declare the full amount of the Subordinated Notes immediately due
and payable. On February 4, 2009, Simmons Bedding and a majority of the outstanding Subordinated
Notes holders entered into a forbearance agreement, pursuant to which such noteholders agreed to
refrain from enforcing their respective rights and remedies under the Subordinated Notes and the
related indenture through March 31, 2009. Simmons Bedding entered into amendments to the
forbearance agreement on March 25, 2009, May 27, 2009, June 30, 2009, and August 14, 2009 with a
majority of the Subordinated Notes holders, whereby such noteholders extended their forbearance
period through May 31, 2009, June 30, 2009, August 14, 2009, and August 31, 2009, respectively.
Pursuant to the terms of the forbearance agreement, the noteholders party to the forbearance
agreement have the obligation to take any actions that are necessary to prevent an acceleration of
the payments due under the Subordinated Notes during the forbearance period. Because the
noteholders party to the forbearance agreement represents a majority of the Subordinated Notes,
they have the power under the indenture to rescind any acceleration of the Subordinated Notes by
either the trustee or the minority holders of the Subordinated Notes.
7
As a condition to the forbearance agreement with Simmons Beddings senior lenders, the Company
initiated a restructuring process in December 2008. A special committee of independent directors
was formed by our board of directors on January 23, 2009 to evaluate and oversee proposals for
restructuring the Companys debt obligations, including seeking additional debt or equity capital
and evaluating various strategic alternatives, including a possible sale of Simmons Bedding,
Bedding Holdco, Holdings, Bedding Superholdco or any of their affiliates or assets. There can be
no assurance that the Company will be successful in implementing a restructuring or any other
strategic alternatives. If the Company is unable to successfully complete a restructuring, comply
with the terms of the forbearance agreements, or extend the forbearance periods as needed to
successfully complete a restructuring, Simmons Beddings payment obligations under the senior
credit facility and the Subordinated Notes may be accelerated. If there is an acceleration of
payments or default under the senior credit facility or Subordinated Notes, then Holdings would be
in default under its Discount Notes and Bedding Superholdco would be in default under its $300.0
million senior unsecured loan (Toggle Loan). The Company would not have the ability to repay any
amounts accelerated under its various debt obligations without obtaining additional equity and/or
debt financing. An acceleration of payments or default could result in a voluntary filing of
bankruptcy by, or the filing of an involuntary petition for bankruptcy against, Simmons Bedding,
Bedding Holdco, Holdings, Bedding Superholdco or any of their affiliates. Due to the possibility
of such circumstances occurring, the Company is seeking a negotiated restructuring, including a
restructuring of its debt obligations and/or sale of Simmons Bedding, Bedding Holdco, Holdings,
Bedding Superholdco or any of their affiliates or assets, which could occur pursuant to a
pre-packaged, pre-arranged or voluntary bankruptcy filing. Any bankruptcy filing could have a
material adverse effect on the Companys business, financial condition, liquidity and results of
operations. The considerations above raise substantial doubt about the Companys ability to
continue as a going concern. The Company has recorded all amounts outstanding under the senior
credit facility, Subordinated Notes and Discount Notes as a current liability in the accompanying
consolidated balance sheet.
The unamortized debt issuance costs associated with the senior credit facility, Subordinated
Notes and Discount Notes were recorded as a current asset in the accompanying consolidated balance
sheet (see Note E Debt, which contains further information regarding the Companys debt and
related forbearance agreements). We continue to amortize the debt issuance costs over the
remaining life of the debt using the effective interest method.
In connection with all of the above, the Company incurred restructuring expenses in the
quarter and six months ended June 27, 2009 aggregating $6.6 million and $13.9 million,
respectively.
Basis of Presentation
These condensed consolidated financial statements of the Company are unaudited, and have been
prepared in accordance with accounting principles generally accepted in the United States (GAAP)
and Rule 10-01 of Regulation S-X for interim financial information. The unaudited condensed
consolidated financial statements are presented on the basis that the Company is a going concern.
The going concern assumption contemplates the realization of assets and the satisfaction of
liabilities in the normal course of business.
The accompanying unaudited condensed consolidated financial statements contain all adjustments
which, in the opinion of management, are necessary to present fairly the financial position of the
Company as of June 27, 2009, and its results of operations and cash flows for the periods presented
herein. All adjustments in the periods presented herein are normal and recurring in nature unless
otherwise disclosed. These unaudited condensed consolidated financial statements should be read in
conjunction with the Companys Annual Report on Form 10-K for the year ended December 27, 2008.
Operating results for the periods ended June 27, 2009 are not necessarily indicative of future
results that may be expected for the fiscal year ending December 26, 2009 or for any future period.
The preparation of unaudited condensed consolidated financial statements in conformity with
GAAP includes some amounts that are based upon management estimates and judgments. Future actual
results could differ from such current estimates.
B. Inventories
A summary of inventories follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
June 27, |
|
|
December 27, |
|
|
|
2009 |
|
|
2008 |
|
Raw materials |
|
$ |
18,174 |
|
|
$ |
19,066 |
|
Work-in-progress |
|
|
962 |
|
|
|
1,009 |
|
Finished goods |
|
|
12,122 |
|
|
|
11,763 |
|
|
|
|
|
|
|
|
|
|
$ |
31,258 |
|
|
$ |
31,838 |
|
|
|
|
|
|
|
|
8
C. Goodwill
The changes in the carrying amount of goodwill for the six months ended June 27, 2009 are as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Consolidated |
|
Balance as of December 27, 2008 |
|
$ |
206,206 |
|
|
$ |
22,119 |
|
|
$ |
228,325 |
|
Foreign currency translation adjustment |
|
|
|
|
|
|
1,140 |
|
|
|
1,140 |
|
Other |
|
|
(4 |
) |
|
|
|
|
|
|
(4 |
) |
|
|
|
|
|
|
|
|
|
|
Balance as of June 27, 2009 |
|
$ |
206,202 |
|
|
$ |
23,259 |
|
|
$ |
229,461 |
|
|
|
|
|
|
|
|
|
|
|
D. Warranties
The bedding products that the Company currently manufactures generally include non-prorated
warranties as follows:
|
|
conventional innerspring 10 years; |
|
|
|
conventional specialty bedding products 20 to 25 years; and |
|
|
|
juvenile bedding products 5 years to lifetime |
The Company records the estimated cost of warranty claims when its products are sold. The
Companys new products undergo extensive quality control testing and are generally constructed
using similar techniques and materials of our historical products. Therefore, the Company
estimates the cost of warranty claims based on historical sales and warranty returns and the
current average costs to settle a warranty claim. The Company includes the estimated impact of
recoverable salvage value in the calculation of the current average costs to settle a warranty
claim.
The following table presents a reconciliation of the Companys warranty accrual for the
periods ended June 27, 2009 and June 28, 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter Ended |
|
|
Six Months Ended |
|
|
|
June 27, |
|
|
June 28, |
|
|
June 27, |
|
|
June 28, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Balance at beginning of period |
|
$ |
4,904 |
|
|
$ |
4,576 |
|
|
$ |
4,763 |
|
|
$ |
4,291 |
|
Additional warranties issued |
|
|
723 |
|
|
|
895 |
|
|
|
1,449 |
|
|
|
1,665 |
|
Warranty settlements |
|
|
(661 |
) |
|
|
(806 |
) |
|
|
(1,562 |
) |
|
|
(1,352 |
) |
Accruals related to pre-existing warranties
(including change in estimate) |
|
|
125 |
|
|
|
79 |
|
|
|
441 |
|
|
|
140 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at end of period |
|
$ |
5,091 |
|
|
$ |
4,744 |
|
|
$ |
5,091 |
|
|
$ |
4,744 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
E. Debt
Debt consisted of the following as of June 27, 2009 and December 27, 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
June 27, |
|
|
December 27, |
|
|
|
2009 |
|
|
2008 |
|
Senior credit facility: |
|
|
|
|
|
|
|
|
Revolving loan |
|
$ |
64,532 |
|
|
$ |
64,532 |
|
Tranche D term loan |
|
|
465,000 |
|
|
|
465,000 |
|
|
|
|
|
|
|
|
Total senior credit facility |
|
|
529,532 |
|
|
|
529,532 |
|
7.875% senior subordinated notes due 2014 |
|
|
200,000 |
|
|
|
200,000 |
|
10.0% senior discount notes, due 2014, net of discount of
$11,956 and $23,894, respectively |
|
|
257,044 |
|
|
|
245,106 |
|
Other, principally industrial revenue bonds |
|
|
13,443 |
|
|
|
13,550 |
|
|
|
|
|
|
|
|
|
|
|
1,000,019 |
|
|
|
988,188 |
|
Less current portion |
|
|
(987,090 |
) |
|
|
(975,152 |
) |
|
|
|
|
|
|
|
|
|
$ |
12,929 |
|
|
$ |
13,036 |
|
|
|
|
|
|
|
|
9
Senior Credit Facility
The senior credit facility provides for a $75.0 million revolving loan facility and a $465.0
million tranche D term loan facility. The revolving loan under the senior credit facility will
expire on the earlier of (a) December 19, 2009 or (b) as revolving credit commitments under the
facility terminate. As of June 27, 2009, under the revolving loan facility, the Company had $64.5
million of borrowings and $10.4 million that was reserved for the Companys reimbursement
obligations with respect to outstanding letters of credit. The Company incurs an unused line fee
of 0.375% per annum on the unused portion of its revolving loan facility.
The tranche D term loans under the senior credit facility will expire on December 19, 2011.
The tranche D term loan has a mandatory principal payment of $113.5 million on March 31, 2011 and
quarterly mandatory principal payments of $117.2 million from June 30, 2011 through maturity on
December 19, 2011. Depending on Simmons Beddings leverage ratio, it may be required to prepay a
portion of the tranche D term loan with up to 50% of its excess cash flow (as defined in the senior
credit facility) from each fiscal year. The Company was not required to prepay a portion of the
tranche D term loan during the first six months of 2009.
The senior credit facility bears interest at the Companys choice of the Eurodollar Rate or
Base Rate (both as defined), plus the applicable interest rate margins. The weighted average
interest rate per annum in effect as of June 27, 2009 for the tranche D term loan was 10.5%. The
senior credit facility is guaranteed by Bedding Holdco and all of Simmons Beddings domestic
subsidiaries, and Simmons Bedding has pledged substantially all of its assets to the senior credit
facility.
The senior credit facility requires Simmons Bedding to maintain certain financial ratios,
including cash interest coverage (adjusted EBITDA to cash interest expense) and total leverage (net
debt to adjusted EBITDA) ratios. Adjusted EBITDA (as defined in the senior credit facility)
differs from the term EBITDA as it is commonly used. In addition to adjusting net income (loss)
to exclude interest expense, income taxes, depreciation and amortization, Adjusted EBITDA, as the
Company interprets the definition of Adjusted EBITDA from the senior credit facility, also adjusts
net income (loss) by excluding items or expenses not typically excluded in the calculation of
EBITDA such as management fees; other non-cash items reducing consolidated net income (loss); any
extraordinary, unusual or non-recurring gains or losses or charges or credits; and any reasonable
expenses or charges related to any issuance of securities, investments permitted, permitted
acquisitions, recapitalizations, asset sales permitted or indebtedness permitted to be incurred,
less other non-cash items increasing consolidated net income (loss), all of the foregoing as
determined on a consolidated basis for Simmons Bedding in conformity with GAAP.
The financial covenants are as follows:
1) |
|
A minimum cash interest coverage ratio of no less than 3.00:1.00 from June 27, 2009
through each fiscal quarter ending thereafter. |
2) |
|
A maximum leverage ratio of no greater than 4.00:1.00 from June 27, 2009 through
each fiscal quarter ending thereafter.
|
10
For the quarter ended September 27, 2008, Simmons Bedding was not in compliance with the
maximum leverage financial covenant and certain other covenants contained in its senior credit
facility. In response thereto, Simmons Bedding was unable to negotiate a waiver of such defaults
with its senior lenders and entered into the First Forbearance Agreement and Second Amendment to
the Second Amended and Restated Credit and Guaranty Agreement (First Forbearance Agreement) on
November 12, 2008 and the Second Forbearance Agreement and Third Amendment to the Second Amended
and Restated Credit and Guaranty Agreement and First Amendment to the Pledge and Security Agreement
(the Second Forbearance Agreement) on December 10, 2008 with its senior lenders. Based on the
terms of the First Forbearance Agreement, the senior lenders agreed to, among other things; forbear
from exercising their default-related rights and remedies under the senior credit facility against
Simmons Bedding through December 10, 2008, provided that Simmons Bedding satisfied certain
conditions. The Second Forbearance Agreement extended the forbearance period through March 31,
2009, subject to earlier termination in some circumstances. Simmons Bedding entered into (i) that
certain First Amendment to Second Forbearance Agreement; Fourth Amendment to the Second Amended and
Restated Credit and Guaranty Agreement and Second Amendment to the Pledge and Security Agreement
(the First Amendment to the Second Forbearance Agreement) on March 25, 2009, pursuant to which
the senior lenders extended the forbearance period under the Second Forbearance Agreement through
May 31, 2009 and, upon satisfaction of certain conditions, July 31, 2009;
(ii) that certain Second
Amendment to Second Forbearance Agreement; Fifth Amendment to the Second Amended and Restated
Credit and Guaranty Agreement and Third Amendment to the Pledge and Security Agreement (the Second
Amendment to the Second Forbearance Agreement) on May 27, 2009, pursuant to which the senior
lenders extended the forbearance period under the Second Forbearance Agreement through June 30,
2009 and, upon satisfaction of certain conditions, July 31, 2009; (iii) that certain Third
Amendment to Second Forbearance Agreement; Sixth Amendment to the Second Amended and Restated
Credit and Guaranty Agreement (the Third Amendment to the Second Forbearance Agreement) on June
30, 2009, pursuant to which the senior lenders extended the forbearance period under the
Second Forbearance Agreement through August 14, 2009; and (iv) that certain Fourth Amendment
to Second Forbearance Agreement; Seventh Amendment to the Second Amended and Restated Credit and
Guaranty Agreement (the Fourth Amendment to the Second Forbearance Agreement and, together with
the First Amendment to the Second Forbearance Agreement, the Second Amendment to the Second
Forbearance Agreement, and the Third Amendment to the Second Forbearance Agreement, the Amendment
to the Second Forbearance Agreement) on August 14, 2009, pursuant to which the senior lenders
extended the forbearance period under the Second Forbearance Agreement through August 31, 2009.
During the forbearance period, the senior lenders will provide no additional loans or
financial accommodation to Simmons Bedding except for the issuance, renewal, extension or
replacement of letters of credit and revolving loans provided in certain limited circumstances
related to the letters of credit as set forth in the forbearance agreements. In addition, Simmons
Bedding will not be permitted to, directly or indirectly, incur indebtedness or liens, make
investments or restricted junior payments, or consummate any asset sales, except in the ordinary
course of business, during the forbearance period.
11
During the forbearance period under the First Forbearance Agreement, the applicable margin on
the revolving loans and tranche D term loans increased 2.0% per annum above the rate otherwise
applicable. The Second Forbearance Agreement amended the senior credit facility to, among other
things:
|
|
Increase the applicable margin for both the revolving loans and the tranche D term loans to either Base Rate plus 5.285%
per annum or Eurodollar Rate plus 6.285% per annum; |
|
|
|
Establish a floor for the Base Rate and Eurodollar Rate of 4.25% and 3.25%, respectively, per annum at the earlier of the
termination of the Second Forbearance Agreement or March 31, 2009; |
|
|
|
Eliminate the 2% per annum penalty rate applicable to overdue payments of principal and interest; and |
|
|
|
Make interest payable on the revolving loans and tranche D term loans as of the last business calendar day of each month. |
The Second Forbearance Agreement also required Simmons Bedding to enter into deposit account
control agreements with respect to all its bank accounts, with certain exceptions. The Second
Forbearance Agreement included certain covenants including:
|
|
Minimum liquidity requirements whereby Simmons Bedding will maintain a daily cash balance of not less than $2.5 million for
any two consecutive business days and an average daily cash balance of not less than $7.5 million for any five consecutive
business days; |
|
|
|
Providing a long-term business plan to the senior lenders by January 7, 2009; |
|
|
|
Commencing a process to solicit new debt and/or equity investment by January 9, 2009; |
|
|
|
Providing a potential restructuring proposal to the senior lenders by January 26, 2009; and |
|
|
|
Increased financial reporting requirements. |
As of June 27, 2009, the Company was in compliance with the covenant requirements of the
Second Forbearance Agreement, as amended.
The First Amendment to the Second Forbearance Agreement amended the senior credit facility to,
among other things; increase the applicable margin for both revolving loans and tranche D term
loans to Base Rate plus 6.25% per annum or Eurodollar Rate plus 7.25% per annum.
In connection with the First Forbearance Agreement, Simmons Bedding agreed to pay (a) the
senior lenders who approved the agreement a forbearance fee equal to 0.125% of the aggregate
outstanding amount of such lenders outstanding debt under the senior credit facility ($0.6
million) and (b) the fees and expenses of the lenders counsel in connection with the First
Forbearance Agreement. In connection with the Second Forbearance Agreement, Simmons Bedding agreed
to pay (a) the senior lenders who approved the agreement a forbearance fee equal to 0.5% of the
aggregate outstanding amount of such lenders outstanding debt under the senior credit facility
($2.6 million) and (b) the fees and expenses of the lenders counsel and financial advisor in
connection with the Second Forbearance Agreement. The Company capitalized the lender fees of $3.3
million in 2008 and expensed the third party fees associated with the forbearance agreements as
incurred.
In connection with the Third Amendment to the Second Forbearance Agreement, Simmons Bedding
agreed to pay the senior lenders who approved the agreement a forbearance fee equal to 0.15% of the
aggregate outstanding amount of approving lenders outstanding debt ($0.7 million), which the
Company capitalized for the quarter ending September 26, 2009.
During the forbearance period as extended, Simmons Bedding has met various covenants and other
provisions related to continued progress in its restructuring efforts and reporting on the status
of the restructuring process.
12
Subordinated Notes
Simmons Beddings Subordinated Notes bear interest at the rate of 7.875% per annum, which is
payable semi-annually in cash in arrears on January 15 and July 15. The Subordinated Notes mature
on January 15, 2014 and are subordinated in right of payment to all existing and future senior
indebtedness of Simmons Bedding.
The Subordinated Notes are redeemable at the option of the Company beginning January 15, 2009
at prices decreasing from 103.9% of the principal amount thereof to par on January 15, 2012 and
thereafter. The Company is not required to make mandatory redemption or sinking fund payments with
respect to the Subordinated Notes.
The indenture for the Subordinated Notes requires Simmons Bedding to comply with certain
restrictive covenants, including restrictions on dividends, and limitations on the occurrence of
indebtedness, certain payments and distributions, and sales of Simmons Beddings assets and stock.
Simmons Bedding did not make scheduled interest payments of $7.9 million due on January 15,
2009 and July 15, 2009 on the Subordinated Notes resulting in defaults under the indenture
governing the Subordinated Notes. On February 14, 2009, the default associated with the failure to
pay the interest due on January 15, 2009 matured into an event of default, which gave the holders
of the Subordinated Notes the right to declare the full amount of the Subordinated Notes
immediately due and payable. On February 4, 2009, Simmons Bedding and a majority of the
outstanding Subordinated Notes holders approved a Forbearance Agreement to the Indenture
(Subordinated Forbearance Agreement), pursuant to which such noteholders agreed to refrain from
enforcing their respective rights and remedies under the Subordinated Notes and the related
indenture through March 31, 2009. In connection with the Subordinated Forbearance Agreement,
Simmons Bedding also agreed to pay the fees and expenses of the legal and financial advisors of the
committee to the noteholders. Simmons Bedding entered into amendments to the Subordinated
Forbearance Agreement on March 25, 2009, May 27, 2009, June 30, 2009, and August 14, 2009, whereby
the majority of the outstanding Subordinated Notes holders extended their forbearance period
through May 31, 2009, June 30, 2009, August 14, 2009, and August 31, 2009, respectively. Pursuant
to the terms of the Subordinated Forbearance Agreement, the noteholders party to the Subordinated
Forbearance Agreement have the obligation to take any actions that are necessary to prevent an
acceleration of the payments due under the Subordinated Notes during the forbearance period.
Because the noteholders parties to the Subordinated Forbearance Agreement represent a majority of
the Subordinated Notes, they have the power under the indenture to rescind any acceleration of the
Subordinated Notes by either the trustee or the minority holders of the Subordinated Notes. In
consideration for their entry into the March 25, 2009 amendment to the Subordinated Forbearance
Agreement, the noteholders party to the Subordinated Forbearance Agreement received an amendment
fee equal to 0.5% of the aggregate outstanding amount of such holders Subordinated Notes ($0.5
million). The Company capitalized the lender fees of $0.5 million in the quarter ended March 28,
2009 and expensed the third party fees associated with the forbearance agreements as incurred.
13
Discount Notes
The Companys Discount Notes, with an aggregate principal amount at maturity of $269.0
million, bear interest at the rate of 10.0% per annum payable semi-annually in cash in arrears on
June 15 and December 15 of each year commencing on June 15, 2010. Prior to December 15, 2009,
interest accrues on the Discount Notes in the form of an increase in the accreted value of the
Discount Notes. The Companys ability to make payments on the Discount Notes is dependent on the
earnings and distribution of funds from Simmons Bedding to Holdings.
The Discount Notes are redeemable at the Companys option beginning December 15, 2009 at
prices decreasing from 105.0% of the principal amount thereof to par on December 15, 2012 and
thereafter. The Company is not required to make mandatory redemption or sinking fund payments with
respect to the Discount Notes.
If any of the Discount Notes are outstanding on June 15, 2010, the Company is obligated to
redeem for cash a portion of each Discount Note then outstanding in an amount equal to (i) the
excess of the aggregate amount of accrued and unpaid interest and original issue discount on the
Discount Notes over (ii) the issue price of the Discount Notes multiplied by the yield to maturity
of the Discount Notes (the Mandatory Principal Redemption Amount) plus a premium equal to 5.0%
(one-half of the coupon) of the Mandatory Principal Redemption Amount. No partial redemption or
repurchase of the Discount Notes pursuant to any other provision of the indenture will alter the
obligation of the Company to make this redemption with respect to any Discount Notes then
outstanding. Assuming no redemptions prior to June 15, 2010, the Company would be obligated to
make a mandatory principal payment of $90.2 million and an interest and premium payment of $18.0
million on June 15, 2010.
The indenture for the Discount Notes requires Holdings to comply with certain restrictive
covenants, including a restriction on dividends; and limitations on the incurrence of indebtedness,
certain payments and distributions, and sales of Holdings assets and stock. Holdings was in
compliance with such covenants as of June 27, 2009.
Debt & Related Unamortized Debt Issue Costs Classification
As a result of the covenant default and the lenders having the right to demand payment within
the next twelve months on the senior credit facility, Subordinated Notes and, to the extent the
rights under the senior credit facility were accelerated, the Discount Notes, the Company has
reclassified these debt obligations from non-current liabilities to current liabilities and the
related unamortized debt issue costs from non-current assets to current assets on the accompanying
condensed consolidated balance sheets.
14
F. Segment Information
The Company has determined that it has two reportable segments organized by geographic area,
Domestic (including Puerto Rico) and Canada. Both segments manufacture, sell and distribute
premium branded bedding products to retail customers and institutional users of bedding products,
such as the hospitality industry.
The Company evaluates segment performance and allocates resources based on net sales and
Adjusted EBITDA. Adjusted EBITDA differs from the term EBITDA as it is commonly used. In addition
to adjusting net income (loss) to exclude interest expense, income taxes, depreciation and
amortization, Adjusted EBITDA also adjusts net income (loss) by excluding items or expenses not
typically excluded in the calculation of EBITDA such as management fees and unusual or
non-recurring items as defined by the Companys senior credit facility. Management believes the
aforementioned approach is the most informative representation of how management evaluates
performance. Adjusted EBITDA does not represent net income (loss) or cash flow from operations as
those terms are defined by GAAP and does not necessarily indicate whether cash flows will be
sufficient to fund cash needs.
The following tables summarize our segment information for the periods ended June 27, 2009 and
June 28, 2008:
Quarter Ended June 27, 2009
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Eliminations |
|
|
Totals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales to external customers |
|
$ |
193,249 |
|
|
$ |
24,755 |
|
|
$ |
|
|
|
$ |
218,004 |
|
Intersegment net sales |
|
|
2,032 |
|
|
|
|
|
|
|
(2,032 |
) |
|
|
|
|
Adjusted EBITDA |
|
|
31,544 |
|
|
|
2,635 |
|
|
|
(56 |
) |
|
|
34,123 |
|
Depreciation and amortization expense |
|
|
6,886 |
|
|
|
1,069 |
|
|
|
|
|
|
|
7,955 |
|
Expenditures for long-lived assets |
|
|
450 |
|
|
|
227 |
|
|
|
|
|
|
|
677 |
|
Segment assets |
|
|
910,793 |
|
|
|
112,030 |
|
|
|
(126,853 |
) |
|
|
895,970 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation of net loss to Adjusted EBITDA: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(4,914 |
) |
|
$ |
(791 |
) |
|
$ |
(56 |
) |
|
$ |
(5,761 |
) |
Depreciation and amortization |
|
|
6,886 |
|
|
|
1,069 |
|
|
|
|
|
|
|
7,955 |
|
Income taxes |
|
|
169 |
|
|
|
(203 |
) |
|
|
|
|
|
|
(34 |
) |
Interest expense |
|
|
23,235 |
|
|
|
1,759 |
|
|
|
|
|
|
|
24,994 |
|
Restructuring charges |
|
|
6,672 |
|
|
|
215 |
|
|
|
|
|
|
|
6,887 |
|
Management fees |
|
|
55 |
|
|
|
320 |
|
|
|
|
|
|
|
375 |
|
Gain on foreign currency |
|
|
(773 |
) |
|
|
(185 |
) |
|
|
|
|
|
|
(958 |
) |
State taxes in lieu of income taxes |
|
|
70 |
|
|
|
|
|
|
|
|
|
|
|
70 |
|
Product regulatory compliance |
|
|
428 |
|
|
|
|
|
|
|
|
|
|
|
428 |
|
Other |
|
|
(284 |
) |
|
|
451 |
|
|
|
|
|
|
|
167 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
31,544 |
|
|
$ |
2,635 |
|
|
$ |
(56 |
) |
|
$ |
34,123 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15
Quarter Ended June 28, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Eliminations |
|
|
Totals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales to external customers |
|
$ |
229,112 |
|
|
$ |
38,571 |
|
|
$ |
|
|
|
$ |
267,683 |
|
Intersegment net sales |
|
|
143 |
|
|
|
|
|
|
|
(143 |
) |
|
|
|
|
Adjusted EBITDA |
|
|
28,963 |
|
|
|
4,372 |
|
|
|
|
|
|
|
33,335 |
|
Depreciation and amortization expense |
|
|
9,049 |
|
|
|
1,399 |
|
|
|
|
|
|
|
10,448 |
|
Expenditures for long-lived assets |
|
|
6,435 |
|
|
|
907 |
|
|
|
|
|
|
|
7,342 |
|
Segment assets |
|
|
1,443,340 |
|
|
|
180,504 |
|
|
|
(138,338 |
) |
|
|
1,485,506 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation of net income to Adjusted EBITDA: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
75 |
|
|
$ |
1,106 |
|
|
$ |
|
|
|
$ |
1,181 |
|
Depreciation and amortization |
|
|
9,049 |
|
|
|
1,399 |
|
|
|
|
|
|
|
10,448 |
|
Income taxes |
|
|
1,299 |
|
|
|
(443 |
) |
|
|
|
|
|
|
856 |
|
Interest expense |
|
|
15,499 |
|
|
|
2,091 |
|
|
|
|
|
|
|
17,590 |
|
Transaction expenses including integration costs |
|
|
84 |
|
|
|
|
|
|
|
|
|
|
|
84 |
|
Restructuring charges |
|
|
1,464 |
|
|
|
|
|
|
|
|
|
|
|
1,464 |
|
Relocation of facilities |
|
|
329 |
|
|
|
116 |
|
|
|
|
|
|
|
445 |
|
Non-recurring professional service fees |
|
|
12 |
|
|
|
|
|
|
|
|
|
|
|
12 |
|
Management fees |
|
|
(143 |
) |
|
|
520 |
|
|
|
|
|
|
|
377 |
|
ERP system implementation costs |
|
|
603 |
|
|
|
|
|
|
|
|
|
|
|
603 |
|
Gain on foreign currency |
|
|
(50 |
) |
|
|
(278 |
) |
|
|
|
|
|
|
(328 |
) |
State taxes in lieu of income taxes |
|
|
191 |
|
|
|
|
|
|
|
|
|
|
|
191 |
|
Other |
|
|
551 |
|
|
|
(139 |
) |
|
|
|
|
|
|
412 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
28,963 |
|
|
$ |
4,372 |
|
|
$ |
|
|
|
$ |
33,335 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16
Six Months Ended June 27, 2009
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Eliminations |
|
|
Totals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales to external customers |
|
$ |
393,843 |
|
|
$ |
46,728 |
|
|
$ |
|
|
|
$ |
440,571 |
|
Intersegment net sales |
|
|
5,059 |
|
|
|
|
|
|
|
(5,059 |
) |
|
|
|
|
Adjusted EBITDA |
|
|
66,528 |
|
|
|
2,930 |
|
|
|
(56 |
) |
|
|
69,402 |
|
Depreciation and amortization expense |
|
|
13,851 |
|
|
|
2,069 |
|
|
|
|
|
|
|
15,920 |
|
Expenditures for long-lived assets |
|
|
642 |
|
|
|
227 |
|
|
|
|
|
|
|
869 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation of net loss to Adjusted EBITDA: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(6,511 |
) |
|
$ |
(2,415 |
) |
|
$ |
(56 |
) |
|
$ |
(8,982 |
) |
Depreciation and amortization |
|
|
13,851 |
|
|
|
2,069 |
|
|
|
|
|
|
|
15,920 |
|
Income taxes |
|
|
993 |
|
|
|
(1,850 |
) |
|
|
|
|
|
|
(857 |
) |
Interest expense |
|
|
44,398 |
|
|
|
3,416 |
|
|
|
|
|
|
|
47,814 |
|
Restructuring charges |
|
|
14,022 |
|
|
|
215 |
|
|
|
|
|
|
|
14,237 |
|
Management fees |
|
|
203 |
|
|
|
622 |
|
|
|
|
|
|
|
825 |
|
(Gain) loss on foreign currency |
|
|
(615 |
) |
|
|
133 |
|
|
|
|
|
|
|
(482 |
) |
State taxes in lieu of income taxes |
|
|
133 |
|
|
|
|
|
|
|
|
|
|
|
133 |
|
Product regulatory compliance |
|
|
645 |
|
|
|
|
|
|
|
|
|
|
|
645 |
|
Other |
|
|
(591 |
) |
|
|
740 |
|
|
|
|
|
|
|
149 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
66,528 |
|
|
$ |
2,930 |
|
|
$ |
(56 |
) |
|
$ |
69,402 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17
Six Months Ended June 28, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic |
|
|
Canada |
|
|
Eliminations |
|
|
Totals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales to external customers |
|
$ |
474,114 |
|
|
$ |
70,450 |
|
|
$ |
|
|
|
$ |
544,564 |
|
Intersegment net sales |
|
|
206 |
|
|
|
|
|
|
|
(206 |
) |
|
|
|
|
Adjusted EBITDA |
|
|
59,254 |
|
|
|
7,062 |
|
|
|
|
|
|
|
66,316 |
|
Depreciation and amortization expense |
|
|
15,930 |
|
|
|
2,734 |
|
|
|
|
|
|
|
18,664 |
|
Expenditures for long-lived assets |
|
|
10,848 |
|
|
|
1,786 |
|
|
|
|
|
|
|
12,634 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation of net income to Adjusted EBITDA: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
3,493 |
|
|
$ |
203 |
|
|
$ |
|
|
|
$ |
3,696 |
|
Depreciation and amortization |
|
|
15,930 |
|
|
|
2,734 |
|
|
|
|
|
|
|
18,664 |
|
Income taxes |
|
|
3,551 |
|
|
|
(923 |
) |
|
|
|
|
|
|
2,628 |
|
Interest expense |
|
|
31,330 |
|
|
|
4,206 |
|
|
|
|
|
|
|
35,536 |
|
Transaction expenses including integration costs |
|
|
191 |
|
|
|
|
|
|
|
|
|
|
|
191 |
|
Non-recurring professional service fees |
|
|
726 |
|
|
|
|
|
|
|
|
|
|
|
726 |
|
Restructuring charges |
|
|
1,464 |
|
|
|
|
|
|
|
|
|
|
|
1,464 |
|
Relocation of facilities |
|
|
814 |
|
|
|
189 |
|
|
|
|
|
|
|
1,003 |
|
Management fees |
|
|
(178 |
) |
|
|
1,043 |
|
|
|
|
|
|
|
865 |
|
ERP system implementation costs |
|
|
1,085 |
|
|
|
|
|
|
|
|
|
|
|
1,085 |
|
(Gain) loss on foreign currency |
|
|
354 |
|
|
|
(883 |
) |
|
|
|
|
|
|
(529 |
) |
State taxes in lieu of income taxes |
|
|
297 |
|
|
|
|
|
|
|
|
|
|
|
297 |
|
Other |
|
|
197 |
|
|
|
493 |
|
|
|
|
|
|
|
690 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
59,254 |
|
|
$ |
7,062 |
|
|
$ |
|
|
|
$ |
66,316 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18
G. Restructuring Charges
In June and October 2008, the Company announced workforce reductions in response to the
downturn in the economy since the second half of 2007. These workforce reductions were completed
in 2008. Associates terminated under these announced workforce reductions were offered certain
benefits including severance, outplacement services and health insurance. The Company recognized a
pre-tax restructuring charge for severance and benefits of $3.8 million in 2008 ($1.5 million in
the quarter and six months ended June 28, 2008) related to these planned workforce reductions,
which will be payable through March 2010. The Company will not incur cash payments after March
2010 associated with these workforce reductions.
On August 15, 2008, the Bramalea, Ontario facilitys office and production workers, all
members of the Canada Auto Workers Union and its Local 513 (CAW 513), ceased work and commenced a
strike against the facility. As the strike continued, the Company evaluated its various
alternatives, and decided to initiate the actions required to permanently shut down the facility
due to the financial impact of the strike and its effect on customers and revenues. The closure of
the Bramalea, Ontario facility was announced in September 2008. In connection with the facility
closure, CAW 513 filed an unfair labor practice charge against Holdings, Simmons Bedding and
Simmons Canada Inc. (Simmons Canada), and three former production employees filed a wrongful
termination claim against Simmons Canada on behalf of themselves and a class of similarly situated
former employees. The unfair labor practice charge was settled and the Ontario Labour Relations
Board dismissed the matter in June 2009. The wrongful termination claim was dismissed in July
2009. An estimated settlement amount was recorded as part of the restructuring severance and
benefits in 2008 and payment is expected during the third quarter of 2009.
In September 2008, the Company announced and completed the closure of its Mableton, Georgia
manufacturing facility. The decision to close the Mableton, Georgia facility resulted from the
then current macroeconomic environment and lower manufacturing requirements.
The Company recognized a pre-tax restructuring charge in 2008 related to the closure of the
Bramalea, Ontario and Mableton, Georgia facilities of $4.7 million, which consisted of $2.4 million
in severance and benefits and $2.3 million in lease facility costs. In addition to the costs
recognized in 2008, the Company anticipates incurring certain other exit charges related to the
closure of the facilities that will be expensed as incurred. These additional charges include cost
principally related to maintaining the unoccupied leased facilities and the relocation of
manufacturing equipment. While the estimate of these costs, in total, is not yet final, the
Company currently expects that the costs will total approximately $1.4 million to be incurred
through the first quarter of 2010. The Company incurred $0.3 million of such exit charges in both
the quarter and six months ended June 27, 2009.
In September 2008, Charles R. Eitel resigned as Chairman and Chief Executive Officer of the
Company and entered into a written separation agreement with the Company. Mr. Eitel assumed the
role of Vice Chairman of the Board of Directors. The Company recorded a restructuring charge in
2008 of $1.7 million related to severance and benefits payable until September 2010 under the
separation agreement.
The following table represents the pre-tax restructuring charges related to the above
initiatives, including facility closures and organizational changes, recognized during the quarter
and six months ended June 28, 2008:
|
|
|
|
|
|
|
|
|
|
|
Quarter |
|
|
Six Months |
|
|
|
Ended |
|
|
Ended |
|
|
|
June 28, |
|
|
June 28, |
|
|
|
2008 |
|
|
2008 |
|
Domestic |
|
$ |
1,464 |
|
|
$ |
1,464 |
|
|
|
|
|
|
|
|
Total |
|
$ |
1,464 |
|
|
$ |
1,464 |
|
|
|
|
|
|
|
|
19
The following table reconciles the accrued restructuring charges discussed above for the six
months ended June 27, 2009 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at |
|
|
|
|
|
|
|
|
|
|
Foreign |
|
|
Balance at |
|
|
|
December 27, |
|
|
|
|
|
|
Cash |
|
|
Currency |
|
|
June 27, |
|
|
|
2008 |
|
|
Adjustments |
|
|
Reduction |
|
|
Translation |
|
|
2009 |
|
Severance and benefit costs |
|
$ |
4,931 |
|
|
$ |
27 |
|
|
$ |
(1,729 |
) |
|
$ |
93 |
|
|
$ |
3,322 |
|
Facility lease costs |
|
|
1,597 |
|
|
|
|
|
|
|
(890 |
) |
|
|
46 |
|
|
|
753 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued restructuring charges |
|
$ |
6,528 |
|
|
$ |
27 |
|
|
$ |
(2,619 |
) |
|
$ |
139 |
|
|
$ |
4,075 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In addition to the restructuring charges discussed above, the Company incurred legal and
professional fees in connection with the Companys restructuring of $6.6 million and $13.9 million
during the quarter and six months ended June 27, 2009, respectively (see Note A Basis of
Presentation, Liquidity and Ability to Continue as a Going Concern).
20
H. Commitments and Contingencies
From time to time, the Company has been involved in various legal proceedings. In November
2008, CAW 513 filed an unfair labor practice charge against Holdings, Simmons Bedding and Simmons
Canada and three former production employees filed a wrongful termination claim against Simmons
Canada on behalf of themselves and a class of similarly situated
former employees (see Note G
Restructuring Charges).
On June 10, 2009, Tempur-Pedic International Inc., Tempur-Pedic Management, Inc. and
Tempur-Pedic North America, LLC (collectively Tempur-Pedic) filed a lawsuit against certain
bedding manufacturers, including Simmons Bedding and its subsidiary, The Simmons Manufacturing Co.,
LLC (Simmons Manufacturing), alleging such companies are violating one of their patents. The
lawsuit, which was filed in the U.S. District Court for the Western District of Virginia, outlines
patent infringement claims against each of the defendant companies. The Company intends to defend
this action and cannot, at this time, reasonably predict the ultimate outcome of the
lawsuit. While the Company does not expect that any sums it may have to pay in connection with
this or any other legal proceeding would have a materially adverse effect on its consolidated
financial position or net cash flows, a future charge for damage awards could have a significant
impact on the Companys net income in the period in which it is recorded.
With the exception of the matters discussed above, the Company believes that all current
litigation is routine in nature, incidental to the conduct of its business and not material.
The Company does not guarantee nor have any of our assets pledged as collateral under Bedding
Superholdcos $300 million Toggle Loan. The Toggle Loan is structurally subordinated in right of
payment to any of the Companys existing and future liabilities. Although the Company is not
obligated to make cash distributions to service principal and interest on the Toggle Loan, Bedding
Superholdco is dependent on the Companys cash flows to meet the interest and principal payments
under the Toggle Loan. The Toggle Loan is not included in the Companys financial
statements. Under the terms of the credit agreement governing the Toggle Loan, Bedding Superholdco
may elect to pay future interest in cash or add such interest to the principal amount of the Toggle
Loan. However, the Second Forbearance Agreement, as amended, prohibits the Company from making
distributions to its parent companies during the forbearance period, except in the ordinary course
of business. Accordingly, Bedding Superholdco elected to make its February 2009, August 2009 and
February 2010 interest payments on the Toggle Loan by adding such interest to the principal amount
of the Toggle Loan. The Toggle Loan matures in February 2012. An acceleration of indebtedness
under the senior credit facility, Subordinated Notes or Discount Notes would trigger an event of
default under the Toggle Loan.
I. Fair Value of Financial Instruments
The carrying amount of the Companys financial instruments, consisting of cash and cash
equivalents, accounts receivable, accounts payable and certain other liabilities, approximate fair
value due to their relatively short maturities.
