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KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
-andJohn R. Luze (admitted pro hac vice)
300 North LaSalle
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200

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COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice
in DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899

Proposed Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
In re:
ASCENA RETAIL GROUP, INC., et al.,1
Debtors.

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Chapter 11
Case No. 20-33113 (KRH)
(Jointly Administered)

ORDER (I) APPROVING THE STALKING
HORSE PROTECTIONS, (II) APPROVING BIDDING
PROCEDURES FOR THE SALE OF THE CATHERINES ASSETS, AND
(III) APPROVING CONTRACT ASSUMPTION AND ASSIGNMENT PROCEDURES
Upon the motion (the “Bidding Procedures Motion”)2 of the above-captioned debtors and
debtors in possession (the “Debtors”), for entry of an order (this “Order”): (a) authorizing and
approving the Bidding Procedures, substantially in the form attached hereto as Exhibit A-1;
(b) approving the Debtors to enter into and perform under the Stalking Horse Purchase
1

A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’
claims and noticing agent at http://cases.primeclerk.com/ascena. The location of Debtor Ascena Retail Group,
Inc.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 933 MacArthur
Boulevard, Mahwah, New Jersey 07430.

2

Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Bidding
Procedures Motion or the Bidding Procedures (as defined below), as applicable.

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Agreement, attached hereto as Exhibit A-2; (c) approving procedures for assuming and
assigning certain executory contracts, and approving the Cure Notice, substantially in the form
attached hereto as Exhibit A-3; and the Court having reviewed any evidence in support of the
Bidding Procedures Motion; and the Court having reviewed the Bidding Procedures Motion and
having heard the statements in support of the relief requested therein at a hearing before the
Court (the “Hearing”); and the Court having determined that the legal and factual bases set forth
in the Bidding Procedures Motion and at the Hearing establish just cause for the relief granted
herein; and any objections to the Bidding Procedures Motion having been withdrawn with
prejudice or overruled on the merits at the Hearing; and upon all of the proceedings had before
the Court; and after due deliberation and sufficient cause appearing therefor, THE COURT
HEREBY FINDS AS FOLLOWS:3
A.

Jurisdiction and Venue.

The Court has jurisdiction to consider the Bidding

Procedures Motion and the relief requested therein pursuant to 28 U.S.C. § 1334, and venue is
proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
B.

Notice of the Bidding Procedures Motion. As reflected in the certificate of

service filed on July 24, 2020 [Docket No. 88], the Bidding Procedures Motion and the notice of
the Hearing were served on the Court’s electronic filing system and the Notice Parties. The
notice of the Bidding Procedures Motion and the Hearing is reasonable and sufficient in light of
the circumstances and nature of the relief requested in the Bidding Procedures Motion, and no
other or further notice of the Bidding Procedures Motion or the Hearing is necessary. A

3

The findings of fact and conclusions of law herein constitute the Court’s findings of fact and conclusions of law
for the purposes of Bankruptcy Rule 7052, made applicable pursuant to Bankruptcy Rule 9014. To the extent
any findings of facts are conclusions of law, they are adopted as such. To the extent any conclusions of law are
findings of fact, they are adopted as such.

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reasonable and fair opportunity to object to the Bidding Procedures Motion and the relief granted
in this Order has been afforded under the circumstances.
C.

Stalking Horse Bid and the Stalking Horse Protections.

The Debtors have

demonstrated and proven to the satisfaction of this Court that their performance of the
obligations related to the Stalking Horse Bid and the Stalking Horse Protections are in the best
interests of the Debtors, their creditors, and their estates, and that the foregoing represents a
prudent exercise of the Debtors’ sound business judgment. The Debtors have articulated good,
sufficient, and sound business justifications and compelling circumstances for performance of
obligations related to the Stalking Horse Bid and the Stalking Horse Protections in that, among
other things, the Stalking Horse Bid constitutes the highest or otherwise best restructuring
proposal that the Debtors have received to date and the approval of the relief requested is a
necessary and constructive step toward the confirmation and consummation of a chapter 11 plan,
and the Stalking Horse Bid and the Stalking Horse Protections allow the Debtors to solicit the
highest or otherwise best bid for the Catherines Assets through the Bidding Procedures.
D.

The Stalking Horse Bid and the Stalking Horse Protections were negotiated by the

parties at arm’s-length and in good faith by the Debtors and the Stalking Horse Bidder.
Furthermore, the Stalking Horse Bid will serve as a minimum or floor bid on which the Debtors,
their creditors, suppliers, vendors, and other bidders may rely. The Stalking Horse Bidder and
the Stalking Horse Protections are providing a material benefit to the Debtors and their creditors
by increasing the likelihood that, given the circumstances, the best possible price for the
Catherines Assets will be received. Accordingly, the Stalking Horse Bid and the Stalking Horse
Protections are reasonable and appropriate, and represent the best method for maximizing value
for the benefit of the Debtors’ estates.

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E.

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Bidding Procedures. The Debtors have articulated good and sufficient reasons for

authorizing and approving the Bidding Procedures attached hereto as Exhibit A-1, which are
fair, reasonable, and appropriate under the circumstances and designed to maximize value for the
benefit of the Debtors’ estates, their creditors, and other parties in interest.
F.

Assumption and Assignment Procedures.

The Cure Notice is reasonably

calculated to provide counterparties to the Catherines Executory Contracts to be assumed or
assumed and assigned with proper notice of the intended assumption or assumption and
assignment of their Catherines Executory Contracts, any Cure Amounts, and the Assumption and
Assignment Procedures, and no other or further notice of such intention, the Cure Amounts, or
the Assumption and Assignment Procedures shall be required.
G.

Auction. The Auction, if held, is necessary to determine whether any entity other

than the Stalking Horse Bidder is willing to enter into a definitive agreement on terms and
conditions more favorable to the Debtors than the Stalking Horse Bid.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:
A.

The Bidding Procedures.
1.

The Bidding Procedures, attached hereto as Exhibit A-1, in connection with the

Sale pursuant to the Stalking Horse Purchase Agreement, attached hereto as Exhibit A-2, and
incorporated by reference as though fully set forth herein, are hereby approved and the Debtors
are authorized to solicit bids and conduct an Auction, if necessary, on the terms set forth in
the Bidding Procedures.

The Bidding Procedures shall govern the submission, receipt, and

analysis of all bids, and any party desiring to submit a higher or otherwise better offer must do so
strictly in accordance with the terms of the Bidding Procedures and this Order.

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B.

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Stalking Horse Protections.
2.

The following Stalking Horse Protections are approved as set forth herein and the

Debtors are authorized to incur and pay the Stalking Horse Protections: (i) a Break-Up Fee in
the amount of the lesser of $600,000 or three percent of the Purchase Price; and (ii) Expense
Reimbursement in an amount up to $200,000.

The Debtors’ performance of any other

obligations related to the Stalking Horse Bid shall be subject to entry of a further Court order
approving the Sale.

Notwithstanding anything to the contrary herein, including, without

limitation, this Order’s authorization of, and approval of the Debtors’ performance of obligations
related to the Stalking Horse Protections, the entry of this Order and the relief granted hereby is
without prejudice to the rights of any party to object or respond to the Sale, the Plan, the Stalking
Horse Purchase Agreement, or any other document or instrument contemplated by any of the
foregoing, and all such rights are reserved and preserved in all respects.
3.

As soon as reasonably practicable after the conclusion of the Auction, if any, but

no later than two (2) business days thereafter, the Debtors will file on the docket, but not serve, a
notice (the “Post-Auction Notice”) identifying the Successful Bidder. Within five (5) business
days of the filing of the Post-Auction Notice and, if the Successful Bidder is not the Stalking
Horse Purchaser, the Debtors will file on the docket, but not serve, a notice detailing the
Expense Reimbursement proposed to be paid to the Stalking Horse Purchaser. All parties will
have fourteen days from the date such notice is filed to file a written objection, compliant with
the Bankruptcy Code, Bankruptcy Rules, Local Bankruptcy Rules, and all orders of the Court, to
the Expense Reimbursement and serve such objection on the Debtors, counsel to the Debtors,
and the Notice Parties.

If any party objects within fourteen days in accordance with the

foregoing, the Court shall adjudicate any unresolved dispute as soon as the Court’s schedule
permits.
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C.

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The Assumption and Assignment Procedures.
4.

The Assumption and Assignment Procedures set forth in the Bidding Procedures

Motion regarding the assumption or assumption and assignment of the Catherines Executory
Contracts4 proposed to be assumed by the Debtors and assigned to a Successful Bidder are
approved:

4

i.

Cure Notice. No later than September 4, 2020, if applicable, the Debtors
shall file with the Court and serve via first class mail, electronic mail, or
overnight delivery the Cure Notice on all non-Debtor contract
counterparties to the Catherines Executory Contracts (collectively, the
“Contract Parties,” and each, a “Contract Party”) and their counsel, if
known;

ii.

Content of Cure Notice. The Cure Notice shall notify the applicable
Contract Parties that the Catherines Executory Contracts may be subject to
assumption or assumption and assignment in connection with the proposed
Sale and contain the following information: (a) identification of the
applicable Catherines Executory Contracts; (b) the applicable Contract
Parties; (c) the Debtors’ good faith estimates of the corresponding Cure
Amounts required to cure all monetary defaults under the Catherines
Executory Contracts; and (d) the deadline by which any Contract Party to
a Catherines Executory Contract may file an objection to the proposed
assumption, assignment, cure, and/or adequate assurance and the
procedures relating thereto (the “Cure Objection”); provided that service
of a Cure Notice does not constitute an admission that such Catherines
Executory Contract is an executory contract, or that such Catherines
Executory Contract will be assumed at any point by the Debtors or
assumed and assigned pursuant to the Stalking Horse Purchase Agreement
or any other Successful Bid;

iii.

Cure Objections. Cure Objections, if any, to a Cure Notice must: (a) be in
writing; (b) comply with the applicable provisions of the Bankruptcy
Rules, the Local Bankruptcy Rules for the Eastern District of Virginia
(the “Local Bankruptcy Rules”), and any order governing the
administration of these chapter 11 cases; (c) state with specificity the
nature of the Cure Objection and, if the Cure Objection pertains to the
proposed Cure Amount, state the cure amount alleged to be owed to the
objecting Contract Party, together with any applicable and appropriate
documentation in support thereof; and (d) be filed with the Court and

For the avoidance of doubt, the Catherines Executory Contracts to be assumed or assumed and assigned shall
not include any leases of nonresidential real property.

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served so as to be actually received by counsel to the Debtors, counsel to
the Stalking Horse Bidder or any other Successful Bidder, and counsel to
each of the Consultation Parties within fourteen days of the date of service
of the Cure Notice, at 5:00 p.m. (prevailing Eastern Time) (the “Cure
Objection Deadline”);
iv.

Effects of Filing a Cure Objection. A properly filed and served Cure
Objection will reserve such objecting party’s rights against the Debtors
only with respect to the assumption or assumption and assignment of the
Catherines Executory Contract at issue and/or objection to the
accompanying Cure Amount, as set forth in the Cure Objection, but will
not constitute an objection to the remaining relief requested in this
Motion;

v.

Dispute Resolution. Any objection to the proposed assumption or
assumption and assignment of a Catherines Executory Contract or Cure
Amount that remains unresolved after the Sale Hearing, shall be heard at
the next scheduled omnibus hearing (or at such later date as may be fixed
by the Court). To the extent that any Cure Objection cannot be resolved
by the parties, such Catherines Executory Contract shall be assumed and
assigned only upon satisfactory resolution of the Cure Objection, to be
determined in the Stalking Horse Bidder’s or other Successful Bidder’s
reasonable discretion. To the extent a Cure Objection remains unresolved,
the Catherines Executory Contract may be conditionally assumed and
assigned, subject to the consent of the Stalking Horse Bidder or other
Successful Bidder, pending a resolution of the Cure Objection after notice
and a hearing. If a Cure Objection is not satisfactorily resolved, the
Stalking Horse Bidder or other Successful Bidder may determine that such
Catherines Executory Contract should be rejected and not assigned, in
which case the Stalking Horse Bidder or other Successful Bidder will not
be responsible for any Cure Amounts in respect of such contract unless
otherwise provided in the Stalking Horse Purchase Agreement;

vi.

Supplemental Cure Notice. If the Debtors discover Catherines Executory
Contracts inadvertently omitted from the Cure Notice or the Successful
Bidder identifies other Catherines Executory Contracts that it desires to
assume or assume and assign in connection with the Sale, the Debtors
may, in consultation with the Successful Bidder and in accordance with
the Stalking Horse Purchase Agreement or as otherwise agreed by the
Debtors and the Successful Bidder, at any time before the closing of the
Sale supplement the Cure Notice with previously omitted Catherines
Executory Contracts or modify a previously filed Cure Notice, including
modify the previously stated Cure Amounts associated with any
Catherines Executory Contract (the “Supplemental Cure Notice”);

vii.

Objection to the Supplemental Cure Notice. Any Contract Party listed on
the Supplemental Cure Notice may file an objection (a “Supplemental

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Cure Objection”) only if such objection is to the proposed assumption or
assumption and assignment of the applicable Catherines Executory
Contract or the proposed Cure Amounts, if any. All Supplemental Cure
Objections must: (a) state, with specificity, the legal and factual basis for
the objection as well as what Cure Amounts are required, if any; (b)
include appropriate documentation in support thereof; and (c) be filed no
later than 4:00 p.m. (prevailing Eastern Time) on the date that is 14 days
following the date of service of such Supplemental Cure Notice, which
date will be set forth in the Supplemental Cure Notice;

5.

viii.

Dispute Resolution of Supplemental Cure Objection. If a Contract Party
files a Supplemental Cure Objection in a manner that is consistent with the
requirements set forth above, and the parties are unable to consensually
resolve the dispute, the Debtors shall seek an expedited hearing before the
Court to determine the Cure Amounts, if any, and approve the assumption
and/or assignment of the relevant Catherines Executory Contracts. If there
is no such objection, then the Debtors shall obtain an order of this Court
fixing the Cure Amount and approving the assumption and/or assignment
of any Catherines Executory Contracts listed on a Supplemental Cure
Notice; and

ix.

