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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
wo eee eee eee eee eee eee eee x
ACI CAPITAL CO., LLC, : Index No.601888/09
Plaintiff, : Hon. Richard B. Lowe IIT
v. : IAS Part 56
THE TALBOTS, INC.,
Defendant.
we nee en ee eee eee eee eee x
RULE 19-a STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF
PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT ON
CONTRACT CLAIM
Plaintiff ACI Capital Co., LLC (“ACT”), pursuant to CPLR 3212 and
Local Rule 19-a of the Consolidated Rules of the Commercial Division Justices, submits
the following statement of material facts, which for purposes of this motion, are
undisputed:
UNDISPUTED FACTS
1. ACI and Talbots entered into the Reimbursement Agreement,
dated May 1, 2009. (Ex. C; Manasse Aff. 19). The Reimbursement Agreement
provided that:
If (i)(A) ACI works in good faith to provide Talbots
with an offer to proceed with the Transaction (which the
undersigned agreed shall be evidenced by ACI’s incurrence
of out-of-pocket expenses with respect to its business,
accounting and legal due diligence review of the Business)
and works in good faith to substantially complete its due
diligence review of the Business on or prior to May 18,
2009 (it being acknowledged and agreed that nothing shall
preclude ACI from requesting follow up due diligence
items after May 18, 2009, including due diligence items
that have been reasonably requested in advance of such
31858123.DOC 1date by ACI but have not been provided by Talbots or its
agents as of such date) and (B) ACI submits, on or prior to
May 18, 2009, a good faith offer to proceed with the
Transaction . . .and (ii) Talbots . . . enters into a definitive
agreement with a third party unaffiliated with ACI with
respect to the sale or other disposition of all or a majority of
the Business . . . then Talbots will reimburse ACI for its
reasonably incurred and documented third party out-of-
pocket fees and expenses .. .
(Ex. C; Manasse Aff. § 21).
2. With respect to the “purchase price” for the “good faith offer”,
Section (i)(B) of the Reimbursement Agreement required that:
(B) ACI submits, on or prior to May 18, 2009, a
good faith offer to proceed with the Transaction, which
offer (1) shall be comprised of a detailed proposal of the
financial terms and conditions of the Transaction (including
a proposed purchase price payable in cash) . . .
(Ex. C; Manasse Aff. § 22).
3. The Reimbursement Agreement provided that “[i]f any action at
law or in equity is brought to enforce or interpret the provisions of this [Reimbursement
Agreement], the prevailing party in such action shall be entitled to reimbursement of its
reasonable attomeys’ fees and costs by the non-prevailing party.” (Ex. C; Manasse Aff.
425).
4, On May 18, 2009, ACI submitted to Talbots an offer to proceed
with the potential acquisition of the Business. (Ex. H; Manasse Aff. 31). ACI’s May
18, 2009 offer contained a bid with a purchase price of $50 million:
comprised of $25 million in cash plus a $25 million
note (the “Note”). The Note will be payable if the
[Business] achieves $20 million in EBITDA for each of the
first 3 years following closing or alternatively $60 million
of EBITDA cumulatively over these first 3 years. . .
Additionally, [Talbots] will receive warrants priced at
31858123.DOC 2[ACI’s] going-in valuation to acquire 5% of the [Business],
subject to dilution after the Closing.
(Ex. H; Manasse Aff. { 33).
5. ACI’s May 18, 2009 offer satisfied the unambiguous terms of the
Reimbursement Agreement. (Ex. C; Ex. H; Manasse Aff. §{ 32-33).
6. On or about June 7, 2009, Talbots executed a definitive agreement
for the sale of all or a majority of the Business to Jill Acquisition, LLC, an affiliate of
Golden Gate Capital, an entity not affiliated with ACI. (Manasse Aff. { 34).
7. On June 12, 2009, ACI submitted to Talbots documentation
supporting $750,000 of third party out-of-pocket fees and expenses incurred by it in
connection with its evaluation of the Business. (Ex. J; Manasse Aff. 4 37).
8. To date, Talbots has not paid the $750,000 to ACI. (Manasse Aff.
117, 38).
Dated: New York, New York KAYE SCHOLE!