Under Statement of Financial Accounting Standard (SFAS) No. 157, Fair Value Measurements
(SFAS 157), fair value is defined as the exit price, or the amount that would be received to sell
an asset or paid to transfer a liability in an orderly transaction between market participants as
of the measurement date. SFAS 157 also establishes a hierarchy for inputs used in measuring fair
value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by
requiring that the most observable inputs be used when available. Observable inputs are inputs
market participants would use in valuing the asset or liability developed based on market data
obtained from sources independent of the Company. Unobservable inputs are inputs that reflect the
Companys assumptions about the factors market participants would use in valuing the asset or
liability developed based upon the best information available in the circumstances. The hierarchy
is broken down into three levels:
Level 1 Quoted prices (unadjusted) in active markets for identical assets or liabilities;
Level 2 Quoted prices for similar assets or liabilities in active markets, quoted prices for
identical or similar assets or liabilities in markets that are not active, and inputs (other than
quoted prices) that are observable for the asset or liability, either directly or indirectly;
Level 3 Unobservable inputs for which little or no market activity exists.
The fair value of the Companys tranche D term loan, Subordinated Notes and Discount
Notes is based on Level 2 inputs, based on quotes from dealers, where obtainable, or the value of
the most recent trade in the market. The following table compares the carrying values and
estimated fair values of the Companys tranche D term loan, Subordinated Notes and Discount Notes
at June 27, 2009 (in millions).
|
|
|
|
|
|
|
|
|
|
|
Carrying |
|
|
Estimated |
|
|
|
Value |
|
|
Fair Value |
|
Tranche D term loan |
|
$ |
465.0 |
|
|
$ |
430.1 - $441.8 |
|
Subordinated notes |
|
$ |
200.0 |
|
|
$ |
90.0 |
|
Discount notes |
|
$ |
257.0 |
|
|
$ |
25.6 |
|
21
J. Accounting Pronouncements
In September 2006, the Financial Accounting Standards Board (FASB) issued Statement of
Financial Accounting Standards (SFAS), SFAS No. 157, Fair Value Measurements (SFAS 157). SFAS
157 addresses the measurement of fair value by companies when they are required to use a fair value
measure for recognition or disclosure purposes under GAAP. SFAS 157 provides a common definition
of fair value to be used throughout GAAP, which is intended to make the measurement of fair value
more consistent and comparable and improve disclosures about those measures. SFAS 157 clarifies
the principal that fair value should be based on the assumptions market participants would use when
pricing an asset or liability and establishes a fair value hierarchy that prioritizes the
information used to develop those assumptions. The Company adopted SFAS 157 for financial assets
and liabilities at the beginning of its fiscal year 2008 and adopted SFAS 157 for nonfinancial
assets and liabilities at the beginning of its fiscal year 2009. The adoption of SFAS 157 did not
have a material impact on the Companys consolidated financial position and results of
operations. The Company is still assessing the impact that SFAS 157 will have on its goodwill and
intangible asset impairment testing, which is performed annually during the Companys fiscal fourth
quarter unless a triggering event indicates that such test should be performed earlier in the year.
In December 2007, the FASB issued SFAS 141 (Revised 2007), Business Combinations (SFAS
141R). SFAS 141R replaces FASB Statement No. 141, Accounting for Business Combinations. SFAS
141R requires that the acquisition method of accounting be used in all business combinations and
for an acquirer to be identified for each business combination. SFAS 141R defines the acquirer as
the entity that obtains control of one or more businesses in the business combination and
establishes the acquisition date as the date that the acquirer achieves control. It requires an
acquirer to recognize the assets acquired, the liabilities assumed, and any non-controlling
interest in the acquire at the acquisition date, measured at their fair values as of that
date. SFAS 141R is effective for the Company and business combinations for which the acquisition
date is on or after the beginning of fiscal year 2009. The impact on the Company of adopting SFAS
141R will depend on the nature, terms and size of the business combinations completed after the
effective date.
In December 2008, the FASB issued FSP FAS 132(R)-1, Employers Disclosures about Postretirement
Benefit Plan Assets (FSP 132(R)-1). This FSP amends FASB Statement No. 132(R), Employers
Disclosures about Pensions and Other Postretirement Benefits, to provide guidance on an employers
disclosures about plan assets of a defined benefit pension or other postretirement plan. FAS
132(R)-1 provides guidance on an employers disclosure about plan assets of a defined benefit
pension or other postretirement plans. This standard is effective for fiscal years ending after
December 15, 2009. The Company is assessing the impact of this guidance on the Companys
consolidated financial statements.
In April 2009, the FASB issued FSP FAS 107-1 and ABP 28-1, Interim Disclosure about Fair Value
of Financial Instruments (FSP 107-1 and ABP 28-1). This FSP amends FASB Statement No. 107,
Disclosures about Fair Value of Financial Instruments, to require disclosures about fair value of
financial instruments for interim reporting periods of publicly traded companies as well as in
annual financial statements. This FSP also amends APB Opinion No. 28, Interim Financial Reporting,
to require those disclosures in summarized financial information at interim reporting
periods. This FSP is effective for interim reporting periods ending after June 15, 2009. This FSP
was adopted by the Company for the quarter ended June 27, 2009 and the Companys disclosures have
been properly adjusted to reflect the adoption of this statement.
In May 2009, the FASB issued SFAS 165, Subsequent Events (SFAS 165). SFAS 165 establishes
principles and requirements for subsequent events. The statement details the period after the
balance sheet date during which the Company should evaluate events or transactions that may occur
for potential recognition or disclosure in the financial statements, the circumstances under which
the Company should recognize events or transactions occurring after the balance sheet date in its
financial statements and the required disclosures for such events. This statement is effective for
interim or annual reporting periods ending after June 15, 2009. This statement was adopted by the
Company for the quarter ended June 27, 2009 and the Companys disclosures have been properly
adjusted to reflect the adoption of this statement.
In June 2009, the FASB issued SFAS 168, The FASB Accounting Standards Codification and the
Hierarchy of Generally Accepted Accounting Principles (SFAS 168). SFAS 168 amends SFAS 162, Fair
Value Accounting An Overview of FASB Statements 157 and 159. SFAS 168 confirms the FASB
Accounting Standards Codification (Codification) will become the single official source of
authoritative US GAAP (other than guidance issued by the Securities and Exchange Commission),
superseding existing FASB, American Institute of Certified Public Accountants (AICPA), Emerging
Issues Task Force (EITF), and related literature. Therefore, only one level of authoritative US
GAAP will exist. The Codification does not change US GAAP; it introduces a new structure that is
organized in an easily accessible online research system. The Codification becomes effective for
interim and annual periods ending on or after September 15, 2009.
In June 2009, the FAS issued FSP FAS 157-4, Determining Fair Value when the Volume and Level
of Activity have significantly decreased and Identifying Transaction that are not Orderly (FSP
157-4). FSP 157-4 provides additional guidance to highlight and expands on the factors that
should be considered in estimating fair value when there has been a significant decrease in market
activity for a financial asset. The FSP is effective for periods ending after June 15, 2009. This
FSP was adopted by the Company for the quarter ended June 27, 2009 and had no impact on the
Companys consolidated financial statements.
22
Simmons Company and Subsidiaries
Notes to Unaudited Condensed Consolidated Financial Statements
K. Subsequent Events
In November 2008, CAW 513 filed an unfair labor practice charge against Holdings, Simmons Bedding and Simmons
Canada and three former production employees filed a wrongful termination claim against Simmons Canada on behalf of
themselves and a class of similarly situated former employees. In July 2009, the wrongful termination claim was
dismissed (See Note G Restructuring Charges).
On August 14, 2009, Simmons Bedding amended its forbearance agreements with the majority of its senior lenders and
noteholders to extend the forbearance period through August 31, 2009.
On August 18, 2009, Simmons Bedding amended its Amended and Restated Certificate of Incorporation to provide for
three classes of directors, as nearly equal in number as possible. The current members of the Board of Directors of
Simmons Bedding will be divided into three classes. The term of office of the first class of directors will expire in
2009, the term of office of the second class of directors will expire in 2010 and the term of the third class of
directors will expire in 2011.
On August 20, 2009, THL-SC Bedding Company filed a certificate of amendment of certificate of incorporation to
change its name to Bedding Holdco Incorporated. On August 20, 2009, Simmons Holdco, Inc., Holdings parent company,
also filed a certificate of amendment of certificate of incorporation to change its name to Bedding Superholdco
Incorporated.
The Company evaluated all subsequent event activity through August 21, 2009 (the issue date of this Quarterly
Report on Form 10-Q) and concluded that no additional subsequent events have occurred that would require recognition in
the financial statements or disclosure in the notes to the financial statements.
L. Guarantor / Non-Guarantor Statements
Simmons Beddings 7.875% senior subordinated notes due 2014 are fully and unconditionally guaranteed, on a joint
and several basis, and on an unsecured, senior subordinated basis by Holdings and Bedding Holdco (the Parent
Guarantors) and all of Simmons Beddings active domestic subsidiaries (the Subsidiary Guarantors). All of the
Subsidiary Guarantors are 100% owned by Simmons Bedding. None of Simmons Beddings direct or indirect subsidiaries
located in U.S. territories or outside of the U.S. guarantee the 7.875% senior subordinated notes due 2014 (the
Non-Guarantor Subsidiaries). The Supplemental Consolidating Condensed Financial Statements provide additional
guarantor/non-guarantor information.
23
Supplemental Consolidating Condensed Statements of Operations
For the Quarter Ended June 28, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Guarantor |
|
|
Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
|
|
|
$ |
(24,569 |
) |
|
$ |
251,681 |
|
|
$ |
40,714 |
|
|
$ |
(143 |
) |
|
$ |
267,683 |
|
Cost of products sold |
|
|
|
|
|
|
809 |
|
|
|
135,593 |
|
|
|
30,214 |
|
|
|
(143 |
) |
|
|
166,473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
(25,378 |
) |
|
|
116,088 |
|
|
|
10,500 |
|
|
|
|
|
|
|
101,210 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and
administrative expenses |
|
|
|
|
|
|
52,921 |
|
|
|
22,489 |
|
|
|
7,149 |
|
|
|
|
|
|
|
82,559 |
|
Amortization of intangibles |
|
|
|
|
|
|
738 |
|
|
|
600 |
|
|
|
249 |
|
|
|
|
|
|
|
1,587 |
|
Intercompany fees |
|
|
|
|
|
|
(77,884 |
) |
|
|
77,348 |
|
|
|
536 |
|
|
|
|
|
|
|
|
|
Licensing revenues |
|
|
|
|
|
|
(381 |
) |
|
|
(1,891 |
) |
|
|
(188 |
) |
|
|
|
|
|
|
(2,460 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(24,606 |
) |
|
|
98,546 |
|
|
|
7,746 |
|
|
|
|
|
|
|
81,686 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
|
|
|
|
(772 |
) |
|
|
17,542 |
|
|
|
2,754 |
|
|
|
|
|
|
|
19,524 |
|
Interest expense |
|
|
5,693 |
|
|
|
9,592 |
|
|
|
193 |
|
|
|
2,112 |
|
|
|
|
|
|
|
17,590 |
|
Interest income |
|
|
|
|
|
|
(9 |
) |
|
|
(9 |
) |
|
|
(85 |
) |
|
|
|
|
|
|
(103 |
) |
Income from subsidiaries |
|
|
5,454 |
|
|
|
14,145 |
|
|
|
|
|
|
|
|
|
|
|
(19,599 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
(239 |
) |
|
|
3,790 |
|
|
|
17,358 |
|
|
|
727 |
|
|
|
(19,599 |
) |
|
|
2,037 |
|
Income tax expense (benefit) |
|
|
(1,420 |
) |
|
|
(1,664 |
) |
|
|
4,382 |
|
|
|
(442 |
) |
|
|
|
|
|
|
856 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
1,181 |
|
|
$ |
5,454 |
|
|
$ |
12,976 |
|
|
$ |
1,169 |
|
|
$ |
(19,599 |
) |
|
$ |
1,181 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24
Simmons Company and Subsidiaries
Notes to Unaudited Condensed Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Operations
For the Six Months Ended June 27, 2009
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Guarantor |
|
|
Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
|
|
|
$ |
(39,908 |
) |
|
$ |
435,039 |
|
|
$ |
50,499 |
|
|
$ |
(5,059 |
) |
|
$ |
440,571 |
|
Cost of products sold |
|
|
|
|
|
|
828 |
|
|
|
218,154 |
|
|
|
37,411 |
|
|
|
(5,003 |
) |
|
|
251,390 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
(40,736 |
) |
|
|
216,885 |
|
|
|
13,088 |
|
|
|
(56 |
) |
|
|
189,181 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and
administrative expenses |
|
|
|
|
|
|
103,994 |
|
|
|
35,888 |
|
|
|
12,157 |
|
|
|
|
|
|
|
152,039 |
|
Amortization of intangibles |
|
|
|
|
|
|
1,477 |
|
|
|
1,200 |
|
|
|
417 |
|
|
|
|
|
|
|
3,094 |
|
Intercompany fees |
|
|
|
|
|
|
(148,750 |
) |
|
|
147,163 |
|
|
|
1,587 |
|
|
|
|
|
|
|
|
|
Licensing revenues |
|
|
|
|
|
|
(550 |
) |
|
|
(3,013 |
) |
|
|
(312 |
) |
|
|
|
|
|
|
(3,875 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(43,829 |
) |
|
|
181,238 |
|
|
|
13,849 |
|
|
|
|
|
|
|
151,258 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
|
|
|
|
3,093 |
|
|
|
35,647 |
|
|
|
(761 |
) |
|
|
(56 |
) |
|
|
37,923 |
|
Interest expense |
|
|
12,144 |
|
|
|
31,859 |
|
|
|
378 |
|
|
|
3,433 |
|
|
|
|
|
|
|
47,814 |
|
Interest income |
|
|
|
|
|
|
(21 |
) |
|
|
(2 |
) |
|
|
(29 |
) |
|
|
|
|
|
|
(52 |
) |
Income from subsidiaries |
|
|
3,162 |
|
|
|
31,086 |
|
|
|
|
|
|
|
|
|
|
|
(34,248 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
(8,982 |
) |
|
|
2,341 |
|
|
|
35,271 |
|
|
|
(4,165 |
) |
|
|
(34,304 |
) |
|
|
(9,839 |
) |
Income tax expense (benefit) |
|
|
|
|
|
|
(821 |
) |
|
|
1,789 |
|
|
|
(1,825 |
) |
|
|
|
|
|
|
(857 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
(8,982 |
) |
|
$ |
3,162 |
|
|
$ |
33,482 |
|
|
$ |
(2,340 |
) |
|
$ |
(34,304 |
) |
|
$ |
(8,982 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25
Simmons Company and Subsidiaries
Notes to Unaudited Condensed Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Operations
For the Six Months Ended June 28, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Guarantor |
|
|
Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
|
|
|
$ |
(46,721 |
) |
|
$ |
516,962 |
|
|
$ |
74,529 |
|
|
$ |
(206 |
) |
|
$ |
544,564 |
|
Cost of products sold |
|
|
|
|
|
|
1,611 |
|
|
|
277,510 |
|
|
|
54,765 |
|
|
|
(206 |
) |
|
|
333,680 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
(48,332 |
) |
|
|
239,452 |
|
|
|
19,764 |
|
|
|
|
|
|
|
210,884 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and
administrative expenses |
|
|
|
|
|
|
111,745 |
|
|
|
44,902 |
|
|
|
14,463 |
|
|
|
|
|
|
|
171,110 |
|
Amortization of intangibles |
|
|
|
|
|
|
1,477 |
|
|
|
1,200 |
|
|
|
499 |
|
|
|
|
|
|
|
3,176 |
|
Intercompany fees |
|
|
|
|
|
|
(161,882 |
) |
|
|
160,048 |
|
|
|
1,834 |
|
|
|
|
|
|
|
|
|
Licensing revenues |
|
|
|
|
|
|
(782 |
) |
|
|
(3,824 |
) |
|
|
(422 |
) |
|
|
|
|
|
|
(5,028 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(49,442 |
) |
|
|
202,326 |
|
|
|
16,374 |
|
|
|
|
|
|
|
169,258 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
|
|
|
|
1,110 |
|
|
|
37,126 |
|
|
|
3,390 |
|
|
|
|
|
|
|
41,626 |
|
Interest expense |
|
|
11,336 |
|
|
|
19,522 |
|
|
|
435 |
|
|
|
4,243 |
|
|
|
|
|
|
|
35,536 |
|
Interest income |
|
|
|
|
|
|
(16 |
) |
|
|
(41 |
) |
|
|
(177 |
) |
|
|
|
|
|
|
(234 |
) |
Income from subsidiaries |
|
|
11,749 |
|
|
|
27,817 |
|
|
|
|
|
|
|
|
|
|
|
(39,566 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
413 |
|
|
|
9,421 |
|
|
|
36,732 |
|
|
|
(676 |
) |
|
|
(39,566 |
) |
|
|
6,324 |
|
Income tax expense (benefit) |
|
|
(3,283 |
) |
|
|
(2,328 |
) |
|
|
9,163 |
|
|
|
(924 |
) |
|
|
|
|
|
|
2,628 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
3,696 |
|
|
$ |
11,749 |
|
|
$ |
27,569 |
|
|
$ |
248 |
|
|
$ |
(39,566 |
) |
|
$ |
3,696 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26
Simmons Company and Subsidiaries
Notes to Unaudited Condensed Consolidated Financial Statements
Supplemental Consolidating Condensed Balance Sheets
As of June 27, 2009
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
|
|
|
$ |
53,032 |
|
|
$ |
6,715 |
|
|
$ |
7,594 |
|
|
$ |
|
|
|
$ |
67,341 |
|
Accounts receivable |
|
|
|
|
|
|
|
|
|
|
79,680 |
|
|
|
21,930 |
|
|
|
(811 |
) |
|
|
100,799 |
|
Inventories |
|
|
|
|
|
|
37 |
|
|
|
25,166 |
|
|
|
6,111 |
|
|
|
(56 |
) |
|
|
31,258 |
|
Other |
|
|
2,440 |
|
|
|
25,280 |
|
|
|
2,999 |
|
|
|
2,138 |
|
|
|
|
|
|
|
32,857 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
2,440 |
|
|
|
78,349 |
|
|
|
114,560 |
|
|
|
37,773 |
|
|
|
(867 |
) |
|
|
232,255 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net |
|
|
|
|
|
|
21,027 |
|
|
|
41,082 |
|
|
|
17,753 |
|
|
|
|
|
|
|
79,862 |
|
Goodwill and other intangibles, net |
|
|
|
|
|
|
66,903 |
|
|
|
438,133 |
|
|
|
63,787 |
|
|
|
|
|
|
|
568,823 |
|
Other assets |
|
|
34,739 |
|
|
|
98,049 |
|
|
|
475 |
|
|
|
1,909 |
|
|
|
(120,142 |
) |
|
|
15,030 |
|
Net investment in and advances to
(from) affiliates |
|
|
(147,588 |
) |
|
|
420,497 |
|
|
|
12,245 |
|
|
|
(2,487 |
) |
|
|
(282,667 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
(110,409 |
) |
|
$ |
684,825 |
|
|
$ |
606,495 |
|
|
$ |
118,735 |
|
|
$ |
(403,676 |
) |
|
$ |
895,970 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY (DEFICIT) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current maturities of long-term
debt |
|
$ |
257,044 |
|
|
$ |
729,532 |
|
|
$ |
300 |
|
|
$ |
214 |
|
|
$ |
|
|
|
$ |
987,090 |
|
Accounts payable and accrued
liabilities |
|
|
129 |
|
|
|
62,248 |
|
|
|
51,053 |
|
|
|
27,000 |
|
|
|
(12,514 |
) |
|
|
127,916 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
257,173 |
|
|
|
791,780 |
|
|
|
51,353 |
|
|
|
27,214 |
|
|
|
(12,514 |
) |
|
|
1,115,006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
|
|
|
|
|
|
|
|
|
12,200 |
|
|
|
74,441 |
|
|
|
(73,712 |
) |
|
|
12,929 |
|
Deferred income taxes |
|
|
|
|
|
|
38,220 |
|
|
|
90,349 |
|
|
|
3,292 |
|
|
|
(34,726 |
) |
|
|
97,135 |
|
Other non-current liabilities |
|
|
|
|
|
|
25,540 |
|
|
|
8,106 |
|
|
|
4,836 |
|
|
|
|
|
|
|
38,482 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
257,173 |
|
|
|
855,540 |
|
|
|
162,008 |
|
|
|
109,783 |
|
|
|
(120,952 |
) |
|
|
1,263,552 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity (deficit) |
|
|
(367,582 |
) |
|
|
(170,715 |
) |
|
|
444,487 |
|
|
|
8,952 |
|
|
|
(282,724 |
) |
|
|
(367,582 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
stockholders equity (deficit) |
|
$ |
(110,409 |
) |
|
$ |
684,825 |
|
|
$ |
606,495 |
|
|
$ |
118,735 |
|
|
$ |
(403,676 |
) |
|
$ |
895,970 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27
Simmons Company and Subsidiaries
Notes to Unaudited Condensed Consolidated Financial Statements
Supplemental Consolidating Condensed Balance Sheets
As of December 27, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Subsidiary |
|
|
Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Guarantors |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
|
|
|
$ |
46,255 |
|
|
$ |
2,337 |
|
|
$ |
6,338 |
|
|
$ |
|
|
|
$ |
54,930 |
|
Accounts receivable |
|
|
|
|
|
|
|
|
|
|
75,634 |
|
|
|
21,904 |
|
|
|
(1,606 |
) |
|
|
95,932 |
|
Inventories |
|
|
|
|
|
|
37 |
|
|
|
27,414 |
|
|
|
4,387 |
|
|
|
|
|
|
|
31,838 |
|
Other |
|
|
2,602 |
|
|
|
17,086 |
|
|
|
12,505 |
|
|
|
2,593 |
|
|
|
|
|
|
|
34,786 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
2,602 |
|
|
|
63,378 |
|
|
|
117,890 |
|
|
|
35,222 |
|
|
|
(1,606 |
) |
|
|
217,486 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net |
|
|
|
|
|
|
23,335 |
|
|
|
44,429 |
|
|
|
18,728 |
|
|
|
|
|
|
|
86,492 |
|
Goodwill and other intangibles, net |
|
|
|
|
|
|
68,381 |
|
|
|
439,337 |
|
|
|
61,078 |
|
|
|
|
|
|
|
568,796 |
|
Other assets |
|
|
34,736 |
|
|
|
100,000 |
|
|
|
512 |
|
|
|
8,758 |
|
|
|
(125,983 |
) |
|
|
18,023 |
|
Net investment in and advances to
(from) affiliates |
|
|
(154,430 |
) |
|
|
434,362 |
|
|
|
299,351 |
|
|
|
(1,797 |
) |
|
|
(577,486 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
(117,092 |
) |
|
$ |
689,456 |
|
|
$ |
901,519 |
|
|
$ |
121,989 |
|
|
$ |
(705,075 |
) |
|
$ |
890,797 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY (DEFICIT) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current maturities of long-term
debt |
|
$ |
245,106 |
|
|
$ |
729,533 |
|
|
$ |
300 |
|
|
$ |
213 |
|
|
$ |
|
|
|
$ |
975,152 |
|
Accounts payable and accrued
liabilities |
|
|
129 |
|
|
|
55,714 |
|
|
|
58,212 |
|
|
|
30,172 |
|
|
|
(16,166 |
) |
|
|
128,061 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
245,235 |
|
|
|
785,247 |
|
|
|
58,512 |
|
|
|
30,385 |
|
|
|
(16,166 |
) |
|
|
1,103,213 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
|
|
|
|
|
6,598 |
|
|
|
12,200 |
|
|
|
70,935 |
|
|
|
(76,697 |
) |
|
|
13,036 |
|
Deferred income taxes |
|
|
|
|
|
|
39,930 |
|
|
|
88,782 |
|
|
|
4,775 |
|
|
|
(34,726 |
) |
|
|
98,761 |
|
Other non-current liabilities |
|
|
|
|
|
|
25,113 |
|
|
|
8,319 |
|
|
|
4,682 |
|
|
|
|
|
|
|
38,114 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
245,235 |
|
|
|
856,888 |
|
|
|
167,813 |
|
|
|
110,777 |
|
|
|
(127,589 |
) |
|
|
1,253,124 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity (deficit) |
|
|
(362,327 |
) |
|
|
(167,432 |
) |
|
|
733,706 |
|
|
|
11,212 |
|
|
|
(577,486 |
) |
|
|
(362,327 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
stockholders equity (deficit) |
|
$ |
(117,092 |
) |
|
$ |
689,456 |
|
|
$ |
901,519 |
|
|
$ |
121,989 |
|
|
$ |
(705,075 |
) |
|
$ |
890,797 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28
Simmons Company and Subsidiaries
Notes to Unaudited Condensed Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Cash Flows
For the Six Months Ended June 27, 2009
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantor |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Guarantor |
|
|
Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
operating activities |
|
$ |
(45 |
) |
|
$ |
(30,759 |
) |
|
$ |
43,906 |
|
|
$ |
580 |
|
|
$ |
|
|
|
$ |
13,682 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase of property, plant
and equipment, net |
|
|
|
|
|
|
(329 |
) |
|
|
(313 |
) |
|
|
(227 |
) |
|
|
|
|
|
|
(869 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing
activities |
|
|
|
|
|
|
(329 |
) |
|
|
(313 |
) |
|
|
(227 |
) |
|
|
|
|
|
|
(869 |
) |
Cash flows from financing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Receipts from (distribution
to) affiliates |
|
|
120 |
|
|
|
38,406 |
|
|
|
(39,215 |
) |
|
|
689 |
|
|
|
|
|
|
|
|
|
Financing fees |
|
|
|
|
|
|
(541 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(541 |
) |
Dividend to Bedding Superholdco |
|
|
(75 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(75 |
) |
Repayment of long-term
obligations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(107 |
) |
|
|
|
|
|
|
(107 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
financing activities |
|
|
45 |
|
|
|
37,865 |
|
|
|
(39,215 |
) |
|
|
582 |
|
|
|
|
|
|
|
(723 |
) |
Net effect of exchange rate
changes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
321 |
|
|
|
|
|
|
|
321 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in cash and cash
equivalents |
|
|
|
|
|
|
6,777 |
|
|
|
4,378 |
|
|
|
1,256 |
|
|
|
|
|
|
|
12,411 |
|
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning of period |
|
|
|
|
|
|
46,255 |
|
|
|
2,337 |
|
|
|
6,338 |
|
|
|
|
|
|
|
54,930 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
End of period |
|
$ |
|
|
|
$ |
53,032 |
|
|
$ |
6,715 |
|
|
$ |
7,594 |
|
|
$ |
|
|
|
$ |
67,341 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29
Simmons Company and Subsidiaries
Notes to Unaudited Condensed Consolidated Financial Statements
Supplemental Consolidating Condensed Statements of Cash Flows
For the Six Months Ended June 28, 2008
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuer and Guarantors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simmons |
|
|
|
|
|
|
Non- |
|
|
|
|
|
|
|
|
|
Parent |
|
|
Bedding |
|
|
Guarantor |
|
|
Guarantor |
|
|
|
|
|
|
|
|
|
Guarantors |
|
|
Company |
|
|
Subsidiaries |
|
|
Subsidiaries |
|
|
Eliminations |
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
operating activities |
|
$ |
(3 |
) |
|
$ |
(33,425 |
) |
|
$ |
31,877 |
|
|
$ |
5,291 |
|
|
$ |
|
|
|
$ |
3,740 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase of property, plant and
equipment, net |
|
|
|
|
|
|
(3,820 |
) |
|
|
(7,012 |
) |
|
|
(1,802 |
) |
|
|
|
|
|
|
(12,634 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing
activities |
|
|
|
|
|
|
(3,820 |
) |
|
|
(7,012 |
) |
|
|
(1,802 |
) |
|
|
|
|
|
|
(12,634 |
) |
Cash flows from financing
activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends to Bedding Superholdco |
|
|
(16,519 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(16,519 |
) |
Borrowings on revolving loan |
|
|
|
|
|
|
24,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24,000 |
|
Repayment of long-term
obligations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(285 |
) |
|
|
|
|
|
|
(285 |
) |
Receipt from (distribution to)
affiliates |
|
|
16,522 |
|
|
|
8,926 |
|
|
|
(25,378 |
) |
|
|
(70 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
financing activities |
|
|
3 |
|
|
|
32,926 |
|
|
|
(25,378 |
) |
|
|
(355 |
) |
|
|
|
|
|
|
7,196 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net effect of exchange rate
changes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(526 |
) |
|
|
|
|
|
|
(526 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in cash and cash
equivalents |
|
|
|
|
|
|
(4,319 |
) |
|
|
(513 |
) |
|
|
2,608 |
|
|
|
|
|
|
|
(2,224 |
) |
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning of period |
|
|
|
|
|
|
8,241 |
|
|
|
4,087 |
|
|
|
15,192 |
|
|
|
|
|
|
|
27,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
End of period |
|
$ |
|
|
|
$ |
3,922 |
|
|
$ |
3,574 |
|
|
$ |
17,800 |
|
|
$ |
|
|
|
$ |
25,296 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30
Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations
This Managements Discussion and Analysis of Financial Condition and Results of Operations
should be read in conjunction with our audited consolidated financial statements as of December 27,
2008, including related notes, and Managements Discussion and Analysis of Financial Condition and
Results of Operations contained in our Annual Report on Form 10-K for the year ended December 27,
2008, and the unaudited interim financial statements included elsewhere in this report.
Business Overview
We are one of the worlds largest mattress manufacturers, manufacturing and marketing a broad
range of products under our well-recognized brand names. We have two reportable segments organized
by geographic area, Domestic (U.S. including Puerto Rico) and Canada. In 2008, we derived
approximately 88% of our net sales from our Domestic segment.
Since September 27, 2008, Simmons Bedding has not been in compliance with certain covenants of
its $540.0 million senior credit facility. After being unable to obtain a waiver or an amendment
from its senior lenders to its senior credit facility, Simmons Bedding entered into an initial and
subsequent forbearance agreement with a majority of its senior lenders pursuant to which the senior
lenders agreed to refrain from enforcing their respective rights and remedies under the senior
credit facility through March 31, 2009, subject to earlier termination in some
circumstances. Simmons Bedding entered into amendments to the forbearance agreement with its
senior lenders on March 25, 2009, May 27, 2009, June 30, 2009, and August 14, 2009, whereby the
senior lenders extended their forbearance period through May 31, 2009, June 30, 2009, August 14,
2009, and August 31, 2009, respectively.
On January 15, 2009 and July 15, 2009, Simmons Bedding did not make its scheduled interest
payments due on its Subordinated Notes resulting in defaults under the indenture governing the
Subordinated Notes. On February 14, 2009, the default associated with the failure to pay the
interest due on January 15, 2009 matured into an event of default, which gave the holders of the
Subordinated Notes the right to declare the full amount of the Subordinated Notes immediately due
and payable. On February 4, 2009, Simmons Bedding and a majority of the outstanding Subordinated
Notes holders entered into a forbearance agreement, pursuant to which such noteholders agreed to
refrain from enforcing their respective rights and remedies under the Subordinated Notes and the
related indenture through March 31, 2009. Simmons Bedding entered into amendments to the
forbearance agreement with a majority of the Subordinated Notes holders on March 25, 2009, May 27,
2009, June 30, 2009, and August 14, 2009, whereby such noteholders extended their forbearance
period through May 31, 2009, June 30, 2009, August 14, 2009, and August 31, 2009,
respectively. Pursuant to the terms of the forbearance agreement, the noteholders party to the
forbearance agreement have the obligation to take any actions that are necessary to prevent an
acceleration of the payments due under the Subordinated Notes during the forbearance
period. Because the noteholders party to the forbearance agreement represents a majority of the
Subordinated Notes, they have the power under the indenture to rescind any acceleration of the
Subordinated Notes by either the trustee or the minority holders of the Subordinated Notes.
As a condition to the forbearance agreement with Simmons Beddings senior lenders, the Company
initiated a restructuring process in December 2008. A special committee of independent directors
was formed by our board of directors on January 23, 2009 to evaluate and oversee proposals for
restructuring the Companys debt obligations, including seeking additional debt or equity capital
and evaluating various strategic alternatives, including a possible sale of Simmons Bedding,
Bedding Holdco, Holdings, Bedding Superholdco or any of our affiliates or assets. There can be no
assurance that the Company will be successful in implementing a restructuring or any other
strategic alternatives. If the Company is unable to successfully complete a restructuring, comply
with the terms of the forbearance agreements, or extend the forbearance periods as needed to
successfully complete a restructuring, Simmons Beddings payment obligations under the senior
credit facility and the Subordinated Notes may be accelerated. If there is an acceleration of
payments or default under the senior credit facility or Subordinated Notes, then Holdings would be
in default under its Discount Notes and Bedding Superholdco would be in default under its $300.0
million senior unsecured loan Toggle Loan. The Company would not have the ability to repay any
amounts accelerated under its various debt obligations without obtaining additional equity and/or
debt financing. An acceleration of payments or default could result in a voluntary filing of
bankruptcy by, or the filing of an involuntary petition for bankruptcy against, Simmons Bedding,
Bedding Holdco, Holdings, Bedding Superholdco or any of their affiliates. Due to the possibility
of such circumstances occurring, the Company is seeking a negotiated restructuring, including a
restructuring of its debt obligations and/or sale of Simmons Bedding, Bedding Holdco, Holdings,
Bedding Superholdco or any of their affiliates or assets, which could occur pursuant to a
pre-packaged, pre-arranged or voluntary bankruptcy filing. Any bankruptcy filing could have a
material adverse effect on the Companys business, financial condition, liquidity and results of
operations. The considerations above raise substantial doubt about the Companys ability to
continue as a going concern. For further information regarding our debt covenant violations and
related forbearance agreements, please see Part II, Item 1A Risk Factors Risks Related to Our
Liquidity and Part I, Item 2 Managements Discussion and Analysis of Financial Conditions and
Results of Operations Liquidity and Capital Resources.
31
Results of Operations
The following table sets forth historical consolidated financial information as a percent of
net sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter Ended |
|
|
Six Months Ended |
|
|
|
June 27, |
|
|
June 28, |
|
|
June 27, |
|
|
June 28, |
|
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
100.0 |
% |
Cost of products sold |
|
|
56.8 |
% |
|
|
62.2 |
% |
|
|
57.1 |
% |
|
|
61.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin |
|
|
43.2 |
% |
|
|
37.8 |
% |
|
|
42.9 |
% |
|
|
38.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses |
|
|
31.4 |
% |
|
|
30.3 |
% |
|
|
31.3 |
% |
|
|
31.2 |
% |
Restructuring charges |
|
|
3.2 |
% |
|
|
0.5 |
% |
|
|
3.2 |
% |
|
|
0.3 |
% |
Amortization of intangibles |
|
|
0.7 |
% |
|
|
0.6 |
% |
|
|
0.7 |
% |
|
|
0.6 |
% |
Licensing revenues |
|
|
-0.8 |
% |
|
|
-0.9 |
% |
|
|
-0.9 |
% |
|
|
-0.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34.5 |
% |
|
|
30.5 |
% |
|
|
34.3 |
% |
|
|
31.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
8.8 |
% |
|
|
7.3 |
% |
|
|
8.6 |
% |
|
|
7.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
11.5 |
% |
|
|
6.6 |
% |
|
|
10.9 |
% |
|
|
6.5 |
% |
Interest income |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
-2.7 |
% |
|
|
0.8 |
% |
|
|
-2.2 |
% |
|
|
1.2 |
% |
Income tax expense (benefit) |
|
|
0.0 |
% |
|
|
0.3 |
% |
|
|
-0.2 |
% |
|
|
0.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
-2.6 |
% |
|
|
0.4 |
% |
|
|
-2.0 |
% |
|
|
0.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter Ended June 27, 2009 as Compared to the Quarter Ended June 28, 2008
Net Sales. Our consolidated net sales decreased $49.7 million, or 18.6%, to $218.0 million
for the quarter ended June 27, 2009 compared to $267.7 million for the quarter ended June 28, 2008
principally due to a decline in our Domestic segment net sales. Our Domestic segment net sales
decreased $34.0 million, or 14.8%, to $195.3 million (includes $2.0 million of inter-segment net
sales) for the quarter ended June 27, 2009 compared to $229.3 million (includes $0.1 million in
inter-segment net sales) during the same period of 2008. Our Domestic segment net sales decreased
for the quarter ended June 27, 2009 primarily as a result of a decrease in our conventional bedding
unit volume of 15.5%, or approximately $33.4 million, and our average unit selling price (AUSP)
of 0.9%, or approximately $1.7 million, compared to the same period of 2008. We attribute our
conventional bedding unit volume decline principally to the weak U.S. macroeconomic environment
resulting in consumers delaying or foregoing their purchases of mattresses. Our conventional
bedding AUSP decreased principally due to a shift in our product sales mix.
Our Canada segment net sales decreased $13.8 million to $24.8 million for the quarter ended
June 27, 2009 compared to $38.6 million for the quarter ended June 28, 2008. In local currency,
our Canada segment net sales decreased for the quarter ended June 27, 2009 by 26.4% compared to the
same period of 2008 due to a decline in conventional bedding unit volume of 28.9%, which was
partially offset by an increase in conventional bedding AUSP of 3.5%. Our Canada segment unit
volume decreased principally due to a weak retail environment in Canada and production issues
following the closure of our Bramalea, Ontario facility in September 2008 resulting in less
customer promotional activity during the second quarter of 2009 compared to the same period of
2008. Our Canada segment AUSP increased principally due to price increases implemented in the
third quarter of 2008, the introduction of a new 2009 product line, and a shift in sales mix to
higher priced products.
32
Gross Profit. Our consolidated gross profit decreased $6.9 million to $94.3 million (43.2% of
consolidated net sales) for the quarter ended June 27, 2009 compared to $101.2 million (37.8% of
consolidated net sales) for the quarter ended June 28, 2008. Our Domestic segment gross profit
decreased $4.3 million to $87.1 million (44.6% of Domestic segment net sales) for the quarter ended
June 27, 2009 compared to $91.4 million (39.9% of Domestic segment net sales) for the quarter ended
June 28, 2008. Our Domestic segment gross margin increased 4.7 percentage points for the second
quarter of 2009 compared to the same period of 2008 principally due to a decrease in our
conventional bedding material costs per unit of 10.9% and our conventional bedding manufacturing
cost per unit of 4.7%. Our material cost per unit decreased primarily due to deflation in the
costs of raw materials, particularly in the price of foam, steel and lumber. Our manufacturing
cost per unit decreased principally due to our operating one less manufacturing facility due to the
closure of our Mableton, Georgia facility in September 2008 and on-going labor and overhead cost
containment initiatives, partially offset by fixed manufacturing costs being absorbed by fewer
units.
Our Canada segment gross profit decreased $2.5 million to $7.3 million (29.4% of Canada
segment net sales) for the quarter ended June 27, 2009 compared to $9.8 million (25.5% of Canada
segment net sales) for the quarter ended June 28, 2008. Our Canada segment gross margin increased
3.9 percentage points due primarily to (i) reduced plant overhead as a result of the closure of our
Bramalea, Ontario facility in September 2008; (ii) deflation in material costs; and (iii) a change
in our sales mix.
Selling, General and Administrative Expenses (SG&A). Our consolidated SG&A decreased $12.7
million for the quarter ended June 27, 2009 to $68.4 million (31.4% of consolidated net sales)
compared to $81.1 million (30.3% of consolidated net sales) for the quarter ended June 28,
2008. Our Domestic segment SG&A decreased $11.5 million to $62.9 million (32.3% of Domestic
segment net sales) for the quarter ended June 27, 2009 from $74.4 million (32.4% of Domestic
segment net sales) for the quarter ended June 28, 2008. Our Domestic segment SG&A decreased
principally due to (i) lower volume variable selling and distribution expenses of $7.4 million due
principally to lower sales volumes; (ii) lower salaries and fringe benefits of $4.7 million
principally due to our July and November 2008 reductions in workforce; and (iii) lower fixed
selling and brand development expenses of $1.8 million principally due to the timing of floor
sample shipments and cost savings initiatives. Partially offsetting these decreases for the
quarter ended June 27, 2009 compared to the same period of 2008, we incurred incremental bonus
expense of $3.1 million as a result of our financial performance exceeding our budget and
additional bad debt expense of $1.0 million.
Our Canada segment SG&A decreased $1.1 million to $5.6 million (22.5% of Canada segment net
sales) for the quarter ended June 27, 2009 from $6.7 million (17.4% of Canada segment net sales)
for the quarter ended June 28, 2008. Our Canada segment SG&A decreased principally due to lower
volume variable selling expenses and cost savings initiatives.
Restructuring Charges. For the quarter ended June 27, 2009, restructuring costs increased
$5.4 million to $6.9 million compared to $1.5 million for the quarter ended June 28, 2008. For the
quarter ended June 27, 2009, restructuring costs consisted of legal and professional fees
associated with our financial restructuring efforts of $6.6 million and exit costs associated with
the closure of our Bramalea, Ontario and Mableton, Georgia manufacturing facilities in September
2008 of $0.3 million. For the quarter ended June 28, 2008, restructuring costs consisted of $1.5
million related to severance and benefits costs associated with the workforce reduction announced
in June 2008.
Amortization of Intangibles. For the quarter ended June 27, 2009, amortization of intangibles
decreased less than $0.1 million to $1.6 million compared the quarter ended June 28, 2008.