No Cure Objections. If there are no objections to a Cure Notice or a
Supplemental Cure Notice, or if a Contract Party does not file and serve a
Cure Objection or a Supplemental Cure Notice in a manner that is
consistent with the requirements set forth above, and absent a subsequent
order of the Court establishing an alternative Cure Amounts, (a) the Cure
Amount, if any, set forth in the Cure Notice (or Supplemental Cure
Notice) shall be controlling, notwithstanding anything to the contrary in
any Catherines Executory Contracts or any other document, and (b) to the
extent the Contract Party’s consent is required under applicable law, the
Contract Party will be deemed to have consented to the assumption or
assumption and assignment of the Catherines Executory Contracts and the
Cure Amounts, if any, and will be forever barred from objecting to the
assumption or assumption and assignment of such Catherines Executory
Contracts and rights thereunder, including the Cure Amounts, if any, and
from asserting any other claims related to such Catherines Executory
Contracts against the Debtors or the Successful Bidder, or the property of
any of them.
Any objections to the Successful Bidder’s proposed form of adequate assurance

of future performance must be filed no later than the later of (a) the Cure Objection Deadline,
provided the Cure Notice is served by September 4, 2020, and (b) 4:00 p.m. (prevailing Eastern
Time) on the date that is 14 days following (i) the date of service of the Cure Notice, or (ii) the

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date of service of the Supplemental Cure Notice, as applicable. Such objections will be resolved
at the Sale Hearing. The Debtors may, in consultation with the Successful Bidder, adjourn the
resolution of any such objection to a later hearing.
6.

The inclusion of a Catherines Executory Contract in the Cure Notice (or

Supplemental Cure Notice) will not:

(a) obligate the Debtors to assume any Catherines

Executory Contract listed thereon or obligate the Successful Bidder to take assignment of such
Catherines Executory Contract; or (b) constitute any admission or agreement of the Debtors that
such Catherines Executory Contract is an executory contract. Only those Catherines Executory
Contracts that are included on a schedule of assumed and assigned contracts attached to the
Definitive Purchase Agreement with the Successful Bidder (including amendments or
modifications to such schedules in accordance with such agreement) will be assumed and
assigned to the Successful Bidder.
7.

For the avoidance of doubt, nothing herein shall be deemed to extend the Debtors’

deadline to assume or reject any of its leases pursuant to section 365(d)(4) of the Bankruptcy
Code.
8.

Nothing in this Order or the Bidding Procedures shall be deemed a waiver of any

rights, remedies or defenses that any party (including the sureties, the Debtors, the Debtors’
lenders, the Stalking Horse Bidder, or any other prospective purchaser) has or may have under
applicable bankruptcy and non-bankruptcy law, under any indemnity agreements, surety bonds,
or related agreements or any letters of credit relating thereto, or any rights, remedies or defenses
of the Debtors with respect thereto, including seeking Bankruptcy Court relief with regard to
the Auction, the Bidding Procedures, the Sale, and any related items (including, if necessary, to
seek an extension of the Bid Deadline).

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9.

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Notwithstanding anything to the contrary in this Order, any payment made or

action taken by any of the Debtors pursuant to the authority granted in this Order must be in
compliance with, and shall be subject to: (i) any interim or final order approving the Debtors’
use of cash collateral and/or any postpetition financing facility (in either case, the “Cash
Collateral Order”); (ii) the documentation in respect of any such use of cash collateral and/or
postpetition financing; and (iii) the budget governing any such use of cash collateral and/or
postpetition financing. To the extent there is any inconsistency between the terms of the Cash
Collateral Order and this Order, the terms of the Cash Collateral Order shall control.
10.

This Order is without prejudice to the rights of Kobie Marketing, Inc. (“Kobie”)

to assert or raise any issue, claim, or objection related to the Sale, including any assumption of
liability to Kobie, assumption of any executory contract of Kobie, or proposed new contract for
Kobie’s services. Notwithstanding any language in this Order to the contrary, the ability of
Kobie to raise any issue, claim, or objection related to the Sale is reserved to the fullest extent,
including as related to any assumption of liability to Kobie, assumption of any executory
contract of Kobie, or proposed new contract for Kobie’s services. The Debtor shall transmit via
electronic mail to counsel to Kobie the then-current draft(s) of the Proposed Asset Purchase
Agreement submitted by the Winning Bidder and Back-Up Bidder (if applicable) at least five (5)
days prior to the sale approval hearing. Kobie shall have three (3) days after such transmission
to object any proposed treatment under the Sale.
11.

To the extent there is any inconsistency between the terms of the Bidding

Procedures Motion and this Order, the terms of this Order shall control.
12.

All time periods set forth in this Order shall be calculated in accordance with

Bankruptcy Rule 9006(a).

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13.

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The Debtors are authorized to take all actions necessary to effectuate the relief

granted pursuant to this Order in accordance with the Bidding Procedures Motion.
14.

The requirements set forth in Local Bankruptcy Rule 9013-1 are satisfied by the

contents of the Bidding Procedures Motion.
15.

This Order shall be immediately effective and enforceable upon entry hereof.

16.

The Court retains exclusive jurisdiction with respect to all matters arising from or

related to the implementation of this Order.
Aug 27 2020
Dated: __________
Richmond, Virginia

/s/ Kevin R Huennekens
United States Bankruptcy Judge

Entered on Docket: Aug 27 2020

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WE ASK FOR THIS:
/s/ Cullen D. Speckhart

KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
-andJohn R. Luze (admitted pro hac vice)
300 North LaSalle
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200

COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice in
DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899

Proposed Co-Counsel to the Debtors and Debtors in Possession
CERTIFICATION OF ENDORSEMENT
UNDER LOCAL BANKRUPTCY RULE 9022-1(C)
Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing proposed order has been endorsed by
or served upon all necessary parties.
/s/ Cullen D. Speckhart

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Exhibit A-1
Bidding Procedures

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KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
-andJohn R. Luze (admitted pro hac vice)
300 North LaSalle
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200

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COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice in
DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899

Proposed Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
In re:
ASCENA RETAIL GROUP, INC., et al.,1
Debtors.

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Chapter 11
Case No. 20-33113 (KRH)
(Jointly Administered)

BIDDING PROCEDURES
FOR THE SALE OF THE CATHERINES ASSETS
On July 23, 2020, the above-captioned debtors and debtors in possession (collectively,
the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States
Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”), in the United States Bankruptcy Court
for the Eastern District of Virginia (the “Bankruptcy Court”).
On [__], 2020, the Bankruptcy Court entered the Order (I) Approving the Stalking Horse
Protections, (II) Approving Bidding Procedures for the Sale of the Catherines Assets, and
(III) Approving Contract Assumption and Assignment Procedures [Docket No. [__]]

1

A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’
claims and noticing agent at http://cases.primeclerk.com/ascena. The location of Debtor Ascena Retail Group,
Inc.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 933 MacArthur
Boulevard, Mahwah, New Jersey 07430.

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(the “Bidding Procedures Order”),2 by which the Bankruptcy Court approved the following
procedures (the “Bidding Procedures”).
These Bidding Procedures set forth the process for a potential auction (the “Auction”)
and sale (the “Sale”) of the right, title, and interest of the Debtors in and to certain Catherines
Plus Sizes assets (the “Catherines Assets”), subject to the option of the Stalking Horse Bidder (as
defined below) to require the Debtors to consummate the Sale in accordance with the Stalking
Horse Purchase Agreement (as defined below).
The Debtors selected the bid (the “Stalking Horse Bid”) for the Catherines Assets
submitted by City Chic Collective USA Incorporated (“City Chic” and/or the “Stalking Horse
Bidder”), after a comprehensive public bidding process completed before the commencement of
these chapter 11 cases. The Stalking Horse Bidder has executed that certain purchase agreement
dated July 23, 2020 entered into by and among certain of the Debtors and City Chic (as
amended, supplemented or otherwise modified by the parties thereto, and including the
disclosure schedules and exhibits attached thereto, the “Stalking Horse Purchase Agreement”)
pursuant to which the Stalking Horse Bidder has agreed to purchase the Acquired Assets (as
defined in the Stalking Horse Purchase Agreement), subject to the terms and conditions set forth
therein. Having announced the Stalking Horse Bid, the Debtors will now conduct a round of
open bidding during these chapter 11 cases intended to obtain the highest or otherwise best bid
for the Catherines Assets. The Stalking Horse Bid is subject to higher or better offers submitted
in accordance with the terms and conditions of these Bidding Procedures.
Copies of the Bidding Procedures Order or any other documents in the Debtors’ chapter 11
cases are available upon request to Prime Clerk LLC by calling (877) 930-4319 (toll free) or
(347) 899-4594 (international) or visiting the Debtors’ restructuring website at
(https://cases.primeclerk.com/ascena).
I.

Assets to be Auctioned.

These Bidding Procedures set forth the terms by which prospective bidders may qualify
for and participate in the Auction. The Catherines Assets will be offered for sale through the
Auction. The Debtors may consider bids from multiple bidders (including multiple bids
submitted by the same bidder) for the Catherines Assets. The Stalking Horse Bid referenced
herein provides for the Stalking Horse Bidder’s acquisition of the Catherines Assets in the
absence of a higher or otherwise better offer.
II.

Public Announcement of Auction.

As soon as reasonably practicable after entry of the Bidding Procedures Order the
Debtors shall (I) serve on the Notice Parties (as defined below) a notice of the Auction and Sale
in the form attached hereto as Schedule 1 (the “Sale Notice”), and (II) publish the Sale Notice,

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All capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Motion
or the Bidding Procedures Order.

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with any modifications necessary for ease of publication, in The New York Times (National
Edition) to provide notice to any other potential interested parties.
III.

Potential Bidder Requirements.

To participate in the bidding process or otherwise be considered for any purpose
hereunder, a person or entity (other than the Stalking Horse Bidder) interested in purchasing the
Catherines Assets (a “Potential Bidder”) must deliver or have previously delivered to the Debtors
the following preliminary documentation (collectively, the “Preliminary Bid Documents”):
a.

an executed confidentiality agreement (a “Confidentiality Agreement”) in form
and substance acceptable to the Debtors; and

b.

sufficient information that the Potential Bidder has or can reasonably obtain the
financial capacity to close the Sale (including current audited or verified financial
statements of, or verified financial commitments obtained by, the Potential Bidder
(or, if the Potential Bidder is an entity formed for the purpose of acquiring the
property to be sold, the party that will bear liability for a breach) as well as an
overview of any recent transactions), the adequacy of which must be acceptable to
the Debtors.

Only those Potential Bidders that have submitted acceptable Preliminary Bid
Documentation (each, an “Acceptable Bidder”) to the reasonable satisfaction of the Debtors and
their advisors, in consultation with the Consultation Parties,3 may submit bids to purchase the
Catherines Assets.
IV.

Qualified Bid Requirements.

To participate in the Auction, an Acceptable Bidder (other than the Stalking Horse
Bidder) must deliver to the Debtors and their advisors an irrevocable offer for the purchase of the
Catherines Assets (each, a “Bid”), and shall meet the following criteria:

3

a.

Purchased Assets and Assumed Liabilities: Each Bid must clearly state which
of the Catherines Assets the Acceptable Bidder seeks to acquire and which
liabilities of the applicable Debtor the Acceptable Bidder agrees to assume;

b.

Good Faith Deposit: The Bid must be accompanied by a cash deposit in the
amount equal to 10% of the aggregate purchase price of the Bid to be held in an
interest-bearing escrow account to be identified and established by the Debtors
(the “Good Faith Deposit”);

The term “Consultation Parties” shall mean (a) the DIP Agents, (b) the DIP Lenders, (c) counsel to the DIP
Agents, (d) one or more Initial Consenting Stakeholders under the RSA; (e) counsel to the Ad Hoc Group; and
(f) the Official Committee of Unsecured Creditors (the “Committee”) and counsel to the Committee; provided
that any party otherwise included as a Consultation Party shall not serve as a Consultation Party with respect to
the sale of Assets to which such party has submitted a Bid unless and until such party unequivocally revokes its
Bid and waives its right to continue in the Auction process; provided further that any member of the Committee
that submits a Bid shall not participate in any deliberations by the Committee as a Consultation Party.

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c.

Purchase Price: Each Bid must clearly set forth the cash purchase price to be
paid, assuming a purchase of the Catherines Assets and any assumption of
liabilities (the “Purchase Price”). The Purchase Price should be a single point
value in U.S. Dollars for the applicable Catherines Assets on a cash-free,
debt-free basis;

d.

Minimum Bid: At a minimum, each Bid must have a Purchase Price equal to, or
in excess of, the sum of $16,000,000 plus the Initial Minimum Overbid Amount.4

e.

Markup of the Purchase Agreement: Each Acceptable Bidder must provide a
draft purchase agreement as well as a redline of such agreement marked to reflect
the amendments and modifications made to the form of the Stalking Horse
Purchase Agreement, which amendments and modifications may not be
inconsistent with these Bidding Procedures. Significant alterations to the Stalking
Horse Purchase Agreement are discouraged and may negatively impact a Bid;

f.

Same or Better Terms; Bid Documents: Except as otherwise provided in
the Bidding Procedures, each Bid must be, in the Debtors’ reasonable business
judgment, in consultation with the Consultation Parties, substantially on the same
or better terms than the terms of the Stalking Horse Purchase Agreement. Each
Bid must include duly executed transaction documents, including a proposed
purchase agreement and any other ancillary documentation necessary to effectuate
the
transactions
contemplated
in
such
Bid
(such
documents,
the “Bid Documents”);

g.

Employee Obligations: Each Bid must indicate whether the Acceptable Bidder
intends to hire all employees who are primarily employed in connection with
the Catherines Assets included in such Bid;

h.

