-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AK6wcSVOrgX2coMkRl7dRCblpdSZsMCKvAfAJ4bIWyYz7/Y5CoDmXpV8xlJIVdt/ mlNTaCDjVmjlGkLNl45Bow== 0000931329-96-000003.txt : 19960618 0000931329-96-000003.hdr.sgml : 19960618 ACCESSION NUMBER: 0000931329-96-000003 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960617 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DANSKIN INC CENTRAL INDEX KEY: 0000889299 STANDARD INDUSTRIAL CLASSIFICATION: WOMEN'S, MISSES', AND JUNIORS OUTERWEAR [2330] IRS NUMBER: 621284179 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-44535 FILM NUMBER: 96581745 BUSINESS ADDRESS: STREET 1: 111 W 40TH ST CITY: NEW YORK STATE: NY ZIP: 10018 BUSINESS PHONE: 2127644630 MAIL ADDRESS: STREET 1: 111 W 40TH ST CITY: NEW YORK STATE: NY ZIP: 10018 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SUNAMERICA LIFE INSURANCE CO /AZ/ CENTRAL INDEX KEY: 0000931329 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 520502540 STATE OF INCORPORATION: AZ FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1 SUNAMERICA CENTER STREET 2: CENTURY CITY CITY: LOS ANGELES STATE: CA ZIP: 90067 BUSINESS PHONE: 3107726000 MAIL ADDRESS: STREET 1: 1 SUNAMERICA CENTER STREET 2: CENTURY CITY CITY: LOS ANGELES STATE: CA ZIP: 90067 FORMER COMPANY: FORMER CONFORMED NAME: SUN LIFE INSURANCE CO OF AMERICA DATE OF NAME CHANGE: 19960401 SC 13D/A 1 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3)* Danskin, Inc. ---------------- (Name of Issuer) Common Stock ------------------------------ (Title of Class of Securities) 236 365 102 -------------- (CUSIP Number) Mr. Keith Honig, Associate Counsel SunAmerica Inc. 1 SunAmerica Center, Century City Los Angeles, CA 90067 (310) 772-6000 -------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications) June 7, 1996 ------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /. Check the following box if a fee is being paid with the statement / /. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Page 1 of 11 Exhibit Index is on page 11 2 Schedule 13D CUSIP No. 236 365 102 ----------- 1. Names of Reporting Persons S.S. or I.R.S. Identification No. of above persons: SunAmerica Life Insurance Company 2. Check Appropriate Box if a member of a group: (a) / / (b) / / 3. SEC use only: 4. Source of funds: OO 5. Check box if disclosure of legal proceedings is required pursuant to items 2(d) or 2(e): / / 6. Citizenship or place of organization: Arizona 7. Sole voting power: 2,010,000 8. Shared voting power: 0 9. Sole dispositive power: 2,010,000 10. Shared dispositive power: 0 11. Aggregate amount beneficially owned by each reporting person: 2,010,000 12. Check box if the aggregate amount in Row (11) excludes certain shares: / / 13. Percent of Class represented by amount in Row (11): 33.7% 14. Type of reporting person: IC Page 2 of 11 3 Schedule 13D CUSIP No. 236 365 102 ----------- 1. Names of Reporting Persons S.S. or I.R.S. Identification No. of above persons: SunAmerica Inc. 2. Check Appropriate Box if a member of a group: (a) / / (b) / / 3. SEC use only: 4. Source of funds: OO 5. Check box if disclosure of legal proceedings is required pursuant to items 2(d) or 2(e): / / 6. Citizenship or place of organization: Maryland 7. Sole voting power: 2,010,000 8. Shared voting power: 0 9. Sole dispositive power: 2,010,000 10. Shared dispositive power: 0 11. Aggregate amount beneficially owned by each reporting person: 2,010,000 12. Check box if the aggregate amount in Row (11) excludes certain shares: / / 13. Percent of Class represented by amount in Row (11): 33.7% 14. Type of reporting person: CO/HC Page 3 of 11 4 SunAmerica Life Insurance Company ("SunAmerica") and SunAmerica Inc. hereby amend their Schedule 13D, originally filed on September 29, 1994 ("the Schedule 13D") and as subsequently amended by Amendment No. 1 filed on February 3, 1995 ("Amendment No. 1") and Amendment No. 2 filed on January 4, 1996 ("Amendment No. 2"), relating to SunAmerica's acquisition of all right, title and interest in and to 2,010,000 shares (the "Shares") from Esmark, Inc. ("Esmark"), representing approximately 33.7% of the common stock, par value $.01 per share (the "Common Stock"), of Danskin, Inc. (the "Issuer"), as follows: Item 1. Security and Issuer ------------------- Common Stock with $.01 par value Danskin, Inc. 111 West 40th Street New York, New York 10018 Item 2. Identity and Background ----------------------- SunAmerica Life Insurance Company 1 SunAmerica Center Century City Los Angeles, California 90067 SunAmerica is an Arizona Stock Life Insurance Company. The principal business of SunAmerica is issuing annuities and guaranteed investment contracts. SunAmerica Inc. 1 SunAmerica Center Century City Los Angeles, California 90067 SunAmerica Inc. is the parent company of SunAmerica. The principal business of SunAmerica Inc. is to act as a holding company. During the past five years neither SunAmerica nor SunAmerica Inc. has been convicted in a criminal proceeding or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding been made subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or been found to be in violation of any such laws. The executive officers, directors and control persons of SunAmerica and SunAmerica Inc. are listed in Exhibits A and B, respectively along with their principal occupations, the address where their principal occupation is conducted, and their business addresses. See Item 7, Exhibits A and B. All of the persons listed in Exhibits A and B are U.S. citizens. None of the Page 4 of 11 5 persons listed in Exhibit A or B has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding been made subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or been found to be in violation of any such laws. Item 3. Source and Amount of Funds or Other Consideration ------------------------------------------------- See Items 4 and 6. Item 4. Purpose of Transaction ---------------------- The information set forth in Item 4 of the Schedule 13D, as supplemented by Amendment No. 1 and Amendment No. 2, is hereby amended to read as follows: On March 12, 1996, the United States Bankruptcy Court for the Southern District of New York entered an order, effective May 1, 1996, see Item 7, Exhibit G, terminating, vacating and annulling the automatic stay of 11 U.S.C. Section 362 in the chapter 7 involuntary bankruptcy case of Esmark, Inc., Case No. 95-43781 (BRL), insofar as such automatic stay prohibited or prevented SunAmerica from enforcing its state law rights and remedies under the Notes Purchase Agreement and Pledge Agreement (as defined in Item 6, below) and related loan documents, including the foreclosure sale of the Shares in partial satisfaction of Esmark's obligations to SunAmerica. Notice of a public foreclosure sale of the Shares (the "Foreclosure Sale") was published in the Wall Street Journal, New York Times and Womens Wear Daily on May 7, 1996. See Item 7, Exhibit H. On June 7, 1996, the Foreclosure Sale was conducted at which SunAmerica submitted the highest conforming bid and purchased the Shares, by crediting its bid against its secured claim, at a price of $3.00 per share for an aggregate purchase price of $6,030,000. The purpose of the purchase by SunAmerica of the Shares is to maximize the value of its interest in the Shares. SunAmerica does not consider itself a passive investor and should not be regarded as such. SunAmerica has not, however, formulated any specific plan or proposal with respect to influencing, affecting or acquiring control of the Issuer and, as indicated below, there can be no assurance that any such plan or proposal will be developed or as to the terms or the timing of any such plan or proposal. Subject to applicable legal requirements and the factors referred to below, SunAmerica may purchase additional shares of Common Stock from time to time in open market or privately negotiated transactions. Page 5 of 11 6 In determining whether to purchase additional shares of Common Stock and in formulating any plan or proposal with respect to control of the Issuer, SunAmerica intends to consider and review various factors on a continuous basis, including the Issuer's financial condition, business and prospects, other developments concerning the Issuer, the reaction of the Issuer and of the other stockholders to SunAmerica's ownership of Common Stock, SunAmerica's ability to influence or seek control of the Issuer, the price and availability of shares of Common Stock, other investment and business opportunities available to SunAmerica, developments with respect to SunAmerica's business, and general economic, money and stock market conditions. In addition, depending upon, among other things, the matters referred to above, SunAmerica may determine at any time to dispose of all or a portion of its shares of Common Stock. Any plan or proposal that may be formulated by SunAmerica could involve seeking representation on the Board of Directors of the Issuer (including by seeking to change the number and/or term of the directors and to fill vacancies resulting therefrom) by means of a solicitation of consents and/or proxies from stockholders, making a tender or exchange offer for some or all of the Common Stock and/or proposing a business combination transaction with the Issuer. In connection with any plan or proposal formulated by SunAmerica with respect to the Issuer, SunAmerica may seek redemption or judicial invalidation of the Issuer's Series A Junior Participating Preferred Stock Rights (the "Rights"). The Rights provide, among other things, that if a person or group becomes the beneficial owner of 35% or more of the outstanding Common Stock, the Rights (other than those beneficially owned by such person or group) become exercisable for additional shares of Common Stock at a significant discount to the market value of the shares and become no longer subject to redemption. In light of the adverse economic consequences to the value of SunAmerica's investment in the Issuer that would arise as a result of the Rights in the event that SunAmerica were to acquire