Interest Expense. For the quarter ended June 27, 2009, interest expense increased $7.4
million to $25.0 million from $17.6 million for the quarter ended June 28, 2008. The increased
interest expense for the quarter ended June 27, 2009 was primarily due to higher (i) base rates on
our senior credit facility as a result of increased interest rate margins related to our senior
lender forbearance agreement and (ii) average outstanding borrowings during the period. Our
non-cash interest expense, which includes accretion of our Discount Notes and the amortization of
deferred financing fees, increased $0.6 million to $6.8 million for the quarter ended June 27, 2009
compared to $6.1 million for the quarter ended June 28, 2008.
Income Taxes: The effective income tax rate for the quarter ended June 27, 2009 of 0.6% was
lower than the 42.0% tax rate for the same quarter of the prior year, principally due to the effect
of valuation allowances applied against net operating losses in the second quarter of 2009 that
resulted in the non-recognition of tax benefits in the U.S. tax jurisdiction.
33
Six Months Ended June 27, 2009 as Compared to the Six Months Ended June 28, 2008
Net Sales. Our consolidated net sales decreased $104.0 million, or 19.1%, to $440.6 million
for the six months ended June 27, 2009 compared to $544.6 million for the six months ended June 28,
2008 principally due to a decline in our Domestic segment net sales. Our Domestic segment net
sales decreased $75.4 million, or 15.9%, to $398.9 million (includes $5.1 million of inter-segment
net sales) for the six months ended June 27, 2009 compared to $474.3 million (includes $0.2 million
in inter-segment net sales) during the same period of 2008. Our Domestic segment net sales
decreased for the six months ended June 27, 2009 primarily as a result of a decrease in our
conventional bedding unit volume of 16.9%, or approximately $76.4 million. We attribute our
conventional bedding unit volume decline principally to the weak U.S. macroeconomic environment
resulting in consumers delaying or foregoing their purchases of mattresses. Our conventional
bedding AUSP remained unchanged for the six months ended June 27, 2009 compared to the six months
ended June 28, 2008.
Our Canada segment net sales decreased $23.7 million to $46.7 million for the six months ended
June 27, 2009 compared to $70.5 million for the six months ended June 28, 2008. In local currency,
our Canada segment net sales decreased for the six months ended June 27, 2009 by 20.9% compared to
the same period of 2008 due to a decline in conventional bedding unit volume of 22.1%, which was
partially offset by an increase in our conventional bedding AUSP of 1.2%. Our Canada segment unit
volume decreased principally due to a weak retail environment in Canada and production issues
following the closure of our Bramalea, Ontario facility in September 2008 resulting in less
customer promotional activity during the first six months of 2009 compared to the same period of
2008. Our Canada segment AUSP increased principally due to a price increase implemented in the
third quarter of 2008, the introduction of the new 2009 product line, and a shift in sales mix to
higher priced products.
34
Gross Profit. Our consolidated gross profit decreased $21.7 million to $189.2 million (42.9%
of consolidated net sales) for the six months ended June 27, 2009 compared to $210.9 million (38.7%
of consolidated net sales) for the six months ended June 28, 2008. Our Domestic segment gross
profit decreased $15.2 million to $177.2 million (44.4% of Domestic segment net sales) for the six
months ended June 27, 2009 compared to $192.4 million (40.6% of Domestic segment net sales) for the
six months ended June 28, 2008. Our Domestic segment gross margin increased 3.8 percentage points
for the first six months of 2009 compared to the same period of 2008 principally due to a decrease
in our conventional bedding material cost per unit of 8.6% and our conventional bedding
manufacturing cost per unit of 0.3%. Our material cost per unit decreased primarily due to
deflation in the costs of raw materials, particularly in the price of foam, steel and lumber. Our
manufacturing cost per unit decreased principally due to our operating one less manufacturing
facility due to the closure of our Mableton, Georgia facility in September 2008 and on-going labor
and overhead cost containment initiatives, partially offset by fixed manufacturing costs being
absorbed by fewer units.
Our Canada segment gross profit decreased $6.4 million to $12.0 million (25.7% of Canada
segment net sales) for the six months ended June 27, 2009 compared to $18.5 million (26.2% of
Canada segment net sales) for the six months ended June 28, 2008. Our Canada segment gross margin
decreased 0.5 percentage points due primarily to (i) the purchasing of more products from the
Domestic segment, which is more costly than to manufacture in Canada, following the closure of our
Bramalea, Ontario facility in September 2008 and (ii) inflation in material costs.
Selling, General and Administrative Expenses (SG&A). Our consolidated SG&A decreased $31.8
million for the six months ended June 27, 2009 to $137.8 million (31.3% of consolidated net sales)
compared to $169.6 million (31.2% of consolidated net sales) for the six months ended June 28,
2008. Our Domestic segment SG&A decreased $29.5 million to $126.5 million (31.8% of Domestic
segment net sales) for the six months ended June 27, 2009 from $156.1 million (32.9% of Domestic
segment net sales) for the six months ended June 28, 2008. Our Domestic segment SG&A decreased
principally due to (i) lower volume variable selling and distribution expenses of $16.0 million due
principally to lower sales volumes; (ii) lower salaries and fringe benefits of $8.1 million
principally due to our July and November 2008 reductions in workforce; and (iii) lower fixed
selling and brand development expenses of $7.3 million principally due to the timing of floor
sample shipments and cost savings initiatives. Partially offsetting these decreases for the six
months ended June 27, 2009 compared to the same period of 2008 we incurred incremental bonus
expense of $5.8 million as a result of our financial performance exceeding our budget and
additional bad debt expense of $1.3 million.
Our Canada segment SG&A decreased $2.3 million to $11.3 million (24.1% of Canada segment net
sales) for the six months ended June 27, 2009 from $13.6 million (19.3% of Canada segment net
sales) for the six months ended June 28, 2008. Our Canada segment SG&A decreased principally due
to lower volume variable selling expenses and cost savings initiatives.
Restructuring Charges. For the six months ended June 27, 2009, restructuring costs increased
$12.8 million to $14.2 million compared to $1.5 million for the six months ended June 28,
2008. For the six months ended June 27, 2009, restructuring costs consisted of legal and
professional fees associated with our financial restructuring efforts $13.9 million and exit costs
associated with the closure of our Bramalea, Ontario and Mableton, Georgia manufacturing facilities
in September 2008 of $0.3 million. For the six months ended June 28, 2008, restructuring costs
consisted of severance and benefits costs associated with the workforce reduction announced in June
2008.
Amortization of Intangibles. For the six months ended June 27, 2009, amortization of
intangibles decreased $0.1 million to $3.1 million compared to $3.2 million for the six months
ended June 28, 2008.
Interest Expense. For the six months ended June 27, 2009, interest expense increased $12.3
million to $47.8 million from $35.5 million for the six months ended June 28, 2008. The increased
interest expense for the six months ended June 27, 2009 was primarily due to higher (i) base rates
on our senior credit facility as a result of increased interest rate margins related to our senior
lender forbearance agreements and (ii) average outstanding borrowings during the period. Our
non-cash interest expense, which includes accretion of our Discount Notes and the amortization of
deferred financing fees, increased $1.6 million to $13.8 million for the six months ended June 27,
2009 compared to $12.2 million for the six months ended June 28, 2008.
Income Taxes: The effective income tax rate for the six months ended June 27, 2009 of 8.7%
was lower than the 41.6% tax rate for the same six months of the prior year, principally due to the
effect of valuation allowances applied against net operating losses in the first six months of 2009
that resulted in the non-recognition of tax benefits in the U.S. tax jurisdiction.
35
Liquidity and Capital Resources
Our principal sources of cash to fund liquidity needs are (i) cash provided by operating
activities of Simmons Bedding and (ii) borrowings available under Simmons Beddings senior credit
facility. Restrictive covenants in our debt agreements restrict our ability to pay cash dividends
and make other distributions. Our primary use of funds consists of payments for working capital
requirements, capital expenditures, customer supply agreements, principal and interest for our
debt, and acquisitions. As of June 27, 2009, we had $67.3 million of cash on hand and less than
$0.1 million of availability to borrow under Simmons Beddings revolving loan facility. As of
August 1, 2009, we had $64.5 million of cash on hand.
Since September 27, 2008, Simmons Bedding has not been in compliance with certain covenants of
its $540.0 million senior credit facility. After being unable to obtain a waiver or an amendment
from its senior lenders to its senior credit facility, Simmons Bedding entered into an initial and
subsequent forbearance agreement with a majority of its senior lenders pursuant to which the senior
lenders agreed to refrain from enforcing their respective rights and remedies under the senior
credit facility through March 31, 2009, subject to earlier termination in some
circumstances. Simmons Bedding entered into amendments to the forbearance agreement with its
senior lenders on March 25, 2009, May 27, 2009, June 30, 2009, and August 14, 2009, whereby the
senior lenders extended their forbearance period through May 31, 2009, June 30, 2009, August 14,
2009, and August 31, 2009, respectively.
On January 15, 2009 and July 15, 2009, Simmons Bedding did not make its scheduled interest
payments due on its Subordinated Notes resulting in defaults under the indenture governing the
Subordinated Notes. On February 14, 2009, the default associated with the failure to pay the
interest due on January 15, 2009 matured into an event of default, which gave the holders of the
Subordinated Notes the right to declare the full amount of the Subordinated Notes immediately due
and payable. On February 4, 2009, Simmons Bedding and a majority of the outstanding Subordinated
Notes holders entered into a forbearance agreement, pursuant to which such noteholders agreed to
refrain from enforcing their respective rights and remedies under the Subordinated Notes and the
related indenture through March 31, 2009. Simmons Bedding entered into amendments to the
forbearance agreement with a majority of the Subordinated Notes holders on March 25, 2009, May 27,
2009, June 30, 2009, and August 14, 2009, whereby such noteholders extended their forbearance
period through May 31, 2009, June 30, 2009, August 14, 2009, and August 31, 2009,
respectively. Pursuant to the terms of the forbearance agreement, the noteholders party to the
forbearance agreement have the obligation to take any actions that are necessary to prevent an
acceleration of the payments due under the Subordinated Notes during the forbearance
period. Because the noteholders party to the forbearance agreement represent a majority of the
Subordinated Notes, they have the power under the indenture to rescind any acceleration of the
Subordinated Notes by either the trustee or the minority holders of the Subordinated Notes.
As a condition to the forbearance agreement with Simmons Beddings senior lenders, the Company
initiated a restructuring process in December 2008. A special committee of independent directors
was formed by our board of directors on January 23, 2009 to evaluate and oversee proposals for
restructuring the Companys debt obligations, including seeking additional debt or equity capital
and evaluating various strategic alternatives, including a possible sale of Simmons Bedding,
Bedding Holdco, Holdings, Bedding Superholdco or any of our affiliates or assets. There can be no
assurance that the Company will be successful in implementing a restructuring. If the Company is
unable to successfully complete a restructuring, comply with the terms of the forbearance
agreements, or extend the forbearance periods as needed to successfully complete a restructuring,
Simmons Beddings payment obligations under the senior credit facility and the Subordinated Notes
may be accelerated. If there is an acceleration of payments or default under the senior credit
facility or Subordinated Notes, then Holdings would be in default under its Discount Notes and
Bedding Superholdco would be in default under its $300.0 million senior unsecured loan Toggle
Loan. The Company would not have the ability to repay any amounts accelerated under its various
debt obligations without obtaining additional equity and/or debt financing. An acceleration of
payments or default could result in a voluntary filing of bankruptcy by, or the filing of an
involuntary petition for bankruptcy against, Simmons Bedding, Bedding Holdco, Holdings, Bedding
Superholdco or any of their affiliates. Due to the possibility of such circumstances occurring,
the Company is seeking a negotiated restructuring, including a restructuring of its debt
obligations and/or sale of the Company, its affiliates, or assets, which could occur pursuant to a
pre-packaged, pre-arranged or voluntary bankruptcy filing. Any bankruptcy filing could have a
material adverse effect on the Companys business, financial condition, liquidity and results of
operations. The considerations above raise substantial doubt about the Companys ability to
continue as a going concern.
There are substantial risks related to our liquidity. For further information regarding these
risks, please see Part II, Item 1A Risk Factors Risks Related to Our Liquidity.
36
The following table summarizes our changes in cash (in millions):
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
June 27, |
|
|
June 28, |
|
|
|
2009 |
|
|
2008 |
|
Statement of Cash Flow Data: |
|
|
|
|
|
|
|
|
Cash flows provided by (used in): |
|
|
|
|
|
|
|
|
Operating activities |
|
$ |
13.7 |
|
|
$ |
3.7 |
|
Investing activities |
|
|
(0.9 |
) |
|
|
(12.6 |
) |
Financing activities |
|
|
(0.7 |
) |
|
|
7.2 |
|
Effect of exchange rate changes on cash |
|
|
0.3 |
|
|
|
(0.5 |
) |
|
|
|
|
|
|
|
Increase (decrease) in cash and cash equivalents |
|
|
12.4 |
|
|
|
(2.2 |
) |
Cash and cash equivalents: |
|
|
|
|
|
|
|
|
Beginning of period |
|
|
54.9 |
|
|
|
27.5 |
|
|
|
|
|
|
|
|
End of period |
|
$ |
67.3 |
|
|
$ |
25.3 |
|
|
|
|
|
|
|
|
37
Six Months Ended June 27, 2009 as Compared to Six Months Ended June 28, 2008
Cash flows provided by Operating Activities. Our cash flows provided by operating activities
increased $10.0 million for the six months ended June 27, 2009 compared to the six months ended
June 28, 2008. The increase in cash provided for the first six months of 2009 compared to the same
period of the prior year was primarily due to less cash utilized for working capital offset by
lower operating results due principally to our restructuring costs. Our working capital (excluding
deferred debt issuance costs classified as a current asset) increased $3.8 million during the first
six months of 2009 compared to a $23.9 million increase during the same period of 2008. Our
working capital increased less for the first six months of 2009 compared to the same period of 2008
principally due to lower sales volumes and timing of vendor payments.
Cash flows used in Investing Activities. For the six months ended June 27, 2009, our cash
flows used in investing activities decreased $11.7 million compared to the same period of 2008 due
to a decrease in capital spending. Our purchases of property, plant and equipment decreased in
2009 principally due to a reduction in projects in line with the current economic environment. In
addition, our 2008 purchases were higher than normal due to the upgrade of our Domestic segment ERP
system and the purchase of new manufacturing equipment to help meet anticipated future demand for
our products.
Cash flows provided by (used in) Financing Activities. For the six months ended June 27,
2009, our financing activities resulted in a $0.7 million use of cash due to $0.5 million in
forbearance fees paid to the holders of our Subordinated Notes, $0.1 million in debt payments and a
dividend payment of less than $0.1 million to Bedding Superholdco. For the six months ended June
28, 2008, our financing activities resulted in a $7.2 million source of cash principally due to
$24.0 million of borrowings under our revolving credit facility, partially offset by a $16.5
million dividend payment to Bedding Superholdco.
Debt
As of June 27, 2009, our debt outstanding was $1,000.0 million compared to $988.2 million as
of December 27, 2008. Our outstanding debt was primarily Simmons Beddings senior credit facility
and Subordinated Notes and Holdcos Discount Notes.
Senior Credit Facility
The senior credit facility provides for a $75.0 million revolving loan facility and a $465.0
million tranche D term loan facility. The revolving loan under the senior credit facility will
expire on the earlier of (a) December 19, 2009 or (b) as revolving credit commitments under the
facility terminate. As of June 27, 2009, under the revolving loan facility, Simmons Bedding had
$64.5 million of borrowings and $10.4 million that was reserved for its reimbursement obligations
with respect to outstanding letters of credit. Simmons Bedding incurs an unused line fee of 0.375%
per annum on the unused portion of its revolving loan facility.
The tranche D term loans under the senior credit facility will expire on December 19,
2011. The tranche D term loan has a mandatory principal payment of $113.5 million on March 31,
2011 and quarterly mandatory principal payments of $117.2 million from June 30, 2011 through
maturity on December 19, 2011. Depending on Simmons Beddings leverage ratio, it may be required
to prepay a portion of the tranche D term loan with up to 50% of its excess cash flow (as defined
in the senior credit facility) from each fiscal year. We were not required to prepay a portion of
the tranche D term loan during the first six months of 2009.
The senior credit facility bears interest at our choice of the Eurodollar Rate or Base Rate
(both as defined), plus the applicable interest rate margins. The weighted average interest rate
per annum in effect as of June 27, 2009 for the tranche D term loan was 10.5%. The senior credit
facility is guaranteed by Bedding Holdco and all of Simmons Beddings domestic
subsidiaries. Simmons Bedding has pledged substantially all of its assets to the senior credit
facility.
The senior credit facility requires Simmons Bedding to maintain certain financial ratios,
including cash interest coverage (adjusted EBITDA to cash interest expense) and total leverage (net
debt to adjusted EBITDA) ratios. Adjusted EBITDA (as defined in the senior credit facility)
differs from the term EBITDA as it is commonly used. In addition to adjusting net income (loss)
to exclude interest expense, income taxes, depreciation and amortization, Adjusted EBITDA, as we
interprets the definition of Adjusted EBITDA from the senior credit facility, also adjusts net
income (loss) by excluding items or expenses not typically excluded in the calculation of EBITDA
such as management fees; other non-cash items reducing consolidated net income (loss); any
extraordinary, unusual or non-recurring gains or losses or charges or credits; and any reasonable
expenses or charges related to any issuance of securities, investments permitted, permitted
acquisitions, recapitalizations, asset sales permitted or indebtedness permitted to be incurred;
less other non-cash items increasing consolidated net income (loss), all of the foregoing as
determined on a consolidated basis for Simmons Bedding in conformity with GAAP.
38
The financial covenants are as follows:
1) |
|
A minimum cash interest coverage ratio of no less than 3.00:1.00 from June 27, 2009 through
each fiscal quarter ending thereafter. |
2) |
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A maximum leverage ratio of no greater than 4.00:1.00 from June 27, 2009 through each fiscal
quarter ending thereafter. |
Since September 27, 2008, Simmons Bedding was not in compliance with the maximum leverage
financial covenant and certain other covenants contained in its senior credit facility. In
response thereto, Simmons Bedding was unable to negotiate a waiver of such defaults with its senior
lenders and entered into the First Forbearance Agreement and Second Amendment to the Second Amended
and Restated Credit and Guaranty Agreement (First Forbearance Agreement) on November 12, 2008 and
the Second Forbearance Agreement and Third Amendment to the Second Amended and Restated Credit and
Guaranty Agreement and First Amendment to the Pledge and Security Agreement (the Second
Forbearance Agreement) on December 10, 2008 with its senior lenders. Based on the terms of the
First Forbearance Agreement, the senior lenders agreed to, among other things; forbear from
exercising their default-related rights and remedies under the senior credit facility against
Simmons Bedding through December 10, 2008, provided that Simmons Bedding satisfied certain
conditions. The Second Forbearance Agreement extended the forbearance period through March 31,
2009, subject to earlier termination in some circumstances. Simmons Bedding entered into (i) that
certain First Amendment to Second Forbearance Agreement; Fourth Amendment to the Second Amended and
Restated Credit and Guaranty Agreement and Second Amendment to the Pledge and Security Agreement
(the First Amendment to the Second Forbearance Agreement) on March 25, 2009, pursuant to which
the senior lenders extended the forbearance period under the Second Forbearance Agreement through
May 31, 2009 and, upon satisfaction of certain conditions, July 31, 2009; (ii) that certain Second
Amendment to Second Forbearance Agreement; Fifth Amendment to the Second Amended and Restated
Credit and Guaranty and Third Amendment to the Pledge and Security Agreement (the Second Amendment
to the Second Forbearance Agreement) on May 27, 2009, pursuant to which the senior lenders
extended the forbearance period under the Second Forbearance Agreement through June 30, 2009 and,
upon satisfaction of certain conditions, July 31, 2009; (iii) that certain Third Amendment to
Second Forbearance Agreement; Sixth Amendment to the Second Amended and Restated Credit and
Guaranty Agreement (the Third Amendment to the Second Forbearance Agreement) on June 30, 2009,
pursuant to which the senior lenders extended the forbearance period under the Second Forbearance
Agreement through August 14, 2009; and (iv) that certain Fourth Amendment to Second Forbearance
Agreement; Seventh Amendment to the Second Amended and Restated Credit and Guaranty Agreement (the
Fourth Amendment to the Second Forbearance Agreement and, together with the First Amendment to
the Second Forbearance Agreement, the Second Amendment to the Second Forbearance Agreement and the
Third Amendment to the Second Forbearance Agreement, the Amendment to the Second Forbearance
Agreement) on August 14, 2009, pursuant to which the senior lenders extended the forbearance
period under Second Forbearance Agreement through August 31, 2009.
During the forbearance period, the senior lenders will provide no additional loans or
financial accommodation to Simmons Bedding except for the issuance, renewal, extension or
replacement of letters of credit and revolving loans provided in certain limited circumstances
related to the letters of credit as set forth in the forbearance agreements. In addition, Simmons
Bedding will not be permitted to, directly or indirectly, incur indebtedness, liens, investments,
restricted junior payments, or consummate any asset sales, except in the ordinary course of
business, during the forbearance period.
During the forbearance period under the First Forbearance Agreement, the applicable margin on
the revolving loans and tranche D term loans increased 2.0% per annum above the rate otherwise
applicable. The Second Forbearance Agreement amended the senior credit facility to, among other
things:
|
|
Increase the applicable margin for both the revolving loans and the tranche D term loans to either Base Rate plus 5.285%
per annum or Eurodollar Rate plus 6.285% per annum; |
|
|
|
Establish a floor for the Base Rate and Eurodollar Rate of 4.25% and 3.25%, respectively, per annum at the earlier of the
termination of the Second Forbearance Agreement or March 31, 2009; |
|
|
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Eliminate the 2% per annum penalty rate applicable to overdue payments of principal and interest; and |
|
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Make interest payable on the revolving loans and tranche D term loans as of the last business calendar day of each month. |
39
The Second Forbearance Agreement also required Simmons Bedding to enter into deposit account
control agreements with respect to all its bank accounts, with certain exceptions. The Second
Forbearance Agreement included certain covenants including:
|
|
Minimum liquidity requirements whereby Simmons Bedding will maintain a daily cash balance of not less than $2.5 million for
any two consecutive business days and an average daily cash balance of not less than $7.5 million for any five consecutive
business days; |
|
|
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Providing a long-term business plan to the senior lenders by January 7, 2009; |
|
|
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Commencing a process to solicit new debt and/or equity investment by January 9, 2009; |
|
|
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Providing a potential restructuring proposal to the senior lenders by January 26, 2009; and |
|
|
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Increased financial reporting requirements. |
As of June 27, 2009, the Company was in compliance with the covenant requirements of the
Second Forbearance Agreement, as amended.
40
The First Amendment to the Second Forbearance Agreement amended the senior credit facility to,
among other things; increase the applicable margin for both revolving loans and tranche D term
loans to Base Rate plus 6.25% per annum or Eurodollar Rate plus 7.25% per annum.
In connection with the First Forbearance Agreement, Simmons Bedding agreed to pay (a) the
senior lenders who approved the agreement a forbearance fee equal to 0.125% of the aggregate
outstanding amount of such lenders outstanding debt under the senior credit facility ($0.6
million) and (b) the fees and expenses of the lenders counsel in connection with the First
Forbearance Agreement. In connection with the Second Forbearance Agreement, Simmons Bedding agreed
to pay (a) the senior lenders who approved the agreement a forbearance fee equal to 0.5% of the
aggregate outstanding amount of such lenders outstanding debt under the senior credit facility
($2.6 million) and (b) the fees and expenses of the lenders counsel and financial advisor in
connection with the Second Forbearance Agreement. The Company capitalized the lender fees of $3.3
million in 2008 and expensed the third party fees associated with the forbearance agreements as
incurred. In connection with the Third Amendment to the Second Forbearance Agreement, Simmons
Bedding agreed to pay the senior lenders who approved the agreement a forbearance fee equal to
0.15% of the aggregate outstanding amount of approving lenders outstanding debt ($0.7 million),
which the Company capitalized for the quarter ending September 26, 2009.
During the forbearance period as extended, Simmons Bedding has met various covenants and other
provisions related to continued progress in its restructuring efforts and reporting on the status
of the restructuring process.
Subordinated Notes
Simmons Beddings $200.0 million senior subordinated notes due 2014 bear interest at the rate
of 7.875% per annum, which is payable semi-annually in cash in arrears on January 15 and July
15. The Subordinated Notes mature on January 15, 2014 and are subordinated in right of payment to
all existing and future senior indebtedness of Simmons Bedding.
The Subordinated Notes are redeemable at the option of the Company beginning January 15, 2009
at prices decreasing from 103.938% of the principal amount thereof to par on January 15, 2012 and
thereafter. The Company is not required to make mandatory redemption or sinking fund payments with
respect to the Subordinated Notes.
The indenture for the Subordinated Notes require Simmons Bedding to comply with certain
restrictive covenants, including restrictions on dividends, and limitations on the occurrence of
indebtedness, certain payments and distributions, and sales of Simmons Beddings assets and stock.
Simmons Bedding did not make scheduled interest payments of $7.9 million due on January 15,
2009 and July 15, 2009 on the Subordinated Notes resulting in defaults under the indenture
governing the Subordinated Notes. On February 14, 2009, the default associated with the failure to
pay the interest due on January 15, 2009 matured into an event of default, which gives the holders
of the Subordinated Notes the right to declare the full amount of the Subordinated Notes
immediately due and payable. On February 4, 2009, Simmons Bedding and a majority of the
outstanding Subordinated Notes holders approved a Forbearance Agreement to the indenture governing
the Subordinated Notes (Subordinated Forbearance Agreement), pursuant to which such noteholders
agreed to refrain from enforcing their respective rights and remedies under the Subordinated Notes
and the related indenture through March 31, 2009. In consideration for their entry into the
amendment to the Subordinated Forbearance Agreement, the noteholders party to the forbearance
agreement received an amendment fee equal to 0.5% of the aggregate outstanding amount of such
holders Subordinated Notes ($0.5 million). In connection with the Subordinated Forbearance
Agreement, Simmons Bedding also agreed to pay the fees and expenses of the legal and financial
advisors of the committee to the noteholders. Simmons Bedding entered into amendments to the
Subordinated Forbearance Agreement on March 25, 2009, May 27, 2009, June 30, 2009, and August 14,
2009, whereby a majority of the noteholders extended their forbearance period through May 31, 2009,
June 30, 2009, August 14, 2009, and August 31, 2009, respectively. Pursuant to the terms of the
Subordinated Forbearance Agreement, the noteholders party to the Subordinated Forbearance Agreement
have the obligation to take any actions that are necessary to prevent an acceleration of the
payments due under the Subordinated Notes during the forbearance period. Because the noteholders
party to the Subordinated Forbearance Agreement represent a majority of the Subordinated Notes,
they have the power under the indenture to rescind any acceleration of the Subordinated Notes by
either the trustee or the minority holders of the Subordinated Notes.
41
Discount Notes
Our Discount Notes, with an aggregate principal amount at maturity of $269.0 million, bear
interest at the rate of 10.0% per annum payable semi-annually in cash in arrears on June 15 and
December 15 of each year commencing on June 15, 2010. Prior to December 15, 2009, interest will
accrue on the Discount Notes in the form of an increase in the accreted value of the Discount
Notes. The Companys ability to make payments on the Discount Notes is dependent on the earnings
and distribution of funds from Simmons Bedding to Holdings. Simmons Bedding is prohibited from
making certain distributions under the forbearance agreements.
The Discount Notes are redeemable at the our option beginning December 15, 2009 at prices
decreasing from 105.0% of the principal amount thereof to par on December 15, 2012 and
thereafter. We are not required to make mandatory redemption or sinking fund payments with respect
to the Discount Notes.
If any of the Discount Notes are outstanding on June 15, 2010, we are obligated to redeem for
cash a portion of each Discount Note then outstanding in an amount equal to (i) the excess of the
aggregate amount of accrued and unpaid interest and original issue discount on the Discount Notes
over (ii) the issue price of the Discount Notes multiplied by the yield to maturity of the Discount
Notes (the Mandatory Principal Redemption Amount) plus a premium equal to 5.0% (one-half of the
coupon) of the Mandatory Principal Redemption Amount. No partial redemption or repurchase of the
Discount Notes pursuant to any other provision of the indenture will alter our obligation to make
this redemption with respect to any Discount Notes then outstanding. Assuming no redemptions prior
to June 15, 2010, we would be obligated to make a mandatory principal payment of $90.2 million and
an interest and premium payment of $18.0 million on June 15, 2010.
The indenture for the Discount Notes requires Holdings to comply with certain restrictive
covenants, including a restriction on dividends; and limitations on the incurrence of indebtedness,
certain payments and distributions, and sales of Holdings assets and stock. Holdings was in
compliance with such covenants as of June 27, 2009.
Toggle Loan
We do not guarantee or have any of our assets pledged as collateral under Bedding
Superholdcos $300 million Toggle Loan. The Toggle Loan is structurally subordinated in right of
payment to any of our existing and future liabilities. Although we are not obligated to make cash
distributions to service principal and interest on the Toggle Loan, Bedding Superholdco is
dependent on our cash flow to meet the interest and principal payments under the Toggle Loan. The
Toggle Loan is not included in our financial statements. Under the terms of the credit agreement
governing the Toggle Loan, Bedding Superholdco may elect to pay future interest in cash or add such
interest to the principal amount of the Toggle Loan. However, the Second Forbearance Agreement, as
amended, prohibits us from making distributions to its parent companies during the forbearance
period, except in the ordinary course of business. Accordingly, Bedding Superholdco has elected to
make its February 2009, August 2009 and February 2010 interest payments on the Toggle Loan by
adding such interest to the principal amount of the Toggle Loan. The Toggle Loan matures in
February 2012. An acceleration of indebtedness under the senior credit facility, Subordinated
Notes or Discount Notes would trigger an event of default under the Toggle Loan.
Seasonality/Other
Our third fiscal quarter sales are typically higher than sales for our other fiscal
quarters. We attribute this seasonality principally to retailers sales promotions related to the
4th of July and Labor Day holidays. For the last five years, third quarter sales have represented
on average 27% of our consolidated net sales.
Accounting Pronouncements
See Note J in the Notes to our Unaudited Condensed Consolidated Financial Statements in Item 1
for a full description of recent accounting pronouncements, including the expected dates of
adoption and estimated effects on our results of operations and financial condition, which is
incorporated herein by reference.
42
Forward Looking Statements
Safe Harbor statement under the Private Securities Litigation Reform Act of 1995. This
quarterly report on Form 10-Q includes forward-looking statements that reflect our current views
about future events and financial performance. Words such as estimates, expects,
anticipates, projects, plans, intends, believes, forecasts and variations of such words
or similar expressions that predict or indicate future events, results or trends, or that do not
relate to historical matters, identify forward-looking statements. The forward-looking statements
in this report speak only as of the date of this report. These forward-looking statements are
expressed in good faith and Simmons believes there is a reasonable basis for them. However, there
can be no assurance that the events, results or trends identified in these forward-looking
statements will occur or be achieved. Investors should not rely on forward-looking statements
because they are subject to a variety of risks, uncertainties, and other factors that could cause
actual results to differ materially from Simmonss expectations. These factors include, but are
not limited to: (i) compliance with covenants in, and any defaults under, our debt agreements or
instruments; (ii) our ability to (a) comply with the terms of the forbearance agreements, including
meeting certain conditions contained therein, (b) obtain further extensions to the forbearance
periods, or (c) develop and implement a restructuring on acceptable terms, on a timely basis or at
all; (iii) compliance by the lenders and noteholders with the terms of the forbearance agreements;
(iv) increased cost of credit and associated fees resulting from the forbearance extensions and any
waiver or modification of the senior credit facility by the lenders or any waiver or modification
of the Subordinated Notes or other indebtedness; (v) Simmons Bedding being required to immediately
repay all amounts outstanding under the senior credit facility resulting from the noncompliance
with the covenants thereunder or otherwise being in default under its debt which could in turn
result in a default under the indebtedness of Simmons Bedding, Simmons Company or Bedding
Superholdco or could result in a bankruptcy filing by or against us or any of our affiliates and
have an adverse impact on the value of our and our affiliates debt and equity securities; (vi) the
potential adverse impact of any restructuring or any related pre-arranged or voluntary bankruptcy
filing on our business, financial condition, liquidity, results of operations and the value of our
and our affiliates debt and equity securities; (vii) interest rate and credit market risks; (viii)
competitive pressures in the bedding industry; (ix) general economic and industry conditions; (x)
our ability to launch new products on a timely basis, the success of our new products and the
future costs to rollout such products; (xi) legal and regulatory requirements; (xii) our
relationships with and viability of our suppliers, significant customers and licensees; (xiii)
fluctuations in our costs of raw materials and energy prices; (xiv) our ability to hold or increase
prices on our products and the related effect on our unit sales; (xv) an increase in our return
rates and warranty claims; (xvi) our labor relations; (xvii) encroachments on our intellectual
property; (xviii) our product liability, intellectual property and other litigation claims; (xix)
our level of indebtedness; (xx) foreign currency exchange rate risks; (xxi) our future
acquisitions; (xxii) our ability to achieve the expected benefits from any personnel realignments;
(xxiii) higher bad debt expense as a result of increased customer bankruptcies due to instability
in the economy and slowing consumer spending; (xxiv) our ability to maintain sufficient liquidity
to operate our business; and (xxv) other risks and factors identified from time to time in our
reports filed with the Securities Exchange Commission. We undertake no obligation to update or
revise any forward-looking statements, either to reflect new developments or for any other reason.
All forward-looking statements attributable to us or persons acting on our behalf apply only
as of the date of this Quarterly Report on Form 10-Q and are expressly qualified in their entirety
by the cautionary statements included in this Quarterly Report on Form 10-Q. Except as may be
required by law, we undertake no obligation to publicly update or revise forward-looking
statements, which may be made to reflect events or circumstances after the date made or to reflect
the occurrence of unanticipated events.
43
Item 3. Quantitative and Qualitative Disclosures about Market Risk
Information relative to our market risk sensitive instruments by major category should be read
in conjunction with the related disclosure contained in Item 7A of our Annual Report on Form 10-K
for the fiscal year ended December 27, 2008.
Market Risk
The principal market risks to which we are exposed that may adversely affect our results of
operations and financial position include changes in future foreign currency exchange rates,
interest rates, commodity prices and equity prices. We seek to minimize or manage these market
risks through normal operating and financing activities and through the use of derivative
instruments, where practicable. We do not trade or use instruments with the objective of earning
financial gains on the market fluctuations, nor do we use instruments where there are not
underlying exposures.
Foreign Currency Exposures
As a result of our acquisition of Simmons Canada, our earnings are affected by fluctuations in
the value of the Canadian dollar (Simmons Canadas functional currency) as compared to the
currencies of Simmons Canadas foreign denominated purchases (principally the U.S.
dollar). Foreign currency forward contracts are used in some instances as economic hedges against
the earnings effects of such fluctuations. The Company had no forward contracts outstanding at
June 27, 2009.
Interest Rate Risk
We are exposed to market risks from changes in interest rates. Our senior credit facility and
certain of our other debt instruments are floating rate debt. We currently do not have a hedging
program in place to manage fluctuations in long-term interest rates.
On June 27, 2009, we had floating rate debt of $533.3 million. All other factors remaining
unchanged, a hypothetical 10% increase or decrease in interest rates on our floating rate debt
would impact our income before income taxes by $5.6 million for the quarter ended June 27, 2009.
Commodity Price Risk
The major raw materials that we purchase for production are foam, wire, spring components,
lumber, cotton, insulator pads, foundation constructions, fabrics and roll goods consisting of
foam, fiber, ticking and non-wovens. The price and availability of these raw materials are subject
to market conditions affecting supply and demand. In particular, the price of many of our goods can
be impacted by fluctuations in petrochemical and steel prices. Additionally, our distribution costs
can be impacted by fluctuations in diesel prices. We currently do not have a hedging program in
place to manage fluctuations in commodity prices.
Equity Price Risk
Our defined benefit plans hold investments in both equity and fixed income securities. Our
annual contribution amount to such plans is dependent upon, among other things, the return on the
plans assets. The annual contribution amount could increase if equity prices decrease. Our
estimated contributions to the plans for 2009 are expected to be $1.1 million.
Item 4T. Internal Controls and Procedures
Disclosure Controls and Procedures
The Company maintains a set of disclosure controls and procedures designed to
ensure that information required to be disclosed by the Company in reports that it files or submits
under the Securities Exchange Act of 1934 is recorded, processed, summarized, and reported, within
the time periods specified in SEC rules and forms. An evaluation was carried out under the
supervision and with the participation of the Companys management, including the President and
Chief Operating Officer (President) and Chief Financial Officer (CFO), of the effectiveness of
the Companys disclosure controls and procedures. Based on that evaluation, the President and CFO
have concluded that the Companys disclosure controls and procedures are effective as of June 27,
2009.
Changes in Internal Control over Financial Reporting
There were no changes in internal controls in the second quarter of 2009 that have
materially affected, or are reasonably likely to materially affect, the Companys internal control
over financial reporting.
44
PART II OTHER INFORMATION
Item 1. Legal Proceedings
See paragraph 1 and 2 of Note H to the Unaudited Condensed Consolidated Financial Statements,
Part 1, Item 1 included herein.
Item 1A. Risk Factors
In addition to the other information set forth in this report, you should carefully consider
the risk factors discussed in Part I, Item 1A. Risk Factors in our Annual Report on Form 10-K for
the year ended December 27, 2008, which could materially affect our business, financial condition
or future results. To the extent that the risk factors set forth below appear in our Annual Report
on Form 10-K, the risk factors set forth below amend and supplement those risk factors with the
same titles contained in such previously filed reports.
Risks Related to Our Liquidity and Restructuring
We are not in compliance with certain covenants under the senior credit facility and the
indenture governing the Subordinated Notes, and as a result we have entered into related
forbearance agreements. If we are unable to successfully complete a restructuring, comply with the
terms of the forbearance agreements, or extend the forbearance periods as needed to complete a
restructuring, our payment obligations under the senior credit facility and the Subordinated Notes
may be accelerated, which could lead to a bankruptcy filing. A bankruptcy filing would subject our
business and operations to certain risks and have a negative effect on the value of our debt.
Simmons Beddings senior credit facility requires us to maintain specified consolidated
financial ratios and satisfy certain consolidated financial tests. At September 27, 2008, December
27, 2008, March 28, 2009 and June 27, 2009, Simmons Bedding was not in compliance with the maximum
leverage financial covenant and certain other covenants contained in its senior credit
facility. See Managements Discussion and Analysis of Financial Condition and Results of
Operations Debt Senior Credit Facility. As a result, since November 12, 2008, Simmons Bedding
has operated under a forbearance agreement with its senior lenders. Pursuant to the forbearance
agreement, the senior lenders agreed to, among other things, forbear from exercising their default
related rights and remedies under the senior credit facility through March 31, 2009, subject to
earlier termination in some circumstances. Simmons Bedding entered into amendments to the
forbearance agreement with its senior lenders on March 25, 2009, May 27, 2009, June 30, 2009, and
August 14, 2009, whereby the senior lenders extended their forbearance period through May 31, 2009,
June 30, 2009, August 14, 2009, and August 31, 2009, respectively. We have incurred fees and
expenses in connection with this forbearance agreement and related amendments. In addition, we
have entered into deposit account control agreements with our senior lenders that may limit our
access to cash held in such accounts in the case of an event of default under the senior credit
facility.
On January 15, 2009 and July 15, 2009, Simmons Bedding did not make the scheduled payment of
interest due on its Subordinated Notes resulting in a default under the indenture governing the
Subordinated Notes. See Managements Discussion and Analysis of Financial Condition and Results
of Operations Debt Subordinated Notes. On February 4, 2009, Simmons Bedding and the holders
of a majority of the outstanding Subordinated Notes entered into a forbearance agreement, pursuant
to which such holders have agreed to refrain from enforcing their respective rights and remedies
under the Subordinated Notes and the related indenture through March 31, 2009. Simmons Bedding
entered into amendments to the forbearance agreement on March 25, 2009, May 27, 2009, June 30,
2009, and August 14, 2009, whereby such holders extended their forbearance period through May 31,
2009, June 30, 2009, August 14, 2009, and August 31, 2009, respectively. Pursuant to the terms of
the forbearance agreement, such holders have agreed to take any actions that are necessary to
prevent an acceleration of the payments due under the Subordinated Notes during the forbearance
period. Because such holders represent a majority of the Subordinated Notes, they have the power
under the indenture to rescind any acceleration of the Subordinated Notes by either the trustee or
the other holders of the Subordinated Notes.
We have incurred fees and expenses in connection with the forbearance agreements and related
amendments, which are reflected in our restructuring charges, as well as increased interest
margins.