Sources of Financing: To the extent that the Bid is not accompanied by evidence
of the Acceptable Bidder’s capacity to consummate the Sale set forth in its Bid
with cash on hand, the Bid must include committed financing, documented to the
Debtors’ satisfaction, that demonstrates that the Acceptable Bidder has received
sufficient debt and/or equity funding commitments to satisfy the Acceptable
Bidder’s obligations under the proposed Sale and other obligations under its Bid.
Such funding commitments or other financing must be unconditional and must
not be subject to any internal approvals, syndication requirements, diligence, or
credit committee approvals, and shall have covenants and conditions acceptable to
the Debtors;

i.

Contingencies; No Financing or Diligence Outs: Any Bid shall not be
conditioned on the obtaining or the sufficiency of financing, any internal
approval, or on the outcome or review of due diligence;

“Initial Minimum Overbid Amount” means an amount equal to the sum of (a) $250,000 plus (b) the Break-Up
Fee (as defined in the Stalking Horse Purchase Agreement) plus (c) the Expense Reimbursement (as defined in
the Stalking Horse Purchase Agreement).

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j.

Identity: Each Bid must fully disclose the identity of each entity and each
entity’s shareholders, partners, investors, and ultimate controlling entities that will
be bidding for or purchasing the applicable assets or otherwise participating in
connection with such Bid, and the complete terms of any such participation, along
with sufficient evidence that the Acceptable Bidder is legally empowered to
complete the transactions on the terms contemplated by the parties. Each Bid
must also include contact information for the specific person(s) whom
Guggenheim and Kirkland should contact regarding such Bid;

k.

As-Is, Where-Is: Each Bid must include a written acknowledgement and
representation that the Acceptable Bidder: (i) has had an opportunity to conduct
any and all due diligence prior to making its offer; (ii) has relied solely upon its
own independent review, investigation, and/or inspection of any documents
and/or the assets in making its Bid; and (iii) did not rely upon any written or oral
statements, representations, promises, warranties, or guaranties whatsoever,
whether express, implied, by operation of law, or otherwise, regarding the
completeness of any information provided in connection therewith, except as
expressly stated in the Acceptable Bidder’s proposed purchase agreement;

l.

Authorization: Each Bid must contain evidence that the Acceptable Bidder has
obtained all necessary authorizations or approvals from its shareholders and/or its
board of managers or directors, or any other internal and other approvals, as
applicable, with respect to the submission of its Bid and the consummation of the
transactions contemplated in such Bid;

m.

Adequate Assurance of Future Performance: Each Bid (other than the
Stalking Horse Bid) must (i) identify the Catherines Executory Contracts and
unexpired leases to be assumed or assumed and assigned in connection with the
proposed Sale, (ii) provide for the payment of all Cure Amounts related to such
executory contracts and unexpired leases by the Acceptable Bidder, and
(iii) demonstrate, in the Debtors’ reasonable business judgment, in consultation
with the Consultation Parties, that the Acceptable Bidder can provide adequate
assurance of future performance under all such Catherines Executory Contracts
and unexpired leases;

n.

Compliance with Bankruptcy Code and Non-Bankruptcy Law;
Acknowledgment: Each Bid must comply in all respects with the Bankruptcy
Code and any applicable non-bankruptcy law;

o.

Compliance with the Debtors’ Privacy Policy: Each Bid must comply in all
respects with the Debtors’ Catherines privacy policy, which restricts the transfer
of the personally identifiable information of its customers, and contain a statement
acknowledging such compliance;

p.

No Collusion: The Acceptable Bidder must acknowledge in writing (a) that it
has not engaged in any collusion with respect to any Bids or the Sale, specifying
that it did not agree with any Acceptable Bidders or Potential Bidders to control

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price; and (b) agree not to engage in any collusion with respect to any Bids, the
Auction, or the Sale. For the avoidance of doubt, this requirement does not
restrict Potential Bidder(s) from working with other Potential Bidder(s) with the
Debtors’ prior written consent (email shall suffice);
q.

Good Faith Offer: The Bid must constitute a good faith, bona fide offer to
consummate the Sale;

r.

Irrevocable: Each Bid must state that in the event a Bid is chosen as the
Back-Up Bid (as defined below), it shall remain irrevocable until the Debtors and
the Successful Bidder consummate the applicable Sale;

s.

Back-Up Bid: Each Bid shall provide that the Acceptable Bidder will serve as a
backup bidder if the Acceptable Bidder’s Bid is the next highest or otherwise best
bid;

t.

Conditions to Closing: Each Bid must identify with particularity each and every
condition to closing, including the Catherines Executory Contracts and unexpired
leases (each as defined in the Bidding Procedures Order) for which assumption
and assignment is required; and

u.

Expected Closing Date: Each Bid must state the Acceptable Bidder’s expected
date of closing of the Sale.

Only Bids fulfilling all of the preceding requirements contained in this section may, or
otherwise in the Debtors’ reasonable discretion, in consultation with the Consultation Parties, be
deemed to be “Qualified Bids,” and only those parties submitting Qualified Bids may, at the
Debtors’ reasonable discretion, be deemed to be “Qualified Bidders.”
Within one business day after the Bid Deadline, the Debtors, in consultation with the
Consultation Parties, shall determine which Acceptable Bidders are Qualified Bidders and will
notify the Acceptable Bidders whether Bids submitted constitute Qualified Bids, which will
enable such Qualified Bidders to participate in the Auction. Any Bid that is not deemed a
Qualified Bid shall not be considered by the Debtors; provided that if the Debtors receive a Bid
prior to the Bid Deadline that does not satisfy the requirements of a Qualified Bid, the Debtors
may provide the Acceptable Bidder with the opportunity to remedy any deficiencies prior to the
Auction. The Stalking Horse Bidder shall be deemed to be a Qualified Bidder, the Stalking
Horse Bid shall be deemed a Qualified Bid, and the Stalking Horse Bidder may participate in the
Auction with respect to the Catherines Assets.
V.

Obtaining Due Diligence Access.

Only Acceptable Bidders shall be eligible to receive due diligence information, access to
the Debtors’ electronic data room, and additional non-public information regarding the Debtors.
No Acceptable Bidder will be permitted to conduct any due diligence without entry into a
Confidentiality Agreement. Beginning on the date the Debtors determine that a party is an
Acceptable Bidder, or as soon as reasonably practicable thereafter, the Debtors will provide such
Acceptable Bidder with access to an electronic data room and reasonable due diligence
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information, as requested by such Acceptable Bidder, as soon as reasonably practicable after
such request. The Debtors shall post substantially all written due diligence provided to any
Acceptable Bidder to the Debtors’ electronic data room for the benefit of all Acceptable Bidders.
Acceptable Bidders will not, directly or indirectly, contact or initiate or engage in discussions in
respect of matters relating to the Debtors or a potential transaction with any customer, supplier,
or other contractual counterparty of the Debtors without the prior written consent of the Debtors.
The due diligence period will end on the Bid Deadline and subsequent to the Bid Deadline the
Debtors shall have no obligation to furnish any due diligence information.
In connection with the provision of due diligence information to Acceptable Bidders,
the Debtors shall not furnish any confidential information relating to the Debtors or a potential
transaction to any person except an Acceptable Bidder or such Acceptable Bidder’s duly
authorized representatives to the extent provided in an applicable Confidentiality Agreement.
The Debtors and their advisors shall coordinate all reasonable requests for additional
information and due diligence access from Acceptable Bidders; provided that the Debtors may
decline to provide such information to Acceptable Bidders who, in the Debtors’ reasonable
business judgment have not established, or who have raised doubt, that such Acceptable Bidders
intend in good faith to, or have the capacity to, consummate a Sale. For any bidder who is a
competitor or customer of the Debtors or is affiliated with any competitors or customers of the
Debtors, the Debtors reserve the right to withhold or modify any diligence materials that the
Debtors determine are business-sensitive or otherwise inappropriate for disclosure to such
bidder.
A.

Communications with Acceptable Bidders (including Qualified
Bidders).

Notwithstanding anything to the contrary in these Bidding Procedures, all substantive
direct communications, including any diligence requests, with Acceptable Bidders (including any
Qualified Bidders) shall be through Guggenheim.
B.

Due Diligence from Acceptable Bidders (including Qualified Bidders).

Each Acceptable Bidder (including any Qualified Bidder) shall comply with all
reasonable requests for additional information and due diligence access requested by the Debtors
or their advisors and their respective advisors, regarding the ability of such Acceptable Bidder
(including any Qualified Bidder) to consummate its contemplated transaction. Failure by an
Acceptable Bidder (including any Qualified Bidder) to comply with such reasonable requests for
additional information and due diligence access may be a basis for the Debtors, to determine that
such bidder is no longer an Acceptable Bidder (including any Qualified Bidder) or that a bid
made by such bidder is not a Qualified Bid.
Guggenheim Securities LLC, 330 Madison Avenue, New York, New York 10017,
Attn.: Michael Gottlieb (Michael.Gottlieb@guggenheimpartners.com) and Stuart
Erickson (Stuart.Erickson@guggenheimpartners.com), shall coordinate all requests for
additional information and due diligence access on behalf of the Debtors.

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Indications of Interest.

The Debtors reserve the right to require Acceptable Bidders to submit non-binding
written indications of interest prior to the Bid Deadline specifying, among other things, the
Catherines Assets proposed to be acquired, the amount and type of consideration to be offered,
and any other material terms to be included in a bid by such party. If an Acceptable Bidder fails
to comply with any such request by the Debtors, the Debtors may, in consultation with one or
more Initial Consenting Stakeholders under the RSA and the Consultation Parties, deny such
Acceptable Bidder further diligence access or deny such Acceptable Bidder further participation
in the Auction process; provided that such Acceptable Bidder shall be granted the opportunity to
cure such noncompliance with any request by the Debtors before being denied further
participation in the Auction Process. The Debtors also reserve the right to exclude any
Acceptable Bidder (prior to its submission of a Qualified Bid) from continuing in the Auction
process if the Debtors determine, in consultation with one or more Initial Consenting
Stakeholders under the RSA and the Consultation Parties, that the consideration proposed to be
paid by such Acceptable Bidder is insufficient.
VII.

Bid Deadline.

Binding Bids must be received by (a) the Debtors’ counsel, Kirkland & Ellis LLP, 300
North LaSalle Street, Chicago, Illinois 60654, Attn: John R. Luze (john.luze@kirkland.com)
and Jeff Michalik (jeff.michalik@kirkland.com), (b) the Debtors’ financial advisor, Guggenheim
Securities, LLC, 330 Madison Avenue, New York, New York 10017, Attn: Michael Gottlieb
(Michael.Gottlieb@guggenheimpartners.com)
and
Stuart
Erickson
(Stuart.Erickson@guggenheimpartners.com), (c) proposed counsel to the Creditors’ Committee,
Pachulski Stang Ziehl & Jones LLP, 780 Third Avenue, 34th Floor, New York, New York 10017,
Attn: Robert Feinstein (rfeinstein@pszjlaw.com), Bradford Sandler (bsandler@pszjlaw.com),
and Shirley Cho (scho@pszjlaw.com), and (d) the proposed financial advisor to the Creditors’
Committee, Province, Inc., 2360 Corporate Circle, Suite 330, Henderson, NV 89074, Attn: Paul
Huygens (phuygens@provincefirm.com) and Ed Kim (ekim@provincefirm.com),in each case so
as to be actually received no later than 5:00 p.m. (prevailing Eastern Time) on September 11,
2020 (the “Bid Deadline”).
VIII. Evaluation of Qualified Bids.
The Debtors shall evaluate Qualified Bids and identify the Qualified Bid that is, in
the Debtors’ business judgment, and in consultation with the Consultation Parties, the highest or
otherwise best Qualified Bid or combination of Qualified Bids for the Catherines Assets
(the “Starting Bid”). When determining the highest or otherwise best Qualified Bid, as
compared to other Qualified Bids, the Debtors may consider the following factors, in addition to
any other factors that the Debtors deem appropriate: (a) the amount and nature of the total
consideration; (b) the likelihood of the Qualified Bidder’s ability to close a transaction and the
timing thereof; (c) the net economic effect of any changes to the value to be received by each of
the Debtors’ estates from the transaction contemplated by the Bid Documents; and (d) the tax
consequences of such Qualified Bid. Two business days prior to the date of the Auction, the
Debtors shall notify the Stalking Horse Bidder and all Qualified Bidders as to which Qualified
Bid is the Starting Bid for the Auction with respect to the applicable assets. At such time, the

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Debtors shall also distribute copies of the Starting Bid to the Stalking Horse Bidder and each
Qualified Bidder.
IX.

No Qualified Bids.

If no Qualified Bids other than the Stalking Horse Bid are received by the Bid Deadline,
then the Debtors may cancel the Auction, and may decide, in the Debtors’ reasonable business
judgment, to designate the Stalking Horse Bid as the Successful Bid and pursue entry of an order
approving a Sale of the Catherines Assets to the Stalking Horse Bidder pursuant to the Stalking
Horse Purchase Agreement. The Debtors shall promptly file notice of any cancellation of the
Auction and designation of the Stalking Horse Bid as the Successful Bid with the Bankruptcy
Court.
X.

Auction.