beneficial ownership of 35% or more of the outstanding Common Stock, the existence of the Rights, unless they are redeemed or judicially invalidated, may effectively limit SunAmerica's ability to purchase additional shares of Common Stock or to consummate a tender offer for outstanding shares of Common Stock. Although, as indicated above, SunAmerica has not yet formulated any specific plans or proposals with respect to the Issuer, SunAmerica may seek as a part of or in connection with any such plan or proposal to publicly solicit consents or Page 6 of 11 7 proxies from stockholders with respect to a non-binding resolution directing the Board of Directors to redeem the Rights or may publicly solicit consents or proxies from stockholders to gain representation on the Board of Directors of the Issuer with a view towards, among other things, causing the Board of Directors to redeem the Rights. SunAmerica may file with the Federal Trade Commission (the "FTC") and the Antitrust Division of the Department of Justice (the "Antitrust Division") a Notification and Report Form under the Hart- Scott-Rodino Antitrust Improvements Act of 1976 (the "Hart-Scott Act") to facilitate additional purchases of Common Stock and to permit SunAmerica to acquire in excess of 50 percent of the outstanding Common Stock. In such event, the Issuer would also be obligated to make a filing under the Hart-Scott Act. Under the Hart-Scott Act, SunAmerica is obligated to observe a specified waiting period following SunAmerica's filing prior to consummating any further purchases of Common Stock to the extent such purchases would cause it to have acquired shares in excess of a specified threshold, unless such waiting period is terminated earlier by the FTC or the Antitrust Division. Other than as indicated above, SunAmerica has no present plans or proposals which relate to or would result in any of the following (although SunAmerica reserves the right to develop such plans or proposals): (i) the acquisition of additional securities of the Issuer, or the disposition of securities of the Issuer; (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (iv) any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Issuer's Board of Directors; (v) any material change in the present capitalization or dividend policy of the Issuer; (vi) any other material change in the Issuer's charter or bylaws or other actions which may impede the acquisition of control of the Issuer or any person; (vii) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (viii) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); or (ix) any action similar to any of those enumerated above. Page 7 of 11 8 Item 5. Interest in Securities of the Issuer ------------------------------------ The information set forth in Item 5 of the Schedule 13D, as supplemented by Amendment No. 1 and Amendment No. 2, is hereby amended to read: (a) The aggregate number of shares of Common Stock that SunAmerica owns beneficially, as that term is defined pursuant to Rule 13d-3 of the Exchange Act, is 2,010,000, which constitutes approximately 33.7% of the outstanding shares of Common Stock as of April 30, 1996, as reported by the Issuer in its Form 10-Q for the period ending March 30, 1996, filed on May 14, 1996. (b) SunAmerica has the sole power to vote or to direct the vote and dispose or to direct the disposition of all of the shares of Common Stock owned by it. (c) Except as set forth in Item 4 hereof, to the best knowledge of SunAmerica and SunAmerica Inc., none of the persons named in Item 2 has effected any transactions in shares of the Common Stock during the past sixty days. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings and Relationships with Respect to Securities of the Issuer ------------------------------------------------------ The information set forth in Item 6 of the Schedule 13D, as supplemented by Amendment No. 1 and Amendment No. 2, is hereby amended to read: SunAmerica gained the right to foreclose upon the Shares pursuant to the terms of a Guaranty and Pledge Agreement (the "Pledge Agreement"), dated as of September 3, 1993, by and between Esmark and SunAmerica Inc. Esmark pledged the Shares to SunAmerica Inc., as collateral agent for SunAmerica, as security for its obligations under the Pledge Agreement and all of the obligations of Nautech Incorporated ("Nautech") to SunAmerica, however arising, including but not limited to those arising under that certain Notes Purchase Agreement (the "Notes Purchase Agreement"), dated as of September 3, 1993, by and among, Nautech, SunAmerica, SunAmerica Inc., Esmark and the other guarantors named therein. As a result of a default continuing under the Notes Purchase Agreement and pursuant to the terms of the Pledge Agreement, SunAmerica, through SunAmerica Inc. as collateral agent, obtained the power to foreclose upon the Shares and obtain all right, title and interest thereto in partial satisfaction of Esmark's obligations to SunAmerica. Page 8 of 11 9 Item 7. Material to be Filed as Exhibits --------------------------------- The information set forth in Item 7 of Schedule 13D, as supplemented by Amendment No. 1 and Amendment No. 2, is hereby amended to read: (a) Names, principal occupations and business addresses of directors, executive officers and control persons of Sun Life of America is attached hereto as Exhibit A. (b) Names, principal occupations and business addresses of directors, executive officers and control persons of SunAmerica is attached hereto as Exhibit B. (c) Agreement for Joint Filing, incorporated by reference to Exhibit C attached to Schedule 13D. (d) Guaranty and Pledge Agreement, dated as of September 3, 1993, by and between Esmark, Inc. and SunAmerica Inc. as Collateral Agent, incorporated by reference to Exhibit D attached to Schedule 13D. (e) Notice of Foreclosure Sale, published as of February 1, 1995 by SunAmerica Inc., as Collateral Agent, incorporated by reference to Exhibit E attached to Amendment No. 1 to the Schedule 13D. (f) The Letter Agreement, dated November 28, 1995, among SunAmerica, Derby Partners and Esmark, incorporated by reference to Exhibit F attached to Amendment No. 2 to the Schedule 13D. (g) Stipulation for Relief From the Automatic Stay; Order Thereon, in In re Esmark, Inc., Chapter 7 Case No. 95-43781 (BRL), dated March 7, 1996, entered on the docket of the United States Bankruptcy Court for the Southern District of New York on March 12, 1996, is attached hereto as Exhibit G. (h) Notice of Foreclosure Sale, published on May 7, 1996 in the New York Times, Wall Street Journal and Womens Wear Daily, is attached hereto as Exhibit H. Page 9 of 11 10 SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct and that the parties listed below have entered into a Joint Filing Agreement pursuant to Rule 13d-1(f)(1). Dated: June ___, 1996 SunAmerica Life Insurance Company By: _____________________________ Jay S. Wintrob Executive Vice President SunAmerica Inc. By: _____________________________ Jay S. Wintrob Vice Chairman Page 10 of 11 11 Exhibit Index Exhibit Description - ------- ----------- * A. Names, principal occupations and business addresses of directors, executive officers and control persons of Sun Life of America * B. Names, principal occupations and business addresses of directors, executive officers and control persons of SunAmerica (P) C. Agreement for Joint Filing (P) D. Guaranty and Pledge Agreement, dated as of September 3, 1993, by and between Esmark, Inc. and SunAmerica Inc. as Collateral Agent (P) E. Notice of Foreclosure Sale, published as of February 1, 1995 by SunAmerica Inc., as Collateral Agent (P) F. The Letter Agreement, dated November 28, 1995, among SunAmerica, Derby Partners and Esmark * G. Stipulation for Relief From the Automatic Stay; Order Thereon, in In re Esmark, Inc., Chapter 7 Case No. 95-43781 (BRL), dated March 7, 1996, entered on the docket of the United States Bankruptcy Court for the Southern District of New York on March 12, 1996 * H. Notice of Foreclosure Sale, published on May 7, 1996 in the New York Times, Wall Street Journal and Womens Wear Daily ____________________ * Filed herewith. (P) Previously filed in paper format and incorporated herein by reference pursuant to Rule 13d-2(c) of the Securities Exchange Act of 1934 and Rule 101(a)(2)(ii) of Regulation S-T. Page 11 of 11 EX-1 2 1 SunAmerica Life Insurance Company (AZ) Exhibit A - -------------------------------------- ---------
NAME PRINCIPAL OCCUPATION ---- -------------------- Directors: Eli Broad, Chairman (1) see below James R. Belardi(1) see below Lorin M. Fife(1) see below Jana W. Greer(1) see below Susan L. Harris(1) see below Gary W. Krat(1) see below Peter McMillan(1) Executive Vice President & Chief Investment Officer of SunAmerica Investments, Inc. Scott L. Robinson(1) see below James W. Rowan(1) see below Joseph M. Tumbler(1) see below Jay S. Wintrob(1) see below Officers: Victor E. Aiken Vice President for SunAmerica Life Insurance Company ("SunAmerica") Eli Broad(1) President and Chief Executive Officer of SunAmerica Jay S. Wintrob(1) Executive Vice President of SunAmerica Joseph M. Tumbler(1) Executive Vice President of SunAmerica James R. Belardi(1) Senior Vice President and Treasurer of SunAmerica and SunAmerica Inc. Lorin M. Fife(1) Senior Vice President, General Counsel and Assistant Secretary for SunAmerica Jana W. Greer(1) Senior Vice President of SunAmerica Franklin J. Grey Vice President for SunAmerica Susan L. Harris (1) Senior Vice President and Secretary of SunAmerica Gary W. Krat(1) Senior Vice President of SunAmerica Keith B. Jones(1) Vice President SunAmerica Edward P. Nolan(1) Vice President for SunAmerica Edwin Reoliquo(1) Senior Vice President and Chief Actuary for SunAmerica Michael Lindquist(1) Vice President for SunAmerica Greg Outcalt(1) Vice President for SunAmerica Scott L. Robinson(1) Senior Vice President of SunAmerica James W. Rowan(1) Senior Vice President of SunAmerica N. Scott Gillis(1) Vice President and Controller of SunAmerica Scott H. Richland (1) Vice President and Treasurer of SunAmerica