If we are unable to successfully complete a restructuring, comply with the terms of the
forbearance agreements, or extend the forbearance periods as needed to successfully complete a
restructuring, our payment obligations under the senior credit facility and the Subordinated Notes
may be accelerated. If there is an acceleration of payments under the senior credit facility or
the Subordinated Notes, then Holdings would be in default under its Discount Notes and Bedding
Superholdco would be in default under its Toggle Loan. We would not have the ability to repay any
amounts accelerated under our various debt obligations without obtaining additional equity and/or
debt financing. An acceleration of payments or default could result in a voluntary filing of
bankruptcy by, or the filing of an involuntary petition for bankruptcy against, Simmons Bedding,
Bedding Holdco, Holdings, Bedding Superholdco or any of our affiliates. Due to the possibility of
such circumstances occurring, we are seeking a
negotiated restructuring, including a restructuring of our debt obligations and/or sale of us,
our affiliates, our assets or assets of our affiliates, which could occur pursuant to a
pre-packaged, pre-arranged or voluntary bankruptcy filing.
45
Any bankruptcy by or against us or our affiliates would subject our business and operations to
various risks, including (i) the incurrence of significant costs, including expenses for legal
counsel and professional advisors, (ii) difficulty maintaining or increasing our sales, (iii)
difficulty obtaining and maintaining relationships with dealers, suppliers and vendors, which may
require us to pay them on a current cash basis, (iv) difficulty in maintaining our manufacturing
operations, (v) difficulty in retaining and motivating key employees or recruiting new employees,
(vi) difficulty in maintaining or obtaining sufficient financing to fund our operations and any
reorganization plan and meet future obligations, (vii) potential defaults under our contractual
obligations such as leases and (viii) the incurrence of cancellation of indebtedness income that is
equal to or in excess of our accrued net operating losses and tax credits and that could result in
an increase in our cash tax payments and our effective tax rate and reduce our cash flows from
operations. In addition, we may not be able to successfully develop or consummate a plan of
reorganization that is acceptable to the bankruptcy court and our creditors, investors and other
stakeholders. Any bankruptcy filing would adversely impact the ability of Simmons Bedding, Bedding
Holdco, Holdings or Bedding Superholdco to repay their respective debt. Any debt or equity holder
of Simmons Bedding, Holdings or Bedding Superholdco could suffer the loss of a significant part or
all of its loan or investment as a result of a bankruptcy filing.
We and our affiliates currently have substantial indebtedness that we or our affiliates may be
unable to extend, refinance or repay, and we are seeking to implement a restructuring. Any
restructuring could have a negative impact on our business and liquidity and investments in the
debt and equity securities of Simmons Bedding, Holdings, and Bedding Superholdco. In addition, a
restructuring may not be successful. A restructuring or a failure to implement a restructuring
could result in a bankruptcy filing, which would have a material adverse effect on our business,
financial conditions, liquidity and operations, raise substantial doubt about our ability to
continue as a going concern and effect the value of our debt.
We currently have a substantial amount of debt that we may be unable to extend, refinance or
repay. If we are unable to refinance or extend our debt, or such debt is accelerated due to our
default because we are unable to comply with the terms of the forbearance agreements or otherwise,
or if we are unable to extend the forbearance periods as needed to successfully complete a
restructuring, our assets will not be sufficient to repay such debt in full, and our available cash
flow will not be adequate to maintain our current operations. A special committee of independent
directors was formed by our board of directors to evaluate and oversee proposals for a
restructuring, including a possible sale of Simmons Bedding, Bedding Holdco, Holdings, Bedding
Superholdco or any of our affiliates or the assets of Simmons Bedding, Bedding Holdco, Holdings,
Bedding Superholdco or any of our affiliates, which could likely occur pursuant to a pre-packaged,
pre-arranged or voluntary filing of bankruptcy. Such bankruptcy filing could have the material
adverse impacts described above. In addition, any restructuring may require us to obtain
debtor-in-possession financing which may not be available in the amounts required, on acceptable
terms, on a timely basis or at all. Current credit market conditions could make it more difficult
to obtain acceptable debtor-in-possession financing or to refinance our indebtedness as part of any
restructuring. If we are unable to obtain any requisite debtor-in-possession financing, we may not
be able to successfully implement our restructuring. There can be no assurance that we will be
successful in implementing a restructuring.
Even if we are successful in implementing a restructuring, the terms of such restructuring
could have a negative impact on our business and liquidity, including (i) limiting our ability to
borrow additional amounts for working capital, capital expenditures, debt service or refinancing or
to fund operations, (ii) limiting our ability to use or prohibiting our use of any operating cash
flow to pay dividends to service our or Bedding Superholdcos debt or fund our business, (iii)
limiting our ability to capitalize on our business opportunities and react to competitive pressures
and regulatory changes and (iv) limiting our ability or increasing the costs to refinance our
debt. In addition, if the restructuring and any related bankruptcy filing involves the sale of
Simmons Bedding or its assets, we may not have any remaining operating assets to generate cash flow
to repay the debt of Simmons Bedding, Bedding Holdco, Holdings, Bedding Superholdco or any of our
affiliates and the proceeds may not be sufficient to repay such debt in full, and, as a result, any
debt or equity holder of Simmons Bedding, Simmons or Bedding Superholdco could suffer the loss of a
significant part or all of its loan or investment.
If we are unable to successfully complete a restructuring, comply with the terms of the
forbearance agreements or extend the forbearance periods prior to a successful completion of a
restructuring, our senior lenders and holders of Subordinated Notes will be entitled to accelerate
their debt upon the termination of the forbearance agreements. If there is an acceleration of
payments under the senior credit facility, then Simmons Bedding would be in default under its
Subordinated Notes, Holdings would be in default under its Discount Notes, and Bedding Superholdco
would be in default under its Toggle Loan. We would not have the ability to repay any amounts
accelerated under our various debt obligations without obtaining additional equity and/or debt
financing. An acceleration of payments or default could result in a voluntary filing of bankruptcy
by Simmons Bedding, Bedding Holdco, Holdings, Bedding Superholdco or any of our affiliates or the
filing of an involuntary petition for bankruptcy against Simmons Bedding, Bedding Holdco, Holdings,
Bedding Superholdco or any of our affiliates, which would have the material adverse impacts
described above.
46
Our financial statements have been prepared assuming that we will continue as a going
concern. However, if we do not retain the necessary financing to meet our obligations and pay our
liabilities when they come due or restructure our debt in
a manner satisfactory to our lenders, it could result in a voluntary filing of bankruptcy by
Simmons Bedding, Bedding Holdco, Holdings, Bedding Superholdco or any of our affiliates or the
filing of an involuntary petition for bankruptcy against Simmons Bedding, Bedding Holdco, Holdings,
Bedding Superholdco or any of our affiliates, which would have the material adverse impacts
described above.
The factors described in this Quarterly Report on Form 10-Q, including in the footnotes to our
consolidated financial statements, raise substantial doubt about our ability to continue as a going
concern. Our financial statements do not include any adjustments that might result from this
uncertainty. In addition, our independent registered public accounting firm has included an
explanatory paragraph expressing substantial doubt about our ability to continue as a going concern
in their audit report for the fiscal year ended December 27, 2008. No assurances can be made
regarding our ability to satisfy our liquidity and working capital requirements, to obtain the
necessary financing to meet our obligations and pay our liabilities when they come due or our
ability to successfully complete a restructuring. Failure to successfully implement a restructuring
on a timely basis or at all would result in depleting our available funds and not being able to pay
our obligations when they become due and continue as a going concern. Failure to satisfy such
obligations and our other liquidity and working capital requirements could result in a voluntary
filing of bankruptcy by Simmons Bedding, Bedding Holdco, Holdings, Bedding Superholdco or any of
our affiliates or the filing of an involuntary petition for bankruptcy against Simmons Bedding,
Bedding Holdco, Holdings, Bedding Superholdco or any of our affiliates, which would have the
material adverse impacts described above.
The senior credit facility and the indentures related to our debt instruments contain various
covenants which limit managements discretion in the operation of our business.
The senior credit facility and the indentures related to the Subordinated Notes, the Discount
Notes and the Toggle Loan and the existing forbearance agreements related to the senior credit
facility and the Subordinated Notes contain various provisions which limit managements discretion
in managing our business by, among other things, restricting our ability to:
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pay dividends on stock or repurchase stock; |
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make certain types of investments and other restricted payments; |
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sell certain assets or merge with or into other companies; |
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enter into certain transactions with affiliates; |
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sell stock in certain of our subsidiaries; and |
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restrict dividends or other payments from our subsidiaries. |
In addition, the senior credit facility requires Simmons Bedding to meet certain financial
ratios. Covenants in the senior credit facility require Simmons Bedding to use a portion of the
proceeds it receives in specified debt or equity issuances to repay outstanding borrowings under
its senior credit facility.
Even if we are able to refinance or extend our indebtedness or enter into a successful
restructuring plan, our substantial indebtedness could still adversely affect our financial health
and reduce the cash available to support our business and operations.
On a consolidated basis, we are currently highly leveraged. As of June 27, 2009, we had
$1,000.0 million of total indebtedness outstanding and less than $0.1 million available on our
revolving loan under our senior credit facility. Even if we are able to successfully complete a
restructuring, we may still maintain some indebtedness. Any indebtedness could have important
consequences. For example, it could:
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make it more difficult for Simmons to satisfy its obligations with respect to our
outstanding debt, and a failure to comply with any financial and other restrictive covenants
could result in an event of default under our debt instruments and agreements; |
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increase our vulnerability to general adverse economic and industry conditions; |
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require us to dedicate a substantial portion of our cash flow from operations to
payments on our indebtedness,
thereby reducing the availability of our cash flow to fund working capital, capital
expenditures, acquisitions and investments and other general corporate purposes; |
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limit our flexibility in planning for, or reacting to, changes in our business and the
markets in which we operate; |
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increase our vulnerability to interest rate increases, as borrowings under the senior
credit facility and certain other debt are at variable rates, resulting from financial market
conditions, ratings downgrades or other factors; |
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place us at a competitive disadvantage compared to our competitors that have less debt; and |
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limit, among other things, our ability to borrow additional funds. |
In addition, we may be able to incur additional indebtedness in the future. If new debt is
added, the related risks described above could intensify.
Each of Holdings and Bedding Superholdco is a holding company with no operations. Each of
Holdings and Bedding Superholdco may not have access to the cash flow and other assets of its
subsidiaries that may be needed to make payments on its respective debt obligations.
Holdings is a holding company that conducts no operations. Its primary assets are deferred
financing fees and the capital stock of Bedding Holdco, which in turn is a holding company that
conducts no operations and the only assets of which are the capital stock of Simmons
Bedding. Bedding Superholdco is our parent company and it has no material assets other than its
ownership of our capital stock. Operations are conducted through Simmons Bedding and its
subsidiaries, and Holdings ability to make payments on the Discount Notes and Bedding
Superholdcos ability to make payments on the Toggle Loan are solely dependent on the earnings and
distribution of funds from Simmons Bedding and its subsidiaries through loans, dividends or
otherwise. However, none of Holdings or Bedding Superholdcos subsidiaries is obligated to make
capital contributions, dividends, loans or other payments available to it for payment on the
Discount Notes or the Toggle Loan. The terms of the senior credit facility and the forbearance
agreements significantly restrict Simmons Bedding from paying dividends and otherwise transferring
assets to Holdings or to Bedding Superholdco, except for administrative, legal and accounting
services. Further, the Subordinated Notes significantly restrict Simmons Bedding and its
subsidiaries from paying dividends to Holdings or to Bedding Superholdco and otherwise transferring
assets to Holdings or to Bedding Superholdco. Given the restrictions in Simmons Beddings existing
debt instruments, we currently anticipate that, in order to pay interest on or the principal amount
at maturity of the Discount Notes or Toggle Loan, we would be required to adopt one or more
alternatives, such as refinancing all of our indebtedness, selling our equity securities or the
equity securities or assets of Simmons Bedding, or seeking capital contributions or loans from our
affiliates. There can be no assurance that any of the foregoing actions could be effected as part
of the restructuring on satisfactory terms, if at all, or that any of the foregoing actions would
enable us to refinance our indebtedness or pay interest on or the principal amount of the Discount
Notes or Toggle Loan, or that any of such actions would be permitted by the terms of any other debt
instruments of ours or our subsidiaries then in effect. In addition, it is likely that any
restructuring that we would implement would not enable us to make any further payments on the
Discount Notes or Toggle Loan, and as a result, any equity or debt holder of Simmons Bedding,
Holdings or Bedding Superholdco could suffer the loss of a significant part or all of its loan or
investment.
The actions of Bedding Superholdcos controlling stockholder could conflict with the interests
of the holders of our debt.
Bedding Superholdcos stockholders include affiliates of THL, affiliates of Fenway Partners
and certain members of our management and directors. As of December 27, 2008, affiliates of THL
owned 71.1% of all voting stock. THL has the ability to elect all of the members of our board of
directors, subject to certain voting agreements under our stockholders agreement, appoint new
management and approve any action requiring the approval of our stockholders. The directors have
the corporate authority, subject to any restrictions under our debt and forbearance agreements, to
make decisions affecting our capital structure, including the issuance of additional indebtedness,
the terms of any restructuring and the declaration of dividends. In February 2007, Bedding
Superholdco borrowed $300.0 million under the Toggle Loan to distribute $278.3 million to certain
of Holdings then existing stockholders. In 2004, the net proceeds of the issuance of the $269.0
million aggregate amount of the Discount Notes were used to pay a $162.7 million dividend to
stockholders. In addition, transactions may be pursued that could enhance THLs equity investment
while involving risks to our interests or the interests of our investors. In particular, these and
other actions of Bedding Superholdcos controlling stockholder could negatively impact the debt or
equity holders of Simmons Bedding, Holdings or Bedding Superholdco.
We are vulnerable to interest rate risk with respect to our debt, which could lead to an
increase in interest expense and reduce our cash available for operations.
We are subject to interest rate risk in connection with our variable rate
indebtedness. Interest rate changes could increase the amount of our interest payments and thus
negatively impact our future earnings and cash flows. Our annual interest
expense on our floating rate indebtedness will increase by $0.7 million for each 1/8th
percentage point increase in interest rates.
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Risks Related to Our Business
Deteriorating economic conditions could negatively affect our revenues and profitability.
General U.S. and world economic conditions have weakened significantly, and we expect this
weakness to continue for the balance of 2009. The unemployment rate is expected to continue to
rise, consumer confidence and spending, including spending on larger homes or second homes, has
decreased dramatically and the stock market remains extremely volatile. In addition, in an
economic recession or under other adverse economic conditions, customers and vendors may be more
likely to fail to meet contractual terms or their payment obligations. Such failures will impact
our cash flow and ability to repay our indebtedness. A further decline in economic conditions may
have continued material adverse effect on our business.
We operate in the highly competitive bedding industry, and if we are unable to compete
successfully, we may lose customers and our sales may decline.
The bedding industry is highly competitive. There are approximately 550 bedding manufacturers
in the U.S. The top six manufacturers (including us) accounted for approximately 67% of the
conventional bedding industrys wholesale revenues in 2008 and the top 15 accounted for 81% of
wholesale revenues, according to Furniture/Today, an industry publication. The highly competitive
nature of the bedding industry means we are continually subject to the potential loss of market
share or the inability to gain market share, difficulty in raising prices, and margin
reductions. We may not be able to compete effectively in the future. In addition, some of our
principal competitors may be less highly-leveraged, have greater access to financial or other
resources, have lower cost operations and/or be better able to withstand changing market
conditions.
Regulatory requirements relating to our products may increase our costs, alter our
manufacturing processes and impair our product performance.
Our products are and will continue to be subject to regulation in the U.S. and Canada by
various federal, state, provincial and local regulatory authorities. In addition, other
governments and agencies in other jurisdictions regulate the sale and distribution of our
products. Compliance with these regulations may negatively impact our business. For example, the
products manufactured, distributed and sold by the Company come within the scope of several
provisions of the Consumer Product Safety Improvement Act of 2008 (CPSIA), which was signed into
law on August 14, 2008. CPSIA Section 102 requires that as of November 12, 2008, a Certificate of
Compliance (COC) issued by the manufacturer accompany all products subject to regulation by the
CPSC, that the COC be provided to all distributors and retailers to whom such regulated product is
shipped, and that the COC be available for inspection upon request of the CPSC. All of the
products subject to regulation by the CPSC that we manufacture were accompanied by a COC in advance
of the November 12, 2008 deadline, and we are able to produce the COCs upon request, in accordance
with current federal law. Further, CPSIA Section 101 establishes limitations on the levels of lead
that may be present in certain products intended for use by children; similarly, CPSIA Section 108
regulates the levels of certain phthalates which may be present in certain products intended for
use by children. Many of the juvenile products manufactured or distributed by us are subject to and
comply with these regulations. We are currently preparing to meet the requirements of CPSIA
Section 104 at such time as a final rule becomes effective. CPSIA Section 104 will require
registration of certain childrens products. We will continue to monitor rulemaking by the CPSC
and to work toward compliance with additional requirements of the CPSIA, particularly with respect
to juvenile products sold by us, and expect to be in full compliance in advance of the respective
effective dates. We incurred and will continue to incur significant costs related to the new
standards. In addition, the CPSC and other regulatory agencies may also adopt new laws, rules and
regulations relating to other standards. Our product solutions will not necessarily meet all
future standards. Compliance with such new laws, rules and regulations may increase our costs,
alter our manufacturing processes and impair the performance of our products. Further, any
bankruptcy filing by or against us could adversely affect our ability to comply with new laws,
rules or regulations on a timely basis.
Legal and regulatory requirements may impose costs or charges on us that impair our business
and reduce our profitability.
Our marketing and advertising practices could become the subject of proceedings before
regulatory authorities or the subject of claims by other parties which could require us to alter or
end these practices or adopt new practices that are not as effective or are more expensive. In
addition, our operations are subject to federal, state, provincial and local laws and regulations
relating to pollution, environmental protection, occupational health and safety and labor and
employee relations. We may not be in complete compliance with all such requirements at all
times. Under various environmental laws, we may be held liable for the costs of remediation of
releases of hazardous substances at any properties currently or previously owned or operated by us
or at any site to which we sent hazardous substances for disposal. Such liability may be imposed
without fault, and the amount of such liability could be material. We are subject to investigation
under various labor and employment laws and regulations by both governmental entities and employees
and former employees. Should liability be imposed as a result of such activity, particularly in
the context of class or multi-plaintiff litigation, our profitability could be reduced. Further,
any bankruptcy filing by or against us or our affiliates would result in significant expense for
legal counsel and professional advisors.
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Our new product launches may not be successful, which could cause a decline in our market
share and our level of profitability.
Each year we invest significant time and resources in research and development to improve our
product offerings. In addition, we incur increased costs in the near term associated with the
introduction of new product lines, including training of our employees in new manufacturing, sales
processes, and the production and placement of new floor samples for our customers. We are subject
to a number of risks inherent in new product introductions, including development delays, failure
of new products to achieve anticipated levels of market acceptance, and costs associated with
failed product introductions. In addition, we have a limited ability to increase prices on
existing products, and any failure of new product introductions may reduce our ability to sell our
products at appropriate price levels. Further, any bankruptcy filing by or against us or our
affiliates could adversely affect our ability to improve our product offerings.
We may experience further fluctuations in our operating results due to seasonality, which
could make sequential quarter to quarter comparison an unreliable indication of our performance.
We have historically experienced and expect to continue to experience seasonal and quarterly
fluctuations in net sales and operating income. Our third quarter sales are typically higher than
our other fiscal quarters. We attribute this seasonality principally to retailers sales
promotions related to the 4th of July and Labor Day holidays. This seasonality means that a
sequential quarter to quarter comparison may not be a good indication of our performance or how we
will perform in the future.
We rely on a relatively small number of suppliers and third-party providers, and if we
experience difficulty with a major supplier or a major third-party provider, we may have difficulty
finding alternative sources. This could disrupt our business.
We purchase substantially all of our conventional bedding raw materials centrally to obtain
volume discounts and achieve economies of scale. We obtain a large percentage of our raw materials
from a small number of suppliers. For the year ended December 27, 2008, we purchased approximately
74% of our raw materials from ten suppliers. As a result of the current economic climate, our
suppliers have experienced and may in the future experience disruptions in their relationships with
their suppliers, which disrupt their ability to provide us with requisite supplies and negatively
impact our manufacturing. Any future supply disruptions could adversely affect our ability to
manufacture our products and sales.
We have supply agreements with several suppliers including L&P, Foamex, and National Standard
Company. However, there is no guarantee that we will be able to renew these agreements. With the
exception of certain products of L&P, Foamex and National Standard Company, we believe that we can
readily replace our supply, if or when the need arises, within 90 days as we have already
identified and use alternative resources.
L&P supplies the majority of certain bedding components (including certain spring components,
insulator pads, wire, fiber, quilt backing and flange material) to the U.S. bedding industry. In
2008, we purchased approximately 30% of our raw materials from L&P. To ensure an adequate supply
of various components, we have entered into agreements with L&P, generally expiring in the year
2010, for the supply of certain spring components. Among other things, these agreements generally
require us to purchase a majority of our requirements of several components from L&P. National
Standard Company is our exclusive supplier for the stranded wire used in our Advanced Pocketed
Coil products. Foamex is our exclusive supplier for NxG visco-foam used in all of our
Comforpedic® and Beautyrest NxG products.
Because we may not be able to find alternative sources for some of these components on terms
as favorable to us as we currently receive, or at all, our business, financial condition and
results of operations could be impaired if we lose L&P, Foamex or National Standard Company as a
supplier. Further, if we do not reach committed levels of purchases, certain sales volume
rebates or exclusivity to certain products could be lost.
Additionally, our domestic operations primarily utilize three third-party logistics providers
which, in the aggregate, accounted for approximately 62% of our outbound wholesale shipments for
the year ended December 27, 2008.
Any bankruptcy filing by or against us or our affiliates could adversely affect our ability to
obtain new or maintain existing relationships with suppliers and logistics providers. Any
instability of, or change in our relationship with, these providers could materially disrupt our
business.
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We are subject to fluctuations in the cost and availability of raw materials, which could
increase our costs or disrupt our production.
The major raw materials that we purchase for production are foam, wire, spring components,
lumber, cotton, insulator pads, innersprings, foundation constructions, fabrics and roll goods
consisting of fiber, ticking and non-wovens. The price and availability of these raw materials, as
well as the cost of fuel to transport our products to market, are subject to market conditions
affecting supply and demand. During 2007 and 2008, the cost of these components remained
elevated above historical averages. Further, the price of lumber we obtain from Canada has
increased as a result of increased tariffs and may increase due to adverse fluctuations in exchange
rates. Additionally, during 2007 and 2008, our distribution costs were negatively impacted by the
rapid rise in diesel prices. Our financial condition and results of operations may be impaired by
further increases in raw material and diesel costs to the extent we are unable to pass those higher
costs on to our customers. In addition, if these materials are not available on a timely basis or
at all, we may not be able to produce our products, and our sales may decline.
Because we depend on our significant customers, a decrease or interruption in their business
with us could reduce our sales and profits.
Our top five customers collectively accounted for approximately 26% of our bedding shipments
for the year ended December 27, 2008. Most of our customer arrangements are by purchase order or
are terminable at will. Several of our customer arrangements are governed by long-term supply
agreements. A substantial decrease or interruption in business from our significant customers
could result in a reduction in net sales, an increase in bad debt expense or the loss of future
business, any of which could impair our business, financial condition or results of
operations. Additionally, the expiration of a long-term supply agreement could result in the loss
of future business, or the payment of additional amounts to secure a contract renewal or an
increase in required advertising support, any of which could impair our business, financial
condition or results of operations. Further, if our customers seek bankruptcy protection, they
could act to terminate all or a portion of their business with us, originate new business with our
competitors and terminate or assign our long-term supply agreements, which could impair our results
of operations. Any loss of revenue from our major customers, including the non-payment or late
payment of our invoices, could materially adversely affect our business, results of operations and
financial condition.
Retailers may, and in the past some of our retailers did, consolidate, undergo restructurings
or reorganizations, or realign their affiliations. These events may result, and have temporarily
resulted, in a decrease in the number of stores that carry or carried our products, an increase in
the ownership concentration in the retail industry, and/or our being required to record significant
bad debt expense and write-off the unamortized portion of expenditures for customer supply
agreements. Retailers may decide to carry only a limited number of brands of mattress products,
which could affect our ability to sell our products to them on favorable terms, if at all, and
could negatively impact our business, financial condition or results of operations. Any bankruptcy
by or against us or our affiliates could adversely affect our relationship with retailers, which
could impair our business, financial condition or results of operations.
If our cost cutting measures are not successful, we may become less competitive.
A variety of factors could prevent us from achieving our goal of better aligning our product
offerings and cost structure with customer needs in the current business environment through
reducing our operating expenses and eliminating redundancies. For example, our efforts to
consolidate our plants could cause our other facilities to have to operate above optimal capacity
and could increase distribution expenses. If we receive unanticipated orders, these incremental
volumes could be unprofitable due to the higher costs of operating above our optimal capacity. In
addition, we may not be able to sufficiently increase capacity to meet any increased demand. As a
result, we may not achieve our expected cost savings in the time anticipated, or at all. In such
case, our results of operations and profitability may be negatively impacted, making us less
competitive and potentially causing us to lose market share.
A change or deterioration in labor relations or the inability to renew our collective
bargaining agreements could disrupt our business operations and increase our costs, which could
negatively impact sales and decrease our profitability.
At eight of our 21 manufacturing facilities our employees (approximately 56% of our workforce
at December 27, 2008) are represented by various labor unions with separate collective bargaining
agreements. Our collective bargaining agreements are typically negotiated for two- to five-year
terms. We may not be able to renew these contracts on a timely basis or on favorable terms. It is
possible that labor union efforts to organize employees at additional non-union facilities may be
successful. It is also possible that we may experience labor-related work stoppages in the
future. Any of these developments could disrupt our business operations or increase costs, which
could negatively impact our sales and profitability.
The loss of the services of any member of our executive leadership team could impair our
ability to execute our business strategy and negatively impact our business, financial condition
and results of operations.
We depend on the continued services of our executive leadership team, including Stephen
Fendrich, our President and Chief Operating Officer; Dominick Azevedo, our Executive Vice President
Sales; William Creekmuir, our Executive Vice President and Chief Financial Officer; Kristen
McGuffey, our Executive Vice President and General Counsel; Timothy Oakhill, our Executive Vice
President Marketing and Licensing; and Kimberly Samon, our Executive Vice President Human
Resources. The loss of any of our key officers could impair our ability to execute our business
strategy and negatively impact our business, financial condition and results of operations. We
have non-compete agreements with our executive leadership team. We do not carry key man insurance
for any of our management executives. Any bankruptcy filing by or against us or our affiliates
could adversely affect our ability to retain and motivate our executive leadership team or other
key employees.
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Our international operations are subject to foreign exchange, tariff and tax risks and our
ability to expand in certain international markets is limited by the terms of licenses we have
granted to manufacture and sell Simmons products.
We currently conduct significant operations in Canada. Our Canadian operations are subject to
fluctuations in currency exchange rates, the potential imposition of trade restrictions, and tariff
and other tax increases. We have also limited our ability to independently expand in certain
international markets where we have granted licenses to manufacture and sell Simmons
products. Fluctuations in the currency exchange rate between the U.S. dollar and the Canadian
dollar may affect our shareholders equity and our financial condition or results of operations. In
addition, as a result of a recent tax treaty between the United States and Canada, the withholding
tax on transfers of cash from our Canadian operations to our U.S. operations has increased
substantially which could impact our results of operations.
We have substantial funds held at few financial institutions that exceed the insurance
coverage offered by the FDIC, the loss of which would have a severe negative affect on our
operations and liquidity.
As of June 27, 2009, we had approximately $67.3 million held in accounts at few financial
institutions in the United States, Canada and Puerto Rico. Although the FDIC insures deposits in
banks and thrift institutions up to $250,000 per eligible account, the amount that we have
deposited at these banks substantially exceeds the FDIC limit. If any of the financial
institutions where we have deposited funds were to fail, we may lose some or all of our deposited
funds that exceed the FDICs $250,000 insurance coverage limit. Such a loss would have a severe
negative effect on our operations and liquidity.
We have retirement plans that are currently under funded and we will be required to make cash
payments to the plans, reducing the cash available for our business.
We have a registered combined non-contributory defined benefit and defined contribution
pension plan for substantially all of the employees of Simmons Canada and a retirement compensation
arrangements (RCA) for certain senior officials of Simmons Canada. As of December 27, 2008, the
projected benefit obligation exceeded the fair value of the plan assets of the defined benefit
segment of the pension plan (Pension Plan) by $2.9 million. As of December 27, 2008, the fair
value of the plan assets exceeded the projected benefit obligation of the RCA by $0.7 million. We
expect to make estimated minimum funding contributions totaling approximately $1.1 million in 2009
related to the Pension Plan. No contributions are expected for the RCA in 2009. We also have
unfunded supplemental executive retirement plans (SERP) for certain former executives. As of
December 27, 2008, we had a liability of $3.1 million related to the SERP and anticipate making
contributions to the SERP of $0.2 million in 2009. If the performance of the assets in the Pension
Plan do not meet our expectations, or if other actuarial assumptions are modified, our future cash
payments to the Pension Plan could be higher than we expected.
If we are not able to protect or maintain our trademarks, patents, trade secrets and other
intellectual property, we may not be able to prevent competitors from developing similar products
or from marketing in a manner that capitalizes on our trademarks, patents and other intellectual
property.
Brands and branded products are very important to our business. We have a large number of
well-known trademarks and service marks registered in the U.S., Canada and abroad, and we continue
to pursue many pending applications to register marks domestically and internationally. We also
have a significant portfolio of patents and patent applications that have been issued or are being
pursued both domestically and abroad. In addition, certain marks, trade secrets, know-how and
other proprietary materials that we use in our business are not registered or subject to patent
protection. Our intellectual property is important to the design, manufacture, marketing and
distribution of our products and services.
To compete effectively with other companies, we must maintain the proprietary nature of our
owned and licensed intellectual property and maintain our trade secrets, know-how and other
proprietary materials. Despite our efforts, we cannot eliminate the following risks:
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it may be possible for others to circumvent our trademarks and service
marks, patents and other rights; |
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our products and promotional materials, including trademarks, service
marks, may now or in the future violate the proprietary rights of others; |
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we may be prevented from using our own trademarks, service marks,
product designs or manufacturing technology, if challenged; |
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it may be cost prohibitive to enforce or defend our trademarks, service
marks, patents and other rights; |
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our pending applications regarding trademarks, service marks and
patents may not result in marks being registered or patents being issued; |
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we may be unable to protect our technological advantages when our
patents expire; and |
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our trade secrets, know-how and other proprietary materials may be
revealed to the public or our competitors and no longer provide protection for
the related intellectual property. |
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The nature and value of our intellectual property may be affected by a change in law
domestically or abroad. In light of the political and economic circumstances in certain foreign
jurisdictions, our rights may not be enforced or enforceable in foreign countries even if they are
validly issued or registered.
While we do not believe that our overall success depends upon any particular intellectual
property rights, any inability to maintain the proprietary nature of our intellectual property
could have a material negative effect on our business. For example, an action to enforce our
rights, or an action brought by a third party challenging our rights, could impair our financial
condition or results of operations, either as a result of a negative ruling with respect to our
use, the validity or enforceability of our intellectual property or through the time consumed and
legal costs involved in bringing or defending such an action.
We may face exposure to product liability claims, which could reduce our liquidity and
profitability and reduce consumer confidence in our products.
We face an inherent business risk of exposure to product liability claims if the use of any of
our products results in personal injury or property damage. In the event that any of our products
prove to be defective or if they are determined not to meet state or federal legal requirements, we
may be required to recall or redesign those products, which could be costly and impact our
profitability. We maintain insurance against product liability claims, but such coverage may not
continue to be available on terms acceptable to us and such coverage may not be adequate to cover
types of liabilities actually incurred. A successful claim brought against us if not fully covered
by available insurance coverage, or any claim or product recall that results in significant adverse
publicity against us, could have a material negative effect on our business and/or result in
consumers purchasing fewer of our products, which could also reduce our liquidity and
profitability.
An increase in our return rates or an inadequacy in our warranty reserves could reduce our
liquidity and profitability.
Our return rates may not remain within our historical levels. An increase in return rates
could significantly impair our liquidity and profitability. We also generally provide our
customers with a limited warranty against manufacturing defects on our conventional innerspring and
specialty bedding products of ten and 20 to 25 years, respectively. Our juvenile bedding products
generally have warranty periods ranging from five years to a lifetime. The historical costs to us
of honoring warranty claims have been within managements expectations. However, as we have
released new products in recent years, many new products are fairly early in their product life
cycles. Because our products have not been in use by our customers for the full warranty period,
we rely on the combination of historical experience and product testing for the development of our
estimate for warranty claims. However, our actual level of warranty claims could prove to be
greater than the level of warranty claims we estimated based on our products performance during
product testing. We have also experienced non-warranty returns for reasons generally related to
order entry errors, shipping damage, and to accommodate customers. If our warranty and
non-warranty reserves are not adequate to cover future claims, their inadequacy could reduce our
liquidity and profitability.
Additional terrorist attacks in the U.S. or against U.S. targets or actual or threats of war
or the escalation of current hostilities involving the U.S. or its allies could negatively impact
our business, financial condition or results of operations.
Additional terrorist attacks in the U.S. or against U.S. targets, or threats of war or the
escalation of current hostilities involving the U.S. or its allies, or military or trade
disruptions impacting our domestic or foreign suppliers of components of our products, may impact
our operations, including, but not limited to, causing supply chain disruptions and decreased sales
of our products. These events could also cause an increase in oil or other commodity prices, which
could adversely affect our raw materials or transportation costs. More generally, any of these
events could cause consumer confidence and spending to decrease. These events also could cause or
act to prolong an economic recession in the U.S. or abroad. Any of these occurrences could have a
significant impact on our business, financial condition or results of operations.
An outbreak of swine flu or a pandemic, or the threat of a pandemic, may adversely impact our
ability to produce and deliver our products or may adversely impact consumer demand.
A significant outbreak of swine flu, or a similar pandemic, or even a perceived threat of such
an outbreak, could cause significant disruptions to our supply chain, manufacturing capability,
corporate support infrastructure or distribution system that could adversely impact our ability to
produce and deliver products. Similarly, such events could cause significant adverse impacts on
consumer confidence and consumer demand generally. Any of these occurrences could have a
significant impact on our business, financial condition or results of operations.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None.
53
Item 3. Defaults Upon Senior Securities
See Part I, Item 2 Managements Discussion and Analysis of Financial Condition and Results of
Operations Liquidity and Capital Resources.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
Amendments
to Articles of Incorporation.
On August 18, 2009, Simmons Bedding amended its amended and restated certificate of
incorporation to provide for three classes of directors, as nearly equal in number as possible.
Accordingly, the current members of the Board of Directors of Simmons Bedding will be divided into
three classes. The term of office of the first class of directors will expire in 2009, the term of
office of the second class of directors will expire in 2010 and the term of the third class of
directors will expire in 2011. The amended and restated certificate of incorporation of Simmons
Bedding is filed herewith as Exhibit 3.1.
On August 20, 2009, THL-SC Bedding Company filed a certificate of amendment of certificate of
incorporation to change its name to Bedding Holdco Incorporated. On August 20, 2009, Simmons
Holdco, Inc., Holdings parent company, also filed a certificate of amendment of certificate of
incorporation to change its name to Bedding Superholdco Incorporated. The certificates of
amendment of certificate of incorporation are filed herewith as Exhibits 3.2 and 3.3.
Item 6. Exhibits
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3.1 |
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Third Amended and Restated Certificate of Incorporation of Simmons Bedding. |
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3.2 |
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Certificate of Amendment of Certificate of Incorporation of THL-SC Bedding Company. |
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3.3 |
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Certificate of Amendment of Certificate of Incorporation of Simmons Holdco Inc. |
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10.1 |
|
|
Second Amendment to Second Forbearance Agreement and Fifth Amendment to the Second Amended and Restated Credit and
Guaranty Agreement dated as of May 27, 2009, by and among Simmons Bedding, Bedding Holdco and certain subsidiaries
of Simmons Bedding, and the senior lenders. |
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10.2 |
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Amendment No. 2 to Forbearance Agreement to Indenture dated May 27, 2009, by and among Simmons Bedding Company,
the Guarantors (as defined in the Indenture) and the Amending Holders. |
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31.1 |
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President and Chief Operating Officer Certification of the Type Described in Rule 13a 14(a) and Rule 15d 14(a). |
|
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31.2 |
|
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Chief Financial Officer Certification of the Type Described in Rule 13a 14(a) and Rule 15d 14(a). |
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32.1 |
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Certification of President and Chief Operating Officer pursuant to 18 U.S.C. Section 1350 (furnished herewith). |
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32.2 |
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Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350 (furnished herewith). |
54
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Simmons Company has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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SIMMONS COMPANY |
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By:
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/s/ William S. Creekmuir
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William S. Creekmuir |
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Executive Vice President & Chief Financial Officer |
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Date: August 21, 2009
55
Exhibit C
EXHIBIT C
PROJECTED FINANCIAL INFORMATION OF SERTA HOLDINGS
Serta Holdings has prepared its projected financial results on a consolidated basis for the
calendar years 2009, 2010, 2011, 2012 and 2013 (the Projections). Estimates for 2009 comprise
unaudited actual results from management accounts for the nine months ended September 30, 2009 and
projections for the period October 1, 2009 to December 31, 2009. The financial information
discussed herein includes certain statements that may be deemed to be forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995. See Cautionary
Statement Regarding Forward Looking Statements in the Disclosure Statement.
The Projections included in this document have been prepared by, and are the responsibility
of, Serta Holdings management. The Projections were not prepared to comply with the guidelines
for prospective financial statements published by the American Institute of Certified Public
Accountants and the Rules and Regulations of the Securities and Exchange Commission. Serta
Holdings independent auditors have neither examined, compiled nor performed any procedures with
respect to the Projections and accordingly do not express any opinion or any other form of
assurance with respect to the Projections, assume no responsibility for the Projections and
disclaim any association with the projections. Results set forth in the financial projections
should not be viewed as indicative of future results. Except for purposes of the Disclosure
Statement, Serta Holdings does not publish projections of its anticipated financial position or
results of operations.
SIGNIFICANT ASSUMPTIONS FOR FINANCIAL PROJECTIONS
SERTA HOLDINGS HAS PREPARED THESE FINANCIAL PROJECTIONS BASED UPON THE FOLLOWING ASSUMPTIONS THAT
THEY BELIEVE TO BE REASONABLE UNDER THE CIRCUMSTANCES. MANY OF THE ASSUMPTIONS ON WHICH THE
FINANCIAL PROJECTIONS ARE BASED ARE SUBJECT TO SIGNIFICANT UNCERTAINTIES. INEVITABLY, SOME
ASSUMPTIONS WILL NOT MATERIALIZE AND UNANTICIPATED EVENTS AND CIRCUMSTANCES MAY AFFECT THE ACTUAL
FINANCIAL RESULTS. THEREFORE, THE ACTUAL RESULTS ACHIEVED THROUGHOUT THE PROJECTION PERIOD MAY
VARY FROM THE PROJECTED RESULTS AND THE VARIATIONS MAY BE MATERIAL. ALL HOLDERS OF CLAIMS AND
INTERESTS THAT ARE ENTITLED TO VOTE TO ACCEPT OR REJECT THE PLAN ARE URGED TO EXAMINE CAREFULLY ALL
OF THE ASSUMPTIONS ON WHICH THE FINANCIAL PROJECTIONS ARE BASED IN EVALUATING THE PLAN.