If one or more Qualified Bids (other than the Stalking Horse Bid) are received by the Bid
Deadline with respect to any applicable assets, then the Debtors shall conduct the Auction with
respect to such assets. The Auction for the Catherines Assets shall commence on September 16,
2020, at 10:00 a.m. (prevailing Eastern Time) via videoconference or such other form of
remote communication arranged by counsel to the Debtors, or such later time or other place as
the Debtors determine, in which case the Debtors shall timely notify the Stalking Horse Bidder
and all other Qualified Bidders of such later time or other place, and file a notice of the change
on the Bankruptcy Court’s docket for these chapter 11 cases.
The Auction will be conducted in accordance with the following procedures
(the “Auction Procedures”):
a.

the Auction will be conducted openly;

b.

only Qualified Bidders shall be entitled to bid at the Auction;

c.

the Qualified Bidders shall appear at the Auction via videoconference or such
other form of remote communication or through duly authorized representatives;

d.

bidding shall begin with the Starting Bid;

e.

subsequent bids (each, an “Overbid”) shall be made in minimum increments
of $100,000;

f.

each Qualified Bidder will be permitted a reasonable time to respond to previous
bids at the Auction, as determined by the Debtors;

g.

during the course of the Auction, the Debtors shall, after submission of each
Overbid, promptly inform each Qualified Bidder of the terms of the previous bids
and inform each Qualified Bidder which Overbid(s) reflect, in the Debtors’ view,
in consultation with the Consultation Parties, the highest or otherwise best bid(s)
for the Catherines Assets;

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h.

the Auction will be transcribed to ensure an accurate recording of the bidding at
the Auction;

i.

each Qualified Bidder will be required to confirm on the record that it has not
engaged in any collusion with respect to the bidding or any Sale;

j.

each Qualified Bidder will be required to confirm that its bid is a good faith, bona
fide offer and it intends to consummate the Sale if selected as the Successful Bid;

k.

the Bankruptcy Court and the Debtors will not consider bids made after the
Auction has been closed; and

l.

notwithstanding anything herein to the contrary, the Debtors may at any time
choose to adjourn the Auction by announcement at the Auction. The Debtors
shall promptly file notice of such adjournment with the Bankruptcy Court.

At the Auction, the Debtors, in consultation with the Consultation Parties, shall have the
right to modify the Auction Procedures or adopt and announce additional Auction Procedures,
including, for example and without limitation, other Auction Procedures necessary for
the Debtors to consider any bids to purchase fewer than all of the Catherines Assets; provided,
however that the Debtors shall not modify the Auction Procedures such that the bidding is not
transparent to the Qualified Bidders.
Except as otherwise determined by the Debtors, in consultation with the Consultation
Parties, only (i) the Debtors, (ii) the Debtors’ secured creditors, (iii) the Office of the United
States Trustee, (iv) the Creditors’ Committee, (v) the Stalking Horse Bidder, (vi) any other
Qualified Bidders, (vii) any creditor of the Debtors that at least five business days prior to the
Auction delivers to Debtors’ counsel (by mail or email at the address or email address identified
hereinabove) a written request to attend the Auction, and (viii) the respective professionals of all
of the foregoing shall be entitled to attend the Auction; provided that (x) the Debtors reserve the
right to object to any request to attend the Auction made by the creditor pursuant to clause (vii)
immediately above, and (y) if the Debtors and such creditor are unable to consensually resolve
such objection promptly, the Debtors shall seek a teleconference with the Bankruptcy Court prior
to the Auction to adjudicate such objection.
XI.

Acceptance of the Successful Bid.

The Auction shall continue until (i) there is only one Qualified Bid or a combination of
Qualified Bids that the Debtors determine, in their reasonable business judgment and in a manner
consistent with the exercise of their fiduciary duties and outlined below in further detail, and in
consultation with the Consultation Parties, is the highest or otherwise best bid to purchase any or
all of the Catherines Assets (each, a “Successful Bid”), and (ii) the Debtors determine, in their
reasonable business judgment, in consultation with the Consultation Parties, that further bidding
is unlikely to result in a different Successful Bid or Successful Bids that would be reasonably
acceptable to the Debtors, at which point, the Auction will be closed.
When determining the highest or otherwise best Qualified Bid, as compared to other
Qualified Bids, the Debtors may consider the following factors in addition to any other factors
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that the Debtors deem appropriate: (a) the amount and nature of the total consideration; (b) the
likelihood of the Qualified Bidder’s ability to close a transaction and the timing thereof; (c) the
net economic effect of any changes to the value to be received by each of the Debtors’ estates
from the transaction contemplated by the Bid Documents; and (d) the tax consequences of such
Qualified Bid; and (e) any other consideration that may impact the Debtors’ stakeholders.
Any Qualified Bidder that submits a Successful Bid will be deemed
a “Successful Bidder” with respect to the Catherines Assets. The Debtors shall promptly file
notice of the Successful Bid and the Successful Bidder with the Bankruptcy Court. Following
conclusion of the Auction and selection of a Successful Bidder, the Debtors shall present the
results of the Auction at a hearing (the “Sale Hearing”) and shall seek Bankruptcy Court
approval to enter into a binding purchase agreement with the Successful Bidder on the terms of
the Successful Bid (the order approving such entry, the “Definitive Purchase Agreement Order”).
For the avoidance of doubt, the Definitive Purchase Agreement Order shall deem the Debtors’
selection of the Successful Bid final and, subject to the designation of the Back-Up Bid (defined
below), the Debtors shall not solicit and /or accept any further bids or offers to submit a bid after
such selection; provided that, notwithstanding anything to the contrary in these Bidding
Procedures, nothing in these Bidding Procedures shall require the board of directors, board of
managers, or such similar governing body of any Debtor to take or refrain from taking any action
that would be inconsistent with applicable law or its fiduciary obligations under applicable law.
Within one business day of the selection of the Successful Bidder, such Successful
Bidder (including both the Stalking Horse Bidder and Back-Up Bidder, if applicable) shall make
a cash deposit, in addition to its Good Faith Deposit, in an amount calculated on the basis of the
increased aggregate purchase price, submitted by wire transfer of immediately available funds to
an escrow account to be identified and established by the Debtors pursuant to a customary and
reasonable escrow agreement. Each Successful Bidder and the Debtors shall, as soon as
commercially reasonable and practicable, complete and sign all agreements, contracts,
instruments, or other documents evidencing and containing the terms upon which each such
Successful Bid was made.
XII.

Designation of Back-Up Bidder.

The Qualified Bidder with the second highest or otherwise best bid or combination of
bids (the “Back-Up Bid”) to purchase any or all of the Catherines Assets (the “Back-Up Bidder”)
will be determined by the Debtors at the conclusion of the Auction, in consultation with the
Consultation Parties, and will be announced at that time to all the Qualified Bidders participating
in the Auction. The Debtors’ selection of a Back-Up Bid shall be deemed final and the Debtors
shall not accept any further bids or offers to submit a bid after such selection. If for any reason a
Successful Bidder fails to consummate the purchase of such assets within the time permitted,
then the Back-Up Bidder will automatically be deemed to have submitted the Successful Bid for
such assets, and the Back-Up Bidder shall be deemed a Successful Bidder for such assets and
shall be required to consummate any Sale with the Debtors as soon as is reasonably practicable
without further order of the Bankruptcy Court, provided that the Debtors shall file a notice with
the Bankruptcy Court.

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XIII. Approval of the Sale.
A hearing to consider approval of the Sale (the “Sale Hearing”), is currently scheduled to
take place on September 21, 2020, at 11:00 a.m. (prevailing Eastern Time), before the Honorable
Kevin R Huennekens, at the United States Bankruptcy Court for the Eastern District of Virginia,
Richmond Division, 701 East Broad Street, 5th Floor, Richmond, Virginia, 23219 or conducted
consistent with the procedures established pursuant to the Bankruptcy Court’s standing orders
regarding remote hearings in bankruptcy cases due to the COVID-19 pandemic, all of which are
facilitated via Zoomgov.
At the Sale Hearing certain findings will be sought from the Bankruptcy Court regarding
the Auction, including, among other things, that: (1) the Auction was conducted, and
the Successful Bidder was selected, in accordance with the Bidding Procedures; (2) the Auction
was fair in substance and procedure; (3) the Successful Bid was a Qualified Bid as defined in
the Bidding Procedures; and (4) consummation of any Sale as contemplated by the Successful
Bid in the Auction will provide the highest or otherwise best offer for the Catherines Assets and
is in the best interests of the Debtors and their estates. The Sale Hearing may be continued to
a later date by the Debtors by sending notice prior to, or making an announcement at, the
Sale Hearing. No further notice of any such continuance will be required to be provided to
any party (including the Stalking Horse Bidder).
Objections to the Sale, any of the relief requested in the Motion, and entry of any order
approving the sale (the “Sale Order”) must (i) be in writing and specify the nature of such
objection; (ii) comply with the Bankruptcy Code, Bankruptcy Rules, Local Bankruptcy Rules,
and all orders of the Court; and (iii) be filed with the Court and served so as to by actually
received by the Debtors, counsel to the Debtors, and the Notice Parties by September 18, 2020 at
12:00 p.m. (prevailing Eastern Time).
XIV. Return of Good Faith Deposit.
The Good Faith Deposit of a Successful Bidder shall, upon consummation of any Sale, be
credited to the Purchase Price paid for the applicable Catherines Assets. If a Successful Bidder
fails to consummate any Sale, then the Good Faith Deposit shall be forfeited to, and retained
irrevocably by, the Debtors, and all parties in interest, and the Debtors specifically, reserve the
right to seek all available damages from the defaulting Successful Bidder.
The Good Faith Deposit of any Qualified Bidders that are not Successful Bidders or
Back-Up Bidders will be returned within five business days after the Auction or upon the
permanent withdrawal of the proposed Sale, and the Good Faith Deposit of any Back-Up Bidders
will be returned within five business days after the consummation of any Sale.
XV.

Reservation of Rights.

The Debtors reserve their rights to, subject to the terms of the Stalking Horse Purchase
Agreement, and in consultation with the Consultation Parties, modify these Bidding Procedures
in their reasonable business judgment and in a manner consistent with the exercise of their
fiduciary duties in any manner that will best promote the goals of the bidding process, or impose,
at or before the Auction, additional customary terms and conditions on the sale of the Catherines
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Assets and Interests, including, without limitation: (1) extending the deadlines set forth in
the Bidding Procedures; (2) adjourning the Auction without further notice; (3) adding procedural
rules that are reasonably necessary or advisable under the circumstances for conducting the
Auction; (4) canceling the Auction; (5) rejecting any or all Bids or Qualified Bids; and (6)
adjusting the applicable minimum overbid increment. The Debtors shall provide notice in
writing of any such modification to any Qualified Bidder, including the Stalking Horse Bidder.
For the avoidance of doubt, the Debtors reserve the right at any point prior to the selection of the
Successful Bidder to terminate the Sale processes contemplated hereunder with respect to any or
all of the Catherines Assets.
All parties expressly reserve all of their rights (and do not waive any such rights) to seek
Bankruptcy Court relief with regard to the Auction, the Bidding Procedures, the Sale, and any
related items (including, if necessary, to seek an extension of the Bid Deadline).
XVI. Consent to Jurisdiction.
All Qualified Bidders at the Auction will be deemed to have consented to the core
jurisdiction of the Bankruptcy Court and waived any right to a jury trial in connection with any
disputes relating to the Sale, the Auction and the construction and enforcement of these Bidding
Procedures, and/or any written indications of interest, Preliminary Bid Documents, or the Bid
Documents, as applicable, and consented to the entry of a final order or judgment in any way
related to these Bidding Procedures, the bid process, the Auction, the Sale Hearing, or the
construction and enforcement of any agreement or any other document relating to a Sale if it is
determined that the Bankruptcy Court would lack Article III jurisdiction to enter such a final
order or judgment absent the consent of the parties.
Any parties raising a dispute relating to these Bidding Procedures must request that such
dispute be heard by the Bankruptcy Court on an expedited basis.
XVII. Fiduciary Out.
Notwithstanding anything to the contrary in these Bidding Procedures, nothing in these
Bidding Procedures or the Bidding Procedures Order shall require a Debtor or the board of
directors, board of managers, or similar governing body of a Debtor to take any action or to
refrain from taking any action related to any sale transaction or with respect to these Bidding
Procedures, to the extent such Debtor, board of director, board of managers, or such similar
governing body reasonably determines in good faith, in consultation with counsel, that taking or
failing to take such action, as applicable, would be inconsistent with applicable law or its
fiduciary obligations under applicable law.
XVIII. Alternative Proposals.
Further, notwithstanding anything to the contrary in these Bidding Procedures, through
the acceptance of the Successful Bid, the Debtors and their respective directors, officers,
employees, investment bankers, attorneys, accountants, consultants, and other advisors or
representatives shall have the right to: (a) consider, respond to, and facilitate alternate proposals
for sales or other restructuring transactions involving any or all of the Catherines Assets (each
an “Alternate Proposal”); (b) subject to the terms and conditions of these Bidding Procedures,
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provide access to non-public information concerning the Debtors to any entity or enter into
confidentiality agreements or nondisclosure agreements with any entity; (c) maintain or continue
discussions or negotiations with respect to Alternate Proposals; (d) otherwise cooperate with,
assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternate
Proposals; and (e) enter into or continue discussions or negotiations with holders of claims
against or equity interests in a Debtor, any other party in interest in these chapter 11 cases
(including the Creditors’ Committee and the United States Trustee), or any other entity regarding
Alternate Proposals.
XIX. Notice Parties.
Information that must be provided to the “Notice Parties” under these Bidding Procedures
must be provided to the following parties or their respective counsel, if known (collectively,
the “Notice Parties”): (a) the United States Trustee for the Eastern District of Virginia; (b) the
holders of the 50 largest unsecured claims against the Debtors (on a consolidated basis); (c) the
agents under the Debtors’ prepetition secured facilities and counsel thereto; (d) the DIP Agents
and their respective counsel thereto; (e) the United States Attorney’s Office for the Eastern
District of Virginia; (f) the Internal Revenue Service; (g) the office of the attorneys general for
the states in which the Debtors operate; (h) the Securities and Exchange Commission; (i) the
Stalking Horse Bidder (and counsel to the Stalking Horse Bidder); (j) all parties who have
expressed a written interest in some or all of the Catherines Assets; (k) all known holders of
liens, encumbrances, and other claims secured by the Catherines Assets; (l) each governmental
agency that is an interested party with respect to the Sale and transactions proposed thereunder;
(m) the Creditors’ Committee; and (n) any party that has requested notice pursuant to
Bankruptcy Rule 2002.
XX.

Consultation Rights of the Consultation Parties.