(1) Business address and address where principal occupation is located is 1 SunAmerica Center, Century City, Los Angeles, California 90067. EX-2 3 1 Exhibit B --------- SunAmerica Inc. (MD) - --------------------
NAME PRINCIPAL OCCUPATION ---- -------------------- Director: Eli Broad, Chairman(1) see below Ronald J. Arnault(2) Executive Vice President and Chief Financial Officer of Atlantic Richfield Company David O. Maxwell(3) Retired Barry Munitz(4) Chancellor of the California State University and Colleges Lester Pollack(5) Chief Executive Officer, Centre Partners, L.P. Richard D. Rohr(6) see below Sanford C. Sigoloff(7) Chairman, President and Chief Executive Officer of Sigoloff & Associates Harold M. Williams(8) President and Chief Executive Officer, J. Paul Getty Trust Karen Hastie Williams(9) Attorney with Crowell & Maring Carl E. Reichardt(10) Retired Chairman, Wells Fargo Bank Officers: Eli Broad(1) Chief Executive Officer and President of SunAmerica Inc. Jay S. Wintrob(1) Vice Chairman of SunAmerica Inc. Jana W. Greer(1) Senior Vice President of SunAmerica Inc. Gary W. Krat(1) Senior Vice President of SunAmerica Inc. Scott L. Robinson(1) Senior Vice President of SunAmerica Inc. and Controller of SunAmerica Inc. James R. Belardi(1) Executive Vice President for SunAmerica Inc. Lorin M. Fife(1) Senior Vice President, General Counsel - Regulatory Affairs and Assistant Secretary for SunAmerica Inc. Michael L. Fowler(1) Vice President of SunAmerica Inc. Susan L. Harris(1) Senior Vice President, General Counsel - Corporate Affairs and Secretary for SunAmerica Inc. Scott H. Richland(1) Vice President and Treasurer of SunAmerica Inc.
2 James W. Rowan(1) Senior Vice President of SunAmerica Inc. Richard D. Rohr(6) Assistant Secretary of SunAmerica Inc. and Attorney with Bodman, Longley and Darling George Holdridge(1) Vice President of SunAmerica Inc. Joseph Tumbler(1) Vice Chairman of SunAmerica Inc. Karel Carnohan(1) Vice President of SunAmerica Inc.
(1) Business address and address where principal occupation is located is 1 SunAmerica Center, Century City, Los Angeles, California 90067. (2) Business address and address where principal occupation is located is 515 South Flower Street, 51st Floor, Los Angeles, California 90071. (3) Business address and address where principal occupation is located is 5335 Wisconsin Avenue, NW, Suite 440, Washington, D.C. 20015- 2003. (4) Business address and address where principal occupation is located is 400 Golden Shore, Suite 324, Long Beach, CA 90802-4275. (5) Business address and address where principal occupation is located is One Rockefeller Plaza, Suite 1025, New York, New York 10020. (6) Business address and address where principal occupation is located is 100 Renaissance Center, 34th Floor, Detroit, Michigan 48243. (7) Business address and address where principal occupation is located is 3340 Ocean Park Boulevard, Suite 3050, Santa Monica, CA 90405. (8) Business address and address where principal occupation is located is 401 Wilshire Boulevard, Suite 900, Santa Monica, California 90401. (9) Business address and address where principal occupation is located is Suite 1100, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505. (10) Business address and address where principal occupation is located is 420 Montgomery Street, San Francisco, California 94104 EX-3 4 1 Exhibit G ---------- UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK CONFORMED COPY - - - - - - - - - - - - - - - - - - -x In re : Chapter 7 ESMARK, INC., : Case No. 95-43781 (BRL) Debtor. : - - - - - - - - - - - - - - - - - - -x STIPULATION FOR RELIEF FROM THE AUTOMATIC STAY; ORDER THEREON Esmark, Inc., debtor in the above captioned chapter 7 case ("Esmark"), and secured creditor SunAmerica Life Insurance Company ("SunAmerica") f/k/a Sun Life Insurance Company of America, by and through their counsel of record, hereby enter into this stipulation ("Stipulation") pursuant to Federal Rule of Bankruptcy Procedure 4001(d) for an order terminating, vacating and annulling the automatic stay of 11 U.S.C. Section 362 in this case effective May 1, 1996, insofar as that stay affects in any manner the rights of SunAmerica to enforce its claims under the SunAmerica Loan Documents (defined below) and to sell by foreclose sale and recover the proceeds of the collateral securing such claims, including, without limitation, the right of SunAmerica to enforce its security interest in, sell by foreclosure sale and recover the proceeds of 2,010,000 shares of common stock of Danskin, Inc. -- which stock SunAmerica holds as collateral for Esmark's obligations under the 2 SunAmerica Loan Documents. In support of this Stipulation, Esmark and SunAmerica hereby stipulate and agree as follows: The SunAmerica Loan Documents ----------------------------- A. Pursuant to a Guaranty (the "Esmark Guaranty") and Guaranty and Pledge Agreement (the "Esmark Pledge"), both dated as of September 3, 1993, Esmark guaranteed to SunAmerica the prompt payment when due of the