General
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|
Methodology. The Projections were developed based on assumptions of
macroeconomic and industry factors, as well as factors specific to Serta Holdings
brands, products and customers. These assumptions were developed by Serta Holdings
management using their best business judgment. The Projections were prepared in
good faith by Serta Holdings management using the same accounting policies, to the
extent applicable, as those used to prepare its historical financial statements. |
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|
Fiscal Years. Financial projections are presented on a calendar year
end. |
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|
Effective Date. The Financial Projections assume an Effective Date of
March 15, 2010. |
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|
Macroeconomic and Industry Environment. The projections reflect
managements expectation of the bedding industry reverting to historical levels of
unit and AUSP growth going forward, driven by a broader economic recovery beginning
in late 2010 and 2011. |
Exhibit C-1
Projected Income Statement
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|
Revenues. Net revenues are projected to increase 7.4% in 2010, 7.6% in
2011 and 5.9% in 2012 and 2013. Management expects Serta Holdings unit sales to
grow in line with the rest of the bedding industry and AUSP to increase as a result
of inflation and changes in product mix toward higher-end products. |
|
|
|
Cost of Goods Sold. Cost of goods sold primarily includes raw material
costs (steel, foams, fabric and others) with labor and overhead being a smaller
portion of the total cost. Annual inflation factors were applied to various
material categories as well as variable overhead based on expected commodity price
increases and product mix shifts and adjusted for anticipated productivity and
efficiency gains such as reduced pounds of scrap per piece and reduced direct labor
hours per piece. Fixed manufacturing overhead is projected to increase in line with
inflation. |
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|
Gross Margins. Gross margins are expected to remain flat at 40.5% driven
primarily by commodity price inflation adjusted for improvements in manufacturing
efficiency and labor productivity. |
|
|
|
Selling, General and Administrative Expenses. SG&A expenses primarily
consist of variable expenses, such as distribution costs which are expected to
remain flat as a percentage of revenue going forward and selling and advertising
costs which are expected to increase moderately as a percentage of revenue over the
projection period. SG&A expenses also include fixed expenses, such as salaries and
fringe benefits which are expected to grow in line with inflation. |
|
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|
Other Operating Expenses. Other operating expenses include the
amortization of intangible assets, non-cash stock-based compensation, plant closure
costs and a goodwill impairment charge in 2008. The projections reflect
managements expectation that there will be no goodwill impairment charges and plant
closure costs. Non-cash stock-based compensation expense and amortization reflect
scheduled amounts through 2013. |
|
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|
Tax Shield. Prior to the acquisition of NBC and certain of its affiliates
by AOT in 2005, NBC was a limited liability company that was treated as partnership
for tax purposes. As a result of the acquisition by AOT of 100% of the NBC
interests and subsequent acquisitions, the tax basis of the companys assets were
increased to their fair market values, resulting in additional tax deductible
amortization over a 15-year period. The amortization associated with the increase
in tax basis reduces Serta Holdings taxable income by approximately $48 million
annually. On a present value basis assuming blended U.S. federal and state income
tax rate of 40% and a discount rate equal to 11%, the value of this tax shield is
expected to be approximately $123 million as of December 31, 2009. As of December
31, 2008, Serta Holdings had approximately $40 million of net operating losses that
may be available to reduce taxable income throughout the projection period and
beyond. |
|
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|
Capital Expenditures. Serta Holdings expects to spend approximately $7
million per annum on maintenance and expansion capital expenditures, based on
historical maintenance capital spending requirements and project-level budgets for
expansion capex. |
Exhibit C-2
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Working Capital. Accounts Receivable and Accounts Payable levels are
projected to fluctuate with Revenues and throughout the year based on historical
seasonality and levels. Inventory turns are projected to remain constant going
forward. |
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|
Capital Structure and Interest Expense. Interest expense projections are
based on Serta Holdings existing capital structure using the forward LIBOR curve
(adjusted for hedges currently in place). The
projections assume that upon maturity the capital structure is refinanced by another
facility with substantially similar terms. |
|
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|
Adjusted Earnings before Interest, Taxes, Depreciation and Amortization
(Adjusted EBITDA). For purposes of the projections, Adjusted EBITDA is a pro
forma measure defined as operating income (loss) plus the amortization of intangible
assets, depreciation, goodwill impairment charge, non-cash stock-based compensation,
gains and losses on property and equipment, management fees, plant closure costs and
other credit agreement related adjustments. Adjusted EBITDA is presented because it
is used by Serta Holdings lenders for purposes of compliance with provisions of its
credit agreements and assessment of credit evaluation, by management and the
investors in assessing the operating performance of the company and the
determination of management incentive compensation. |
Exhibit C-3
Serta Holdings Financial Information
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|
|
Actual |
|
|
9ME |
|
|
LTM |
|
|
Estimated |
|
|
Forecast |
|
($ in millions) |
|
2007 |
|
|
2008 |
|
|
Sep-08 |
|
|
Sep-09 |
|
|
Sep-09 |
|
|
2009E |
|
|
2010P |
|
|
2011P |
|
|
2012P |
|
|
2013P |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
Net Sales |
|
$ |
756.4 |
|
|
$ |
812.2 |
|
|
$ |
649.8 |
|
|
$ |
573.9 |
|
|
$ |
736.3 |
|
|
$ |
742.3 |
|
|
$ |
797.0 |
|
|
$ |
857.3 |
|
|
$ |
908.2 |
|
|
$ |
962.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
Cost of Goods Sold |
|
|
450.0 |
|
|
|
524.0 |
|
|
|
419.5 |
|
|
|
335.2 |
|
|
|
439.7 |
|
|
|
434.7 |
|
|
|
474.3 |
|
|
|
510.0 |
|
|
|
540.6 |
|
|
|
572.6 |
|
|
|
|
|
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|
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|
|
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|
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|
|
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|
|
Gross Profit |
|
|
306.4 |
|
|
|
288.2 |
|
|
|
230.3 |
|
|
|
238.7 |
|
|
|
296.6 |
|
|
|
307.6 |
|
|
|
322.7 |
|
|
|
347.2 |
|
|
|
367.6 |
|
|
|
389.5 |
|
|
|
|
|
|
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|
|
|
|
|
|
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|
|
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|
|
Selling & Advertising Expense |
|
|
141.5 |
|
|
|
145.9 |
|
|
|
122.3 |
|
|
|
105.3 |
|
|
|
128.9 |
|
|
|
132.1 |
|
|
|
145.5 |
|
|
|
157.2 |
|
|
|
166.2 |
|
|
|
176.2 |
|
Delivery Expense |
|
|
31.7 |
|
|
|
38.9 |
|
|
|
31.7 |
|
|
|
24.1 |
|
|
|
31.4 |
|
|
|
34.2 |
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|
|
38.5 |
|
|
|
40.4 |
|
|
|
41.7 |
|
|
|
43.1 |
|
Administrative Expense |
|
|
38.3 |
|
|
|
42.6 |
|
|
|
31.4 |
|
|
|
33.4 |
|
|
|
44.6 |
|
|
|
48.4 |
|
|
|
42.7 |
|
|
|
44.2 |
|
|
|
45.7 |
|
|
|
47.3 |
|
Other Operating Expenses |
|
|
12.1 |
|
|
|
90.1 |
|
|
|
7.6 |
|
|
|
8.8 |
|
|
|
91.4 |
|
|
|
9.6 |
|
|
|
9.0 |
|
|
|
5.8 |
|
|
|
5.8 |
|
|
|
5.8 |
|
|
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|
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|
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|
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|
|
Operating Income / (Loss) |
|
$ |
82.8 |
|
|
$ |
(29.3 |
) |
|
$ |
37.4 |
|
|
$ |
67.0 |
|
|
$ |
0.2 |
|
|
$ |
83.4 |
|
|
$ |
86.9 |
|
|
$ |
99.6 |
|
|
$ |
108.2 |
|
|
$ |
117.2 |
|
|
|
|
|
|
|
|
|
|
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|
|
Reconciliation to Adjusted EBITDA |
|
|
|
|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
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|
|
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|
|
|
|
|
Operating Income / (Loss) |
|
$ |
82.8 |
|
|
$ |
(29.3 |
) |
|
$ |
37.4 |
|
|
$ |
67.0 |
|
|
$ |
0.2 |
|
|
$ |
83.4 |
|
|
$ |
86.9 |
|
|
$ |
99.6 |
|
|
$ |
108.2 |
|
|
$ |
117.2 |
|
Amortization of Intangibles |
|
|
7.4 |
|
|
|
7.4 |
|
|
|
5.6 |
|
|
|
5.6 |
|
|
|
7.4 |
|
|
|
7.4 |
|
|
|
6.9 |
|
|
|
5.8 |
|
|
|
5.8 |
|
|
|
5.8 |
|
Severance & Restructuring (Plant Closures) |
|
|
2.2 |
|
|
|
2.5 |
|
|
|
0.2 |
|
|
|
0.4 |
|
|
|
2.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill Impairment |
|
|
|
|
|
|
77.8 |
|
|
|
|
|
|
|
|
|
|
|
77.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation Expense |
|
|
8.5 |
|
|
|
8.4 |
|
|
|
6.5 |
|
|
|
6.5 |
|
|
|
8.4 |
|
|
|
8.5 |
|
|
|
8.5 |
|
|
|
8.5 |
|
|
|
8.5 |
|
|
|
8.5 |
|
Other Credit Agreement Adjustments |
|
|
4.1 |
|
|
|
3.4 |
|
|
|
2.2 |
|
|
|
3.2 |
|
|
|
4.4 |
|
|
|
2.7 |
|
|
|
2.7 |
|
|
|
0.5 |
|
|
|
0.5 |
|
|
|
0.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
105.0 |
|
|
$ |
70.2 |
|
|
$ |
51.9 |
|
|
$ |
82.7 |
|
|
$ |
101.0 |
|
|
$ |
102.0 |
|
|
$ |
105.0 |
|
|
$ |
114.4 |
|
|
$ |
123.0 |
|
|
$ |
132.0 |
|
|
|
|
|
|
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|
|
|
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|
|
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|
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|
|
Actual |
|
|
Estimated |
|
|
Forecast |
|
($ in millions) |
|
2007 |
|
|
2008 |
|
|
Sep-09 |
|
|
Dec-09 |
|
|
Mar-10 |
|
|
2010P |
|
|
2011P |
|
|
2012P |
|
|
2013P |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
Cash |
|
$ |
53.3 |
|
|
$ |
29.1 |
|
|
$ |
97.3 |
|
|
$ |
100.6 |
|
|
$ |
104.9 |
|
|
$ |
116.8 |
|
|
$ |
133.3 |
|
|
$ |
149.3 |
|
|
$ |
166.8 |
|
Current Assets exc. Cash |
|
|
113.8 |
|
|
|
126.5 |
|
|
|
121.2 |
|
|
|
91.0 |
|
|
|
111.9 |
|
|
|
98.7 |
|
|
|
121.7 |
|
|
|
129.2 |
|
|
|
137.1 |
|
Current Liabilities exc. Debt |
|
|
105.3 |
|
|
|
104.9 |
|
|
|
109.3 |
|
|
|
81.6 |
|
|
|
101.5 |
|
|
|
88.9 |
|
|
|
110.4 |
|
|
|
117.3 |
|
|
|
124.5 |
|
Total Long-Term Debt |
|
|
631.8 |
|
|
|
627.6 |
|
|
|
624.4 |
|
|
|
613.5 |
|
|
|
599.6 |
|
|
|
560.8 |
|
|
|
507.0 |
|
|
|
454.6 |
|
|
|
397.9 |
|
Exhibit C-4
Exhibit D
EXHIBIT D
PROJECTED FINANCIAL INFORMATION OF NEW PARENT
Set forth below are the pro forma and projected financial results for New Parent on a combined
basis for calendar years 2009, 2010, 2011, 2012 and 2013 (the New Parent Projections).
The financial information discussed herein includes certain statements that may be deemed to be
forward-looking statements within the meaning of the Private Securities Litigation Reform Act of
1995. See Cautionary Statement Regarding Forward Looking Statements in the Disclosure Statement.
The New Parent Projections included in this document have been prepared by, and are the
responsibility of, the management of Serta Holdings and Simmons Company. The New Parent
Projections were not prepared to comply with the guidelines for prospective financial statements
published by the American Institute of Certified Public Accountants and the Rules and Regulations
of the Securities and Exchange Commission. Serta Holdings independent auditors and the Companys
independent registered public accounting firm have neither examined, compiled nor performed any
procedures with respect to the New Parent Projections and accordingly do not express any opinion or
any other form of assurance with respect to the New Parent Projections, assume no responsibility
for the New Parent Projections and disclaim any association with the projections. Results set forth
in the financial projections should not be viewed as indicative of future results. Except for
purposes of the Disclosure Statement, the Purchasers do not publish projections of the anticipated
financial position or results of operations of New Parent.
SIGNIFICANT ASSUMPTIONS FOR FINANCIAL PROJECTIONS
THE FINANCIAL PROJECTIONS FOR NEW PARENT ARE BASED UPON THE FOLLOWING ASSUMPTIONS THAT THEY BELIEVE
TO BE REASONABLE UNDER THE CIRCUMSTANCES. MANY OF THE ASSUMPTIONS ON WHICH THE PROJECTIONS ARE
BASED ARE SUBJECT TO SIGNIFICANT UNCERTAINTIES. INEVITABLY, SOME ASSUMPTIONS WILL NOT MATERIALIZE
AND UNANTICIPATED EVENTS AND CIRCUMSTANCES MAY AFFECT THE ACTUAL FINANCIAL RESULTS. THEREFORE, THE
ACTUAL RESULTS ACHIEVED THROUGHOUT THE PROJECTION PERIOD MAY VARY FROM THE PROJECTED RESULTS AND
THE VARIATIONS MAY BE MATERIAL. ALL HOLDERS OF CLAIMS AND INTERESTS THAT ARE ENTITLED TO VOTE TO
ACCEPT OR REJECT THE PLAN ARE URGED TO EXAMINE CAREFULLY ALL OF THE ASSUMPTIONS ON WHICH THE
FINANCIAL PROJECTIONS ARE BASED IN EVALUATING THE PLAN.
Assumptions
|
|
|
Equity Capitalization. The equity capitalization of New Parent will
consist of approximately $310 million of Class B membership interests issued in
return for new capital invested as part of this transaction; up to $15 million of
Class A Units issued to Eligible Investors in accordance with the Plan; and $200
million of Class A membership interests issued to the Sponsors and their affiliates
and co-investors who are currently equity holders of Serta Holdings as well as
management, employees and independent directors of Serta Holdings in exchange for
all of the outstanding stock of Serta Holdings. Additional Class B Membership
interests may be issued to fund additional working capital needs or strategic
transactions. |
|
|
|
Operations. The combined financial projections assume that Simmons
Company and Serta Holdings will continue to operate as separate and independent
entities. Any transactions between the two entities, whether to realize synergies
or for any other reason, will be negotiated at arms length in accordance with the
provisions of the master services agreement between the two companies. Only nominal
incremental tax, audit and board fees are expected to be incurred at the New Parent.
|
Exhibit D-1
|
|
|
Cost Savings. Run-rate cost savings totaling approximately $50 million
annually are expected to be achieved within 18 to 36 months after the closing. Cost
savings are primarily expected to be derived from improvements in raw material
sourcing through volume purchasing and vendor best-pricing, optimization of
logistics including expansion of in-house logistics capabilities and implementation
of manufacturing best practices. Based on a detailed investigation of cost-savings
opportunities, it is expected that approximately 51% of the total cost savings will
be realized by Simmons Company and 49% will be realized by Serta Holdings and its
subsidiaries. |
|
|
|
Cost to Achieve Synergies. Aggregate cost of achieving the aforementioned
synergies is expected to be in the $30-40 million range. These expenses will be
incurred in the form of capital expenditures and non-recurring restructuring costs. |
|
|
|
Effective Date. The New Parent Projections assume an Effective Date of
March 15, 2010. |
|
|
|
Pro Forma. The 2009 financial information presented below is pro forma
to assume an Effective Date as of the beginning of 2009. The March 15, 2010 balance
sheet presented below is pro forma to assume an Effective Date as of March 15, 2010.
The pro forma information does not purport to be indicative of the financial
position and results that actually would have been obtained had the transactions
been completed as of the assumed Effective Date and for the period presented or that
may be obtained in the future. |
New Parent Financial Information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma |
|
|
Forecast |
|
($ in millions) |
|
2009E |
|
|
2010P |
|
|
2011P |
|
|
2012P |
|
|
2013P |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Sales |
|
$ |
1,645.4 |
|
|
$ |
1,861.5 |
|
|
$ |
2,017.0 |
|
|
$ |
2,104.1 |
|
|
$ |
2,248.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of Goods Sold |
|
|
949.0 |
|
|
|
1,136.5 |
|
|
|
1,232.8 |
|
|
|
1,293.6 |
|
|
|
1,377.3 |
|
Gross Profit |
|
$ |
696.4 |
|
|
$ |
725.0 |
|
|
$ |
784.2 |
|
|
$ |
810.5 |
|
|
$ |
870.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SG&A |
|
|
561.3 |
|
|
|
565.5 |
|
|
|
571.5 |
|
|
|
591.5 |
|
|
|
632.6 |
|
Operating Income / (Loss) |
|
$ |
135.1 |
|
|
$ |
159.5 |
|
|
$ |
212.7 |
|
|
$ |
219.0 |
|
|
$ |
238.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
232.5 |
|
|
$ |
225.6 |
|
|
$ |
260.2 |
|
|
$ |
268.6 |
|
|
$ |
286.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Run-Rate Cost Savings |
|
|
50.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adj. EBITDA w/ Run-Rate Cost Savings |
|
$ |
282.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma |
|
|
Forecast |
|
($ in millions) |
|
Mar-10 |
|
|
2010P |
|
|
2011P |
|
|
2012P |
|
|
2013P |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash |
|
$ |
119.3 |
|
|
$ |
182.0 |
|
|
$ |
254.4 |
|
|
$ |
342.1 |
|
|
$ |
443.4 |
|
Current Assets |
|
|
272.0 |
|
|
|
266.1 |
|
|
|
303.1 |
|
|
|
314.9 |
|
|
|
332.7 |
|
Current Liabilities |
|
|
211.7 |
|
|
|
220.0 |
|
|
|
253.5 |
|
|
|
265.5 |
|
|
|
283.3 |
|
Total Long-Term Debt |
|
|
1,047.6 |
|
|
|
1,005.0 |
|
|
|
947.7 |
|
|
|
885.2 |
|
|
|
815.8 |
|
Exhibit D-2
Pro Forma Capitalization Serta Holdings
|
|
|
|
|
|
|
PF |
|
$ in millions |
|
Mar-10 |
|
|
|
|
|
|
Cash |
|
$ |
104.9 |
|
|
|
|
|
|
1st Lien Term Loan |
|
|
389.6 |
|
2nd Lien Term Loan |
|
|
210.0 |
|
Total Net Debt |
|
$ |
494.7 |
|
|
|
|
|
|
Common Equity |
|
|
200.0 |
|
TEV inc. Tax Shield |
|
$ |
694.7 |
|
|
|
|
|
|
(-) PV of Serta Tax Shield |
|
|
(122.9 |
) |
|
|
|
|
TEV exc. Tax Shield |
|
$ |
571.8 |
|
|
|
|
|
Pro Forma Capitalization Simmons
|
|
|
|
|
|
|
PF |
|
$ in millions |
|
Mar-10 |
|
|
|
|
|
|
Cash |
|
$ |
14.4 |
|
|
|
|
|
|
Existing IRBs |
|
|
13.0 |
|
New ABL Revolver (1) |
|
|
10.0 |
|
New Sr. Sec. Notes |
|
|
425.0 |
|
Total Net Debt |
|
$ |
433.6 |
|
|
|
|
|
|
New
Preferred (2) |
|
|
314.5 |
|
New Common Equity Holdco |
|
|
15.0 |
|
|
|
|
|
TEV |
|
$ |
763.2 |
|
|
|
|
|
|
|
|
(1) |
|
Such amount may not be drawn if LCs can be rolled to new ABL facility. |
|
(2) |
|
Assumes all Holdco Noteholders elect to purchase common equity and includes
purchaser fees and expenses. |
Exhibit D-3
Pro Forma Capitalization New Parent
|
|
|
|
|
|
|
PF |
|
$ in millions |
|
Mar-10 |
|
|
|
|
|
|
Simmons Cash |
|
$ |
14.4 |
|
Serta Holdings Cash |
|
|
104.9 |
|
|
|
|
|
|
Serta Holdings 1st Lien Term Loan |
|
|
389.6 |
|
Serta Holdings 2nd Lien Term Loan |
|
|
210.0 |
|
Serta Holdings Net Debt |
|
$ |
494.7 |
|
|
|
|
|
|
Existing Simmons IRBs |
|
|
13.0 |
|
New Simmons ABL Revolver |
|
|
10.0 |
|
New Simmons Sr. Sec. Notes |
|
|
425.0 |
|
Simmons Net Debt |
|
$ |
433.6 |
|
|
|
|
|
|
Total Net Debt |
|
$ |
928.4 |
|
|
|
|
|
|
New Preferred |
|
|
314.5 |
|
New Common Equity HoldCo |
|
|
15.0 |
|
Common
Equity Serta Holdings Contributed Equity |
|
|
200.0 |
|
TEV inc. Tax Shield |
|
$ |
1,457.9 |
|
|
|
|
|
|
(-) PV of Serta Holdings Tax Shield |
|
|
(122.9 |
) |
|
|
|
|
TEV exc. Tax Shield |
|
$ |
1,335.0 |
|
|
|
|
|
Exhibit D-4
Exhibit E
EXHIBIT E
DESCRIPTION OF CLASS A UNITS
The following is a summary of the material terms of the Class A Units being offered to
Eligible Investors and certain related provisions of the Amended and Restated Operating Agreement
of New Parent (the Operating Agreement) and of the Delaware Limited Liability Company Act
(DLLCA). In addition to reviewing this description, Eligible Investors contemplating a
purchase of Class A Units should review SECTION XII CERTAIN FACTORS TO BE CONSIDERED of the
Disclosure Statement for a discussion of some of risks that should be considered prior to making
any investment decision.
|
|
|
Issuer
|
|
New Parent, the direct or indirect owner of the Company and AOT after
effectiveness of the Plan. |
|
|
|
Class A Units
|
|
Class A units in New Parent having a subscription price of $1,000 per
unit (Class A Units). Upon effectiveness of the Plan, Class A
Units will be held by: (i) the Sponsors and their affiliates and
co-investors who currently are the equity holders of AOT, (ii) the
owners of other assets contributed to New Parent at or prior to
effectiveness of the Plan, (iii) management, employees and
independent directors pursuant to a management and employee
compensation and stock ownership plan approved by the Sponsors, and
(iii) any Eligible Investors holding allowed Holdco Note Claims that
elect to use cash distributions under the Plan to purchase Class A
Units in accordance with the Plan (the Permitted Class A Units and,
together with the Permitted Class B Units, the Permitted Initial
Interests). |
|
|
|
|
|
Class A Units shall be subscribed for and purchased at par. The
aggregate subscription price for the initial Class A Units issued in
exchange for the capital stock of AOT and other assets contributed to
New Parent at or prior to Closing in connection with the transactions
contemplated by the Plan shall be $200 million, provided that such
amount shall be increased by the aggregate amount received by AOT
after September 24, 2009 representing the exercise price for any
options to acquire AOT stock exercised during such period. |
|
|
|
|
|
New Parent reserves the right to divide the Class A Units for
purposes of the definitive Operating Agreement into two sub-classes,
Class A-1 Units and Class A-2 Units. Only Ontario Teachers (for a
portion of its Units) will hold Class A-2 Units. The Class A-1 Units
and Class A-2 Units would be identical, except that the Class A-2
Units shall not vote with respect to election of the Board of
Managers (Board) of New Parent and shall be entitled to receive
supplemental distributions in an amount equal to the management fees
payable to Ares and its affiliates provided that the aggregate of
management fees and the supplemental distributions referenced above
payable to the Sponsors and their affiliates shall not exceed $2
million annually, plus documented out-of-pocket expenses. Such
supplement distributions will be payable prior to the application of
the Distribution Waterfall described below. |
Exhibit E-1
|
|
|
Class B Units
|
|
New Parent also is issuing upon effectiveness of the Plan Class B
units in New Parent having a subscription price of $1,000 per unit
(Class B Units), to finance a portion of the costs of acquiring the
Company pursuant to the Plan Sponsor Agreement, together with related
fees and expenses of New Parent, and potentially to finance other
acquisitions of assets by New Parent and its subsidiaries from
licensees or other parties. New Parent estimates that the aggregate
subscription price of Class B Units initially issued will be less
than $365 million, although the final amount of Class B Units to be
issued will depend upon the financial requirements of New Parent.
New Parent does not intend to raise indebtedness to finance the Plan,
but reserves the right to do so or to raise indebtedness at any time
thereafter. |
|
|
|
|
|
New cash investments by the Sponsors, their affiliates and
co-investors in New Parent at effectiveness of the Plan will be made
by purchasing Class B Units. The Sponsors may subscribe for the
necessary Class B Units themselves or may seek to obtain acquisition
financing commitments from others. For example, New Parent has
obtained acquisition financing commitments from DDJ Capital
Management, LLC, Farallon Capital Management, LLC, Sola Ltd, and
Solus Core Opportunities Master Fund Ltd. (the New Parent Financing
Parties) to purchase $55 million of the Class B Units. However, the
Sponsors have agreed with the Debtors that, regardless of the
commitments from the New Parent Financing Parties or any other
person, each Sponsor remains obligated with respect to its guarantee
of the purchase price due at Closing under the Plan Sponsor Agreement
to the extent described under SECTION IV.D. EVENTS LEADING TO THE
CHAPTER 11 CASES GUARANTEE in the Disclosure Statement, subject to
the terms and conditions of the Plan Sponsor Agreement. |
|
|
|
Initial Capitalization
|
|
Other than the Class A Units and the Class B Units upon confirmation
of the Plan, New Parent will have no other outstanding equity or
equity-like securities or instruments or options, rights, convertible
securities or similar securities providing for the issuance of any
additional equity or equity-like securities or instruments. |
|
|
|
|
|
There is no limit on the number of Class A Units or Class B Units
that may be issued upon effectiveness of the Plan. In addition,
subject to the preemptive rights in favor of Class B Units (but not
Class A Units), the Operating Agreement authorizes the Board to issue
additional units at any time and from time to time, whether of an
existing class or series or a new class or series, in each case on
such terms and conditions as the Board may determine. |
|
|
|
Liquidation Preference
|
|
Class A Units have no liquidation preference. Class B Units are
entitled to a Liquidation Preference equal to the initial
subscription price per share as reduced from time to time by the
aggregate amount of all distributions paid per share of Class B
Units. The then outstanding Liquidation Preference shall accrete at
a 6% rate, compounded annually. The Liquidation Preference shall
never be less than zero. |
Exhibit E-2
|
|
|
Distributions
|
|
All cash or non-cash dividends or distributions paid with respect to
the equity securities of New Parent (other than supplemental
distributions with respect to Class A-2 Units or pursuant to
management and employee compensation and stock ownership plans
approved by the Sponsors) shall be applied as follows (the
Distribution Waterfall): |
|
|
|
|
|
first, to make distributions on a pro rata basis on the Class B Units
until such time as their Liquidation Preference has been reduced to
zero; |
|
|
|
|
|
second, to make distributions on a pro rata basis on the Class A
Units other than those issued pursuant to an equity incentive or
ownership plan until such time as there has been paid $1,000 per such
unit; |
|
|
|
|
|
third, to make distributions on a pro rata basis on certain Class A
Units issued pursuant to an equity incentive or ownership plan until
such time as there has been paid $1,000 per such unit; |
|
|
|
|
|
fourth, to make catch-up distributions on a pro rata basis to all
Class A Units until the aggregate amount of distributions for each
such Class A Unit since the Closing equals the aggregate amount of
distributions for each Class B Units since the Closing; and |
|
|
|
|
|
fifth, to make distributions on Class A Units and Class B Units on a
pro rata basis. |
|
|
|
|
|
100% of all distributable net cash and non-cash proceeds received by
New Parent arising from a Sale of the Company, defined as the sale
of all or substantially all of the consolidated assets of New Parent
(whether held by New Parent or one or more of its subsidiaries and
whether by way of an asset sale, security sale, tender offer, merger
or other similar transaction) shall be distributed to New Parents
equity holders in accordance with the Distribution Waterfall, unless
New Parent and each holder of Class B Units other than those held by
the Sponsors or their affiliates consent in writing. |
|
|
|
Conversion Upon IPO
|
|
In connection with an initial public offering of common stock by New
Parent (an IPO), the Class A Units and the Class B Units shall
automatically convert, without any action by the holders thereof,
into fully paid and nonassessable shares of common stock or other
similar equity securities (the Converted Securities). The amount
of Converted Securities to be issued to any holder of Class A or
Class B Units shall be determined by applying the Distribution
Waterfall to the market value of all Class A and Class B Units
pursuant to such procedure as the Board shall approve. |
Exhibit E-3
|
|
|
Management; Limited
Voting Rights
|
|
The Board will have the exclusive right and full power and authority
to manage and control the business and affairs of New Parent. The
Board will be elected by the holders of Class A-1 Units holding a
plurality of the Class A-1 Units present in person or represented by
proxy and entitled to vote on the election of managers at any meeting
of members. |
|
|
|
|
|
As of the effective date of the Plan, because of the level of their
holdings of Class A-1 Units, the Sponsors will control the vote with
respect to the election of managers. It is not anticipated that
other holders of Class A-1 Units, whether individually or in the
aggregate, other than the Sponsors, will have any representation on
the Board or influence in the manner in which New Parent is managed. |
|
|
|
|
|
The Operating Agreement also will specify that the members of the
Board are subject to fiduciary duties to the members of New Parent to
the extent of the fiduciary duties owed by directors of a Delaware
corporation to its stockholders; provided, however, that the
corporate opportunity doctrine will not apply and that the Operating
Agreement may eliminate or limit the personal liability of the
managers to the extent permitted under Section 102(b)(7) of the
Delaware General Corporation Law. These are important limitations on
investors rights, and Eligible Investors considering an investment
in the Class A-1 Units should consult with their own legal counsel
prior to making an investment decision. |
|
|
|
|
|
The Class A Units do not have special voting or approval rights or
other minority protections available in some other private companies.
However, the majority in interest of the Class B Units which are not
held by the Sponsors or any of their affiliates or co-investors do
have the right to approve the entrance into or material amendment or
modification of any related party transactions among New Parent
and/or its controlled subsidiaries, on the one hand, and the Sponsors
and/or any of their affiliates (other than New Parent and/or its
controlled affiliates), on the other hand (other than (x) management
fees to Ares or its affiliates pursuant to a management agreement and
supplemental distributions to Ontario Teachers with respect to its
Class A-2 Units which in the aggregate shall not exceed $2 million in
the aggregate during any calendar year, plus reasonable documented
out-of-pocket expenses, and (y) the participation by the Sponsors
and/or their affiliates in the financing of the transactions
contemplated by the Plan), to the extent any such transaction is not
at least as favorable to New Parent or the applicable controlled
subsidiary as a transaction with a third party on arms-length terms. |
|
|
|
Reporting
|
|
New Parent will provide to each holder of Class A or Class B Units
annual and quarterly consolidated financial statements, including a
balance sheet, income statement and statement of cash flows. In
addition, New Parent has agreed to provide the New Parent Financing
Parties and their affiliates committing to invest in Class B Units
with the following additional information so long as they maintain a
certain minimum holding of Class B Units: (a) such quarterly
reporting as AOT Bedding Holdings Corp. (or its subsidiaries), Holdco
(or its subsidiaries) and/or New Parent provides to its debt
investors from time to time, and (b) reasonable access to Sponsor
directors and officers on the Board. New Parent may or may not
agree to provide additional financial information from time to time.
The provision of all information shall be subject to such
confidentiality restrictions as New Parent or the Sponsors may
reasonably require. |
Exhibit E-4
|
|
|
Drag and Tag Rights
|
|
The Sponsors will have the right to drag-along holders of the Class A
or Class B Units in a transaction (a Change of Control Transaction)
involving (i) a Sale of the Company to any person or entity other
than a Sponsor or any of its affiliates or (ii) a sale to any person
or entity other than a Sponsor or any of its affiliates of a majority
of the equity interests in New Parent. In the case of any drag-along
sale, holders of Class A or Class B Units shall be entitled to
participate in the net cash or non cash proceeds of the sale in
accordance with the Distribution Waterfall as provided in
Distributions above, and shall only be required to sell their units
(a) in proportion to the sale by the Sponsors of their Class A and/or
Class B Units in such sale, (b) on no less favorable terms and
conditions as the Sponsors and (c) without giving any representations
or warranties (or otherwise having liability) to the purchaser other
than as to clear title, due authority, required approvals and absence
of conflicts. Notwithstanding the foregoing, drag-along rights shall
expire upon an IPO. |
|
|
|
|
|
Following the disposition of one-third, in the aggregate, taking into
consideration all prior transfers, of the outstanding Class A Units
by the Sponsors, the holders of Class A or Class B Units will have
the right to tag-along, in connection with any disposition of Class A
Units by the Sponsors, provided that the holders of Class B Units
will tag on an as converted basis and without separate payment of the
Liquidation Preference. Following the disposition of one-third, in
the aggregate, taking into consideration all prior transfers, of the
outstanding Class B Units by the Sponsors, the holders of Class B
Units will have the right to tag-along in connection with any
disposition of Class B Units by the Sponsors. Notwithstanding the
foregoing, tag-along rights will not apply to transfers among the
Sponsors and/or their affiliates and/or limited partners. Subject to
the drag-along outlined above, the holders of Class A and Class B
Units shall also be permitted to tag-along in any Change of Control
transaction and all proceeds from the sale of interests in such
Change of Control transaction shall be distributed pursuant to the
Distribution Waterfall. In addition, tag-along rights shall expire
upon an IPO. |
|
|
|
Transfer Restrictions
|
|
The Class A Units are subject to significant restrictions on transfer. |
|
|
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|
|
Prior to an initial public offering of New Parent, no member shall
transfer any Class A Units, other than in one of the following
transactions: |
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|
|
with respect to a transfer by Ares or Ontario Teachers, a
transfer with the prior written consent of the other; |
|
|
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|
|
a transfer pursuant to the drag-along or tag-along provisions
described in Drag and Tag Rights above; |
Exhibit E-5
|
|
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|
|
a transfer to a Permitted Transferee (as defined below); |
|
|
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|
|
a transfer to a person that is also a member immediately
prior to the consummation of such transfer or to its Permitted
Transferee; |
|
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|
|
a transfer of Class A Units with the prior written consent of
New Parent, which shall not be unreasonably withheld, conditioned or
delayed, subject to a right of first refusal in favor of the Sponsors
and New Parent providing for a five business day period in which the
Sponsors and New Parent may elect to accept or reject the offer and,
if the offer is rejected, a 60-day selling period for the
transferring member; or |
|
|
|
|
|
if a member holds Class A Units and Class B Units, a transfer
of all or a portion of the Class B Units and all of the Class A Units
held by such member, if any, with the prior written consent of New
Parent, which shall not be unreasonably withheld, conditioned or
delayed, subject to a right of first offer in favor of the Sponsors
and New Parent providing for a five business day period in which the
Sponsors and New Parent may elect to accept or reject the offer and,
if the offer is rejected, a 60-day selling period for the
transferring member. |
|
|
|
|
|
Permitted Transferee means: |
|
|
|
|
|
with respect to any member who is a natural person, (a) such
members spouse, parents, grandparents and descendents, including
adopted relationships and the spouses of all such persons (the
foregoing persons being a Family Group) and (b) any trust which is
for the primary benefit of such Member and/or such Members Family
Group (a Trust) or a charitable organization which is controlled by
such member; |
|
|
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|
|
with respect to any member that is a Trust, such Trusts
beneficiaries, the members of the Trusts beneficiaries respective
Family Groups, and any corporation, partnership, limited liability
company or other entity in which the beneficial owners of all the
equity interests are members of such Trusts beneficiaries
respective Family Groups and/or the Trust; and |
|
|
|
|
|
with respect to any member that is a fund, (a) any investment
manager, investment advisor or general partner of such member, (b)
any investment fund, investment account or investment entity whose
investment manager, investment advisor or general partner is such
member or (c) any investment fund, investment account or investment
entity whose investment manager, investment advisor or general
partner is the same entity as such members investment manager,
investment advisor or general partner, provided that in no event
shall the limited partners of such member constitute Permitted
Transferees. |
Exhibit E-6
|
|
|
|
|
Notwithstanding the foregoing, a proposed transfer of units will not
be effective: |
|
|
|
|
|
if the proposed transferee is any of New Parents
competitors, customers or suppliers or any of their respective
controlled, commonly controlled or controlling affiliates; |
|
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|
|
until the proposed transferee, if not already a party to the
Operating Agreement, has executed a joinder and any other standard
and customary documentation as may be required by New Parent form
time to time; |
|
|
|
|
|
if such transfer is for units in minimum denominations of
less than $5 million in initial subscription price, unless such units
represent all of the units held by the transferring member; |
|
|
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|
|
if the proposed transferee is not a qualified institutional
buyer (as defined in Rule 144A under the Securities Act of 1933) or
a fund or account under common management with a qualified
institutional buyer; |
|
|
|
|
if such transfer does not comply with applicable securities
laws; and |
|
|
|
|
|
if, after giving effect to such transfer, more than 400
persons (excluding the Sponsors, their respective affiliates, and the
managers, officers and employees of New Parent and its subsidiaries)
would hold of record equity securities of any class of New Parent for
purposes of Section 12(g) of the Exchange Act. |
|
|
|
|
|
In addition, the Operating Agreement limits the total number of
record holders that may hold any class of equity securities of New
Parent at any one time to 400 (excluding the Sponsors, their
respective affiliates, and the managers, officers and employees of
New Parent and its subsidiaries) (or such larger number established
by the Board) and authorizes New Parent (i) to notify an Affected
Member (as defined below) that it has 10 days to (x) rescind the
transaction causing such member to become an Affected Member or (y)
otherwise reconfigure its ownership of the units to cause such member
to no longer be an Affected Member and (ii) if the member remains an
Affected Member after such 10-day period, to (xx) require that the
Affected Member transfer its units to an existing member (not
affiliated with any Sponsor) in the event that the limit is exceeded
or (yy) if no transfer is practicable in a timely manner to avoid the
registration requirements of Section 12(g), New Parent may redeem an
Affected Members units to reduce the number |
Exhibit E-7
|
|
|
|
|
of record holders to 400
(or such larger number established by the Board). The price at which
such transfer or redemption shall be effected will not be less than
the greater of (x) the fair market value of the units as determined
in good faith by the Board and (y) the subscription price of the
units. Pending such a compulsory transfer or redemption, the
Affected Member whose units are to be transferred or redeemed shall
not have the right to vote or receive distributions in respect of
such units. The Board may from time to time, without the approval of
the members, increase the maximum number of record holders that may
hold any class of equity securities of New Parent at any one time.
Affected Member shall mean (i) a member which is the purported
transferee of units pursuant to a transfer which causes the record
holders that hold any class of equity securities of New Parent at any
one time to exceed 400 (or such larger number established by the
Board) as calculated for purposes of Section 12(g) of the Securities
Exchange Act of 1934 (excluding the Sponsors, their respective
affiliates, and the managers, officers and employees of New Parent
and its subsidiaries) or (ii) (x) if New Parent concludes that record
holders that held any class of equity securities of New Parent on the
Effective Date of the Plan exceeded 400 (or such larger number
established by the Board) as calculated for purposes of Section 12(g)
(excluding the Sponsors, their respective affiliates, and the
managers, officers and employees of New Parent and its subsidiaries),
those members holding the smallest number of units of such class of
equity securities of New Parent on the Effective Date of the Plan
required to transfer their units to cause the record holders of such
class of equity securities of New Parent at such time to equal 400
(or such larger number established by the Board) as calculated for
purposes of Section 12(g) (excluding the Sponsors, their respective
affiliates, and the managers, officers and employees of New Parent
and its subsidiaries) or (y) if New Parent concludes that record
holders that held any class of equity securities of New Parent
exceeded 400 (or such larger number established by the Board) as
calculated for purposes of Section 12(g) (excluding the Sponsors,
their respective affiliates, and the managers, officers and employees
of New Parent and its subsidiaries) after the Effective Date of the
Plan as the result of a change in the nature of the ownership of a
members units, the member the nature of whose ownership so changed. |
|
|
|
Preemptive Rights
|
|
Holders of Class A Units will not benefit from preemptive rights. The
Sponsors and other holders of Class B Units will have preemptive
rights as they may agree from time to time. |
|
|
|
Registration Rights
|
|
The Class A Units will be issued to Eligible Investors will be
offered and sold in reliance on the exemption afforded under section
1145(a)(1) of the Bankruptcy Code and deemed to be made in a public
offering under section 1145(c) of the Bankruptcy Code. Accordingly,
as a general matter, Eligible Holders, other than underwriters or
affiliates of the issuer, should be free to resell such securities
without registration under the Securities Act and New Parent is not
undertaking to provide registration rights to all of its members.
New Parent reserves the right to grant to underwriters, affiliates or
purchasers of larger positions, whether in Class A Units, Class B
Units or other interests, such registration rights as may be
separately agreed from time to time. |
Exhibit E-8
|
|
|
Tax Matters
|
|
New Parent will elect to be classified as a corporation for U.S.
federal income tax purposes effective as of the date of its
formation; provided, however, that if New Parent subsequently elects
to be classified as a partnership for U.S. federal income tax
purposes, New Parent shall comply with the tax covenants set forth
below. |
|
|
|
|
|
Neither New Parent nor Holdings shall engage, directly or indirectly
through any entity owned by New Parent or Holdings that is treated as
a pass-through entity for U.S. federal income tax purposes, in any
activity that could result in unrelated business taxable income
within the meaning of Section 512 of the Internal Revenue Code of
1986, as amended (the Code) (including by reason of Section 514 of
the Code) or income effectively connected with a U.S. trade or
business for U.S. federal income tax purposes being allocated to any
of the members of New Parent or Holdings, or that could result in a
member of New Parent or Holdings being treated as engaged in a U.S.
trade or business for U.S. federal income tax purposes by reason of
its investments. |
|
|
|
|
|
The Operating Agreement shall include such other provisions relating
to tax matters as investors in the Class B Units or as New Parent may
determine from time to time, subject to the rights of the Sponsors
and other investors in New Parent. |
|
|
|
Dissolution
|
|
New Parent will be dissolved and liquidated upon the earliest to
occur of the following events: |
|
|
|
|
|
the determination by the Board that continued operation of
New Parent is not in the best interest of the members; |
|
|
|
|
|
any event which makes it unlawful for New Parent to be
continued; or |
|
|
|
|
|
the entry of a decree of judicial dissolution pursuant to the
DLLCA. |
|
|
|
|
|
The proceeds of sale and all other assets of New Parent will be
applied in accordance with the provisions described under
Distributions above after the prior payment with respect to the
debts and liabilities of New Parent and the expenses of liquidation
or distribution, as may be determined by the Board, and the setting
up of any reserves which the Board shall determine to be reasonably
necessary for contingent, unliquidated or unforeseen liabilities or
obligations of New Parent or the members arising out of or in
connection with New Parent. |
Exhibit E-9
|
|
|
Amendments
|
|
Except as expressly provided in the Operating Agreement, any
provision of the Operating Agreement may be amended from time to time
by the Board. Notwithstanding the foregoing, (a) any amendment or
modification to the Operating Agreement which adversely affects the
rights or privileges of the Class B Units shall require the
affirmative vote by members holding at least a majority of the issued
and outstanding Class B Units, other than those held by the Sponsors,
their respective affiliates or Ares co-investors, and (b) any
amendment or modification of the preemptive rights in favor of
holders of Class B Units which adversely affects the rights or
privileges of the Class B Units shall require the affirmative vote by
each member holding Class B Units. |
Exhibit E-10
EXHIBIT F
Liquidation Analysis and Best Interests Test
Please see attached.