The Debtors will consult with the Consultation Parties (a) with respect to any action,
evaluation, or determination by the Debtors that is expressly contemplated or authorized by these
Bidding Procedures, or (b) to the extent not explicitly required by these Bidding Procedures, in
any event before making any material decision with respect to the Sale or Auction.

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Schedule 1
1RWLFH of Auction and Sale Hearing

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KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
-andJohn R. Luze (admitted pro hac vice)
300 North LaSalle
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200

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COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice in
DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899

Proposed Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
In re:
ASCENA RETAIL GROUP, INC., et al.,5
Debtors.

)
)
)
)
)
)
)

Chapter 11
Case No. 20-33113 (KRH)
(Jointly Administered)

NOTICE OF SALE BY AUCTION AND SALE HEARING
PLEASE TAKE NOTICE that on [__], 2020, the United States Bankruptcy Court for
the Eastern District of Virginia (the “Court”) entered the Order (I) Approving the Stalking Horse
Protections, (II) Approving Bidding Procedures for the Sale of the Catherines Assets, and
(III) Approving Contract Assumption and Assignment Procedures [Docket No. [__]]
(the “Bidding Procedures Order”)6 in the chapter 11 cases of the above-captioned debtors and
debtors in possession (collectively, the “Debtors”).
PLEASE TAKE FURTHER NOTICE that the Debtors are soliciting offers for the
purchase of the Assets consistent with the bidding procedures (the “Bidding Procedures”)
approved by the Court by Bidding Procedures Order. All interested bidders should carefully
5

A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’
claims and noticing agent at http://cases.primeclerk.com/ascena. The location of Debtor Ascena Retail Group,
Inc.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 933 MacArthur
Boulevard, Mahwah, New Jersey 07430.

6

Capitalized terms used but not defined in this notice have the meanings given to them in the Bidding Procedures
Order.

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read the Bidding Procedures and Bidding Procedures Order. To the extent that there are any
inconsistencies between this notice and the Bidding Procedures or Bidding Procedures Order, the
Bidding Procedures or Bidding Procedures Order, as applicable, shall govern in all respects.
PLEASE TAKE FURTHER NOTICE that, if the Debtors receive qualified competing
bids within the requirements and time frame specified by the Bidding Procedures, the Debtors
will conduct an auction (the “Auction”) of the Assets on September 16, 2020 at 10:00 a.m.
(prevailing Eastern Time) via videoconference or such other form of remote communication
arranged by counsel to the Debtors.
PLEASE TAKE FURTHER NOTICE that the Debtors will seek approval of the Sale
at a hearing scheduled to commence on or before September 21, 2020, at 11:00 a.m.
(prevailing Eastern Time) (the “Sale Hearing”) before the Honorable Kevin R Huennekens, at
the United States Bankruptcy Court for the Eastern District of Virginia, Richmond Division, 701
East Broad Street, 5th Floor, Richmond, Virginia, 23219 or conducted consistent with the
procedures established pursuant to the Bankruptcy Court’s standing orders regarding remote
hearings in bankruptcy cases due to the COVID-19 pandemic, all of which are facilitated via
Zoomgov
PLEASE TAKE FURTHER NOTICE that, except as otherwise set forth in the Bidding
Procedures Order and objections to consummation or approval of the Sale (a) be in writing;
(b) conform to the applicable provisions of the Bankruptcy Rules and the Local Bankruptcy
Rules; (c) state with particularity the legal and factual bases for the objection and the specific
grounds therefor; and (d) be filed with the Court and served so as to be actually received on or
before September 18, 2020 at 12:00 p.m. (prevailing Eastern Time) by the following parties:
(i) the Debtors, Ascena Group Retail, Inc., 933 MacArthur Boulevard, Mahwah, New Jersey
07430, Attn: Michael Veitenheimer; (ii) proposed counsel to the Debtors, Kirkland & Ellis LLP,
300 North LaSalle, Chicago, Illinois 60654, Attn: John R. Luze and Jeff Michalik and Kirkland
& Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attn: Steven N. Serajeddini,
P.C.; (iii) proposed co-counsel to the Debtors, Cooley LLP, 1299 Pennsylvania Avenue, NW,
Suite 700, Washington, D.C. 20004-2400, Attn: Cullen D. Speckhart and Olya Antle; (iv)
counsel to the ABL agent, (a) Morgan Lewis & Bockius LLP, One Federal Street, Boston,
Massachusetts 02110, Attn: Matthew F. Furlong, Julia Frost-Davies and Christopher L. Carter,
and (b) Hunton Andrews Kurth LLP, Riverfront Plaza, East Tower, 951 East Byrd Street,
Richmond, Virginia 23219, Attn: Tyler P. Brown; (v) the United States Trustee for the Eastern
District of Virginia, 701 East Broad Street, Suite 4304, Richmond, Virginia 23219,
Attn: Kathryn Montgomery; (vi) proposed counsel to the Creditors’ Committee, Pachulski Stang
Ziehl & Jones LLP, 780 Third Avenue, 34th Floor, New York, New York 10017, Attn: Robert
Feinstein, Bradford Sandler, and Shirley Cho; (vii) counsel to the term loan ad hoc group,
Milbank LLP, 55 Hudson Yards, New York, NY 1001, Attn: Evan R. Fleck, Esq.; and (viii)
counsel to the Stalking Horse Bidder, Halperin Battaglia Benzija, LLP, 40 Wall Street, 37th
Floor, New York, New York 10005, Attn: Julie Dyas Goldberg, Esq.
CONSEQUENCES OF FAILING TO TIMELY MAKE AN OBJECTION
ANY PARTY OR ENTITY WHO FAILS TO TIMELY MAKE AN OBJECTION
TO THE SALE ON OR BEFORE THE SALE OBJECTION DEADLINE IN

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ACCORDANCE WITH THE BIDDING PROCEDURES ORDER SHALL BE FOREVER
BARRED FROM ASSERTING ANY OBJECTION TO THE SALE, INCLUDING WITH
RESPECT TO THE TRANSFER OF THE DEBTORS’ ASSETS FREE AND CLEAR OF
ALL LIENS, CLAIMS, ENCUMBRANCES, AND OTHER INTERESTS, EXCEPT AS
SET FORTH IN THE APPLICABLE PURCHASE AGREEMENT.
Richmond, Virginia
Dated: August 25, 2020
/s/ Cullen D. Speckhart
COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice
in DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899
Email:
cspeckhart@cooley.com
oantle@cooley.com-

KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
Email:
edward.sassower@kirkland.com
steven.serajeddini@kirkland.com
-andJohn R. Luze (admitted pro hac vice)
300 North LaSalle Street
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200
Email:
john.luze@kirkland.com

Proposed Co-Counsel to the Debtors and Debtors in Possession

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Exhibit A-2
Stalking Horse Purchase Agreement

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EXECUTION VERSION

___________________________________________________________________________ 
ASSET PURCHASE AGREEMENT
DATED AS OF JULY 2 , 2020
BY AND BETWEEN
CITY CHIC COLLECTIVE USA INCORPORATED, AS PURCHASER,
AND
ASCENA RETAIL GROUP, INC., AS THE COMPANY,
AND
THE OTHER SELLERS NAMED HEREIN 
___________________________________________________________________________

{00313598.9 / 1218-003 }KE 69660055.10

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TABLE OF CONTENTS
Page
Article I

1.1
1.2
1.3
1.4
1.5

Purchase and Sale of the Acquired Assets;
Assumption of Assumed Liabilities
Purchase and Sale of the Acquired Assets...................................................6
Excluded Assets ...........................................................................................7
Assumption of Certain Liabilities................................................................9
Excluded Liabilities ...................................................................................10
Assumption/Rejection of Certain Contracts ..............................................10
Article II

2.1
2.2
2.3
2.4
2.5
2.6
2.7

CONSIDERATION; CLOSING
Consideration; Payment .............................................................................12
Deposit .......................................................................................................12
Purchase Price Adjustment ........................................................................13
Closing .......................................................................................................15
Closing Deliveries by Sellers.....................................................................15
Closing Deliveries by Purchaser................................................................16
Withholding ...............................................................................................16
Article III

3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13

REPRESENTATIONS AND WARRANTIES OF SELLERS
Organization and Qualification..................................................................17
Authorization of Agreement ......................................................................17
Conflicts; Consents ....................................................................................17
Title to Properties.......................................................................................18
Insurance ....................................................................................................18
Contracts ....................................................................................................18
Litigation....................................................................................................19
Permits; Compliance with Laws ................................................................19
Intellectual Property...................................................................................19
Data Privacy...............................................................................................20
Brokers.......................................................................................................20
Inventory ....................................................................................................21
Customer Data ...........................................................................................21
Article IV

4.1
4.2

REPRESENTATIONS AND WARRANTIES OF PURCHASER
Organization and Qualification..................................................................21
Authorization of Agreement ......................................................................21

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4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10

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Conflicts; Consents ....................................................................................22
Financing....................................................................................................22
Brokers.......................................................................................................22
No Litigation..............................................................................................22
Certain Arrangements ................................................................................23
Customer Data ...........................................................................................23
No Additional Representations or Warranties ...........................................23
No Outside Reliance ..................................................................................23
Article V

5.1
5.2
5.3
5.4
5.5

BANKRUPTCY COURT MATTERS
Bankruptcy Actions ...................................................................................24
Cure Costs..................................................................................................25
The Sale Order ...........................................................................................26
Bid Protections...........................................................................................26
Approval ....................................................................................................27
Article VI

6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12

COVENANTS AND AGREEMENTS
Conduct of Business of Sellers ..................................................................27
Access to Information ................................................................................27
Regulatory Approvals ................................................................................30
Reasonable Efforts; Cooperation ...............................................................30
Notification of Certain Matters..................................................................31
Further Assurances.....................................................................................31
Insurance Matters.......................................................................................31
Receipt of Misdirected Assets ...................................................................32
Acknowledgment by Purchaser .................................................................32
Use of Customer Data after Closing ..........................................................34
Wind Down License ..................................................................................34
Non-Solicitation.........................................................................................34
Article VII

7.1
7.2
7.3
7.4

CONDITIONS TO CLOSING
Conditions Precedent to the Obligations of Purchaser and Sellers............35
Conditions Precedent to the Obligations of Purchaser ..............................35
Conditions Precedent to the Obligations of the Company.........................36
Waiver of Conditions.................................................................................36
Article VIII

8.1
8.2

Termination
Termination of Agreement.........................................................................36
Effect of Termination.................................................................................38

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Article IX

9.1
9.2
9.3
9.4
9.5

TAXES
Transfer Taxes ...........................................................................................38
Allocation of Purchase Price......................................................................38
Cooperation................................................................................................39
Preparation of Tax Returns and Payment of Taxes ...................................39
Wage Reporting .........................................................................................39
Article X

10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19

MISCELLANEOUS
Non-Survival of Representations and Warranties and Certain Covenants;
Certain Waivers .........................................................................................39
Expenses ....................................................................................................40
Notices .......................................................................................................40
Binding Effect; Assignment.......................................................................42
Amendment and Waiver ............................................................................42
Third Party Beneficiaries ...........................................................................42
Non-Recourse ............................................................................................42
Severability ................................................................................................42
Construction...............................................................................................43
Schedules ...................................................................................................43
Complete Agreement .................................................................................43
Specific Performance .................................................................................44
Jurisdiction and Exclusive Venue..............................................................44
Governing Law; Waiver of Jury Trial .......................................................45
No Right of Set-Off ...................................................................................45
Counterparts and PDF................................................................................45
Publicity .....................................................................................................46
Bulk Sales Laws.........................................................................................46
Fiduciary Obligations.................................................................................46
Article XI

11.1
11.2
11.3

ADDITIONAL DEFINITIONS AND INTERPRETIVE MATTERS
Certain Definitions.....................................................................................47
Index of Defined Terms .............................................................................53
Rules of Interpretation ...............................................................................54