principal of and interest on the 14% Senior Secured Bridge Notes due March 3, 1995 ("Notes") issued by Nautech, Incorporated ("Nautech"), a wholly owned subsidiary of Esmark, in the original aggregate principal amount of $14,500,000. The Notes were issued pursuant to a Notes Purchase Agreement, dated September 3, 1993, entered into by Nautech as issuer, Esmark and a number of other affiliates as guarantors, and SunAmerica as purchaser. True and correct copies of the Esmark Guaranty, the Esmark Pledge and the Notes Purchase Agreement are attached hereto as Exhibits 1, 2 and 3, respectively. B. Pursuant to the Esmark Guaranty, Esmark pledged to SunAmerica as collateral security for Esmark's obligations under the SunAmerica Loan Documents, inter alia: (i) 2,010,000 shares of common stock of Danskin, Inc. ("Danskin") (the "Danskin Stock"); and (ii) 10,000 shares of common stock of Nautech, constituting all of the issued and outstanding capital stock of Nautech (the "Nautech Stock"). SunAmerica holds valid and enforceable first priority security interests in the Danskin Stock and the Nautech Stock. C. Pursuant to a Security and Pledge Agreement, dated September 3, 1993 (the "Nautech Guaranty"), and to secure Nautech's 3 obligations to SunAmerica under the SunAmerica Loan Documents, Nautech pledged to SunAmerica, inter alia, 900 shares of the common stock of Fanatic Holdings, Inc. ("Fanatic") (the "Fanatic Stock"), constituting all of the shares of Fanatic owned by Nautech. A true and correct copy of the Nautech Guaranty is attached hereto as Exhibit 4. D. The Notes, Notes Purchase Agreement, the Esmark Guaranty, the Esmark Pledge and the Nautech Guaranty are referred to in this Stipulation collectively as the SunAmerica Loan Documents. The SunAmerica Loan Documents and the debt and other obligations owing to SunAmerica thereunder are referred to collectively hereinafter as the Esmark Loan. The Prepetition Defaults and Foreclosure Sales ---------------------------------------------- E. On September 29, 1994, SunAmerica gave written notice to Esmark and Nautech of a default under the SunAmerica Loan Documents and of SunAmerica's intent to conduct a foreclosure sale of the collateral pledged to secure the obligations under the SunAmerica Loan Documents, including the foreclosure sale of the Danskin Stock and the Fanatic Stock. Pursuant to two letter agreements, SunAmerica agreed to forbear until January 30, 1995 from conducting the foreclosure sales. F. Pursuant to a letter dated January 30, 1995, SunAmerica gave notice to Esmark and Nautech of its intent to conduct a foreclosure sale on March 3, 1995 of the collateral pledged by Esmark and Nautech. The sales subsequently were adjourned until April 7, 1995. On April 7, 1995, SunAmerica conducted a foreclosure sale of the Fanatic Stock and credit bid 4 $2,000,000 to acquire the shares, thereby reducing the debt of Esmark to SunAmerica in like amount. G. The Nautech Stock has no realizable value. The Involuntary Chapter 7 Bankruptcy Petition --------------------------------------------- H. On April 7, 1995, an involuntary chapter 7 petition was filed against Esmark in the United States Bankruptcy Court for the Western District of Washington by several unsecured creditors of Esmark. As a result, SunAmerica was unable to sell the Danskin Stock by foreclosure sale on April 7, 1995. Pursuant to an order entered on August 19, 1995, venue of the Esmark chapter 7 case was transferred to this United States Bankruptcy Court for the Southern District of New York ("Court"). SunAmerica's Motion for Relief from the Automatic Stay ------------------------------------------------------ I. On September 12, 1995, SunAmerica petitioned the Court for relief from the automatic stay to enable SunAmerica to conclude the foreclosure sale of the Danskin stock that was stayed by the filing of the involuntary chapter 7 petition against Esmark. In response to SunAmerica's motion, Esmark asked the Court to adjourn the motion for a relatively short period of time to enable Esmark to bring to fruition its efforts to obtain investors to satisfy its creditors. A hearing on the motion was held on October 11, 1995. At the hearing, Esmark presented into evidence several offers or expressions of interest to purchase the Esmark Loan from SunAmerica. The Court denied SunAmerica's motion for relief from stay. 5 Esmark's Efforts at Raising New Financing ----------------------------------------- J. After the denial of SunAmerica's motion for relief from the stay, Sunamerica, Esmark and Derby Partners ("Derby") entered into negotiations for the sale of the Esmark Loan to Derby. Two separate agreements for the sale of the Esmark Loan to Derby were reached amongst the parties, in November 1995 and January 1996. Derby was unable, however, to close either deal. K. Esmark now has agreed to consent to relief from the automatic stay effective May 1, 1996 to enable SunAmerica to enforce its remedies under the Esmark Loan, in exchange for an agreement from SunAmerica that