July 23, 2009
By:
James D. Herschlein
Andrew K. Solow
Carlos L. Lopez
425 Park Avenue
New York, New York 10022
(212)836-8000
Attorneys for Plaintiff
31858123.DOC 3
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wo eee eee eee eee eee eee eee x ACI CAPITAL CO., LLC, : Index No.601888/09 Plaintiff, : Hon. Richard B. Lowe IIT v. : IAS Part 56 THE TALBOTS, INC., Defendant. we nee en ee eee eee eee eee x RULE 19-a STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT ON CONTRACT CLAIM Plaintiff ACI Capital Co., LLC (“ACT”), pursuant to CPLR 3212 and Local Rule 19-a of the Consolidated Rules of the Commercial Division Justices, submits the following statement of material facts, which for purposes of this motion, are undisputed: UNDISPUTED FACTS 1. ACI and Talbots entered into the Reimbursement Agreement, dated May 1, 2009. (Ex. C; Manasse Aff. 19). The Reimbursement Agreement provided that: If (i)(A) ACI works in good faith to provide Talbots with an offer to proceed with the Transaction (which the undersigned agreed shall be evidenced by ACI’s incurrence of out-of-pocket expenses with respect to its business, accounting and legal due diligence review of the Business) and works in good faith to substantially complete its due diligence review of the Business on or prior to May 18, 2009 (it being acknowledged and agreed that nothing shall preclude ACI from requesting follow up due diligence items after May 18, 2009, including due diligence items that have been reasonably requested in advance of such 31858123.DOC 1date by ACI but have not been provided by Talbots or its agents as of such date) and (B) ACI submits, on or prior to May 18, 2009, a good faith offer to proceed with the Transaction . . .and (ii) Talbots . . . enters into a definitive agreement with a third party unaffiliated with ACI with respect to the sale or other disposition of all or a majority of the Business . . . then Talbots will reimburse ACI for its reasonably incurred and documented third party out-of- pocket fees and expenses .. . (Ex. C; Manasse Aff. § 21). 2. With respect to the “purchase price” for the “good faith offer”, Section (i)(B) of the Reimbursement Agreement required that: (B) ACI submits, on or prior to May 18, 2009, a good faith offer to proceed with the Transaction, which offer (1) shall be comprised of a detailed proposal of the financial terms and conditions of the Transaction (including a proposed purchase price payable in cash) . . . (Ex. C; Manasse Aff. § 22). 3. The Reimbursement Agreement provided that “[i]f any action at law or in equity is brought to enforce or interpret the provisions of this [Reimbursement Agreement], the prevailing party in such action shall be entitled to reimbursement of its reasonable attomeys’ fees and costs by the non-prevailing party.” (Ex. C; Manasse Aff. 425). 4, On May 18, 2009, ACI submitted to Talbots an offer to proceed with the potential acquisition of the Business. (Ex. H; Manasse Aff. 31). ACI’s May 18, 2009 offer contained a bid with a purchase price of $50 million: comprised of $25 million in cash plus a $25 million note (the “Note”). The Note will be payable if the [Business] achieves $20 million in EBITDA for each of the first 3 years following closing or alternatively $60 million of EBITDA cumulatively over these first 3 years. . . Additionally, [Talbots] will receive warrants priced at 31858123.DOC 2[ACI’s] going-in valuation to acquire 5% of the [Business], subject to dilution after the Closing. (Ex. H; Manasse Aff. { 33). 5. ACI’s May 18, 2009 offer satisfied the unambiguous terms of the Reimbursement Agreement. (Ex. C; Ex. H; Manasse Aff. §{ 32-33). 6. On or about June 7, 2009, Talbots executed a definitive agreement for the sale of all or a majority of the Business to Jill Acquisition, LLC, an affiliate of Golden Gate Capital, an entity not affiliated with ACI. (Manasse Aff. { 34). 7. On June 12, 2009, ACI submitted to Talbots documentation supporting $750,000 of third party out-of-pocket fees and expenses incurred by it in connection with its evaluation of the Business. (Ex. J; Manasse Aff. 4 37). 8. To date, Talbots has not paid the $750,000 to ACI. (Manasse Aff. 117, 38). Dated: New York, New York KAYE SCHOLE! July 23, 2009 By: James D. Herschlein Andrew K. Solow Carlos L. Lopez 425 Park Avenue New York, New York 10022 (212)836-8000 Attorneys for Plaintiff 31858123.DOC 3