INDEX OF EXHIBITS
EXHIBIT A

FORM OF BILL OF SALE AND ASSIGNMENT AND ASSUMPTION
AGREEMENT

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EXHIBIT B

FORM OF IP ASSIGNMENT AGREEMENT

EXHIBIT C

FORM OF TRANSITION SERVICES AGREEMENT

EXHIBIT D

FORM OF BIDDING PROCEDURES ORDER

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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of July 2 , 2020,
by and among City Chic Collective USA Incorporated, a Delaware Corporation (“Purchaser”),
Ascena Retail Group, Inc., a Delaware corporation (the “Company”), and the Subsidiaries of the
Company that are indicated on the signature pages attached hereto (together with the Company,
each a “Seller” and collectively “Sellers”). Purchaser and Sellers are referred to herein individually
as a “Party” and collectively as the “Parties.” Capitalized terms used herein shall have the
meanings set forth herein or in Article XI.
WHEREAS, the Company and the other Sellers filed voluntary petitions for relief under
chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532
(the “Bankruptcy Code”), in the United States Bankruptcy Court for the Eastern District of
Virginia (Richmond Division) (the “Bankruptcy Court”), which chapter 11 cases will be jointly
administered for procedural purposes (collectively, the “Bankruptcy Case”); and
WHEREAS, Purchaser desires to purchase assets related to the Sellers’ E-Commerce
Business, specifically the Acquired Assets, and assume the Assumed Liabilities from Sellers, and
Sellers desire to sell, convey, assign, and transfer to Purchaser the Acquired Assets together with
the Assumed Liabilities, in a sale authorized by the Bankruptcy Court pursuant to, inter alia,
sections 105, 363 and 365 of the Bankruptcy Code, in accordance with the other applicable
provisions of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure and the local
rules for the Bankruptcy Court, all on the terms and subject to the conditions set forth in this
Agreement and subject to entry of the Sale Order.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants, and agreements set forth herein, and intending to be legally bound hereby,
Purchaser and Sellers hereby agree as follows.
ARTICLE I
PURCHASE AND SALE OF THE ACQUIRED ASSETS;
ASSUMPTION OF ASSUMED LIABILITIES
1.1 
Purchase and Sale of the Acquired Assets. Pursuant to sections 105, 363 and 365
of the Bankruptcy Code, on the terms and subject to the conditions set forth herein and in the Sale
Order, at the Closing, Sellers shall sell, transfer, assign, convey, and deliver to Purchaser, and
Purchaser shall purchase, acquire, and accept from Sellers, all of Sellers’ right, title and interest in
and to the Acquired Assets, free and clear of all Encumbrances other than Permitted
Encumbrances. “Acquired Assets” means the following assets of Sellers (but excluding in all cases
the Excluded Assets):
(a) 
all Contracts listed on Schedule 1.1(a), to the extent assignable under 
applicable Law (collectively, the “Assigned Contracts”);
(b) 
(i) copyright registrations set forth on Schedule 1.1(b)(i); (ii) internet
domain name registrations and social media accounts set forth on Schedule 1.1(b)(ii); (iii) (A)
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patents and patent applications listed on Schedule 1.1(b)(iii) (all such patents and patent
applications, collectively, “Scheduled Patents”); and (B) reissues, reexaminations, continuations,
continuations in part (only with respect to subject matter disclosed in the Scheduled Patents),
divisionals, requests for continuing examinations or continuing prosecution applications, or design
registrations of any Scheduled Patent; (iv) Trademark registrations and applications for registration
set forth on Schedule 1.1(b)(iv) (the “Transferred Trademarks”), including, to the extent in Sellers’
possession, the historical trademark file for each; and (v) the name “Catherines” or any derivation
thereof (the assets described in the foregoing subclauses (i) through (v), collectively, the
“Transferred Intellectual Property”);
(c)
all rights to collect royalties and proceeds in connection with the
Transferred Intellectual Property with respect to the period from and after the Closing, all rights
to sue and recover for past, present and future infringements, dilutions, misappropriations of, or
other conflicts with, the Transferred Intellectual Property and any and all corresponding rights that,
now or hereafter, may be secured throughout the world with respect to the Transferred Intellectual
Property;
(d)
all Inventory of Sellers that is held or otherwise designated exclusively for
sale via the E-Commerce Business (the “Acquired Inventory”);
(e)
to the extent transferable under applicable Law (including as an asset that is
part of an acquisition, bankruptcy, or other transaction under the exemption from the definition of
“sale” set forth in California Civ. Code Section 1798.140(t)(2)(D)) and Sellers’ privacy policy, the
Customer Data (for clarity, it is understood and agreed by Purchaser that Sellers and their Affiliates
may have, now or in the future, certain data, pertaining to current, former or prospective customers
of one or more of such Sellers or Affiliates that is similar or identical to certain Customer Data
(e.g., an individual may be a customer or prospective customer of both the E-Commerce Business
and Sellers’ or one or more of their Affiliates’ other businesses) and nothing in this Agreement
shall be deemed to transfer, assign or convey any rights to Purchaser with respect to such data
(such data of Sellers and Affiliates of Sellers being referred to as “Other Data”) or to in any way
restrict the use of any Other Data by any Seller or Affiliates of Sellers (or by their successors or
assigns));
(f)
all Documents (except as expressly excluded in Section 1.2 hereof) to the
extent related to the E-Commerce Business, and all of the following Documents to the extent they
relate to the Catherines brick-and-mortar stores and E-Commerce Business: (i) all customer
records and relevant transaction history for five (5) years or more including credit card customers
and relevant history; (ii) all web analytics data for the last two (2) years; (iii) all customer opt-in
phone numbers for text messaging program; and (iv) all buyer information for mobile application
users; and
(g)

all assets listed on Schedule 1.1(g) owned by Sellers.

1.2
Excluded Assets. Notwithstanding anything to the contrary in this Agreement, in
no event shall Sellers be deemed to sell, transfer, assign, or convey, and Sellers shall retain all
right, title and interest to, in and under all assets, properties, interests and rights of such Sellers

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that are not expressly included in the Acquired Assets (collectively, the “Excluded Assets”),
including the following:
(a)
all assets expressly excluded from the definition of Acquired Assets
pursuant to Section 1.1;
(b)
all Cash and Cash Equivalents, all bank accounts, and all deposits
(including maintenance deposits, customer deposits, and security deposits for rent, electricity,
telephone or otherwise) or prepaid or deferred charges and expenses, including all lease and rental
payments, that have been prepaid by any Seller, and any retainers or similar amounts paid to
Advisors or other professional service providers;
(c)

all Contracts of Sellers other than the Assigned Contracts (the “Excluded

Contracts”);
(d)
all Documents (i) to the extent they relate to any of the Excluded Assets or
Excluded Liabilities (including information stored on the computer systems, data networks or
servers of any Seller); (ii) that are Sellers’ financial accounting Documents, all minute books,
organizational documents, stock registers and such other books and records of any Seller as
pertaining to ownership, organization or existence of such Seller, Tax Returns (and any related
work papers) and any other Tax information or records, corporate seal, checkbooks, and canceled
checks; (iii) that any Seller is required by Law to retain, provided that, to the extent not prohibited
by applicable Law, Purchaser shall have the right to make copies of any portions of such
Documents;
(e)
all Documents prepared or received by any Seller or any of its Affiliates in
connection with the sale of the Acquired Assets, this Agreement, or the transactions contemplated
hereby, including (i) all records and reports prepared or received by Sellers, any of their respective
Affiliates or Advisors in connection with the sale of the Acquired Assets and the transactions
contemplated hereby, including all analyses relating to the business of Purchaser or its Affiliates
so prepared or received; (ii) all bids and expressions of interest received from third parties with
respect to the acquisition of any of Sellers’ businesses or assets; or (iii) all privileged materials,
documents and records of a Seller or any of its Affiliates; and (iv) copies of documents, materials
and data to the extent related to the Acquired Assets prior to the Closing Date;
(f)
all current and prior insurance policies of any of Sellers, including for the
avoidance or doubt all director and officer insurance policies, and all rights and benefits of any
nature of Sellers with respect thereto, including all insurance recoveries thereunder and rights to
assert claims with respect to any such insurance recoveries;
(g)
all membership interests or other equity interests of any Seller or any of
their respective Subsidiaries or securities convertible into, exchangeable, or exercisable for any
such membership interests or other equity interests;
(h)
the sponsorship of all benefits plans, and any right, title or interest in any of
the assets thereof or relating thereto;

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(i)
(i) all preference or avoidance claims or actions arising under the
Bankruptcy Code or applicable Law, (ii) all other rights, claims, causes of action, rights of
recovery, rights of set-off, and rights of recoupment as of the Closing of any Seller, in each case,
arising out of or relating to events occurring on or prior to the Closing Date, and (iii) all claims
that any of Sellers may have against any Person with respect to any other Excluded Assets or any
Excluded Liabilities;
(j)
Sellers’ claims or other rights under this Agreement, including the Purchase
Price hereunder, or any agreement, certificate, instrument, or other document executed and
delivered between any Seller and Purchaser in connection with the transactions contemplated
hereby, or any other agreement between any Seller and Purchaser entered into on or after the date
hereof;
(k)

all Tax Refunds and Tax attributes or any rights with respect thereto;

(l)

all real estate and all interests in real estate;

(m)
except as set forth in Section 1.1(c), all demands, allowances, refunds,
rebates (including any vendor or supplier rebates), rights (including under or with respect to
express or implied guarantees, warranties, representations, covenants and indemnities), claims,
counterclaims, defenses, credits, causes of action, rights of set off, rights of recovery or rights of
recoupment relating to or arising against suppliers, vendors, merchants, manufacturers and
counterparties to leases, licenses or any Contract, arising out of or relating to events occurring on
or prior to the Closing Date;
(n)

Other Data; and

(o)

the properties and assets set forth on Schedule 1.2(o).

1.3
Assumption of Certain Liabilities. On the terms and subject to the conditions set
forth herein and in the Sale Order, effective as of the Closing, Purchaser shall irrevocably assume
from Sellers (and from and after the Closing pay, perform, discharge, or otherwise satisfy in
accordance with their respective terms), and Sellers shall irrevocably convey, transfer, and assign
to Purchaser, only the following Liabilities, without duplication and only to the extent not paid
prior to the Closing (collectively, the “Assumed Liabilities”):
(a)
all Liabilities of Sellers under the Assigned Contracts that become due from
and after the Closing;
(b)
all cure costs required to be paid pursuant to section 365 of the Bankruptcy
Code in connection with the assumption and assignment of the Assigned Contracts (the “Cure
Costs”);
(c)

all Gift Card Liabilities;

(d)

the Liabilities in connection with the Customer Loyalty Programs;

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(e)
all Liabilities arising out of the ownership or operation of the Acquired
Assets by Purchaser from and after the Closing Date;
(f)
all Liabilities, including, for the avoidance of doubt, all Taxes other than
income Taxes of Sellers, with respect to the Acquired Assets attributable to any Post-Closing Tax
Period, including all Liabilities for Transfer Taxes;
(g)
all Liabilities agreed to be assumed by Purchaser or for which Purchaser has
agreed to be responsible, in each case pursuant to this Agreement; and
(h)

all Liabilities set forth on Schedule 1.3(h).

1.4
Excluded Liabilities. Purchaser shall not assume, be obligated to pay, perform or
otherwise discharge or in any other manner be liable or responsible for any Liabilities of, or Action
against, Sellers or relating to the Acquired Assets, of any kind or nature whatsoever, whether
absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due,
known or unknown, currently existing or hereafter arising, matured or unmatured, direct or
indirect, and however arising, whether existing on the Closing Date or arising thereafter as a result
of any act, omission, or circumstances taking place prior to the Closing, other than the Assumed
Liabilities (all such Liabilities that are not Assumed Liabilities being referred to collectively herein
as the “Excluded Liabilities”).
1.5

Assumption/Rejection of Certain Contracts.

(a)
Assumption and Assignment of Executory Contracts. Sellers shall provide
timely and proper written notice of the motion seeking entry of the Sale Order to all parties to any
executory Contracts or unexpired leases to which any Seller is a party that are Assigned Contracts
and take all other actions reasonably necessary to cause such Contracts to be assumed by Sellers
and assigned to Purchaser pursuant to section 365 of the Bankruptcy Code to the extent that such
Contracts are Assigned Contracts at Closing. The Sale Order shall provide that as of and
conditioned on the occurrence of the Closing, Sellers shall assign or cause to be assigned to
Purchaser, as applicable, the Assigned Contracts, each of which shall be identified by the name or
appropriate description and date of the Assigned Contract (if available), the other party to the
Assigned Contract and the address of such party for notice purposes, all included on an exhibit
attached to either a notice filed in connection with the motion for approval of the Sale Order or a
separate motion for authority to assume and assign such Assigned Contracts. Such exhibit shall
also set forth Sellers’ good faith estimate of the amounts necessary to cure any defaults under each
of the Assigned Contracts as determined by Sellers based on Sellers’ books and records or as
otherwise determined by the Bankruptcy Court. At the Closing, Sellers shall, pursuant to the Sale
Order and the Assignment and Assumption Agreement(s), assume and assign to Purchaser (the
consideration for which is included in the Purchase Price), all Assigned Contracts that may be
assigned by any such Seller to Purchaser pursuant to sections 363 and 365 of the Bankruptcy Code,
subject to adjustment pursuant to Section 1.5(b). At the Closing, Purchaser shall (i) pay all Cure
Costs and (ii) assume, and thereafter in due course and in accordance with its respective terms pay,
fully satisfy, discharge and perform all of the obligations under each Assigned Contract pursuant
to section 365 of the Bankruptcy Code.

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(b)
Excluding or Adding Assigned Contracts Prior to Closing. Purchaser shall
have the right to notify Sellers in writing of any Assigned Contract (other than any purchase orders)
that it does not wish to assume or a Contract to which any Seller is a party that is used exclusively
in the E-Commerce Business or with respect to the Catherines brick-and-motar retail stores that
Purchaser wishes to add as an Assigned Contract up to one (1) Business Day prior to the Closing
Date, and (i) any such previously considered Assigned Contract that Purchaser no longer wishes
to assume shall be automatically deemed removed from the Schedules related to Assigned
Contracts and automatically deemed added to the Schedules related to Excluded Contracts, in each
case, without any adjustment to the Purchase Price, and (ii) any such previously considered
Excluded Contract that Purchaser wishes to assume as an Assigned Contract shall be automatically
deemed added to the Schedules related to Assigned Contracts, automatically deemed removed
from the Schedules related to Excluded Contracts, and assumed by Sellers to sell and assign to
Purchaser, in each case, without any adjustment to the Purchase Price. Purchaser shall be solely
responsible for the payment, performance and discharge when due of the Liabilities under the
Assigned Contracts arising or that are otherwise payable from the time of and after the Closing.
(c)
Non-Assignment. Notwithstanding the foregoing, a Contract shall not be an
Assigned Contract hereunder and shall not be assigned to, or assumed by, Purchaser to the extent
that such Contract (i) is rejected by a Seller or terminated by a Seller or any other party thereto, or
terminates or expires by its terms, on or prior to such time as it is to be assumed by Purchaser as
an Assigned Contract hereunder and is not continued or otherwise extended upon assumption or
(ii) requires a Consent or Governmental Authorization (other than, and in addition to, that of the
Bankruptcy Court) in order to permit the sale or transfer to Purchaser of the applicable Seller’s
rights under such Contract, and such Consent or Governmental Authorization has not been
obtained prior to such time as it is to be assumed by Purchaser as an Assigned Contract hereunder.
In addition, no Acquired Asset shall be assigned to, or assumed by, Purchaser to the extent that
such Acquired Asset requires a Consent or Governmental Authorization (other than, and in
addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to Purchaser of the
applicable Seller’s rights with respect to such Acquired Asset, and no such Consent or
Governmental Authorization has been obtained prior to the Closing. In the event that any Acquired
Asset is deemed not to be assigned pursuant to clause (ii) of the first sentence of this Section 1.5(b)
or the immediately preceding sentence, the Closing shall nonetheless take place subject to the
terms and conditions set forth herein and, thereafter, through the earlier of such time as such
Consent or Governmental Authorization is obtained and six (6) months following the Closing (or
the remaining term of any such Acquired Asset that is a Contract or the closing of the Bankruptcy
Case, if shorter), Sellers and Purchaser shall (A) use reasonable best efforts to secure such Consent
or Governmental Authorization as promptly as practicable after the Closing (which reasonable best
efforts shall not require any payment or other consideration from the Sellers or Purchaser (other
than the Cure Costs, which shall be the responsibility of Purchaser) and (B) cooperate in good faith
in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser,
including subcontracting, licensing, or sublicensing to Purchaser any or all of any Seller’s rights
and obligations with respect to any such Acquired Asset, under which (1) Purchaser shall obtain
(without infringing upon the legal rights of such third party or violating any Law) the economic
rights and benefits (net of the amount of any related Tax costs imposed on Sellers or their
respective Affiliates) under such Acquired Asset with respect to which the Consent and/or
Governmental Authorization has not been obtained and (2) Purchaser shall assume any related
burden and obligation (including performance) with respect to such Acquired Asset. Upon
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satisfying any requisite Consent or Governmental Authorization requirement applicable to such
Acquired Asset after the Closing, such Acquired Asset shall promptly be transferred and assigned
to Purchaser in accordance with the terms of this Agreement, the Sale Order and the Bankruptcy
Code.
ARTICLE II
CONSIDERATION; CLOSING
2.1

Consideration; Payment.