grants to Derby an exclusive option to purchase the Esmark Loan from SunAmerica through April 30, 1996. A true and correct copy of such third agreement between Derby and SunAmerica is attached hereto as Exhibit 5. Pursuant to this new agreement, SunAmerica will sell the Esmark Loan to Derby for $9,100,000 (the "Purchase Price") on or before April 30, 1996 (the "Closing Date"). If on the Closing Date Derby does not tender the Purchase Price, it is the intent of the parties hereto that relief from stay would become effective immediately on May 1, 1996. Value of the Danskin Stock -------------------------- L. Based upon the per share price of the Danskin Stock as it traded in the NASDAQ market over the past 12 months, the value of SunAmerica's collateral has ranged between $6-11.5 million. The Danskin Stock secures a debt under the SunAmerica Loan Documents in the original principal amount of $14.5 million, and, with accrued interest to date, of $17.5 million. 6 NOW THEREFORE, ESMARK AND SUNAMERICA HEREBY STIPULATE FOR AND PETITION THE COURT TO APPROVE THIS STIPULATION AND ENTER AN ORDER PROVIDING AS FOLLOWS: 1. If on April 30, 1996, Derby has not complied with the contractual requirements for closing of the sale of the Esmark Loan from SunAmerica to Derby, including without limitation the payment of the $9,1000,000 Purchase Price, then the automatic stay provisions of 11 U.S.C. Section 362 shall be terminated, vacated and annulled on May 1, 1996 (without the necessity of further order of the Court), insofar as such automatic stay provisions prohibit or prevent SunAmerica from enforcing its state law rights and remedies under the Esmark Loan, including without limitation the foreclosure sale of the Danskin Stock. 2. On May 1, 1996, SunAmerica shall be, among other things, free to take all steps available to it under applicable non- bankruptcy law to commence and complete the foreclosure sale of the Danskin Stock. 3. Esmark shall not, directly or indirectly, seek to block, enjoin, stay, delay, frustrate or stop SunAmerica's foreclosure sale of the Danskin Stock or the disposition of any other collateral securing the obligations to SunAmerica under the SunAmerica Loan Documents. 4. This Stipulation and the order approving the Stipulation shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns, including any trustee appointed in this bankruptcy case, and shall remain in full force and effect notwithstanding that this involuntary chapter 7 7 case converts to a voluntary case under chapter 7 or chapter 11 of the Bankruptcy Code. Dated: New York, New York February 15, 1996 ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN By: /s/ Susan Power Johnston ----------------------------- Susan Power Johnston 1290 Avenue of the Americas New York, N.Y. 10104 (212) 541-2000 Attorneys for Esmark, Inc. MILBANK, TWEED, HADLEY & McCLOY By: /s/ David C. L. Frauman ----------------------------- A member of the Firm David C. L. Frauman (D.F.7686) 601 S. Figueroa St., 30th Fl. Los Angeles, CA 90017 (213) 892-4000 Attorneys for SunAmerica Life Insurance Company IT IS SO ORDERED. Dated: March 7, 1996 /s/ Burton R. Lifland ---------------------------------- THE HONORABLE BURTON R. LIFLAND, CHIEF UNITED STATES BANKRUPTCY JUDGE EX-4 5 1 Exhibit H --------- NOTICE OF FORECLOSURE SALE Notice Is Hereby Given That By Virtue Of Certain Defaults under that certain Notes Purchase Agreement (the "Notes Purchase Agreement"), dated as of September 3, 1993, by and among Nautech Incorporated ("Nautech"), SunAmerica Life Insurance Company f/k/a Sun Life Insurance Company of America ("Sun Life"), SunAmerica, Inc., as Agent (the "Agent"), and the guarantors named therein; that certain Guaranty and Pledge Agreement (the "Esmark Guaranty"), dated as of September 3, 1993, between the Agent and Esmark, Inc. ("Esmark") the Agent will foreclose and sell, at public auction, for cash, all of Esmark's right, title and interest in and to the following collateral (the "Collateral"): (a) 2,010,000 shares of common stock of Danskin, Inc. ("Danskin"), par value $.01 per share, evidenced by stock certificate no. 6,207 and all other shares of capital stock of whatever class of Danskin owned by Esmark as of the date of the sale, in each case together with the certificates evidencing the same (the "Pledged Stock"); (b) all shares, securities, moneys or property representing a dividend on any of the Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up revision, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Stock; (c) in the event of any consolidation or merger, involving Danskin, all shares of the capital stock issued in respect of the pledged Stock and (d) all proceeds of any of the property described in clauses (a) through (c) above and, to the extent related to any property described in said clauses or such proceeds, all books, correspondence, credit files, records, invoices and other papers. The public sale will take place on June 7, 1996 at 10:00 a.m. at the offices of Milbank, Tweed, Hadley & McCloy, 601 S. Figueroa Street, 30th Floor, Los Angeles, CA 90017. Conduct of the sale is authorized pursuant to the "Stipulation For Relief From The Automatic Stay; Order Thereon", signed by the Honorable Burton R. Lifland, Chief United States Bankruptcy Judge, United States Bankruptcy Court for the Southern District of New York, on March 7, 1996 and entered on the Court's docket on March 12, 1996 in the case of In re Esmark, Inc., Case No. 95-43781 (BRL). 