Exhibit F
Simmons Company
Liquidation Analysis Assumptions
As of August 2009 Unaudited Balance Sheet
General Assumptions
The Liquidation analysis reflects the estimated cash proceeds, net of liquidation related
costs, which would be realized if the debtors were to be liquidated in a Chapter 7
proceeding. Underlying the liquidation analysis are a number of assumptions that, although
considered to be reasonable and accurate, are inherently subject to significant business,
economic and competitive uncertainties and contingencies outside the control of the debtors
and management. Given the preceding, there can be no assurance that the values reflected in
the liquidation analysis would be realized in the event of such liquidation, and actual
results could vary materially from those shown here. The liquidation analysis is based upon
assumptions with respect to certain liquidation decisions which could be subject to change.
The liquidation period would allow for the collection of accounts receivables, sale of
inventory and the sale of fixed assets. The duration of the process is estimated to be 9
months.
Below provides additional information related to assumptions used to generate the liquidation
analysis. Specific recovery percentages are provided in the following pages of this report.
Cash and cash equivalents are presented on a consolidated basis as represented by the
Debtors August 2009 unaudited financial statements. Cash and cash equivalents are assumed to
be 100% recoverable.
The liquidation assumes recovery of A/R balances in the 0 > 90 days level and is
adjusted for risks of charge backs, non collection, cash discounts and other normal and
ordinary course customer deductions. Based on the estimated aged recovery percentages the
blended recovery ranges are from 57% 69%.
The company has little work in process (WIP) inventory given its just in time manufacturing
process. Value would be recovered from raw materials and to a lesser extent finished goods.
The inventory reserve of $7.3mm (company currently buying materials below standard cost) is
an accounting adjustment and will have no recovery value. Based on the inventory classes the
blended recovery ranges are from 10% 20%
Some prepaid deposits and royalty receivables are assumed to have a liquidation recovery
value or off - set to wind down expenses. Deferred financing fees, deferred taxes and other
current assets are assumed to have no liquidation recovery value. The recovery ranges from 0%
3%.
(5) |
|
Property Plant and Equipment |
The sale process of PP&E may take up to a year and value would be impacted for the carrying
costs and changes in the market value of the property. The blended recovery ranges from 18%
to 33%.
Confidential
1
It is assumed that Goodwill will have no Liquidation recovery value.
It is assumed that Trademarks will have some recovery value based on the strong brand name.
The ranges of recovery are from 10% 40%.
(8) |
|
Patents & Customer Relations |
It is assumed that Patents & Customer Relations will have some recovery value based on the
Pocketed-Coil® process. The ranges of recovery are from 10% 40%.
It is assumed that Deferred Fees will have no Liquidation recovery value.
Fees related to product placement payments to customers are assumed to have no liquidation
recovery value.
Operating expenses, including rent and personnel costs were estimated and assumed to decrease
after the first three months of the nine month wind down. The wind down costs also include
estimates for the final tax return preparation, the Trustees legal counsel and the Trustees
financial advisors.
(12) |
|
Claims Administrative, secured, priority, unsecured |
Secured claims are bank debt, outstanding letters of credit and industrial revenue bonds
currently totaling $553,216. The liquidation analysis illustrates that after secured claims
and the cost to administer the Chapter 7 process, all of the proceeds are exhausted. Given
this analysis, no estimate was made for Administrative, Priority or Other classes of claims.
Source: Internal unaudited financial statements and trial balance as of August 2009
Confidential
2
Simmons Company Including Canada and Puerto Rico
Summary of Assets, Liabilities, & Estimated Recovery
Amounts in Thousands
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
August 2009 Balance |
|
|
Recovery Percentage |
|
|
Recovery Amount |
|
|
|
Notes |
|
Sheet Value |
|
|
Low |
|
|
High |
|
|
Low |
|
|
High |
|
Cash |
|
(1) |
|
$ |
66,168 |
|
|
|
100 |
% |
|
|
100 |
% |
|
$ |
66,168 |
|
|
$ |
66,168 |
|
Accounts Receivable |
|
(2) |
|
$ |
112,092 |
|
|
|
57 |
% |
|
|
69 |
% |
|
$ |
64,362 |
|
|
$ |
77,064 |
|
Inventory |
|
(3) |
|
$ |
27,893 |
|
|
|
10 |
% |
|
|
20 |
% |
|
$ |
2,789 |
|
|
$ |
5,579 |
|
Other Current Assets |
|
(4) |
|
$ |
31,939 |
|
|
|
0 |
% |
|
|
3 |
% |
|
$ |
|
|
|
$ |
958 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Current Assets |
|
|
|
$ |
238,091 |
|
|
|
|
|
|
|
|
|
|
$ |
133,319 |
|
|
$ |
149,768 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property, Plant, & Equipment |
|
(5) |
|
$ |
79,340 |
|
|
|
18 |
% |
|
|
33 |
% |
|
$ |
14,564 |
|
|
$ |
26,547 |
|
Goodwill |
|
(6) |
|
$ |
230,856 |
|
|
|
0 |
% |
|
|
0 |
% |
|
$ |
|
|
|
$ |
|
|
Trademarks |
|
(7) |
|
$ |
213,969 |
|
|
|
10 |
% |
|
|
40 |
% |
|
$ |
21,397 |
|
|
$ |
85,587 |
|
Patents & Customer Relations |
|
(8) |
|
$ |
126,781 |
|
|
|
10 |
% |
|
|
40 |
% |
|
$ |
12,678 |
|
|
$ |
50,712 |
|
Deferred Fees |
|
(9) |
|
$ |
538 |
|
|
|
0 |
% |
|
|
0 |
% |
|
$ |
|
|
|
$ |
|
|
Other Assets |
|
(10) |
|
$ |
13,872 |
|
|
|
0 |
% |
|
|
0 |
% |
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-Term Assets, Net |
|
|
|
$ |
665,355 |
|
|
|
|
|
|
|
|
|
|
$ |
48,639 |
|
|
$ |
162,847 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Proceeds Available for Distribution |
|
|
|
$ |
903,447 |
|
|
|
|
|
|
|
|
|
|
$ |
181,958 |
|
|
$ |
312,615 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wind Down Costs |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wind Down Costs (Operating Expenses & Other Professional Fees) |
|
(11) |
|
|
|
|
|
|
|
|
|
|
|
|
|
-$ |
13,638 |
|
|
-$ |
13,638 |
|
Trustee Fees |
|
3% |
|
|
|
|
|
|
|
|
|
|
|
|
|
-$ |
5,459 |
|
|
-$ |
9,378 |
|
Commissions/cost of liquidation PP&E of equipment |
|
10% |
|
|
|
|
|
|
|
|
|
|
|
|
|
-$ |
1,456 |
|
|
-$ |
2,655 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Wind Down Costs |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-$ |
20,553 |
|
|
-$ |
25,671 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Proceeds Available after Wind Down Costs |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
161,405 |
|
|
$ |
286,944 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Claims of Secured Creditors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving Credit Facility due 12/2009 |
|
|
|
$ |
64,532 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Letters of Credit |
|
|
|
$ |
10,277 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sr. Sec Term Loan due 12/2011 |
|
|
|
$ |
465,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
IRBs |
|
|
|
$ |
13,407 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subtotal |
|
|
|
$ |
553,216 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recovery Dollars for Secured Creditors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
161,405 |
|
|
$ |
286,944 |
|
Recovery Percentage for Secured Creditors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29.2 |
% |
|
|
51.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Proceeds Available after Claims of Secured Creditors |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.0 |
|
|
$ |
0.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Administrative and Other Priority Claims |
|
(12) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recovery Dollars for Administrative and Other Priority Claims |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.0 |
|
|
$ |
0.0 |
|
Recovery Percentage for Administrative and Other Priority Claims |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Proceeds Available after Administrative and Priority Claims |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.0 |
|
|
$ |
0.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General Unsecured Claims |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recovery Dollars for Unsecured Claims |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.0 |
|
|
$ |
0.0 |
|
Recovery Percentage for Unsecured Claims |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Proceeds Available after General Unsecured Claims |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.0 |
|
|
$ |
0.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Confidential
3
Exhibit G
EXHIBIT G
PROJECTED FINANCIAL INFORMATION OF SIMMONS COMPANY
Simmons Company has prepared their projected financial results on a consolidated basis for the
52 weeks ended December 26, 2009, 52 weeks ended December 25, 2010, the 53 weeks ended December 31,
2011, 52 weeks ended December 29, 2012 and 52 weeks ended December 28, 2013 (the
Projections). The consolidated entity includes operations in the United States, Puerto
Rico, and Canada. This projected financial information has been prepared for Simmons Company on a
consolidated basis that includes all of the Debtors; however, if the Plan is approved and
consummated, the Purchasers will acquire the Company, which excludes Simmons Company. Because
Simmons Company does not have operations independent of Bedding Holdco and its other consolidated
subsidiaries, the only differences between the consolidated financial information of Simmons
Company and Bedding Holdco are items related to Simmons Companys ownership of Bedding Holdco. As
a result, the Debtors do not believe the differences between the projected financial information
for Simmons Company and for Bedding Holdco, in each case on a consolidated basis, are material to a
decision to accept or reject the Plan or, if applicable, to purchase Class A Units. The financial
information discussed herein includes certain statements that may be deemed to be forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of 1995. See
Cautionary Statement Regarding Forward Looking Statements in the Disclosure Statement.
The Projections included in this document have been prepared by, and are the responsibility
of, Simmons Companys management. The Projections were not prepared to comply with the guidelines
for prospective financial statements published by the American Institute of Certified Public
Accountants and the Rules and Regulations of the Securities and Exchange Commission. Simmons
Companys registered public accounting firm have neither examined, compiled nor performed any
procedures with respect to the Projections contained herein and, accordingly, do not express an
opinion or any other form of assurance with respect to the Projections, assume no responsibility
for the Projections and disclaim any association with the Projections. The PricewaterhouseCoopers
LLP report included in this document relates to the Companys historical financial information. It
does not extend to the projections and should not be read to do so. The information contained in
the Projections is furthermore different from that required to be included in the reports filed by
Simmons Company pursuant to the securities and exchange act of 1934, as amended and might not be
indicative of Simmons Companys financial condition or operating results that would be reflected in
the financial statements of Simmons Company or in its reports pursuant to the exchange act.
Results set forth in the financial projections should not be viewed as indicative of future
results. Except for purposes of the Disclosure Statement, Simmons Company does not publish
projections of their anticipated financial position or results of operations.
SIGNIFICANT ASSUMPTIONS FOR FINANCIAL PROJECTIONS
SIMMONS COMPANY HAS PREPARED THESE FINANCIAL PROJECTIONS BASED UPON THE FOLLOWING ASSUMPTIONS THAT
THEY BELIEVE TO BE REASONABLE UNDER THE CIRCUMSTANCES. MANY OF THE ASSUMPTIONS ON WHICH THE
FINANCIAL PROJECTIONS ARE BASED ARE SUBJECT TO SIGNIFICANT UNCERTAINTIES. INEVITABLY, SOME
ASSUMPTIONS WILL NOT MATERIALIZE AND UNANTICIPATED EVENTS AND CIRCUMSTANCES MAY AFFECT THE ACTUAL
FINANCIAL RESULTS. THEREFORE, THE ACTUAL RESULTS ACHIEVED THROUGHOUT THE PROJECTION PERIOD MAY
VARY FROM THE PROJECTED RESULTS AND THE VARIATIONS MAY BE MATERIAL. ALL HOLDERS OF CLAIMS AND
INTERESTS THAT ARE ENTITLED TO VOTE TO ACCEPT OR REJECT THE PLAN ARE URGED TO EXAMINE CAREFULLY ALL
OF THE ASSUMPTIONS ON WHICH THE FINANCIAL PROJECTIONS ARE BASED IN EVALUATING THE PLAN.
Exhibit G-1
General
|
|
|
Methodology. The Projections were prepared on a bottom-up basis by
brand/sub-brand taking into consideration macroeconomic and industry forecasts,
brand launch assumptions, Simmons historical performance and managements business
judgment. The Projections were prepared in good faith by Simmons Companys
management using the same accounting policies, to the extent applicable, as those
used to prepare its historical financial statements. The Projections assume the
Companys current restructuring plan is implemented through a consensual and short
chapter 11 process. |
|
|
|
Fiscal Years. Simmons Company has a 52 or 53 week fiscal year. The 2009
fiscal year ends on December 26, 2009, the 2010 fiscal year ends on December 25,
2010, the 2011 fiscal year ends on December 31, 2011, the 2012 fiscal year ends on
December 29, 2012, and the 2013 fiscal year ends on December 28, 2013. |
|
|
|
Effective Date. The Financial Projections assume an Effective Date of
March 15, 2010. |
|
|
|
Macroeconomic and Industry Environment. The Projections reflect
managements judgment for the bedding industry based on the International Sleep
Products Association ISPA forecasts and general inflation estimates. Economic
recovery expected to begin midyear 2010 and the Company begins to benefit from a
similar sales spike as the industry experienced in 1983 (post recession). Economic
recovery continues in 2011 and the Company continues to benefit from a similar sales
spike as the industry experienced in 1983 (post 1980 1982 recession). In 1983,
after the last consumer-led recession, the bedding industry experienced dollar sales
growth of ~16% (unit growth of ~14%). The Company projects similar dollar sales
growth to occur in Q4 2010 and into 2011. Company projects in 2012 and 2013 industry
growth rates revert to historical average of 6%, which is based on ISPAs long-term
compound annual growth rate since 1974. |
|
|
|
Bonding Capacity. The projections of the Debtors financial performance
assume that the Debtors will be able to achieve a successful arrangement with their
surety providers for the continued provision of bid and performance bonds. Even if
the Debtors are able to obtain sufficient bonding capacity, they will likely be
required to secure such bonds with a significant amount of cash collateral. |
|
|
|
1 |
|
The projected income statements for 2010 2013 were originally prepared in late 2008 and updated in early 2009 for the
launch of the BeautySleep product line. The original projections exclude the effects of potential changes in the capital structure of the
Company following the restructuring. The Company has commenced its budgeting process for 2010 but the budget will not be complete until late in 2009.
Based on preliminary analysis, including year-to-date 2009 performance and updated assumptions for the 2010 budget, management believes: |
|
|
|
2010 net sales will be in the range of approximately $950 $960 million |
|
|
|
|
2010 gross margins will be approximately two percentage points better than
previously projected, but approximately 3 percentage points less than 2009 estimated
results due to anticipated inflation, pricing pressures and sales mix |
|
|
|
|
2010 adjusted EBITDA will be in the range of $120 $125 million |
Exhibit G-2
Projected Income Statement
|
|
|
Revenues. Total revenues are projected to increase 17.9% in 2010, 8.9%
in 2011, 3.1% in 2012, and 7.5% in 20131. The Financial Projections are
based on maintaining key relationships with all major customers and continuing operations with current business segments. Significant line
launches are planned in 2010 and limited line launches in 2012. Typical unit lift
and changes in AUSP assumptions, associated with a new line roll-out, were applied
to each sub-brand in its scheduled time period. The out year assumptions for
overall company unit and AUSP growth were modeled after long term industry averages
and Simmons results versus the industry. It is forecasted that the anticipated
economic recovery will drive an increase in unit sales as consumers re-enter the
market for consumer durables and it will also lead to an increase in AUSP due to mix
as consumers traded up to higher price point mattresses both within a sub-brand and
between sub-brands. |
|
|
|
Cost of Goods Sold. Cost of goods consists primarily of raw material
costs, principally steel, polyurethane and latex foams, wood and fabric. Labor and
overhead represent a smaller percentage of cost of goods. Material prices are
influenced by various supply and demand factors as well as the underlying prices of
certain commodities, such as steel and petro-chemical prices. Annual material, labor
and variable overhead inflation factors were applied to each of the sub-brand cost
per unit amounts to determine the cost per unit for the following year. The overall
material inflation factor was calculated by using a weighted average percent of
total material cost by raw material category times the estimated annual inflation
percent of each raw material category. These raw material inflation factors by
category looked at average historical inflation rates for each category and were
normalized for major supply disruptions. It was assumed that any major unplanned
raw material inflation would be offset by unplanned price increases. Annual labor
and variable overhead inflation were estimated based on historical average
inflation. Fixed overhead costs were built each year based on known rent increases
and a fixed cost inflation factor applied to the fixed cost base. |
|
|
|
Gross Margins. Gross margins are expected to remain relatively constant
at 37.5% in 2010, 37.7% in 2011, 37.0% in 2012 and 37.4% in 20131.
Execution of line launches is an important part to maintaining gross margins. Gross
margins for 2010 are negatively impacted by an estimated $3.3 million write-up of
inventory to fair market value less the cost to dispose as a result of the assumed
acquisition of Bedding Holdco and its subsidiaries on March 15, 2010. |
|
|
|
Selling, General and Administrative Expenses. SG&A expenses primarily
consist of volume variable expenses, such as selling and distribution costs. SG&A
expenses also include fixed expenses, such as salaries and fringe benefits. SG&A
expense as a percentage of total revenue is expected to decline from 30.6% in 2010
to 27.7% in 2011, 27.5% in 2012 and 27.8% in 2013. The SG&A spending assumptions
include an increase in volume variable expenses as a percentage of total revenue in
2011, 2012 and 2013 compared to 2010 due to inflation in diesel costs and a shift in
sales mix. |
The Company has not updated its projections for 2011 2013. However, based upon year-to-date 2009 results and initial budget assumptions for 2010, management believes:
|
|
|
|
|
Although year over year growth estimates remain unchanged, net sales levels are forecasted to be lower than presented due to lower sales levels in 2009 and 2010 |
|
|
|
Gross margins will be better than plan as a result of greater than expected decreases in commodity costs in 2009 benefiting future years |
|
|
|
Forecasted adjusted EBITDA for 2010 2013 will remain in the range originally planned |
Exhibit G-3
|
|
|
Adjusted EBITDA. For purposes of the Financial Projections, Adjusted
EBITDA is a pro forma measure defined as earnings before interest and taxes plus
depreciation and amortization, certain other expenses and other non-recurring costs
as defined by the Companys senior credit facility. Adjusted EBITDA is a metric
used by the Companys management, and is frequently used by the financial community
to provide insight into an organizations operating trends and facilitate
comparisons between peer companies, since interest, taxes, depreciation and
amortization can differ greatly between organizations as a result of differing
capital structures and tax strategies. Adjusted EBITDA can also be a useful measure
of a
companys ability to service debt and is one of the measures used for determining the
Companys debt covenant compliance. Adjusted EBITDA does not represent net income
(loss) or cash flow from operations as those terms are defined by GAAP and does not
necessarily indicate whether cash flows will be sufficient to fund cash needs. The
Adjusted EBITDA detail should be read in conjunction with the reconciling GAAP
detail provided below. |
|
|
|
Interest Expense. Based on the transaction contemplated by the Plan,
interest expense is assumed to be approximately $49 million annually in the
projection period based on the 11.25% interest rate on the exit financing and the
stated interest rates on the Janesville and Kansas City IRBs and Banco Santander
Loan. |
|
|
|
Income Taxes. The Financial Projections assume a weighted-average annual
effective income tax rate of 37% for Simmons Company. The income tax projections
assume that in connection with the Plan, the Companys NOL carryforwards and other
tax attributes will be eliminated. |
|
|
|
Capital Expenditures. Simmons Company has assumed annual capital
expenditures requirements of approximately $12 million for maintenance and expansion
for 2010, 2012 and 2013 and assumed approximately $16 million for maintenance and
expansion for 2011. The capital expenditure assumptions were built bottom-up by
project or segment including replacement, capacity, automation, innovation,
information technology, Canada, Juvenile and other as yet unidentified projects. |
|
|
|
Working Capital. Accounts Receivable levels fluctuate with overall
revenues, with the assumption that Simmons Company will approximately maintain its
current average days sales outstanding. Inventory values are generally flat based
on the assumption of maintaining optimal operation levels for production. Accounts
Payable assumes historical credit terms with major suppliers consistent with normal
terms prior to the filing date. |
|
|
|
Pro Forma Balance Sheet. The unaudited pro forma consolidated balance
sheet of Simmons Bedding Company as of March 15, 2010 has been adjusted to give
effect to the transactions as if it had occurred on such date (the Pro Forma
Consolidated Balance Sheet). The Pro Forma Consolidated Balance Sheet reflects
the financial position of the ongoing enterprise. The Pro Forma Consolidated
Balance Sheet for March 15, 2010 is based on the latest currently available
information, and on certain assumptions that Simmons Companys management believe
are reasonable under the circumstances. The Pro Forma Consolidated Balance Sheet
does not purport to be indicative of the financial position and results that
actually would have been obtained had the transactions been competed as of the date
and for the period presented or that may be obtained in the future. |
Exhibit G-4
Simmons Company Financial Information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Actual |
|
|
8ME |
|
|
LTM |
|
|
Estimated |
|
|
Forecast |
|
($ in millions) |
|
2007 |
|
|
2008 |
|
|
Aug-08 |
|
|
Aug-09 |
|
|
Aug-09 |
|
|
2009E |
|
|
2010P |
|
|
2011P |
|
|
2012P |
|
|
2013P |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales |
|
$ |
1,126.8 |
|
|
$ |
1,028.7 |
|
|
$ |
743.7 |
|
|
$ |
608.2 |
|
|
$ |
893.2 |
|
|
$ |
903.1 |
|
|
$ |
1,064.4 |
|
|
$ |
1,159.7 |
|
|
$ |
1,195.9 |
|
|
$ |
1,285.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of goods sold |
|
|
676.3 |
|
|
|
648.8 |
|
|
|
456.6 |
|
|
|
346.8 |
|
|
|
539.0 |
|
|
|
514.3 |
|
|
|
662.2 |
|
|
|
722.8 |
|
|
|
753.0 |
|
|
|
804.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
$ |
450.6 |
|
|
$ |
379.9 |
|
|
$ |
287.1 |
|
|
$ |
261.4 |
|
|
$ |
354.2 |
|
|
$ |
388.8 |
|
|
$ |
402.3 |
|
|
$ |
436.9 |
|
|
$ |
442.9 |
|
|
$ |
481.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SG&A |
|
|
336.2 |
|
|
|
329.7 |
|
|
|
221.3 |
|
|
|
198.8 |
|
|
|
307.3 |
|
|
|
330.9 |
|
|
|
325.9 |
|
|
|
320.7 |
|
|
|
328.9 |
|
|
|
357.1 |
|
Impairment of goodwill & intangibles |
|
|
|
|
|
|
547.6 |
|
|
|
|
|
|
|
|
|
|
|
547.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of intangibles |
|
|
6.1 |
|
|
|
6.3 |
|
|
|
4.2 |
|
|
|
4.1 |
|
|
|
6.2 |
|
|
|
6.2 |
|
|
|
3.8 |
|
|
|
3.1 |
|
|
|
3.1 |
|
|
|
3.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income / (loss) |
|
$ |
108.3 |
|
|
$ |
(503.6 |
) |
|
$ |
61.6 |
|
|
$ |
58.5 |
|
|
$ |
(506.8 |
) |
|
$ |
51.7 |
|
|
$ |
72.6 |
|
|
$ |
113.1 |
|
|
$ |
110.8 |
|
|
$ |
120.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net |
|
|
75.7 |
|
|
|
73.1 |
|
|
|
47.7 |
|
|
|
65.9 |
|
|
|
91.2 |
|
|
|
82.2 |
|
|
|
61.3 |
|
|
|
50.0 |
|
|
|
50.1 |
|
|
|
50.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings (loss) before taxes |
|
|
32.6 |
|
|
|
(576.7 |
) |
|
|
13.9 |
|
|
|
(7.4 |
) |
|
|
(598.0 |
) |
|
|
(30.5 |
) |
|
|
11.3 |
|
|
|
63.1 |
|
|
|
60.8 |
|
|
|
70.8 |
|
Income tax expense (benefit) |
|
|
8.7 |
|
|
|
(84.5 |
) |
|
|
7.3 |
|
|
|
0.3 |
|
|
|
(91.4 |
) |
|
|
(13.1 |
) |
|
|
4.2 |
|
|
|
23.3 |
|
|
|
22.5 |
|
|
|
26.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
23.9 |
|
|
$ |
(492.2 |
) |
|
$ |
6.6 |
|
|
$ |
(7.8 |
) |
|
$ |
(506.6 |
) |
|
$ |
(17.4 |
) |
|
$ |
7.1 |
|
|
$ |
39.7 |
|
|
$ |
38.3 |
|
|
$ |
44.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reconciliation to Adjusted EBITDA |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income / (loss) |
|
$ |
23.9 |
|
|
$ |
(492.2 |
) |
|
$ |
6.6 |
|
|
$ |
(7.8 |
) |
|
$ |
(506.6 |
) |
|
$ |
(17.4 |
) |
|
$ |
7.1 |
|
|
$ |
39.7 |
|
|
$ |
38.3 |
|
|
$ |
44.6 |
|
Interest expense, net |
|
|
75.7 |
|
|
|
73.1 |
|
|
|
47.7 |
|
|
|
65.9 |
|
|
|
91.2 |
|
|
|
82.2 |
|
|
|
61.3 |
|
|
|
50.0 |
|
|
|
50.1 |
|
|
|
50.1 |
|
Income tax expense (benefit) |
|
|
8.7 |
|
|
|
(84.5 |
) |
|
|
7.3 |
|
|
|
0.3 |
|
|
|
(91.4 |
) |
|
|
(13.1 |
) |
|
|
4.2 |
|
|
|
23.3 |
|
|
|
22.5 |
|
|
|
26.2 |
|
Depreciation |
|
|
13.9 |
|
|
|
17.4 |
|
|
|
11.2 |
|
|
|
10.7 |
|
|
|
17.0 |
|
|
|
15.7 |
|
|
|
18.0 |
|
|
|
18.8 |
|
|
|
19.6 |
|
|
|
19.5 |
|
Amortization of intangibles |
|
|
6.1 |
|
|
|
6.3 |
|
|
|
4.2 |
|
|
|
4.1 |
|
|
|
6.2 |
|
|
|
6.2 |
|
|
|
3.8 |
|
|
|
3.1 |
|
|
|
3.1 |
|
|
|
3.2 |
|
Amortization of upfront fees |
|
|
10.6 |
|
|
|
16.1 |
|
|
|
9.2 |
|
|
|
6.2 |
|
|
|
13.1 |
|
|
|
9.5 |
|
|
|
10.4 |
|
|
|
10.8 |
|
|
|
12.1 |
|
|
|
11.2 |
|
Impairment charges |
|
|
|
|
|
|
547.6 |
|
|
|
|
|
|
|
|
|
|
|
547.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
0.5 |
|
|
|
0.4 |
|
|
|
0.3 |
|
|
|
0.1 |
|
|
|
0.2 |
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Management fee |
|
|
1.7 |
|
|
|
1.8 |
|
|
|
1.2 |
|
|
|
1.1 |
|
|
|
1.7 |
|
|
|
1.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring expenses |
|
|
1.7 |
|
|
|
10.8 |
|
|
|
2.5 |
|
|
|
18.6 |
|
|
|
26.8 |
|
|
|
45.6 |
|
|
|
15.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
|
14.1 |
|
|
|
18.9 |
|
|
|
4.7 |
|
|
|
(0.1 |
) |
|
|
14.2 |
|
|
|
0.1 |
|
|
|
(0.1 |
) |
|
|
(0.1 |
) |
|
|
(0.0 |
) |
|
|
(0.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
156.9 |
|
|
$ |
115.7 |
|
|
$ |
94.9 |
|
|
$ |
99.2 |
|
|
$ |
120.0 |
|
|
$ |
130.5 |
|
|
$ |
120.6 |
|
|
$ |
145.7 |
|
|
$ |
145.6 |
|
|
$ |
154.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Actual |
|
|
|
|
|
|
Pro Forma |
|
|
Forecast |
|
($ in millions) |
|
2007 |
|
|
2008 |
|
|
Aug-09 |
|
|
Mar-10 |
|
|
2010P |
|
|
2011P |
|
|
2012P |
|
|
2013P |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash |
|
$ |
27.5 |
|
|
$ |
54.9 |
|
|
$ |
66.2 |
|
|
$ |
14.4 |
|
|
$ |
61.6 |
|
|
$ |
107.2 |
|
|
$ |
155.6 |
|
|
$ |
210.4 |
|
Current assets exc. cash |
|
|
180.5 |
|
|
|
162.6 |
|
|
|
171.9 |
|
|
|
160.1 |
|
|
|
167.5 |
|
|
|
181.4 |
|
|
|
185.7 |
|
|
|
195.6 |
|
Current liabilities |
|
|
168.9 |
|
|
|
128.1 |
|
|
|
124.9 |
|
|
|
110.2 |
|
|
|
131.1 |
|
|
|
143.1 |
|
|
|
148.2 |
|
|
|
158.8 |
|
Total long-term debt |
|
|
901.5 |
|
|
|
988.2 |
|
|
|
1004.4 |
|
|
|
448.0 |
|
|
|
447.5 |
|
|
|
447.1 |
|
|
|
446.6 |
|
|
|
446.2 |
|
Exhibit G-5
Exhibit H
EXHIBIT H
List of Subsidiaries
SIMMONS COMPANY
Bedding Holdco Incorporated
BEDDING HOLDCO INCORPORATED
Simmons Bedding Company
SIMMONS BEDDING COMPANY
The Simmons Manufacturing Co., LLC
Windsor Bedding Co, LLC
World of Sleep Outlets, LLC
Simmons Contract Sales, LLC
Dreamwell, Ltd.
Simmons Capital Management, LLC
Simmons Export Co.
EXHIBIT I
Organizational Chart of the Debtors
EXHIBIT I
Organizational Chart of the Debtors
EXHIBIT J
Debt Commitment Letter
Please see attached.
Exhibit J
EXECUTION COPY
October 8, 2009
AOT Bedding Intermediate Holdings, LLC
c/o National Bedding Company, L.L.C.
2600 Forbs Avenue
Hoffman Estates, IL 60192
Attn: Robert Sherman
COMMITMENT LETTER
$75 MILLION SENIOR SECURED CREDIT FACILITY
Dear Mr. Sherman:
As we, Wells Fargo Foothill, LLC (WFF or we or us), understand, AOT Bedding Super Holdings,
LLC (SuperHoldings), a newly formed entity directly or indirectly controlled by an investor group
consisting of an affiliated fund of Ares Management, LLC (Ares) and Ontario Teachers Pension
Plan Board (Teachers and, together with Ares and their respective affiliates and any other
stockholders of AOT Bedding Holdings Corp. who become co-investors hereunder, the Sponsor) and
AOT Bedding Intermediate Holdings, LLC (Holdings or you), a newly formed, wholly owned
subsidiary of SuperHoldings, intend to acquire (the Acquisition), directly or indirectly, all of
the newly issued capital stock of Bedding Holdco Incorporated (the Company), the direct parent
company of Simmons Bedding Company (the Borrower, together with the Company and its subsidiaries,
the Acquired Business) pursuant to a plan of reorganization (the Plan of Reorganization) with
respect to the Acquired Business to be confirmed and consummated in one or more voluntary cases
(the Bankruptcy Case) commenced under chapter 11 of the Bankruptcy Code in the United States
Bankruptcy Court for the District of Delaware (the Bankruptcy Court). WFF further understands
that Holdings is desirous of obtaining financing for the Borrower in order to (a) to repay the
Borrowers secured working capital indebtedness on the effective date (the Effective Date) of the
Plan of Reorganization, (b) to otherwise enable the Acquired Business to consummate the Plan of
Reorganization on the Effective Date, (c) finance general corporate purposes of the Acquired
Business, and (d) pay fees and expenses associated with the transaction contemplated hereby (the
Transaction).
We are pleased to confirm our commitment to provide the Borrower a $75,000,000 senior secured
credit facility (the Facility) on the terms and conditions set forth in this commitment letter
and the exhibits attached hereto (the Commitment Letter) and the term sheet and the annexes
attached thereto (the Term Sheet). The parties acknowledge that the Term Sheet and this
Commitment Letter (a) summarize all of the substantive conditions precedent to the Facility,
and (b) do not purport to summarize all of the covenants, representations, warranties and other
provisions that will be contained in the definitive documentation for the Facility. The parties
agree that such covenants, representations, warranties and other provisions (to the extent not
already addressed in the Term Sheet or this Commitment Letter) will be customary and commercially
reasonable for transactions of this type or as otherwise reasonably acceptable to Holdings and WFF.
Capitalized terms used herein and the accompanying Annexes shall have the meanings set forth herein
and therein unless otherwise defined herein or therein.
Syndication
The parties agree that the syndication provisions shall be as set forth on Exhibit A hereto.
Notwithstanding anything to the contrary in this Commitment Letter or the Term Sheet, neither the
completion nor the success of syndication is a condition to the closing or funding of the Facility.
Expenses and Indemnification
You agree (a) to pay or reimburse all reasonable and documented out-of-pocket fees, costs, and
expenses (including, without limitation, reasonable fees and disbursements of counsel except as set
forth herein, filing and recording fees, and reasonable costs and expenses associated with due
diligence, travel, appraisals, valuations, audits, and syndication, but limited to reasonable fees
and disbursements of one law firm to WFF and one law firm in each relevant foreign jurisdiction)
(the Expenses) incurred by or on behalf of WFF (whether before, on, or after the date hereof) in
connection with (i) legal and business due diligence, (ii) the preparation, negotiation, execution,
and delivery of this Commitment Letter and the Term Sheet and any and all documentation for the
Facility, (iii) the syndication of the Facility, and (iv) the enforcement of any of WFFs rights
and remedies under this Commitment Letter, in each case irrespective of whether the Transaction is
consummated, and (b) to indemnify, defend, and hold harmless WFF, each of its affiliates, and each
of their officers, directors, employees, agents, advisors, attorneys, and representatives (each, an
Indemnified Person) as set forth on Exhibit B hereto. In order to enable Holdings to understand
the extent of its obligations under this paragraph, WFF agrees to advise Holdings if Expenses are
at or about $75,000 (the Expense Amount). Except as set forth in this and the next sentence, the
Expense Amount is not a cap or limitation on Holdings obligations under this paragraph, except
that at any time that Holdings receives such updated information as to the amount of Expenses
accrued or advice relative to the Expenses being at or about the Expense Amount from WFF, Holdings
shall have the right to request in writing that WFF cease pursuing the financing for the
Transaction and cease incurring new Expenses and Holdings obligations under this paragraph shall
terminate with respect to any Expenses first incurred by WFF after the date of its receipt of such
request. If WFF does not advise Holdings if its Expenses are at or about the Expense Amount
promptly after they reach such level and in the absence of any further written agreement by the
parties hereto, the obligation of Holdings with respect to Expenses shall be limited to the Expense
Amount.
Fees
-2-
You agree to pay or cause Company to pay the fees set forth on Annex A-I and Annex A-II to the Term
Sheet to WFF, in immediately available funds, as and when indicated therein.
Conditions
The commitment of WFF to provide the Facility shall be subject to (a) the negotiation, execution
and delivery of definitive documentation customary for transactions of this type and consistent
with the terms and conditions set forth herein and in the Term Sheet (the Loan Documents), in
form and substance reasonably satisfactory to WFF, (b) since the date of the Plan Sponsor Agreement
relative to the Acquisition dated September 24, 2009 (such agreement, as in effect on the date
hereof, the Plan Sponsor Agreement), there has not occurred any Company Material Adverse Effect
(as that term is defined in the Plan Sponsor Agreement), and (c) the performance of your
obligations set forth herein and in the Term Sheet, and the satisfaction or waiver of the
conditions set forth herein and in Annex B of the Term Sheet.
Confidentiality
(a) You agree that this Commitment Letter (including the Term Sheet) is for your confidential use
only and that neither its existence, nor the terms hereof, will be disclosed by you to any person
other than the Sponsors and Holdings respective officers, directors, employees, accountants,
attorneys, affiliates and other agents and advisors who have been advised of the confidential
nature of the matter, and then only on a need-to-know basis in connection with the Transaction
contemplated hereby. The foregoing notwithstanding, you may (i) provide a copy hereof (including
the Term Sheet) to the Acquired Business (so long as it has been advised not to disclose this
Commitment Letter other than to its officers, directors, employees, accountants, attorneys, and
other agents and advisors who have been advised of the confidential nature of the matter, and then
only on a need-to-know basis in connection with the Transaction contemplated hereby), (ii)
following your acceptance of this Commitment Letter in accordance herewith and your return of an
executed counterpart of this Commitment Letter to us, make public filings or other disclosures of
the terms and conditions hereof (including the Term Sheet, but redacting Exhibit A and Annex A-II
to the Term Sheet to exclude the flex provisions and the provisions pertaining to pricing and
fees), (x) to the office of the U.S. Trustee, to any ad-hoc or statutorily appointed committee of
unsecured creditors, and to their respective representative and professional advisors and (y) as
you are required by law to make, (iii) disclose this Commitment Letter (including the Term Sheet)
(x) as required by law or compulsory legal process in any legal, judicial, administrative or other
regulatory proceeding, including, without limitation, the Bankruptcy Case, or otherwise, (y) (A) to
the agents and lenders under the credit facility in existence on the date hereof and available to
the debtors during the pendency of the Bankruptcy Case (redacting Annex A-II to the Term Sheet to
exclude the provisions pertaining to pricing and fees) or (B) otherwise in connection with the
Bankruptcy Case (redacting Annex A-II to the Term Sheet to exclude the provisions pertaining to
pricing and fees) or (z) as requested by a governmental or regulatory authority (in each case
Holdings agrees to inform WFF promptly to the extent practicable to do so and permitted by law),
(iv) disclose the Term Sheet to Moodys Investors Service, Inc. and Standard & Poors Ratings
Services, a division of The McGraw Hill Companies, Inc. (redacting Annex A-II to the Term Sheet to
exclude the provisions pertaining to pricing and fees), (v) disclose the Commitment Letter and the
Term Sheet to (x) Bank of America, N.A. (BofA), in connection with BofA evaluating WFFs offer to
assign a portion of its commitments hereunder pursuant to the terms hereof and (y) the purchasers
of the Senior
-3-
Secured Notes (as defined in the Term Sheet) of the Borrower to be issued prior to or concurrently
with the closing of the Facility and (vi) disclose the Commitment Letter and the Term Sheet in
connection with any litigation or other adverse proceeding involving parties to this Commitment
Letter; provided that prior to any disclosure to a party other than Holdings, Company, the
Lenders (as defined in the Term Sheet), their respective affiliates and their respective counsel
under this clause (vi) with respect to litigation involving a party other than Holdings, Company,
the Lenders, and their respective affiliates, the disclosing party agrees to provide WFF with prior
notice thereof.