(a)
The aggregate consideration (collectively, the “Purchase Price”) to be paid
by Purchaser for the purchase of the Acquired Assets shall be: (i) the assumption of Assumed
Liabilities and (ii) the payment in cash of an amount equal to the sum of (A) $16,000,000 (the
“Base Amount”), plus (B) the Inventory Surplus, minus (C) the Inventory Deficit (such sum, the
“Cash Purchase Price”).
(b)
At the Closing, (i) Purchaser shall pay to the Sellers an amount equal to (A)
the sum of (x) the Base Amount, plus (y) the Estimated Inventory Surplus, minus (z) the Estimated
Inventory Deficit (such sum, the “Estimated Cash Purchase Price”), minus (B) the Deposit (the
“Closing Date Payment”), and (ii) the Deposit shall be credited to the Estimated Cash Purchase
Price. The Closing Date Payment and any payment required to be made pursuant to any other
provision hereof shall be made in cash by wire transfer of immediately available funds to such
bank account as shall be designated in writing by the applicable Party to (or for the benefit of)
whom such payment is to be made at least two (2) Business Days prior to the date such payment
is to be made.
2.2

Deposit.

(a)
Purchaser has, on or prior to the date hereof, made an earnest money
deposit, by wire transfer of immediately available funds, into the escrow account identified and
established by Sellers pursuant to the bid procedures set forth in the Bidding Procedures Order in
the amount of ten percent (10%) of the Base Amount (the “Deposit”). The Deposit shall not be
subject to any lien, attachment, trustee process, or any other judicial process of any creditor of any
of Sellers or Purchaser and shall be applied against payment of the Estimated Cash Purchase Price
on the Closing Date.
(b)
If this Agreement has been terminated by the Company pursuant to
Section 8.1(g) or 8.1(i) (or pursuant to Section 8.1(b) or 8.1(c), in each case in circumstances
where the Company would also be entitled to terminate this Agreement pursuant to
Section 8.1(g)or 8.1(i)), then the Company shall retain the Deposit together with all received
investment income, if any.
(c)
If this Agreement has been terminated by any Party, other than as
contemplated by Section 2.2(b), then the Deposit, together with all received investment income, if
any, shall be returned to Purchaser within five (5) Business Days after such termination.

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(d)
The Parties agree that the Company’s right to retain the Deposit, as set forth
in Section 2.2(b), is not a penalty, but rather is liquidated damages in a reasonable amount that will
compensate Sellers for their respective efforts and resources expended and the opportunities
foregone while negotiating this Agreement and in reliance on this Agreement and on the
expectation of the consummation of the transactions contemplated hereby, which amount would
otherwise be impossible to calculate with precision.
(e)
2.3

If the Closing occurs, the Deposit shall be transferred to the Company.

Purchase Price Adjustment.

(a)
Estimated Purchase Price. The Sellers shall, at least two (2) Business Days
prior to the Closing Date, prepare and deliver to Purchaser a written statement (the “Estimated
Inventory Statement”) setting forth a good faith estimate of each of the Closing Inventory Amount,
the Inventory Surplus (the “Estimated Inventory Surplus”), the Inventory Deficit (the “Estimated
Inventory Deficit”), and the resulting Estimated Cash Purchase Price. All calculations relating to
the Estimated Inventory Statement, the Purchaser Closing Inventory Statement, and the amounts
set forth therein, shall be made and prepared in accordance with the applicable definitions and
terms of this Agreement and, to the extent not inconsistent with such definitions and terms, the
past procedures, practices, methodologies and standards used by the Sellers in maintaining their
financial books and records and preparing their financial statements.
(b)
Post-Closing Adjustment. Not later than fifteen (15) days following the
Closing Date, Purchaser shall prepare and deliver to the Sellers a statement certified by a duly
authorized officer of Purchaser (the “Purchaser Closing Inventory Statement”) setting forth in
reasonable detail Purchaser’s good faith calculation of the Closing Inventory Amount, the
Inventory Surplus, the Inventory Deficit and the resulting Cash Purchase Price. If the Purchaser
fails to timely deliver the Purchaser Closing Inventory Statement before the expiration of the
Review Period, the Estimated Inventory Statement and the amounts set forth therein shall be
deemed final and binding on all Parties.
(c)
Examination. After receipt of the Purchaser Closing Inventory Statement,
the Sellers shall have thirty (30) days (the “Review Period”) to review the Purchaser Closing
Inventory Statement. During the Review Period, the Sellers shall have full access to the books and
records, personnel, advisors and work papers of Purchaser and its Affiliates, in each case to the
extent that they relate to the Purchaser Closing Inventory Statement and to such historical financial
information (to the extent accessible by or in the possession of Purchaser or its Affiliates, personnel
or advisors) relating to the Purchaser Closing Inventory Statement as Sellers may reasonably
request for the purpose of reviewing and responding to the Purchaser Closing Inventory Statement
and to prepare any Statement of Objections.
(d)
Objection. On or prior to the last day of the Review Period, the Sellers may
object to all or any portion of the Purchaser Closing Inventory Statement by delivering to Purchaser
a written statement setting forth Sellers’ objections to the amounts set forth therein in reasonable
detail, indicating each disputed item or amount and the basis for Sellers’ disagreement therewith
(the “Statement of Objections”). If the Sellers fail to deliver the Statement of Objections before
the expiration of the Review Period, the Purchaser Closing Inventory Statement and the amounts

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set forth therein shall be deemed final and binding on all Parties. To the extent any amounts or
items set forth in the Purchaser Closing Inventory Statement are not disputed in the Statement of
Objections, such amounts or items shall be deemed final and binding on all Parties. If the Sellers
deliver the Statement of Objections before the expiration of the Review Period, the Sellers and
Purchaser shall negotiate in good faith to resolve any objections set forth therein within fifteen
(15) days after the delivery of the Statement of Objections (the “Resolution Period”), and, to the
extent any or all of such objections are so resolved within the Resolution Period, the Purchaser
Closing Inventory Statement shall be amended to reflect the resolution so obtained and agreed to
in writing by the Parties. If all such objections have been resolved during the Resolution Period
and agreed to in writing by the Parties, the Purchaser Closing Inventory Statement (as amended in
accordance with the immediately preceding sentence) and the amounts set forth therein shall be
final and binding on all Parties.
(e)
Resolution of Disputes. If the Sellers and Purchaser fail to reach an
agreement with respect to all of the matters set forth in the Statement of Objections before
expiration of the Resolution Period, then any such items or amounts then remaining in dispute
(“Disputed Items”) shall be submitted for resolution to an independent nationally recognized firm
of independent certified public accountants, other than Sellers’ accountants or Purchaser’s
accountants, mutually agreeable to the Sellers and Purchaser (the “Independent Accountant”) who,
acting as an expert and not as an arbitrator, shall resolve the Disputed Items only, in accordance
with the terms and conditions of this Agreement, and the Purchaser Closing Inventory Statement
(as the same may theretofore have been amended pursuant to Section 2.3(e)) shall be amended to
reflect the Independent Accountant’s resolution of the Disputed Items, and the Purchaser Closing
Inventory Statement and the items set forth therein, each as so amended, shall be final and binding
on all Parties. Each Party shall give the Independent Accountant access to all information that in
the reasonable opinion of the Independent Accountant is necessary to resolve the Disputed Items
and shall cause such information to be provided promptly. The Independent Accountant shall
decide only the Disputed Items, and its decision for each Disputed Item must be within the range
of values assigned to each such item in the Purchaser Closing Inventory Statement and the
Statement of Objections, respectively. The Cash Purchase Price set forth in the Purchaser Closing
Inventory Statement, as amended as necessary to reflect the final and binding determinations of
the amounts therein pursuant to Sections 2.3(c), 2.3(d) or 2.3(e), as applicable, is referred to herein
as the “Final Cash Purchase Price.”
(f)
Fees of the Independent Accountant. The fees and expenses of the
Independent Accountant shall be paid by Sellers, on the one hand, and by Purchaser, on the other
hand, based upon the percentage that the amount actually contested but not awarded to Sellers, on
the one hand, or Purchaser, on the other hand, respectively, bears to the aggregate amount actually
contested by Sellers and Purchaser.
(g)
Determination by Independent Accountant. The Independent Accountant
shall be instructed by Purchaser and the Sellers to make its determination with respect to the
Disputed Items as soon as practicable, and in any event within fifteen (15) days (or such other time
as the Parties shall agree in writing) after the Independent Accountant’s engagement hereunder.
(h)
Payments of Post-Closing Adjustment. If the Estimated Cash Purchase
Price is more than the Final Cash Purchase Price, Purchaser shall be entitled to collect from the

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Sellers an amount equal to such excess, and such amount shall be an allowed administrative claim
under Section 503(a) of the Bankruptcy Code. If the Final Cash Purchase Price is more than the
Estimated Cash Purchase Price, Purchaser shall pay to the Sellers an amount equal to such excess.
Any payment to be made pursuant to this Section 2.3(g) shall be due within five (5) Business Days
after the final and binding determination of each of the amounts and items set forth in the Purchaser
Closing Inventory Statement pursuant to this Section 2.3.
(i)
Adjustments for Tax Purposes. Any payments made pursuant to Section 2.3
shall be treated as an adjustment to the Purchase Price by the Parties for Tax purposes, unless
otherwise required by Law.
2.4
Closing. The closing of the purchase and sale of the Acquired Assets, the delivery
of the Closing Date Payment, the assumption of the Assumed Liabilities and the consummation of
the other transactions contemplated by this Agreement (the “Closing”) will take place by telephone
conference and electronic exchange of documents (or, if the Parties agree to hold a physical
closing, at the offices of Kirkland & Ellis LLP, located at 300 North LaSalle, Chicago, Illinois
60654) at 8:00 a.m. Chicago time on the second (2nd) Business Day following full satisfaction or
due waiver (by the Party entitled to the benefit of such condition) of the closing conditions set
forth in Article VII (other than conditions that by their terms or nature are to be satisfied at the
Closing, but subject to the satisfaction or waiver of those conditions), or at such other place and
time as the Parties may agree. The date on which the Closing actually occurs is referred to herein
as the “Closing Date.”
2.5
Purchaser:

Closing Deliveries by Sellers. At or prior to the Closing, Sellers shall deliver to

(a)
a bill of sale and assignment and assumption agreement substantially in the
form of Exhibit A (the “Assignment and Assumption Agreement”) duly executed by Sellers;
(b)
an assignment agreement with respect to the Transferred Intellectual
Property substantially in the form of Exhibit B ( the “IP Assignment Agreement”), duly executed
by the Seller(s) party thereto;
(c)
a copy of the Sale Order, as entered by the Bankruptcy Court, which Sale
Order has either become final and non-appealable, or contains an express waiver of Bankruptcy
Rule 6004(h);
(d)
a duly executed IRS Form W-9 with respect to each Seller (or, in the case
of any disregarded entity, the regarded parent entity of such Seller); provided that the sole remedy
of the Purchaser for the failure of any Seller to deliver such certificate and notice shall be the
withholding of Tax as provided in Section 2.3(i) and the delivery of such certificate and notice
shall in no event be a condition to the Closing;
(e)
an officer’s certificate, dated as of the Closing Date, executed by a duly
authorized officer of the Company certifying that the conditions set forth in Sections 7.2(b)
and 7.2(c) have been satisfied; and

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(f)
a transition services agreement substantially in the form of Exhibit C hereto
(the “Transition Services Agreement”), duly executed by the Sellers party thereto.
2.6
Closing Deliveries by Purchaser. At the Closing, Purchaser shall deliver to (or at
the direction of) the Company:
(a)

the Closing Date Payment;

(b)

the Assignment and Assumption Agreement, duly executed by Purchaser;

(c)

the IP Assignment Agreement, duly executed by Purchaser;

(d)
an officer’s certificate, dated as of the Closing Date, executed by a duly
authorized officer of Purchaser certifying that the conditions set forth in Sections 7.3(a), 7.3(b)
and 7.3(c) have been satisfied; and
(e)

the Transition Services Agreement, duly executed by Purchaser.