2 Said sale is subject to the payment of all expenses and fees of the Agent and Sun Life, expenses of sale and the terms of the sale. Requests for information concerning the terms of the sale or the Collateral should be addressed to Milbank, Tweed, Hadley & McCloy, 601 South Figueroa Street, 31st Floor, Los Angeles, California, 90017, Tel: (213) 892-4000, Fax: (213) 629-5063, Attention: Fred Neufeld, Esq. A bidder will be required, upon acceptance of its bid, to provide written representations addressed to the Agent stating that: (a) such bidder either alone or with such bidder's attorneys, accountants or other advisors possesses the requisite business and investment knowledge and experience to effectively evaluate the potential risks and merits of the purchase of the Pledged Stock and any other Collateral consisting of securities (the "Securities"); (b) such bidder has sufficient financial ability and net worth to bear the economic risk of the purchase of the Securities for an indefinite period of time and to withstand total loss of such purchaser's investment in the Securities; (c) such bidder is acquiring the Securities for investment purposes, solely for the bidder's own account, and not with a view to a distribution or resale of the Securities; and (d) such bidder will not resell the Securities without a valid registration under applicable federal or state laws, including the Securities Act of 1933 or an available exemption therefrom. In order to be eligible as a purchaser of the Securities, a person will be required to satisfy the Agent and its counsel that the offering and sale of the Securities to such person will be exempt from the requirements of the Securities Act of 1933, as amended (the "Act"). The Agent may require the ultimate purchaser to provide an opinion of counsel satisfactory to the Agent to the foregoing effect. The certificates representing the Securities may bear a legend to the effect that the Securities are restricted securities and may not be sold or transferred without registration under the Act unless pursuant to a valid exemption from the registration requirements of the Act. Although the highest conforming bid from a qualified bidder is expected to be accepted at the auction, the Agent has the sole discretion to determine which conforming bid is the highest or best bid, and to reject any offer which it deems to be insufficient or non-conforming. The successful bidder shall demonstrate to the Agent's satisfaction that the purchase of the Collateral will be in compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, or that a valid exemption is available under such Act. The Agent may adjourn the auction hereby advertised or cause the auction to be adjourned from time to time, without notice or further publication, by announcement at the time and place appointed for such sale, or any adjournment, and, without further 3 notice or publication, such auction may be held at the time and place to which the auction may have been so adjourned. The auction shall be an auction with reserve. The Agent shall not be obligated to make any sale pursuant to this notice, and reserves the right at all times and for any reason to reject all bids and/or cancel the auction. The Agent also reserves the right at any time and without further publication or notice prior to the date of the auction to change the portion of the Collateral available for purchase at the auction due to prior sale or for any other reason. The sale shall not be complete until the successful bidder completes its purchase as provided herein, and in case of failure to complete the purchase, the Collateral may thereupon again be put up for sale without further publication or notice. The terms and conditions of sale set forth herein may be subject to additional or amended terms and conditions to be announced at or before the time of sale. The Agent and/or Sun Life reserve the right to bid at the sale and to credit their bid against their secured claims and also reserve the right of any affiliate of the Agent or Sun Life to bid at the sale and to credit its bid against any secured claim such affiliate might have. The Agent also reserves the right to adjourn, delay or terminate the sale without further notice or publication. Sun America, Inc., as Agent under the Notes Purchase Agreement 1 SunAmerica Center, 38th Floor Los Angeles, CA 90067 Milbank, Tweed, Hadley & McCloy 601 South Figueroa Street, 30th Floor Los Angeles, CA 90017 Counsel for SunAmerica Life Insurance Company f/k/a Sun Life Insurance Company of America -----END PRIVACY-ENHANCED MESSAGE-----