(b) WFF agrees that non-public, confidential information regarding Holdings, the Acquired Business
and their respective subsidiaries, their operations, assets, and existing and contemplated business
plans shall be treated by WFF in a confidential manner, and shall not be disclosed by WFF to
persons who are not parties to this Commitment Letter, except: (i) to WFFs officers, directors,
employees, attorneys, advisors, accountants, auditors, and consultants to WFF on a need to know
basis in connection with Transaction contemplated hereby and on a confidential basis, (ii) to
subsidiaries and affiliates of WFF, provided that any such subsidiary or affiliate shall have
agreed to receive such information hereunder subject to the terms of this clause (b), (iii) as may
be required by regulatory authorities so long as such authorities are informed of the confidential
nature of such information, (iv) as may be required by statute, decision, or judicial or
administrative order, rule, or regulation, provided that prior to any disclosure under this
clause (iv), the disclosing party agrees to provide Holdings with prior notice thereof, to the
extent that it is practicable to do so and to the extent that the disclosing party is permitted to
provide such prior notice to Holdings pursuant to the terms of the applicable statute, decision, or
judicial or administrative order, rule, or regulation, (v) as may be agreed to in advance by
Holdings, (vi) as requested or required by any governmental authority pursuant to any subpoena or
other legal process, provided that prior to any disclosure under this clause (vi) the
disclosing party agrees to provide Holdings with prior notice thereof, to the extent that it is
practicable to do so and to the extent that the disclosing party is permitted to provide such prior
notice to Holdings pursuant to the terms of the subpoena or other legal process, (vii) as to any
such information that is or becomes generally available to the public (other than as a result of
prohibited disclosure by WFF), (viii) in connection with any proposed assignment or participation
of WFFs interest in the Facility, provided that any such proposed assignee or participant shall
have agreed to receive such information subject to the terms of this clause (b), and (ix) in
connection with any litigation or other adverse proceeding involving parties to this Commitment
Letter; provided that prior to any disclosure to a party other than Holdings, Company, the
Lenders (as defined in the Term Sheet), their respective affiliates and their respective counsel
under this clause (ix) with respect to litigation involving a party other than Holdings, Company,
the Lenders, and their respective affiliates, the disclosing party agrees to provide Holdings with
prior notice thereof.
(c) Anything to the contrary in this Commitment Letter notwithstanding you agree that (i) WFF shall
have the right to provide information concerning the Facility to loan syndication and reporting
services, and (ii) the projections, any marketing materials and all other information provided by
or on behalf of you and your and the Companys affiliates to WFF regarding Sponsor, Holdings and
their respective affiliates, the Transaction and the other transactions contemplated hereby in
connection with the Facility may be disseminated by or on behalf of WFF to prospective lenders and
other persons, who have agreed to be bound by customary confidentiality undertakings (including,
click-through agreements), all in accordance with WFFs standard loan syndication practices
(whether transmitted electronically by means of a
-4-
website, e-mail or otherwise, or made available orally or in writing, including at potential lender
or other meetings). You (and you will use commercially reasonable efforts to cause the Borrower
to) hereby further authorize WFF to download copies of Sponsors and the Borrowers logos from
their respective websites and post copies thereof on an Intralinks® or similar workspace
and use the logos on any confidential information memoranda, presentations and other marketing
materials prepared in connection with the syndication of the Facility.
Information
In issuing this Commitment Letter, WFF is relying on the accuracy of the information furnished to
it by or on behalf of Sponsor and/or Holdings and their affiliates, without independent
verification thereof. Holdings acknowledges that it is a condition precedent to the funding of the
Facility that (a) all written information (other than forward looking information and projections
of future financial performance (collectively, the Projections)) concerning Company and its
subsidiaries (the Information) that has been, or is hereafter, made available by or on behalf of
Sponsor or Holdings or their affiliates in connection with the Transaction is, or when delivered
shall be, when considered as a whole, complete and correct in all material respects and does not,
or shall not when delivered, contain any untrue statement of material fact or omit to state a
material fact necessary in order to make the statements contained therein not misleading in any
material respect in light of the circumstances under which such statements have been made, and (b)
all Projections that have been or are hereafter made available by or on behalf of Sponsor or
Holdings or their affiliates in connection with the Transaction are, or when delivered shall be,
prepared in good faith on the basis of information and assumptions that are believed by Sponsor or
Holdings to be reasonable at the time such Projections were prepared (you hereby acknowledge that
the most recent Projections delivered by or on behalf of Sponsor or Holdings to WFF were prepared
on August 15, 2009); it being recognized by WFF that projections of future events are not to be
viewed as facts and actual results may vary significantly from projected results.
Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities
You acknowledge that WFF or one or more of its affiliates may be providing debt financing, equity
capital or other services (including financial advisory services) to other companies in respect of
which you may have conflicting interests regarding the transactions described herein or otherwise.
You also acknowledge that we do not have any obligation to use in connection with the transactions
contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by
us from other companies.
You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between
you, on the one hand, and WFF, on the other hand, is intended to be or has been created in respect
of any of the transactions contemplated by this Commitment Letter, irrespective of whether WFF or
one or more of its affiliates has advised or is advising you on other matters, (b) WFF, on the one
hand, and you, on the other hand, have an arms-length business relationship that does not directly
or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of WFF, (c) you are
capable of evaluating and understanding, and you understand and accept, the terms, risks and
conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised
that WFF or one or more of its affiliates is engaged in a broad range of transactions that may
involve interests that differ from your interests and that WFF does not have
-5-
any obligation to disclose such interests and transactions to you by virtue of any fiduciary,
advisory or agency relationship, and (e) you waive, to the fullest extent permitted by law, any
claims you may have against WFF for breach of fiduciary duty or alleged breach of fiduciary duty in
respect of any of the transactions contemplated by this Commitment Letter and agree that WFF shall
not have any liability (whether direct or indirect) to you in respect of such a fiduciary duty
claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including
your stockholders, employees or creditors. For the avoidance of doubt, the provisions of this
paragraph apply only to the transactions contemplated by this Commitment Letter and the
relationships and duties created in connection with the transactions contemplated by this
Commitment Letter.
You further acknowledge that one or more of WFFs affiliates are full service securities firm
engaged in securities trading and brokerage activities as well as providing investment banking and
other financial services. In the ordinary course of business, WFF or one or more of WFFs
affiliates may provide investment banking and other financial services to, and/or acquire, hold or
sell, for their respective own accounts and the accounts of customers, equity, debt and other
securities and financial instruments (including bank loans and other obligations) of, you, and
Company and other companies with which you or Company may have commercial or other relationships.
With respect to any debt or other securities and/or financial instruments so held by WFF or one or
more of its affiliates or any of their respective customers, all rights in respect of such
securities and financial instruments, including any voting rights, will be exercised by the holder
of the rights, in its sole discretion.
Break-Up Fee
You agree that if Holdings or Sponsor or any of your affiliates consummate the Acquisition and, in
connection with the Acquisition, obtain an asset-backed revolving debt financing alternative to the
Facility (other than a debt financing (i) provided by Holdings, Ares, Teachers or any of their
affiliates or (ii) in which WFF holds not less than 50% of the commitments and has pricing and
other economic terms either substantially similar to the Facility or more favorable to WFF), then
you immediately shall pay to WFF, in immediately available funds, a fee equal to $375,000 (which
amount is in addition to any other amount paid or payable hereunder).
Governing Law, Etc.
This Commitment Letter, the Term Sheet, and any claim or dispute concerning the subject matter
hereof or thereof shall be governed by, and construed in accordance with, the law of the State of
New York. Each of the parties hereto consents to the exclusive jurisdiction and venue of the
federal and/or state courts located in New York, New York. This Commitment Letter (together with
the Term Sheet) sets forth the entire agreement between the parties with respect to the matters
addressed herein, supersedes all prior communications, written or oral, with respect hereto, and
may not be amended, supplemented, or modified except in a writing signed by the parties hereto.
This Commitment Letter may be executed in any number of counterparts, each of which, when so
executed, shall be deemed to be an original and all of which, taken together, shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Commitment
Letter by telecopier or other electronic transmission shall be equally effective as delivery of a
manually executed counterpart of this Commitment Letter. This Commitment Letter shall not be
assignable by you (except to an affiliate of Holdings that is
-6-
directly or indirectly controlled by Ares and Teachers) without the prior written consent of WFF
(any purported assignment without such consent shall be null and void), is intended to be solely
for the benefit of the parties hereto, and is not intended to confer any benefits upon, or create
any rights in favor of, any person other than the parties hereto and the Indemnified Persons.
Notwithstanding any other provision of this Commitment Letter, WFF agrees to offer to assign 50% of
the commitments under this Commitment Letter to BofA upon the following terms and subject to the
following conditions: (a) the assignment must be for at least 30% of the total commitments under
the Facility; (b) BofA and WFF shall be co-lead arrangers under this Commitment Letter, in each
case with WFF as the lead loan arranger; and (c) BofA shall be entitled to a pro rata percentage of
the fees otherwise payable to WFF under Annex A-I to the Term Sheet and the Closing Fee under Annex
A-II to the Term Sheet. In the event that this Commitment Letter is terminated or expires, the
Expenses and Indemnification, Fees, Confidentiality, Sharing Information; Absence of Fiduciary
Relationship; Affiliate Transactions, Governing Law, Etc., and Waiver of Jury Trial provisions
hereof shall survive such termination or expiration. Anything contained herein to the contrary
notwithstanding, your obligations under this Commitment Letter, other than your obligations under
the paragraph captioned Syndication, shall terminate at the time of the execution and delivery of
the Loan Documents relative to the Facility.
Waiver of Jury Trial
To the maximum extent permitted by applicable law, each party hereto irrevocably waives any and all
rights to a trial by jury in any action or proceeding (whether based on contract, tort, or
otherwise) arising out of or relating to this Commitment Letter or the Transaction contemplated
hereby or the actions of WFF or any of its affiliates in the negotiation, performance, or
enforcement of this Commitment Letter.
Patriot Act
WFF hereby notifies you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub.
L. 107-56 (signed into law October 26, 2001) (the PATRIOT Act), WFF may be required to obtain,
verify and record information that identifies the Loan Parties (as defined in the Term Sheet),
which information includes the name, address, tax identification number and other information
regarding the Loan Parties that will allow WFF to identify the Loan Parties in accordance with the
PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act. You
agree to use commercially reasonable efforts to cause Company to provide WFF, prior to the Closing
Date, with all documentation and other information required by bank regulatory authorities under
know your customer and anti-money laundering rules and regulations, including, without
limitation, the PATRIOT Act.
-7-
This Commitment Letter shall expire at 3:00 p.m. (New York time) on October 9, 2009, unless prior
thereto WFF has received a copy of this Commitment Letter signed by Holdings. In the event the
initial funding under the Facility does not occur on or prior to March 15, 2010 then WFFs
commitment to provide the Facility shall automatically expire on such date. If you elect to
deliver your signed counterpart of this Commitment Letter by telecopier or other electronic
transmission, please arrange for the executed original to follow by next-day courier.
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Very truly yours,
WELLS FARGO FOOTHILL, LLC
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By: |
/s/ David A. Ernst
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Name: |
David A. Ernst |
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Title: |
Vice President |
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ACCEPTED AND AGREED TO |
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this 8th day of October, 2009 |
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AOT BEDDING INTERMEDIATE HOLDINGS, LLC |
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By: |
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AOT Bedding Super Holdings, LLC, |
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its sole member |
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By: |
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Ares Corporate Opportunities Fund III, L.P., |
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its member |
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By: |
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ACOF Operating Manager III LLC, |
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its manager |
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By: |
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/s/ Nav Rahemtulla |
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Name:
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Nav Rahemtulla |
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Title:
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Authorized Signatory |
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and |
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By: |
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Ontario Teachers Pension Plan Board, |
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its member |
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By: |
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/s/ Romeo Leemrijse |
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Name:
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Romeo Leemrijse |
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Title:
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Director |
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-9-
EXHIBIT A
Syndication Provisions
WFF may syndicate the financing for the Transaction to additional lenders with a corresponding
reduction in WFFs share of the Facility. Any assignment by WFF of its commitment under the
Commitment Letter will be made with the prior written consent of Holdings (prior to the closing of
the Facility), and the Borrower (after the closing of the Facility), in each case, such consent
shall not be required in connection with an assignment to Bank of America, N.A. and shall not be
unreasonably withheld, conditioned or delayed. WFF will manage all aspects of any syndication,
including the timing of all offers to potential lenders and the acceptance of commitments, the
amount offered, and the compensation provided; provided, that WFF shall notify and consult with
Holdings (prior to the closing of the Facility) and Borrower (after the closing of the Facility)
regarding each potential lender and the amount offered to such lender.
If WFF elects to syndicate the Facility, Holdings agrees to use commercially reasonable efforts to
assist WFF in forming a syndicate acceptable to WFF and Holdings. Such assistance shall include
but not be limited to (a) using commercially reasonable efforts to make senior management and
representatives of Borrower available to participate in meetings and to provide information to
potential lenders and participants at such times and places as WFF may reasonably request; and (b)
using commercially reasonable efforts to provide all information reasonably deemed necessary by WFF
to complete the syndication, subject to confidentiality agreements in form and substance reasonably
satisfactory to Holdings and WFF. In addition, Holdings agrees that WFF shall have the right to
provide information concerning the Facility to loan syndication and reporting services.
[REDACTED]
-10-
EXHIBIT B
Indemnification Provisions
Capitalized terms used herein shall have the meanings ascribed to them in the commitment letter,
dated October 8, 2009 (the Commitment Letter) addressed to AOT Bedding Intermediate Holdings, LLC
(the Indemnifying Party) from Wells Fargo Foothill, LLC (WFF).
To the fullest extent permitted by applicable law, the Indemnifying Party agrees that it will
indemnify, defend, and hold harmless each of the Indemnified Persons from and against (i) any and
all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs,
expenses and disbursements, (ii) any and all actions, suits, proceedings and investigations in
respect thereof, and (iii) any and all legal or other costs, expenses or disbursements in giving
testimony or furnishing documents in response to a subpoena or otherwise (including, without
limitation, the costs, expenses and disbursements, as and when incurred, of investigating,
preparing or defending any such action, proceeding or investigation (whether or not in connection
with litigation in which any of the Indemnified Persons is a party) and including, without
limitation, any and all losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements, resulting from any act or omission of any of the
Indemnified Persons), directly or indirectly, caused by, relating to, based upon, arising out of or
in connection with (a) the Transaction, (b) the Commitment Letter or the Facility, or (c) any
untrue statement or alleged untrue statement of a material fact contained in, or omissions or
alleged omissions in, information furnished by Indemnifying Party or Company, or any of their
subsidiaries or affiliates, or any other person in connection with the Transaction or the
Commitment Letter; provided, however, such indemnity agreement shall not apply to
any portion of any such loss, claim, damage, obligation, penalty, judgment, award, liability, cost,
expense or disbursement of an Indemnified Person to the extent it is found in a final judgment by a
court of competent jurisdiction (not subject to further appeal) to have resulted primarily and
directly from the gross negligence or willful misconduct of such Indemnified Person.
These Indemnification Provisions shall be in addition to any liability which the Indemnifying Party
may have to the Indemnified Persons.
If any action, suit, proceeding or investigation is commenced, as to which any of the Indemnified
Persons proposes to demand indemnification, it shall notify the Indemnifying Party with reasonable
promptness; provided, however, that any failure by any of the Indemnified Persons
to so notify the Indemnifying Party shall not relieve the Indemnifying Party from its obligations
hereunder. WFF, on behalf of the Indemnified Persons, shall have the right to retain counsel of
its choice to represent the Indemnified Persons, and the Indemnifying Party shall pay the
reasonable and documented fees, expenses, and disbursement of such counsel, and such counsel shall,
to the extent consistent with its professional responsibilities, cooperate with the Indemnifying
Party and any counsel designated by the Indemnifying Party. The Indemnifying Party shall be liable
for any settlement of any claim against any of the Indemnified Persons made with its written
consent, which consent shall not be unreasonably withheld. Without the prior written consent of
WFF, the Indemnifying Party shall not settle or compromise any claim, permit a default or consent
to the entry of any judgment in respect thereof.
-11-
In order to provide for just and equitable contribution, if a claim for indemnification pursuant to
these Indemnification Provisions is made but is found by a judgment of a court of competent
jurisdiction (not subject to further appeal) that such indemnification may not be enforced in such
case, even though the express provisions hereof provide for indemnification in such case, then the
Indemnifying Party, on the one hand, and the Indemnified Persons, on the other hand, shall
contribute to the losses, claims, damages, obligations, penalties, judgments, awards, liabilities,
costs, expenses and disbursements to which the Indemnified Persons may be subject in accordance
with the relative benefits received by the Indemnifying Party, on the one hand, and the Indemnified
Persons, on the other hand, and also the relative fault of the Indemnifying Party, on the one hand,
and the Indemnified Persons collectively and in the aggregate, on the other hand, in connection
with the statements, acts or omissions which resulted in such losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses and disbursements and the relevant
equitable considerations shall also be considered. No person found liable for a fraudulent
misrepresentation shall be entitled to contribution from any other person who is not also found
liable for such fraudulent misrepresentation. Notwithstanding the foregoing, none of the
Indemnified Persons shall be obligated to contribute any amount hereunder that exceeds the amount
of fees previously received by such Indemnified Person pursuant to the Commitment Letter.
Neither expiration nor termination of WFFs commitments under the Commitment Letter or funding or
repayment of the loans under the Facility shall affect these Indemnification Provisions which shall
remain operative and continue in full force and effect.
-12-
TERM SHEET
This Term Sheet is part of the commitment letter, dated October 8, 2009 (the Commitment Letter),
addressed to AOT Bedding Intermediate Holdings, LLC by Wells Fargo Foothill, LLC (WFF) and is
subject to the terms and conditions of the Commitment Letter. Capitalized terms used herein and
the accompanying Annexes shall have the meanings set forth in the Commitment Letter unless
otherwise defined herein or therein.
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Borrower:
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Simmons Bedding Company (Simmons),
reorganized debtor under a plan of
reorganization (the Plan of
Reorganization) confirmed in a case (the
Bankruptcy Case) commenced under
chapter 11 of the Bankruptcy Code in the
United States Bankruptcy Court for the
District of Delaware (the Bankruptcy
Court), and certain of Simmons present
and future domestic subsidiaries as are
reasonably acceptable to WFF (Simmons and
such subsidiaries, collectively, the US
Borrowers) and present and future
subsidiaries organized under the laws of
Canada as are acceptable to WFF
(collectively, the Canadian Borrowers
and, together with the US Borrowers,
collectively, the Borrowers). |
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Guarantors:
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Bedding Holdco Incorporated (Parent)
and all of Parents present and future
United States and Canadian subsidiaries
(other than Borrowers and unrestricted
subsidiaries); provided, that, any
Canadian Subsidiary that is characterized
as a corporation for US federal income
tax purposes shall only guaranty the
obligations of the Canadian Borrowers.
Such Guarantors, together with Borrowers,
each a Loan Party and collectively, the
Loan Parties). |
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Lenders and Agent:
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WFF and such other lenders (the
Lenders) as Agent, Holdings and the
Borrowers elect to include within the
syndicate in accordance with Exhibit A to
the Commitment Letter. WFF shall act as
the sole agent for the Lenders (in such
capacity, the Agent). |
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Facility:
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A senior secured credit facility (the
Facility) with a maximum credit amount
(Maximum Credit Amount) of $75,000,000.
Under the Facility, Lenders will provide
Borrowers with a revolving credit
facility (the Revolver). |
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Closing Date:
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The date on or before March 15, 2010 on
which the borrowings under the Facility
are made and the Acquisition is
consummated (the Closing Date). |
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Revolver:
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Advances under the Revolver (Advances)
will be available up to a maximum amount
outstanding at any one time of
$75,000,000 (the Maximum Revolver
Amount). In addition, Advances under the
Revolver may not, at any time, exceed the
Borrowing Base (as hereinafter defined). |
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A portion of the Revolver shall be made
available to the US Borrowers (the US
Revolver) and a portion of the Revolver
shall be made available to the Canadian
Borrowers in an amount to be determined
based on further diligence (the Canadian
Revolver). |
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Borrowing Base:
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85% of the amount of Borrowers eligible
accounts (including eligible Other
Receivables, as defined in the
description of notes with respect to the
Senior Secured Notes), not older than 90
days from invoice date and net of
customary reserves including a reserve of
1% for each incremental percentage in
dilution over 5%, and 95% of the amount
of cash held in Blocked Deposit Accounts
(as defined below).
In addition, the Borrowing Base would
include availability based upon
Borrowers inventory up to the least of
the following: (i) 65% of eligible
inventory, net of customary reserves,
(ii) 85% times the net orderly
liquidation value of Borrowers eligible
inventory, and (iii) 33% of the amount of
credit availability created by Borrowers
eligible accounts.
The Borrowing Base with respect to the US
Revolver shall be based solely on
accounts and inventory of the US
Borrowers and the Borrowing Base with
respect to the Canadian Revolver shall be
based solely on accounts and inventory of
the Canadian Borrowers.
Blocked Deposit Accounts will mean
deposit accounts maintained at Wells
Fargo Bank, N.A. or Wachovia Bank, N.A.
that are the subject of control
agreements among the applicable Borrower,
Agent and the depository. Agent shall
not be required to release deposits held
in such Blocked Deposit Accounts to the
Borrowers if (i) an event of default has
occurred and is continuing or (ii) if
after giving effect to the release of
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-2-
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such deposits, the outstanding revolving
loans and letters of credit would exceed
availability under the Revolver. |
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Letter of Credit Subfacility:
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Under the Revolver, Borrowers will be
entitled to request that Agent issue
guarantees of payment (Letters of
Credit) with respect to letters of
credit issued by Wells Fargo Bank, N.A.
in an aggregate amount not to exceed
$30,000,000 at any one time outstanding;
which sublimit may be divided between the
US Revolver and the Canadian Revolver to
be determined based on further diligence.
The aggregate amount of outstanding
Letters of Credit will be reserved
against the credit availability created
under the Borrowing Base and the Maximum
Revolver Amount. |
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Optional Prepayment:
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The Advances may be prepaid in whole or
in part from time to time and without
penalty or premium. The Facility may be
prepaid and the commitments terminated in
whole at any time upon 3 business days
prior written notice. |
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Use of Proceeds:
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To (i) repay Borrowers secured working
capital indebtedness on the effective
date (the Effective Date) of the Plan
of Reorganization, (ii) otherwise enable
Borrowers to consummate the Plan of
Reorganization on the Effective Date,
(iii) fund certain fees and expenses
associated with the Facility and the
Transaction, and (iv) finance the ongoing
general corporate needs of Borrowers. |
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Fees and Interest Rates:
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As set forth on Annex A-I and A-II. |
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Term:
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4 years from the Closing Date but not to
exceed 90 days prior to the maturity of
the Senior Secured Notes (as defined
below) (Maturity Date). |
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Collateral:
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A (a) first priority perfected security
interest in all of the Loan Parties now
owned or hereafter acquired (i) accounts
(but excluding such accounts for
equipment sold or leased) and certain
royalty and licensing receivables, (ii)
inventory, (iii) to the extent evidencing
or governing any of the items referred to
in the preceding clauses, general
intangibles, documents, contract rights,
chattel paper (including tangible chattel
paper and electronic chattel paper) and
instruments (including promissory notes),
(iv) to the extent relating to any of the
items referred to in the preceding
clauses, guarantees, letters of credit,
security and other credit enhancements, |
-3-
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letter-of-credit rights and supporting
obligations, (v) cash and cash
equivalents from whatever source derived,
all lockboxes (excluding safe deposit
boxes), deposit accounts and, solely to
the extent constituting cash or cash
equivalents or representing a claim to
cash equivalents, securities accounts as
original collateral, (vi) all
intercompany loans and advances among the
Loan Parties, (vii) to the extent
relating to any of the items referred to
in the preceding clauses, books and
records and (viii) proceeds of any of the
foregoing to the extent they would
otherwise constitute Working Capital
Assets, including proceeds received in
respect of Working Capital Assets from
casualty insurance or condemnation, and
excluding all Asset Sale Proceeds
Accounts (as defined below) and all cash,
Cash Equivalents, Money, Instruments,
Securities, Investment Property and
Financial Assets (as each such term is
defined in the Uniform Commercial Code
for the State of New York) held in or
credited to any Asset Sale Proceeds
Account (collectively, the Working
Capital Assets) and (b) second priority
perfected security interest in (i)
substantially all of the Loan Parties
now owned or hereafter acquired property
and assets (other than Working Capital
Assets) and all proceeds and products
thereof to the extent they would
otherwise constitute Senior Secured Notes
Assets and any proceeds received upon an
asset sale or event of loss with respect
to the Senior Secured Notes Assets to the
extent they are held in an Asset Sale
Proceeds Account, including proceeds
received in respect of Senior Secured
Notes Assets from casualty insurance or
condemnation (collectively, the Senior
Secured Notes Assets), in each case
subject to permitted liens and customary
excluded collateral (including special
purpose and de-minimus deposit accounts
acceptable to Agent in its reasonable
discretion) and other exceptions (to be
mutually agreeable to Agent and
Borrowers), and (ii) in all of the stock
(or other ownership interests in) of each
Loan Party other than Parent and all
proceeds and products thereof. Asset
Sales Proceeds Accounts means deposit
and/or securities accounts maintained
exclusively for the purpose of holding
proceeds of identifiable cash proceeds
received upon an asset sale or event of
loss with respect to any Senior Secured
Notes Assets and any proceeds and any
investment of such Cash Proceeds, in each
case, constituting cash, Cash
Equivalents, Money, Instruments,
Securities, Investment Property and/or
Financial Assets.
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-4-
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The priority of the security interests
and related creditor rights between the
Facility and the $425 million of senior
secured notes (the Senior Secured
Notes) will be set forth in an
intercreditor agreement (the
Intercreditor Agreement). |
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Representations and Warranties:
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The credit agreement governing the
Facility will include such
representations and warranties to be made
by the Loan Parties and their respective
subsidiaries as are usual and customary
for financings of this type, including
representations and warranties (certain
of which will be subject to materiality
thresholds, baskets and customary or
bankruptcy-related exceptions and
qualifications to be negotiated in the
definitive Loan Documents) regarding: due
organization and qualification;
subsidiaries; due authorization; no
conflict; governmental consents; binding
obligations; perfected liens; title to
assets; no encumbrances; jurisdiction of
organization; location of chief executive
office; organizational identification
number; commercial tort claims;
litigation; compliance with laws; no
material adverse change; fraudulent
transfer; employee benefits;
environmental condition; intellectual
property; leases; deposit accounts and
securities accounts; complete disclosure;
material contracts; Patriot Act and OFAC;
indebtedness; payment of taxes; margin
stock; governmental regulation; Parent as
holding company; acquisition documents;
eligible accounts; eligible inventory;
location of inventory and equipment;
inventory records, entry of the
Confirmation Order (as defined in Annex
B) and satisfaction of the conditions to
effectiveness of the Plan of
Reorganization, or as may be agreed. |
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Affirmative Covenants:
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The credit agreement governing the
Facility will include such affirmative
covenants (certain of which will be
subject to materiality thresholds,
baskets and customary exceptions and
qualifications to be negotiated in the
definitive Loan Documents) applicable to
the Loan Parties and their respective
subsidiaries as are usual and customary
for financings of this type, including
covenants regarding: financial
statements, reports, and certificates;
collateral reporting; existence;
maintenance of properties; taxes;
insurance; inspection; compliance with
laws; environmental; disclosure updates;
formation of subsidiaries; further
assurances; lender meetings; material
contracts; employee benefits, location of
inventory and equipment and satisfaction
of the ongoing obligations under the Plan
of Reorganization, or as may |
-5-
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be agreed. |
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Negative Covenants:
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The credit agreement governing the
Facility will include such negative
covenants (certain of which will be
subject to materiality thresholds,
baskets and customary exceptions and
qualifications to be negotiated in the
definitive Loan Documents) applicable to
the Loan Parties and their respective
subsidiaries as are usual and customary
for financings of this type, including
covenants regarding: limitations on: indebtedness; liens; fundamental changes;
disposal of assets; change of name;
nature of business; prepayments and
amendments; change of control;
distributions; accounting methods;
investments; transactions with
affiliates; use of proceeds; Parent as a
holding company; consignments; and
inventory and equipment with bailees, or
as may be agreed. |
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Financial Covenants:
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If at any time excess availability falls
below $14,000,000 (a Covenant Event),
Simmons, on a consolidated basis, shall
be required to maintain fixed charge
coverage ratio of not less than 1.1:1.0;
provided, that, no default or event of
default shall occur as a result of
Simmons failing to maintain such fixed
charge coverage ratio if within 15 days
after the applicable Covenant Event
Simmons receives a cash equity
contribution (an Equity Contribution)
resulting in excess availability being
equal to or greater than $14,000,000;
provided, further, that Agent and Lenders
shall not be obligated to make any loans
or issue any letters of credit during the
period from the occurrence of such
Covenant Event until Simmons receives
such Equity Contribution. |
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Collection:
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The Borrowers would direct all of their
customers to remit all payments either to
(i) deposit accounts that are the subject
of springing control agreements among the
applicable Borrower, Agent, and the
depository bank, or (ii) Blocked Deposit
Accounts, and would be required promptly
to remit any payments received by them to
one of these deposit accounts. All
collections received would be subject to
a one business day clearance charge. |
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Events of Default:
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The credit agreement governing the
Facility will include such events of
default applicable to the Loan Parties
and their respective subsidiaries as are
usual and customary for financings of
this type, including (and certain of
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-6-
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which will be subject to materiality
thresholds, exceptions and grace periods
to be negotiated in the definitive Loan
Documents): non-payment of obligations;
non-performance of covenants and
obligations; material judgments;
bankruptcy or insolvency; any
restrainment against all or a material
portion of business affairs; default on
other material debt (including secured
hedging agreements); breach of any
representation or warranty; limitation or
termination of any guarantee with respect
to the Facility; impairment of security;
employee benefits; and actual or asserted
invalidity or unenforceability of any
Facility documentation or liens securing
obligations under the Facility
documentation. |
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Conditions Precedent to Closing:
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The conditions set forth on Annex B. |
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Assignments:
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Each Lender shall be permitted to assign,
in an amount not less than $1.0 million,
its rights and obligations under the Loan
Documents, or any part thereof, to any
person or entity with the consent of
Agent and Borrowers (such consent not to
be unreasonably withheld, delayed or
conditioned); provided that no consent by
Borrowers shall be required for
assignments (a) to another Lender, an
affiliate of a Lender or an approved fund
under common control with a Lender, or
(b) after the occurrence and during the
continuance of a default or an event of
default. Subject to customary voting
limitations, each Lender shall be
permitted to sell participations in such
rights and obligations, or any part
thereof to any person or entity without
the consent of Borrowers. |
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Governing Law and Forum:
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State of New York |
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Counsel to Agent:
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Goldberg Kohn |
-7-
Annex A-I
Interest Rates and Fees
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Interest Rate Options
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Borrowers may elect that the loans bear interest at a rate per annum equal to: |
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(i) the Base Rate plus 4.50%; or |
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(ii) the LIBOR Rate plus 3.50% (the LIBOR Margin). |
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As used herein: |
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The Base Rate means the greatest of (a) the prime
lending rate as publicly announced from time to time by
Wells Fargo Bank, N.A., (b) the Federal Funds Rate plus
1/2% and (c) the three-month LIBOR rate (which shall be
determined daily) plus 1.00%. |
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The LIBOR Rate means the rate per annum appearing on
Bloomberg L.P.s (the Service) Page BBAM (official
BBA USD Dollar Libor Fixings) (or on any successor or
substitute page of such Service or any successor to or
substitute for such Service 2 Business Days prior to
the commencement of the requested Interest Period,
adjusted by the reserve percentage prescribed by
governmental authorities as determined by Agent. The
LIBOR Rate shall be available for interest periods of
1, 2 and 3 months. |
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Interest Payment Dates
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In the case of loans bearing interest based upon the Base Rate (Base Rate Loans), monthly in arrears. |
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In the case of Loans bearing interest based upon the
LIBOR Rate (LIBOR Rate Loans), on the last day of
each relevant interest period. |
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Letter of Credit Fees
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An amount equal to the LIBOR Margin per annum times the undrawn amount
of each Letter of Credit, payable in cash monthly in arrears, plus the charges imposed
by the letter of credit issuing bank; provided however, that if the
Default Rate is in effect, the Letter of Credit Fee shall be increased by an additional
2.0% per annum. |
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Default Rate
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At any time when an event of default has occurred and is continuing and upon
written election of
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Required Lenders (to be defined in the Loan Documents)
all amounts due under the Facility shall bear interest
at 2.0% above the interest rate otherwise applicable
thereto. |
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Rate and Fee Basis
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All per annum rates shall be calculated on the basis of a year of
360 days and the actual number of days elapsed. |
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Unused Revolver Fee
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A fee in an amount equal to 0.50% per annum times the unused portion of
the Revolver shall be due and payable monthly in arrears. |
-9-
Annex A-II
Fees
[REDACTED]
-10-
Annex B
The initial availability of the Facility is subject to the satisfaction of each of the
following conditions precedent:
(a) Delivery of Loan Documents customary for transactions of this type duly executed by the
Loan Parties (or applicable third parties as the case may be) including a credit agreement,
security agreements, control agreements, landlord waivers, mortgages, pledge agreements,
intercreditor agreements and intercompany subordination agreements, and receipt of other
documentation customary for transactions of this type including legal opinions, officers
certificates, governing documents, evidence of corporate authority and certificates of status,
payoff letters, instruments necessary to perfect the Agents first priority security interest in
the Collateral, and certificates of insurance policies and/or endorsements naming Agent as
additional insured or loss payee, as the case may be, all in form and substance consistent with the
terms set forth in the Commitment Letter and otherwise on customary and commercially reasonable
terms as may be agreed by the parties hereto; provided, that, to the extent the any landlord
agreement, mortgage, certificates of insurance policies and/or endorsements naming Agent as
additional insured or loss payee, as the case may be, or control agreement is not provided on the
Closing Date after the Borrowers use of commercially reasonable efforts to do so, the delivery of
such document shall not constitute a condition precedent to the availability of the Facility on the
Closing Date but (i) such item shall be required to be delivered within a commercially reasonable
time after the Closing Date and in any event within 90 days thereafter and (ii) to the extent
certificates of casualty insurance and/or endorsements covering inventory are not received on the
Closing Date, Agent may exclude inventory from the Borrowing Base until such certificates and/or
endorsements are delivered;
(b) Receipt of all documentation and other information required by bank regulatory authorities
in connection with the Facility under know your customer and anti-money laundering rules and
regulations, including, without limitation, the PATRIOT Act;
(c) Minimum availability under the Facility plus unrestricted cash and cash equivalents of the
Loan Parties (excluding cash and cash equivalents included in the Borrowing Base) at closing, after
giving effect to the initial use of proceeds (including the payment of all fees and expenses
(including Expenses), of not less than $35,000,000;
(d) The following transactions shall have occurred prior to or concurrently with the initial
extension of credit under the Facility:
(i) There shall have been contributed to the equity of Parent at least $275,000,000 in cash
from Sponsor and its respective affiliates and any other co-investors in AOT Bedding Holdings
Corp., on terms and conditions reasonably satisfactory to Agent;
(ii) The Acquisition shall be consummated in accordance with all applicable requirements of
law;
(iii) The Plan Sponsor Agreement, and the Restructuring Support Agreement (as defined in the
Plan Sponsor Agreement and all other material documentation associated with the Acquisition
(collectively, the Acquisition Documentation) shall be in form
-11-
and substance reasonably satisfactory to Agent (Agent hereby confirms that the terms of the
Plan Sponsor Agreement and Restructuring Support Agreement provided to it on or prior to that date
of the Commitment Letter are satisfactory); and
(iv) the Acquisition shall be completed on the closing date in all material respects in
accordance with the terms and conditions of the Acquisition Documentation, and no such terms or
conditions shall have been amended or waived in any respect (other than amendments and waivers not
adverse to Agent and/or Lenders in any respect) without the prior written consent of the Agent,
which consent shall not be unreasonably withheld, conditioned or delayed.
(e) Receipt of documentation evidencing the offering of the Senior Secured Notes in an
aggregate principal amount not to exceed $425,000,000 by the Borrowers, all in form and substance
reasonably satisfactory to Agent (Agent hereby confirms that the terms expressly set forth in the
Description of Notes most recently provided to it on or prior to that date of the Commitment Letter
are satisfactory), and delivery of intercreditor agreements in respect of the Senior Secured Notes,
in form and substance reasonably satisfactory to Agent;
(f) There has been no material change in Simmons corporate structure since the date of the
Commitment Letter except as contemplated by the Plan (as defined below) and, after giving effect to
the Transactions, the Borrowers and their subsidiaries shall not have outstanding any material
indebtedness for borrowed money or preferred stock, other than (i) this Facility, (ii) up to $425
million of indebtedness under the Senior Secured Notes and (iii) certain other indebtedness and
preferred stock expressly permitted under the Plan (as defined below) or the Plan Sponsor
Agreement, including, without limitation, the Borrowers IRB loans and the Loan Agreement, dated
December 12, 1997, between Banco Santander Puerto Rico and Simmons Caribbean Bedding, Inc. (which
is guaranteed by Simmons Bedding Company);
(g) Completion by Agent of the initial Borrowing Base, the results of which are reasonably
satisfactory to Agent;
(h) Either (1) the Confirmation Order (as defined in the Plan Sponsor Agreement) shall have
become a Final Order as defined in the Plan (as defined below) or (2) an order approving the
Facility pursuant to sections 364(c), (d), and (e) of the Bankruptcy Code, in form and substance
reasonably satisfactory to Agent and based on a motion heard on not less than 15 days notice,
shall have been entered by the Bankruptcy Court (Replacement DIP Order); and
(i) The Confirmation Order (as defined in the Plan Sponsor Agreement) shall have been
entered and effective no fewer than 10 days prior to the Closing Date and shall not be subject to
stay. The approved plan of reorganization attached to the Plan Sponsor Agreement (as in effect on
the date hereof) as Exhibit A (the Plan) and entered Confirmation Order shall be in substantially
identical form and substance as are attached to the Plan Sponsor Agreement as in effect on the date
hereof, except for any amendment, modification, supplement or waiver made to the Confirmation Order
or the Plan with the consent of the Agent, which consent shall not be unreasonably withheld,
conditioned or delayed, and except for such modifications reasonably required by Agent to reflect
and approve the assumption by the Reorganized Debtors of the Facility authorized by the Replacement
DIP Order, if applicable. All
-12-
conditions precedent to the effectiveness of the Plan shall have been satisfied (or, with the
prior written consent Agent, waived) in the reasonable judgment of Agent; provided, however, that
except as consented to by Agent, the Bankruptcy Courts retention of jurisdiction under the
Confirmation Order shall not govern the enforcement of the Loan Documents or any rights or remedies
related thereto.
-13-
EXHIBIT K
ABL Commitment Letter
Please see attached.
Exhibit K
EXECUTION COPY
PROPRIETARY
AND CONFIDENTIAL
NOT FOR FURTHER DISTRIBUTION
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Ares Management LLC
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DDJ Capital Management, LLC |
on behalf of certain funds and/or accounts that
it manages and/or advises
2000 Avenue of the Stars
12th Floor
Los Angeles, CA 90067
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on behalf of certain funds and/or accounts that
it manages and/or advises
130 Turner Street
Building #3, Suite 600
Waltham, MA 02144 |
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Farallon Capital Management, LLC
One Maritime Plaza Suite 2100
San Francisco, CA 94111
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Fixed Income Group of J.P. Morgan
Investment Management Inc.
383 Madison Avenue
New York, NY 10179 |
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MSD SBI, L.P.
645 Fifth Avenue, 21st Floor
New York, NY 10022
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Oak Hill Advisors, L.P.
on behalf of certain funds and/or accounts that
it manages and/or advises
1114 Avenue of the Americas, 27th Floor
New York, NY 10036 |
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Oaktree Capital Management, L.P.
As agent on behalf of certain funds and
accounts
333 South Grand Avenue, 28th Floor
Los Angeles, CA 90071
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Sola Ltd
Solus Core Opportunities Master Fund Ltd
c/o Solus Alternative Asset Management LP
430 Park Avenue, 9th Floor
New York, NY 10022 |
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Waddell & Reed Investment
Management Company
6300 Lamar Avenue
P.O. Box 29217
Shawnee Mission, KS 66201
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Ivy Investment Management Company
6300 Lamar Avenue
P.O. Box 29217
Shawnee Mission, KS 66201 |
September 24, 2009
AOT Bedding Intermediate Holdings, LLC
c/o National Bedding Company, L.L.C.
2600 Forbs Avenue
Hoffman Estates, IL 60192
Attention: Robert Sherman
Commitment to Purchase
Ladies and Gentlemen:
We are pleased to confirm the arrangements under which each of the entities set forth on
Exhibit A hereto (as may be novated in accordance with the assignment provisions of this
Commitment Letter, each a Commitment Party and collectively the Commitment Parties), severally
and not jointly, commits to AOT Bedding Intermediate Holdings, LLC (Holdings) to purchase, and
Holdings commits to cause Issuer (as defined below) to issue, notes to provide financing for the
transactions described below on the terms and subject to the conditions set forth in this letter
and in Exhibits A, B and C attached hereto (collectively, as amended from time to time in
accordance with the terms hereof, the Commitment Letter).
You have informed us that AOT Bedding Super Holdings, LLC (SuperHoldings), a newly formed entity
directly or indirectly controlled by one or more affiliated funds of Ares Management LLC (Ares)
and Ontario Teachers Pension Plan Board (Teachers and, together with Ares and their respective
affiliates, the Sponsor), and Holdings, a newly formed, wholly owned subsidiary of SuperHoldings,
intend to acquire, directly or indirectly, all of the newly issued capital stock of Bedding Holdco
Incorporated (the Company), the direct parent company of Simmons Bedding Company (Opco or
Borrower, together with the Company and its subsidiaries, the Acquired Business) pursuant to
the plan of reorganization (the Plan) described in the Plan Sponsor Agreement (as defined below)
with respect to the Acquired Business to be confirmed and consummated in one or more voluntary
cases (the Bankruptcy Cases) under Chapter 11 of Title 11 of the United States Bankruptcy Code,
11 U.S.C. §§101, et seq., (the Bankruptcy Code) to be commenced by the Company and Borrower in
the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court).
Concurrently herewith, you are entering into that certain Plan Sponsor Agreement (as amended or
otherwise modified from time to time in accordance with Exhibit C, the Plan Sponsor Agreement) by
and among SuperHoldings, Holdings, Simmons Company, the Company, Opco, and its direct and indirect
domestic subsidiaries. For purposes of this Commitment Letter, the
Acquisition refers to any
direct or indirect acquisition of all or substantially all the common stock or assets of the
Company pursuant to the Plan Sponsor Agreement and a plan of reorganization approved by the class
of holders of Opco Notes and Holdco Notes (each as defined below) in accordance with Section
1126(b) of the Bankruptcy Code.
You have also informed us that the Acquisition pursuant to the Plan Sponsor Agreement and the
working capital requirements of the Acquired Business after consummation of the Acquisition will be
financed from the following sources:
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$425 million of aggregate principal amount of the initial series of senior
secured term notes to be issued by the Borrower (the
Issuer) and guaranteed
by the Guarantors described in Exhibit B (the Guarantors) having the terms
set forth in Exhibit B (the Notes); |
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up to $75 million under a senior secured revolving credit facility (the ABL
Facility) having terms and conditions which are permitted by the description
of the Notes, attached as Exhibit B or as otherwise are reasonably satisfactory |
- 2 -
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to (i) Holdings and (ii) Commitment Parties holding more than 50% of total
Commitments (Majority Commitment Parties); and |
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common equity investments in Holdings in an amount of gross proceeds of not
less than $300 million (the Equity Contribution) that do not constitute
Disqualified Stock (as defined in Exhibit B). |
Commitment
Each Commitment Party is pleased to confirm its several, but not joint, commitment (each, a
Commitment and collectively, the Commitments) to Holdings to purchase, directly or through one
or more of its affiliates, and Holdings is pleased to confirm its commitment (the Issue
Commitment) to cause Issuer to issue and sell to such Commitment Party, at the closing of the
Acquisition (the Closing Date), the percentage specified for each such Commitment Party on
Exhibit A hereto of the $425 million in aggregate principal amount of the Notes, in each case, on
the terms, and subject to the conditions, set forth in this Commitment Letter.
It is anticipated that the Notes will be issued in a private placement and will not be eligible for
resale without restrictions. The note purchase agreement for the Notes (the Note Purchase
Agreement) will contain (a) a covenant for the Issuer to deliver on the Closing Date any and all
documentation and information necessary to satisfy the requirements of Rule 144A(d)(4) promulgated
under the Securities Act of 1933, as amended (the Securities Act), (b) a customary representation
and warranty (with customary materiality qualifiers) with respect to the most recent financial
information described in Legal and Documentary Conditions (attached as Exhibit C hereto) #6 and 7
and a customary 10b-5 representation and warranty regarding the Disclosure Statement (as defined in
the Plan Sponsor Agreement), the Information Statement (as defined below), Rule 144A(d)(4)
information and any supporting information prepared by the Company to describe the Company to
potential purchasers of Notes, and (c) a customary securities law indemnity for the Commitment
Parties by the Company with respect thereto. The Notes will not benefit from registration rights.
The payment price for the purchase of the Notes shall be equal to 100% of the aggregate principal
amount of the notes listed on Exhibit A and each Commitment Party shall pay, and Holdings directs
such Commitment Party to pay, the amount indicated in Exhibit A as the commitment amount (the
Commitment Amount) of such Commitment Party to the Issuer in cash at closing of the Acquisition,
without setoff or counterclaim, in partial satisfaction of the purchase price payable under the
Plan Sponsor Agreement and, as part of a simultaneous transaction, netted against such Commitment
Partys and its affiliates distributions to be made simultaneously under the Plan pursuant to a
standard set of closing date payment instructions.
This Commitment Letter, the Plan, the Plan Sponsor Agreement, the Equity Contribution, the
Acquisition and all of the transactions contemplated hereby or thereby are referred to herein as
the Transactions.
There are and shall be no titles awarded to any Commitment Party or any Eligible Purchaser (as
defined below) and no fees shall be payable in connection with any Commitment except as expressly
provided otherwise herein.
- 3 -
Placement of the Notes
The assignment by any Commitment Party of any portion of its Commitment is subject to the Section
entitled Limitation on Assignments; provided that, except as provided therein or if Holdings
consents to novation (such consent not to be unreasonably withheld), no such assignment shall
relieve the Commitment Party of its obligations hereunder at any time prior to the funding of such
Commitment Partys Commitment. You have agreed that the Note Purchase Agreement (for the period
ending on the date of the issuance of the Notes) and the indenture that will govern the Notes (the
Indenture) (as of and after the date of the issuance of the Notes) will require the Issuer to
deliver on the Closing Date any and all documentation and information necessary to satisfy the
requirements of Rule 144A(d)(4) promulgated under the Securities Act. Any future offers by the
Commitment Parties to potential purchasers of the Notes must be to qualified institutional buyers
as defined in Rule 144A(a)(1) under the Securities Act or to persons who are not U.S. persons as
defined in Rule 902(k) under the Securities Act or institutions that are institutional accredited
investors as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (Eligible
Purchasers) and in each case, be subject to customary provisions of the Indenture to be part of
the definitive documentation and otherwise in accordance with applicable law. Each Commitment
Party hereby represents and warrants that it is acquiring the Notes for its own account (or for
accounts over which it exercises investment authority) and not with a view to distribution thereof.
In addition, the Note Purchase Agreement shall include an obligation of the Company to use
commercially reasonable efforts (a) to provide to the Commitment Parties within 60 days of the date
of issuance of the Notes an information statement (the Information Statement) including (i) the
financial statements referenced in Legal and Documentary Conditions (attached as Exhibit C hereto)
#6 and 7, (ii) the information required by Rule 144A(d)(4), (iii) a description of the Notes and
related definitive documentation, (iv) a discussion of risk factors, and (v) such other
information as the Company, in consultation with the initial Commitment Parties, reasonably
believes appropriate to describe the Notes, the Company and the business of the Company to
secondary purchasers of Notes, (b) to obtain a rating of the Notes by at least two nationally
recognized statistical rating organizations within 60 days of the date of issuance of the Notes,
and (c) to make the Notes DTC eligible within 60 days of the date of issuance of the Notes. If the
Company shall have failed to take any of the actions set forth in clauses (a), (b) and (c) above
(for the avoidance of doubt, regardless of the Companys commercially reasonable efforts) on or
prior to the 60th day following the date of issuance, the Indenture for the Notes shall provide
that the Notes shall bear supplemental interest from (but excluding) such 60th day until the first
date on which all such actions have been taken at a rate per annum equal to 0.50%.
Specific Performance
Notwithstanding anything in this Commitment Letter or the Plan to the contrary, each Commitment
Party hereby acknowledges and agrees that Holdings and the Issuer would be irreparably damaged by
any breach of this Commitment Letter by such Commitment Party (including, without limitation, the
failure of such Commitment Party to fund its Commitment hereunder) and, without prejudice to the
rights and remedies otherwise available to Holdings or the Issuer, each Commitment Party agrees
that Holdings, or in the case of a Condition Failure (as defined below) the Issuer, shall be
entitled to equitable relief, including an injunction or specific
- 4 -
performance, in the event of any breach or threatened breach of the provisions of this Commitment
Letter. Such remedies shall not be deemed to be exclusive remedies but shall be in addition to all
other remedies available at law or equity to Holdings or the Issuer.
Liquidated Damages
If Holdings breaches either (i) its obligation to cause Issuer to issue and sell the Notes to any
Commitment Party in order to consummate the Acquisition or (ii) its obligations under the second
paragraph of the Termination; Survival Section below, you agree to pay upon consummation of the
Acquisition to such Commitment Party as liquidated damages, as its sole and exclusive remedy in the
case of such breach and in lieu of any other right, claim, cause of action, loss or damages
(including specific performance) that could be asserted by such Commitment Party against you in
connection with this Commitment Letter or the debt financing transaction contemplated hereby, an
amount (the Liquidated Damages) equal to 7.0% of such Commitment Partys Commitment Amount.
Notwithstanding the foregoing, no amounts shall be payable to any Commitment Party pursuant to this
paragraph if such Commitment Party has been offered, and failed to purchase, notes having terms and
conditions substantially similar to those set forth in this Commitment Letter (it being understood
that any notes being offered to such Commitment Party will not be substantially similar to those
set forth in this Commitment Letter unless (A) each financial term of such notes (including,
without limitation, the interest rate, maturity and call protections thereof) is identical except
for variations that, with respect to such financial term, are de minimis or more favorable to such
Commitment Party, (B) the rights and remedies of the holders of such notes and any agent or trustee
in respect thereof are identical in all material respects to those set forth in this Commitment
Letter, (C) the ranking, guarantors and secured status of the notes is identical or more favorable
to such Commitment Party (other than de minimis changes in the scope and nature of collateral), and
(D) any other divergence from the terms and conditions set forth in this Commitment Letter, taken
as a whole with all such divergences, would not be materially adverse to such Commitment Party
solely in its capacity as a provider of its Commitment hereunder).
Confidentiality
This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter
nor any of its terms or substance shall be disclosed, directly or indirectly, to any other person
except (i) to (A) the persons party to the Plan Sponsor Agreement, (B) the persons party to the
preferred equity investment anticipated to be consummated concurrently with the purchase of the
Notes, (C) the persons party to the Second Amended and Restated Credit and Guaranty Agreement,
dated as of May 25, 2006 (as has been amended, restated, supplemented or otherwise modified from
time to time), among Opco, as borrower, the Company and the domestic subsidiaries of Opco, as
guarantors, Deutsche Bank AG, New York Branch, as administrative agent, and other lenders, issuing
banks, and parties thereto (the Senior Debt Credit Agreement), (D) the persons party to the ABL
Facility, (E) the trustee and/or the holders of Opcos $200 million aggregate principal amount of
7.875% Senior Subordinated Notes due January 15, 2014 (the Opco Notes), (F) the trustee and/or
the holders of the Simmons Companys $269 million aggregate principal amount of 10% Senior Discount
Notes due 2014
- 5 -
(the Holdco Notes), and (G) Holdings and each of Holdings and Simmons Company and its
subsidiaries respective directors, officers, employees, attorneys, accountants, agents, advisors
and other representatives who need to know such information and are informed of the confidential
nature of such information and such attorneys, accountants, agents, advisors and other
representatives are or have been advised of their obligation to keep information of this type
confidential, (ii) in any legal, judicial, administrative or other regulatory proceeding,
including, without limitation, the Bankruptcy Cases, or as otherwise required by law or regulation
or as requested by a governmental or regulatory authority (in which case Holdings agrees, to the
extent permitted by law, to inform the Commitment Parties promptly in advance thereof), and (iii)
the existence and contents of this Commitment Letter may be disclosed in the Plan, the disclosure
statement for the Plan or any prospectus or offering memorandum relating to the Notes or in
connection with any public filing requirement.
Each of the Commitment Parties shall use all nonpublic information received by it in connection
with its Commitment and the Transactions solely in connection with the Commitment, the investment
contemplated by this Commitment Letter or in connection with the Transactions and in compliance
with securities laws and regulations and shall treat confidentially all such information and the
terms and contents of this Commitment Letter; provided, however, that nothing herein shall prevent
such Commitment Party from disclosing any such information (i) in any legal, judicial,
administrative or other regulatory proceeding, including, without limitation, the Bankruptcy Cases,
or otherwise as required by applicable law or regulation (in which case such Commitment Party shall
promptly notify Holdings, in advance, to the extent permitted by law), (ii) prior to the Closing
Date, to the persons party to the Plan Sponsor Agreement, the persons party to the Senior Debt
Credit Agreement, the persons party to the ABL Facility, the trustee and/or the holders of the Opco
Notes and the trustee and/or the holders of the Holdco Notes and their respective directors,
officers, employees, attorneys, accountants, agents, advisors and other representatives, (iii) upon
the request or demand of any governmental or regulatory authority having jurisdiction over such
Commitment Party or its affiliates (in which case such Commitment Party shall notify Holdings as
soon as reasonably practicable if such notification does not violate the terms of such request or
demand or applicable law), (iv) to the employees, legal counsel, independent auditors,
professionals and other experts or agents of such Commitment Party who need to know such
information and are informed of the confidential nature of such information and are or have been
advised of their obligation to keep information of this type confidential, (v) to any of its
affiliates solely in connection with the Commitments and the related transactions (provided that
such affiliate is advised of its obligation to retain such information as confidential, and such
Commitment Party shall be responsible for their affiliates compliance with this paragraph), (vi)
to the extent any such information becomes publicly available other than by reason of disclosure by
any Commitment Party in breach of this Commitment Letter or from a source not known by such
Commitment Party (or not known by such Commitment Party to be bound by confidentiality obligations
to the Issuer), (vii) to the extent applicable, and only in respect of the information received in
connection with the Commitment, for purposes of establishing a due diligence defense and (viii)
following the Closing Date, in connection with the trading of the Notes to third parties to the
extent permitted by law.
- 6 -
Conditions to Commitment
The Commitment of each Commitment Party hereto is subject to the following conditions precedent:
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1. |
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The Equity Contribution shall have been funded or shall be funded
contemporaneously with the purchase of the Notes and the funding of the Commitment and
Holdings shall have contributed, or shall contribute contemporaneously with the
purchase of the Notes such Equity Contribution to the Issuer; and |
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2. |
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The legal and documentary conditions described in Exhibit C shall, subject to
the Amendment section set forth below, have been satisfied. |
The Issue Commitment with respect to each Commitment Party is subject to the satisfaction or waiver
by Holdings of the following conditions precedent:
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1. |
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Such Commitment Party shall have provided or given adequate assurances of its
readiness to provide at closing of the Acquisition gross cash proceeds to the Issuer in
an amount equal to the amount of its Commitment in exchange for the Notes to be
purchased by such Commitment Party; |
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2. |
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The consummation of the Acquisition; and |
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3. |
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Such Commitment Party shall have executed and delivered (or be willing to
execute and deliver) the documents set forth in the condition described in #3 to
Exhibit C and shall have made (or be willing to make) any representation reasonably
required to be made in the documents set forth in the condition described in #3 in
Exhibit C relating to securities law exemptions, provided that each Commitment Party
shall be permitted to represent that it is either a qualified institutional buyer,
non-U.S. persons or an institution that is an institutional accredited investor,
each as defined in the Securities Act. |
Each Commitment Party shall work in good faith with Holdings to prepare and agree on the forms of
all definitive documentation and other legal and documentary conditions relating to its investment
as promptly as practicable after the approval of the Plan Sponsor Order (as defined in the Plan
Sponsor Agreement), in each case on terms consistent with this Commitment Letter. The parties
agree that this Commitment includes all material terms for the purchase of the Notes by the
Commitment Parties and is intended to be a binding commitment of purchase and sale effective as of
the date hereof.
Limitation of Liability
Except as set forth in the Liquidated Damages section, in no event will any party hereto or any
of its affiliates or any of their respective officers, directors, partners, trustees, employees,
affiliates, stockholders, advisors, agents, attorneys in fact, representatives or controlling
persons be liable for consequential, indirect, punitive or special damages as a result of any
failure to issue or purchase the Notes or otherwise in connection with the transactions
contemplated by this
- 7 -
Commitment Letter. Except in the case of gross negligence, willful misconduct or bad faith of such
person, no such person will be liable for any damages arising from the use by unauthorized persons
of any written information, any financial projections or any other materials sent through
electronic, telecommunications or other information transmission systems.
Termination; Survival
Each Commitment Partys Commitment, Holdings Issue Commitment and all other obligations under this
Commitment Letter will be terminated upon the earlier of (x) the date of termination of the Plan
Sponsor Agreement; and (y) March 15, 2010 (any such date, the Termination Date).
This Commitment Letter may at any time (whether before or after its scheduled expiration or
termination in accordance with its terms) be amended by an instrument in writing signed by Holdings
and the Supermajority Commitment Parties (as defined below) to extend the Termination Date if it
would otherwise terminate pursuant to clause (y) of the preceding paragraph, for one or more
consecutive 30 day periods, so long as there continues to be a confirmed or confirmable Plan
involving the Acquisition; provided that if Supermajority Commitment Parties have requested and
Holdings has refused to consent to any such extension, Holdings agrees that it shall not consummate
the Acquisition pursuant to the Plan Sponsor Agreement.
Upon any expiration or termination of this Commitment Letter, there shall be no liability under
this Commitment Letter on the part of any Commitment Party or Holdings or any of its subsidiaries,
other than any liability arising out of or relating to any breach prior to or upon termination.
Notwithstanding the foregoing, the following Sections shall remain in full force and effect until
the execution and delivery of Definitive Documentation (as defined below): Confidentiality;
Termination; Survival; Liquidated Damages; Limitation of Liability; Specific Performance;
and Additional Matters.
Supermajority Commitment Parties shall mean the Commitment Parties (other than any Commitment
Party affiliated with Ares Management LLC (together, Ares Capital Markets Affiliates)) holding
more than 66 2/3% of the total Commitments (excluding from total Commitments for the purpose of
such calculation the Commitments of Ares Capital Markets Affiliates).
Limitation on Assignments; Funding Failure
This Commitment Letter may not be assigned by you to any person other than to an affiliate of
Holdings who becomes the purchaser of the Acquired Business under the Plan Sponsor Agreement and
has assumed and agreed to perform for the Commitment Parties benefit all of Holdings obligations
to the Commitment Parties under this Commitment Letter. Each Commitment Party may not assign its
Commitment and agreements hereunder, in whole or in part, to any person other than an affiliate of
such Commitment Party or a fund or account on whose behalf such Commitment Party acts as an agent
or manager, or a fund that is under common investment management, provided that no such assignment
shall release such Commitment Party from its obligations to Holdings hereunder unless (i) such
assignee has
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assumed in writing all obligations of such Commitment Party hereunder and (ii) such assignee is a
fund with assets under management of at least twenty times the Commitment Amount being assigned.
Any purported assignment made other than in accordance with this paragraph shall be void.
Notwithstanding any other provision of this Commitment Letter, Holdings shall have the right to
require any Defaulting Commitment Party or Adverse Commitment Party, as applicable, to assign its
Commitment to either (i) another Commitment Party (with the consent of such Commitment Party who is
the assignee of such Commitment) or (ii) another entity that assumes in writing all of such
Commitment hereunder. For the avoidance of doubt, such assignee may be any affiliate of Holdings
or any Sponsor and Holdings may pay to such assignee such fees or other consideration as it
determines appropriate in consideration with such assignment. For purposes of the foregoing, (a) a
Commitment Party shall be a Defaulting Commitment Party if a deficit has arisen from the failure
of such Commitment Party to fund or provide adequate assurances of its readiness to fund its
commitment amount on the Closing Date and such failure is not otherwise remedied (whether through
the exercise of specific performance rights provided herein or otherwise), and (b) a Commitment
Party shall be an Adverse Commitment Party if such Commitment Party, its controlled, controlling
or commonly controlled affiliates or their respective officers, directors, agents or
representatives shall have (i) materially breached any obligations under the Restructuring Support
Agreement, dated as of the date hereof (as amended or otherwise modified from time to time, the
Restructuring Support Agreement), by and among Simmons Company, the Company, Opco, Holdings and
SuperHoldings, on the one hand, and certain lenders under the Senior Secured Credit Facility and
certain holders of the Opco Notes and Holdco Notes, on the other hand, while a party thereto and
such breach remains uncured for a period of 3 business days following written notice from the
Purchaser (as defined in the Plan Sponsor Agreement) or (ii) directly or indirectly, filed or
joined in the filing of any motion, pleading or notice in the Bankruptcy Case (as defined in the
Plan Sponsor Agreement) or any related appellate proceeding that objects to or challenges the Plan,
the Plan Sponsor Order, the Confirmation Order, the Disclosure Statement (in each case, as defined
in the Plan Sponsor Agreement) or the transactions contemplated by the Plan Sponsor Agreement,
provided that no Commitment Party shall become an Adverse Commitment Party (1) because of any
action taken or motion, pleading or notice filed (X) to object to or oppose any proposed
Restructuring Document (as defined in the Restructuring Support Agreement), or amendments,
modifications or supplements to any Restructuring Document that are inconsistent with the terms and
conditions of any other Restructuring Document to which it is a party or beneficiary or to this
Commitment Letter or the Equity Commitment Letter or (Y) to enforce its rights under the
Restructuring Support Agreement or any Restructuring Document to which it is a party; or (2) if any
of the Plan Proponents (as defined in the Plan) shall have amended or modified any of the
provisions of the Plan specified in Section 2.3 of the Restructuring Support Agreement in violation
of Section 2.3 of the Restructuring Support Agreement but only to the extent such Commitment Party
is a beneficiary thereof. For the avoidance of doubt, the Commitment of an Adverse Commitment
Party shall remain in full force and effect until the Commitment of such Adverse Commitment Party
is assumed and assigned in accordance herewith.
- 9 -
Third Party Beneficiaries
This Commitment Letter is intended to be solely for the benefit of the parties hereto and, except
as set forth in this paragraph, is not intended to confer any benefits upon, or create any rights
in favor of, any person other than the parties hereto and any purported assignment not in
conformity herewith shall be null and void and of no force and effect; provided that the Issuer is
intended to be, and shall be, a third party beneficiary of, and of Holdings rights and remedies
under, this Commitment Letter, it being understood that the Issuer shall not be entitled to
exercise any rights or remedies hereunder unless the Acquisition is not consummated as a result of
the failure of the condition precedent set forth in Section 8.1(g) of the Plan Sponsor Agreement
(as in effect on the date hereof except as amended in accordance with the terms of Exhibit C) as it
relates to Exit Financing (as defined in the Plan Sponsor Agreement) to be satisfied (such event, a
Condition Failure).
Amendment
Except as provided under the Termination; Survival Section with respect to extensions of the term
of this Commitment Letter, this Commitment Letter may not be amended or any term or provision
hereof waived or otherwise modified except by an instrument in writing signed by Holdings and the
Majority Commitment Parties, provided that, (i) Holdings and each Commitment Partys consent shall
be required with respect to (A) a decrease in the stated interest rate of the Notes, (B) an
extension of the maturity date of the Notes, (C) a change in the call provision in a manner that is
adverse to the Commitment Parties, (D) an increase in the principal amount of the Notes in excess
of $425 million, (E) an increase in the commitments under the ABL Facility in excess of $75
million, (F) a material reduction in the collateral or a change in the priority of the liens
securing the Notes, (G) a change in the identity of the Sponsor under the Plan Sponsor Agreement,
(H) to the extent affected, a change in the Commitment Amount of such Commitment Party, (I) an
amendment to the definition of Majority Commitment Parties or Supermajority Commitment Parties, (J)
any waiver or amendment to the assignability of this Commitment Letter, (K) any modification,
amendment or waiver of the covenants, representations and warranties and indemnities to be included
in the Note Purchase Agreement as set forth above under Commitments, (L) any modification,
amendment or waiver of the 1st condition set forth under Conditions to Commitment, the first
sentence of the 1st condition set forth on Exhibit C or the 2nd condition set forth on Exhibit C
with respect to a default in respect of covenants to be included in the Note Purchase Agreement as
set forth above under Commitments (together, the Unanimous Closing Conditions), or (M) any
amendment to clause (i), (iii) or (iv) of this proviso to the Section Amendment; (ii) the
Issuers consent shall be required with respect to any modifications to the conditions set forth in
this Commitment Letter; bankruptcy court jurisdiction in the event of a Condition Failure; an
amendment to the Specific Performance Section; the Issuers status as a third party beneficiary
as set forth above; the definition of a Condition Failure; an amendment to the Termination;
Survival Section and an amendment to the Limitation on Assignments; Funding Failure Section;
(iii) except as specifically set forth therein, the consent of Holdings and Supermajority
Commitment Parties shall be required with respect to any amendments to the Termination; Survival
Section; and (iv) the consent of Supermajority Commitment Parties, (such consent not to be
unreasonably withheld or delayed in the case of any waiver under Legal and Documentary Conditions
- 10 -
(attached as Exhibit C hereto) #2, 3(B), 5 and 11 that is reasonably necessary for the consummation
of the transactions specified in the Plan), shall be required to modify, amend or waive any closing
condition set forth herein, including under Conditions to Commitment and Exhibit C hereto, other
than the Unanimous Closing Conditions.
Additional Matters
The Commitment Parties hereby notify the Sponsor, Holdings and the Acquired Business that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the Patriot Act), they and each Eligible Purchaser may be required to obtain, verify
and record information that identifies the Sponsor, the Issuer and each of the Guarantors, which
information includes the name and address of the Sponsor, the Issuer and each of the Guarantors and
other information that will allow the Commitment Parties and each Eligible Purchaser to identify
the Sponsor, the Issuer and each of the Guarantors in accordance with the Patriot Act. This notice
is given in accordance with the requirements of the Patriot Act and is effective for each
Commitment Party and each Eligible Purchaser.
The Commitment Parties and Holdings and their respective equity holders and affiliates may have
economic interests that are in conflict or that conflict with those of the Issuer, the Acquired
Business, or the equity holders or affiliates or any of the foregoing. Each Commitment Party and
Holdings agree that each Commitment Party and Holdings each has acted and will continue to act
under this Commitment Letter and in connection with the Transactions for its own account as an
independent actor and that nothing in this Commitment Letter or otherwise creates or will be deemed
to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty as among
the Commitment Parties or between any Commitment Party and Holdings or between any Commitment Party
or Holdings and any of the Issuer, the Acquired Business, or any of the equity holders or
affiliates of any of the foregoing. Each of Holdings and each Commitment Party acknowledge and
agree that it has consulted its own legal and financial advisors to the extent it deems it
appropriate to do so and that it is responsible for making its own independent judgment with
respect to this Commitment Letter, all Transactions and the process leading thereto. Each of
Holdings and each Commitment Party agrees that it will not claim that any of Holdings or any
Commitment Party, or any equity owner or affiliate of Holdings or any Commitment Party, has
rendered advisory services of any nature or respect with respect to the Transactions, or owes a
fiduciary or similar duty to it in connection with the Transactions or the process leading thereto.
Each party hereto agrees for itself and its affiliates that any suit or proceeding arising in
respect to this Commitment Letter or the purchase and sale of the Notes contemplated hereby will be
tried exclusively in the U.S. District Court for the Southern District of New York, or if that
court does not have subject matter jurisdiction, in any state court located in the City and County
of New York; provided that if the Condition Failure occurs, the parties agree that the Bankruptcy
Court shall have sole and exclusive jurisdiction with respect to any suit or proceeding arising in
respect to this Commitment Letter and the purchase and sale of the Notes contemplated hereby, and
each party hereto agrees for itself and its affiliates to submit to the exclusive jurisdiction of,
and to venue in, such courts. Any right to trial by jury with respect to any action or proceeding
arising in connection with, or as a result of, this Commitment Letter or the purchase and sale of
the Notes
- 11 -
contemplated hereby is hereby waived by the parties hereto. This Commitment Letter shall be
governed by and construed in accordance with the laws of the State of New York; provided that the
Material Adverse Change condition set forth in Exhibit C shall be governed by and construed in
accordance with the laws of the State of Delaware.
This Commitment Letter may be executed in any number of counterparts, each of which when executed
will be an original, and all of which, when taken together, will constitute one agreement.
Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile
transmission or electronic transmission (in .pdf format) will be effective as delivery of a
manually executed counterpart hereof. This Commitment Letter is the only agreement that has been
entered into among the parties hereto with respect to the Notes and sets forth the entire
understanding of the parties with respect thereto and supersedes any prior written or oral
agreements among the parties hereto with respect to the Notes.
- 12 -
Please confirm that the foregoing is in accordance with your understanding by signing and returning
to Commitment Parties the enclosed copy of this Commitment Letter, on or before the close of
business on September 24, 2009, whereupon this Commitment Letter will become binding between us.
If this Commitment Letter has not been signed and returned as described in the preceding sentence
by such date, this offer will terminate on such date. We look forward to working with you on this
transaction.
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Very truly yours,
ARES MANAGEMENT LLC
on behalf of certain funds and/or accounts that it
manages and/or advises
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By: |
/s/ Seth J. Brufsky
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Name: |
Seth J. Brufsky |
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Title: |
Authorized Signatory |
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- 13 -
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DDJ CAPITAL MANAGEMENT, LLC,
on behalf of certain funds and/or accounts that it
manages and/or advises
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By: |
/s/ David J. Breazzano
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Name: |
David J. Breazzano |
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Title: |
President |
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SPRINGBOK, L.L.C.
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By: |
Farallon Capital Management, L.L.C., its
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manager and attorney in fact |
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By: |
/s/ Rajiv A. Patel
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Name: |
Rajiv A. Patel |
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Title: |
Managing Member |
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J.P. MORGAN INVESTMENT MANAGEMENT INC.,
on behalf of certain accounts set forth on Exhibit A
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By: |
/s/ Robert L. Cook
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Name: |
Robert L. Cook |
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Title: |
Managing Director |
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MSD SBI, L.P.
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By: |
/s/ Marc R. Lisker
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Name: |
Marc R. Lisker |
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Title: |
Manager and General Counsel |
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- 14 -
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OAK HILL ADVISORS, L.P.,
on behalf of certain private funds and separate
accounts that it manages set forth on Exhibit A
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By: |
Oak Hill Advisors GenPar, L.P.
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its general partner |
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By: |
Oak Hill Advisors MGP, Inc.
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its managing general partner |
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By: |
/s/ Scott D. Krase
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Name: |
Scott D. Krase |
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Title: |
Authorized Signatory |
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OAKTREE CAPITAL MANAGEMENT, L.P.
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By: |
/s/ Desmund Shirazi
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Name: |
Desmund Shirazi |
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Title: |
Managing Director |
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By: |
/s/ Frances Nelson
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Name: |
Frances Nelson |
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Title: |
Managing Director |
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SOLA LTD
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By: |
/s/ Christopher Pucillo
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Name: |
Christopher Pucillo |
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Title: |
Director |
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SOLUS CORE OPPORTUNITIES MASTER FUND LTD
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By: |
/s/ Christopher Pucillo
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Name: |
Christopher Pucillo |
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Title: |
Director |
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- 15 -
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Waddell & Reed Investment
Management Company
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By: |
/s/ William Nelson
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Name: |
William Nelson |
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Title: |
Senior Vice President |
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Ivy Investment Management Company
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By: |
/s/ Bryan C. Krug
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Name: |
Bryan C. Krug |
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Title: |
Vice President |
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- 16 -
ACCEPTED AND AGREED AS OF SEPTEMBER 24, 2009:
AOT BEDDING INTERMEDIATE HOLDINGS, LLC
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By: |
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AOT Bedding Super Holdings, LLC, |
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its sole member |
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By: |
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Ares Corporate Opportunities Fund III, L.P., |
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its member |
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By: |
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ACOF Operating Manager III LLC, |
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its manager |
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By: |
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/s/ Nav Rahemtulla |
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Name:
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Nav Rahemtulla |
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Title:
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Authorized Signatory |
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and |
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By: |
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Ontario Teachers Pension Plan Board, |
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its member |
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By: |
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/s/ Romeo Leemrijse |
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Name:
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Romeo Leemrijse |
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Title:
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Director |
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- 17 -
Exhibit C
Legal and Documentary Conditions
In addition to the conditions described in the body of the Commitment Letter, the obligations of
each Commitment Party under the Commitment Letter are subject to the satisfaction or waiver (in
accordance with the Amendments Section thereof) of the following additional conditions precedent
(capitalized terms used and not otherwise defined in this Exhibit C having the meaning attributed
thereto in the Commitment Letter or Exhibit B):
1. Consummation of Plan Sponsor Agreement; Plan. The Acquisition shall be consummated
pursuant to the Plan Sponsor Agreement concurrently with the purchase of the Notes and no provision
thereof shall have been amended or waived and no consent shall have been granted thereunder by any
Purchaser Entity (with such term, for purposes of this Exhibit C, having the meaning attributed
thereto in the Plan Sponsor Agreement and, for the avoidance of doubt, including any affiliate of
Holdings who becomes a purchaser of the Acquired Business under the Purchase Agreement), in each
case, in any respect materially adverse to the Commitment Parties, solely in their capacity as
providers of their respective Commitment. No Purchaser Entity shall have consented to any
amendment or modification of the Plan attached as Exhibit A to the Plan Sponsor Agreement that
would require the consent of such Purchaser Entity (including pursuant to the Plan or Plan Sponsor
Agreement) other than one that would not be materially adverse to the Commitment Parties, solely in
their capacity as providers of their respective Commitment.
2. Absence of Defaults. There shall not exist any default or event of default under
the Indenture after giving effect to the use of the proceeds of the Notes and the Equity
Contribution. There shall not exist any default or event of default under the Note Purchase
Agreement (other than with respect to representations and warranties) and the Specified
Representations of the Issuer set forth therein shall be true and complete in all material
respects.
3. Definitive Documentation; Customary Closing Documents. (A) The other relevant
parties shall have executed and delivered (or be willing to execute and deliver) (a) the Note
Purchase Agreement, containing terms consistent in all material respects with this Commitment
Letter and otherwise substantially similar to the Note Purchase Agreement dated as of December 10,
2003, by and among the Issuer and the other parties thereto (including a representation by each
purchaser thereunder that it is an Eligible Purchaser), except that the Note Purchase Agreement (i)
shall not contain any closing conditions other than as specified in this Commitment Letter; (ii)
shall not contain any representations and warranties by the Issuer or Holdings other than with
respect to corporate power and authority, due authorization, execution and delivery, in each case
as they relate to the entering into and performance of the relevant definitive documentation, the
enforceability of the relevant definitive documentation, Federal Reserve margin regulations, the
Investment Company Act and, in the case of the Notes, the status of the Notes as senior debt and
the creation of security interests (such representations and warranties, the Specified
Representations) and the representation to be included in the Note Purchase Agreement and
described in the Commitment Letter under Commitment and (iii) as the Commitment Parties are not
underwriters, shall not contain a requirement for an offering memorandum or other offering
documentation beyond the documentation and information
necessary to satisfy the requirements of Rule 144A(d)(4) promulgated under the Securities Act and
the Information Statement; (b) the Indenture consistent with the terms set forth in Exhibit B and
otherwise containing customary terms for senior secured high yield notes issued in a private
placement and eligible for resale on a 144A-for-life basis; and (c) a pledge and security
agreement covering the Collateral; in each of cases (a) through (c) in form and substance
reasonably satisfactory to the Supermajority Commitment Parties and Holdings (collectively, the
Definitive Documentation); and (B) the Commitment Parties shall have received customary closing
certificates (including a solvency certificate of a financial officer as to the solvency of the
Borrower and its subsidiaries, taken as a whole, after giving effect to the Plan), customary legal
opinions (for the avoidance of doubt, other than a 10b-5 letter), corporate records, financing
statements, good standing certificates and other customary closing documents for the closing for a
private placement of senior secured high yield notes.
4. Discharge of Existing Debt. After giving effect to the Transactions, the Borrower
and its subsidiaries shall have (A) outstanding no material indebtedness for borrowed money or
preferred stock, other than (i) up to $75 million of indebtedness under the ABL Facility, (ii) up
to $425.0 million of indebtedness under the Notes, and (iii) certain other indebtedness and
preferred stock permitted under the Plan or the Plan Sponsor Agreement, including, without
limitation, the IRB Debt and (B) no liens in respect of borrowed money, other than liens permitted
by or expressly provided for under the ABL Facility, the Plan, the Plan Sponsor Agreement or the
Indenture.
5. Intercreditor Agreement. To the extent an ABL Facility shall have been entered
into, the agent, on behalf of itself and the lenders, under the ABL Facility shall have entered
into an intercreditor agreement (the Intercreditor Agreement) with the trustee on behalf of the
purchasers of the Notes (the Trustee) that is not materially less favorable to the holders of
Notes than the terms described on Exhibit B.
6. Audited Financial Statements. The Commitment Parties shall have received audited
consolidated balance sheets and related statements of operations, stockholders equity and cash
flows, together with all related notes and schedules thereto, accompanied by the reports thereon of
the accountants of Simmons Company and its subsidiaries as of and for the three most recently
completed fiscal years ended at least ninety days before the Closing Date, which (x) were prepared
in all material respects in accordance with the books of account and other financial records of
Simmons Company, (y) except as disclosed in the notes and schedules thereto, have been prepared in
accordance with generally accepted accounting principles in the United States (GAAP),
consistently applied without modification of the accounting principles used in the preparation
thereof throughout the periods presented, and (z) present fairly in all material respects the
consolidated financial condition, results of operations and cash flows of Simmons Company, as
applicable, as at the dates and for the periods indicated therein, except to the extent any failure
of the foregoing clauses to be true and correct (without giving effect to any materiality
qualification) does not result in or constitute a Company Material Adverse Effect (as defined in
the Plan Sponsor Agreement as of the date hereof).
7. Unaudited Financial Statements. The Commitment Parties shall have received (a)
unaudited consolidated balance sheets and related statements of operations, stockholders equity
and cash flows of Simmons Company and its subsidiaries for each fiscal quarter ended
after the date of this Commitment Letter and at least sixty (60) days before the Closing Date,
which were prepared in accordance with GAAP, subject to the absence of footnotes and normal
year-end adjustments, and (b) a pro forma consolidated balance sheet and related pro forma
consolidated statement of operations of Simmons Company and its subsidiaries for the twelve-month
period ending on the last day of the most recently completed four-fiscal quarter period ended at
least sixty (60) days prior to the Closing Date, prepared after giving effect to the Transactions,
as if such Transactions had occurred as of such date (in the case of such balance sheet) or at the
beginning of such period (in the case of such other financial statements).
8. PATRIOT Act. The Issuer shall have delivered all documentation and other
information reasonably required by regulatory authorities under applicable know-your-customer and
anti-money laundering rules and regulations, including the PATRIOT Act, in any case, requested in
writing by the Commitment Parties at least three business days prior to the Closing Date.
9. Confirmation Order. The Confirmation Order (as defined in the Plan Sponsor
Agreement) shall have been entered on the docket of the Bankruptcy Court in a form that is
substantially similar to the form attached to the Plan Sponsor Agreement, with such amendments or
modifications as are not materially adverse to the Commitment Parties, solely in their capacity as
providers of their respective Commitment. The Confirmation Order shall not be stayed or vacated.
10. Material Adverse Change. Except as otherwise contemplated by the Plan Sponsor
Agreement or the Plan, since December 27, 2008, no Company Material Adverse Effect has occurred
which would excuse the Purchaser from its obligation to consummate the Acquisition.
11. Collateral. All filings, recordations, searches and other actions reasonably
necessary or desirable to create and perfect the first priority and second priority (as applicable)
liens and security interests in respect of the collateral securing the Notes shall have been duly
made (including, without limitation, the filing of financing statements under the Uniform
Commercial Code), customary short-form security agreements with respect to intellectual property
shall have been executed and delivered to the Notes Collateral Agent for filing with the U.S.
Patent and Trademark Office and the U.S. Copyright Office and certificates representing the capital
stock and membership interests of the Borrower and Guarantors shall have been delivered to the
collateral agent under the Indenture; provided, that, to the extent the creation of any lien on any
collateral or perfection of such lien requires any action on the part of any third party
(including, without limitation, delivery of reasonably satisfactory mortgages, title insurance
policies, surveys and other customary documentation in connection with real estate collateral) and
is not provided on the Closing Date after the Issuers use of commercially reasonable efforts to do
so (other than in respect of the filing of financing statements and the delivery of short-form
security agreements and, if in existence, certificates representing capital stock and membership
interests, in each case as set forth above), the creation or perfection (as applicable) of such
lien shall not constitute a condition precedent to the issuance of the Notes on the Closing Date
but such action shall be required to have been taken within a commercially reasonable time after
the Closing Date and in any event within 90 days thereafter; provided, further, that (1) no control
agreement will be required with respect to any deposit or securities accounts (x) so long as the
ABL Collateral Agent shall have entered into a control agreement with respect to such accounts
serving as agent with respect to the perfection of the Notes Collateral Agents security interest
therein or (y) with respect to which the ABL Collateral Agent has not required a control agreement
and that are (A) payroll, trust or tax withholding accounts funded in the ordinary course of
business or required by applicable law, (B) deposit or concentration accounts funded in the
ordinary course of business the average daily balance of which for the most recently completed
period of twelve consecutive months does not aggregate more than $3,000,000 or (C) checking or
demand deposit accounts used solely for disbursements in the ordinary course of business and
subject to automatic ACH or wire transfer on each banking day of all funds on deposit therein to a
concentration account subject to an account control agreement with the ABL Collateral Agent or the
Notes Collateral Agent (subject to clause (B) above) and (2) the Collateral Documents will not
require scheduling or notice to the Notes Collateral Agent in respect of Commercial Tort Claims (as
such term is defined in the Uniform Commercial Code for the State of New York) unless the aggregate
claimed damages thereunder exceeds $5,000,000.