2.7
Withholding. Purchaser shall not be entitled to deduct and withhold from any
amounts otherwise payable pursuant to this Agreement, except to the extent resulting from a
Seller’s failure to satisfy its obligations under Section 2.5(d). In the event that any such
withholding is made, Purchaser shall give Sellers at least five (5) Business Days’ prior written
notification of its intention to make any such deduction or withholding and shall cooperate with
Sellers to mitigate, reduce or eliminate any such deduction or withholding. To the extent Purchaser
deducts or withholds any amount from Sellers that was not required to be deducted or withheld,
Purchaser shall promptly return such amount to the Sellers, as applicable, within 10 days of a
reasonable good faith determination by Purchaser that such amount was improperly deducted or
withheld.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as disclosed in any forms, statements or other documents filed with the Bankruptcy
Court or as set forth in the Schedules delivered by the Company concurrently herewith (subject to
Sections 6.5(a) and 10.10), the Sellers represent and warrant to Purchaser as follows as of the date
hereof and as of the Closing Date:
3.1
Organization and Qualification. Each of the Sellers (a) is an entity duly
incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction
of its incorporation or organization, as applicable, (b) has all requisite power and authority to own
and operate its properties and to carry on its businesses as now conducted, subject to the provisions
of the Bankruptcy Code, and (c) is qualified to do business and is in good standing (or its
equivalent) in every jurisdiction in which its ownership of property or the conduct of its business
as now conducted requires it to qualify, except where the failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect.

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3.2
Authorization of Agreement. The execution, delivery, and performance of this
Agreement by each Seller, and the consummation by such Seller of the transactions contemplated
hereby, subject to requisite Bankruptcy Court approvals, have been duly and validly authorized by
all requisite corporate or similar organizational action, and no other corporate or similar
organizational proceedings on its part are necessary to authorize the execution, delivery or
performance of this Agreement by such Seller. Subject to requisite Bankruptcy Court approvals,
this Agreement has been duly and validly executed and delivered by such Seller, and, assuming
this Agreement is a valid and binding obligation of Purchaser, this Agreement constitutes a valid
and binding obligation of such Seller, enforceable against such Seller in accordance with its terms,
except as limited by the application of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or other Laws relating to or affecting creditors’ rights or general
principles of equity (whether considered in a proceeding in equity or at law) (the “Enforceability
Exceptions”).
3.3

Conflicts; Consents.

(a)
Except as set forth on Schedule 3.3(a) and assuming that (x) requisite
Bankruptcy Court approvals are obtained and (y) the notices, authorizations, approvals, Orders,
permits or consents set forth on Schedule 3.3(b) are made, given or obtained (as applicable), the
execution, delivery and performance by Sellers of this Agreement and the consummation by
Sellers of the transactions contemplated hereby, do not: (i) violate the certificate of formation,
limited liability company agreement or equivalent organizational documents of the Company or
any of its Subsidiaries; (ii) violate any Law applicable to the Company or any of its Subsidiaries
or by which any of the Acquired Assets is bound; or (iii) result in any breach of, constitute a default
(or an event that, with notice or lapse of time or both, would become a default) under, create in
any party thereto the right to terminate or cancel, or require any consent under, or result in the
creation or imposition of any Encumbrance (other than a Permitted Encumbrance) on any property
or asset of the Company or any of its Subsidiaries under, any Assigned Contracts; except, in each
case, for any such violations, breaches, defaults or other occurrences that are not material to the
Acquired Assets and Assumed Liabilities, taken as a whole.
(b)
Except as set forth on Schedule 3.3(b), Sellers are not required to file, seek
or obtain any notice, authorization, approval, Order, permit, or consent of or with any
Governmental Body in connection with the execution, delivery and performance by Sellers of this
Agreement or the consummation by Sellers of the transactions contemplated hereby, except
(i) requisite Bankruptcy Court approvals, (ii) such filings as may be required by any applicable
federal or state securities or “blue sky” Laws, (iii) where failure to obtain such consent, approval,
authorization or action, or to make such filing or notification, is not material to the Acquired Assets
and Assumed Liabilities taken as a whole, or (iv) as may be necessary as a result of any facts or
circumstances relating to Purchaser or any of its Affiliates.
3.4
Title to Properties. Subject to requisite Bankruptcy Court approvals, and
assumption by the applicable Seller of the applicable Contract in accordance with applicable Law
(including satisfaction of any applicable Cure Costs) and except as a result of the commencement
of the Bankruptcy Case, the Company and its Subsidiaries own good title to all of the Acquired
Assets, free and clear of all Encumbrances, except for Permitted Encumbrances, other than any

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failure to own or hold such Acquired Assets that is not material to the Acquired Assets taken as a
whole.
3.5
Insurance. Each material insurance policy maintained by the Company and its
Subsidiaries on the Acquired Assets is legal, valid, binding, enforceable on the Company or its
Subsidiaries, as applicable, and in full force and effect, and all premiums with respect thereto
covering all periods up to and including the date hereof have been paid, and no notice of
cancellation, termination or denial of coverage for any material claim has been received with
respect to any such insurance policy.
3.6
Contracts. Subject to requisite Bankruptcy Court approvals, and assumption by the
applicable Seller of the applicable Contract in accordance with applicable Law (including
satisfaction of any applicable Cure Costs) and except as a result of the commencement of the
Bankruptcy Case, each of the Assigned Contracts is in full force and effect and is a valid, binding
and enforceable obligation of the Company and its Subsidiaries and, to the knowledge of the
Company, each of the other parties thereto, except as may be limited by the Enforceability
Exceptions. Except as a result of the commencement of the Bankruptcy Case or as would not
reasonably be expected to be material to the Acquired Assets and Assumed Liabilities, taken as a
whole, neither the Company nor any of its Subsidiaries, as applicable, is in material default, or is
alleged in writing by the counterparty thereto to have materially breached or to be in material
default, under any Assigned Contract, and, to the knowledge of the Company, the other party to
each Assigned Contract is not in material default thereunder. The Company has made available to
Purchaser complete and correct copies of all Assigned Contracts, each as amended to the date
hereof. None of the Assigned Contracts has been canceled or otherwise terminated, and neither the
Company nor its Subsidiaries has received any written notice from any Person regarding any such
cancellation or termination.
3.7
Litigation. Except as set forth on Schedule 3.7 and other than the Bankruptcy Case,
there are, and during the prior two (2) years there have been, no Actions pending against or by the
Company or any of its Subsidiaries with respect to the Acquired Assets or the Assumed Liabilities,
at law or in equity, or before or by any Governmental Body, other than any Action pursuant to
which no injunctive or equitable relief is sought and where the monetary damages are covered by
insurance or would not reasonably be expected to be material to the Acquired Assets and Assumed
Liabilities, taken as a whole. Except as set forth on Schedule 3.7 and other than in connection with
the Bankruptcy Case, neither the Company nor any of its Subsidiaries is, or during the prior two (2)
years has been, subject to any outstanding Order with respect to the Acquired Assets or the
Assumed Liabilities, other than any such Order where no injunctive or equitable relief was granted
and where the monetary damages were covered by insurance or were not be material to the
Acquired Assets and Assumed Liabilities, taken as a whole.
3.8

Permits; Compliance with Laws. Except as set forth on Schedule 3.8:

(a)
Each of the Company and its Subsidiaries holds and is in compliance, in all
material respects, with all material permits, certificates, licenses, approvals, registrations and
authorizations that are required in connection with the ownership, operation and use of the
Acquired Assets and Assumed Liabilities under applicable Laws (the “Permits”). All of the
Permits are valid and in full force and effect.

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(b)
The Company and its Subsidiaries are, and have been during the prior
two (2) years, in compliance, in all material respects, with all Laws applicable to the ownership,
operation and use of the Acquired Assets and Assumed Liabilities, and during the prior two (2)
years neither the Company nor any of its Subsidiaries has received any written notice of any action
or proceeding against it alleging any failure to comply in any material respect with any such Laws,
except in each case as would not reasonably be expected to be material to the Acquired Assets and
Assumed Liabilities, taken as a whole. No investigation by any Governmental Body with respect
to the Company’s or any of its Subsidiaries’ ownership, operation and use of the Acquired Assets
and Assumed Liabilities is pending or, to the Company’s knowledge, threatened, and during the
prior two (2) years neither the Company nor any of its Subsidiaries has received any written notice
of any such investigation, except, in each case, for any such investigation that would not reasonably
be expected to be material to the Acquired Assets and Assumed Liabilities taken as a whole.
3.9

Intellectual Property.

(a)
Schedule 3.9(a) sets forth a correct and complete list of all copyright
registrations, internet domain name registrations, Scheduled Patents, and Transferred Trademarks,
in each case, included in the Transferred Intellectual Property. Except as set forth on
Schedule 3.9(a), the Company or one or more of its Subsidiaries owns the Transferred Intellectual
Property, free and clear of all Encumbrances, other than Permitted Encumbrances, and, to the
knowledge of the Company, the material Transferred Trademarks are valid and enforceable.
(b)
Except as set forth on Schedule 3.9(b), to the knowledge of the Company,
neither the Company’s nor any of its Subsidiaries’ operation of the E-Commerce Business
infringes, misappropriates or otherwise violates any Intellectual Property of any other Person,
except where such infringement, misappropriation or violation is not material to the Acquired
Assets and Assumed Liabilities, taken as a whole.
(c)
Except as set forth on Schedule 3.9(c), to the knowledge of the Company,
no third party infringes, misappropriates or otherwise violates any Transferred Intellectual
Property, except where such infringement, misappropriation or violation is not material to the
Acquired Assets and the Assumed Liabilities taken as a whole. The Company and its Subsidiaries
have used efforts that are reasonable under the circumstances to maintain the secrecy of their
material trade secrets included in the Acquired Assets, except where such failure to maintain such
material trade secrets would not be material to the Acquired Assets and Assumed Liabilities taken
as a whole.
(d)
During the prior three (3) years, no claim by any third party contesting the
validity or enforceability of any of the Transferred Intellectual Property has been made or
threatened against the Company or any of its Subsidiaries, in each case in writing.
(e)
This Section 3.9 contains the sole and exclusive representations and
warranties of the Company with respect to Intellectual Property.
3.10
Data Privacy. With respect to the Acquired Assets and Assumed Liabilities, the
Company and its Subsidiaries maintain commercially reasonable policies and procedures
regarding data privacy, protection and security designed to protect any personally identifiable

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information from any individuals, including any customers, prospective customers, employees
and/or other third parties collected by it. To the knowledge of the Company, the Company and its
Subsidiaries and the conduct of their businesses, in each case with respect to the Acquired Assets
and Assumed Liabilities, are in compliance with, and at all times during the prior two (2) years
have been in compliance with, all applicable Privacy Laws and their applicable published privacy
policies, except as would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. The transactions contemplated by this Agreement will not result in a
breach of the Company’s published privacy policies in effect as of the date hereof. Sellers and
their Affiliates have the right to use the Customer Data, including for marketing purposes, subject
to the Customer Data Use Requirements. Following the Closing, Purchaser will have the right to
use the Customer Data on the same terms Sellers and their Affiliates had the right to use the
Customer Data immediately prior to Closing, including for marketing purposes, subject to the
Customer Data Use Requirements. This Section 3.10 contains the sole and exclusive
representations and warranties of the Company with respect to data privacy, protection, and
security.
3.11 Brokers. Except as set forth on Schedule 3.11, there is no investment banker,
broker, finder or other such intermediary that has been retained by, or has been authorized to act
on behalf of, the Company or any of its Subsidiaries and is entitled to a fee or commission in
connection with the transactions contemplated by this Agreement from the Company or any of its
Subsidiaries.
3.12 Inventory. To the knowledge of the Company, the Acquired Inventory, taken as a
whole, consists of a quality and quantity salable in the Ordinary Course in all material respects,
except for obsolete, damaged or defective items that the Company has written off or written down
to fair market value or for which adequate reserves have been established by the Company. None
of the Acquired Inventory is held on a consignment basis.
3.13 Customer Data. As of February 1, 2020, the Customer Data included the following
categories of data, each within a 15% range of above or less than the applicable numbers stated
below: (a) 275,000 phone numbers of Persons who had agreed to be contacted by the Company or
its Subsidiaries via email for marketing purposes; and (b) 2.7 million email addresses of Persons
who had agreed to be contacted by the Company or its Subsidiaries via SMS or text message for
marketing purposes, (i) 725,000 of which were provided by customers who had transacted with
the Company or its Subsidiaries in the previous 12 months, (ii) 177,000 of which were attributable
to customers who had transacted with the Company or its Subsidiaries in the previous 12 months
via the E-Commerce Business only, (iii) 192,000 of which were attributable to customers who had
transacted with the Company or its Subsidiaries in the previous 12 months via the E-Commerce
Business and the Catherines brick-and-mortar retail stores, and (iv) 645,000 of which were
attributable to customers who had transacted with the Company or its Subsidiaries in the previous
12 months via the Catherines brick-and-mortar retail stores only. The rate at which customers of
the E-Commerce Business returned Inventory (including returns made to distribution centers and
to stores) for the 12 month period ending February 1, 2020 was not materially more or less than
approximately 15%.

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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company as follows as of the date hereof and as
of the Closing Date.
4.1
Organization and Qualification. Purchaser (a) is an entity duly incorporated or
organized, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, as applicable, (b) has all requisite power and authority to own and
operate its properties and to carry on its businesses as now conducted, and (c) is qualified to do
business and is in good standing (or its equivalent) in every jurisdiction in which its ownership of
property or the conduct of its business as now conducted requires it to qualify, except where the
failure to be so qualified would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on Purchaser’s ability to consummate the transactions
contemplated hereby.
4.2
Authorization of Agreement. The execution, delivery and performance of this
Agreement by Purchaser, and the consummation by Purchaser of the transactions contemplated
hereby, have been duly and validly authorized by all requisite corporate or similar organizational
action, and no other corporate or similar organizational proceedings on its part are necessary to
authorize the execution, delivery or performance of this Agreement by Purchaser. This Agreement
has been duly and validly executed and delivered by Purchaser, and, assuming this Agreement is
a valid and binding obligation of Sellers, this Agreement constitutes a valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its terms, except as limited by the
Enforceability Exceptions.
4.3

Conflicts; Consents.

(a)
Except as set forth on Schedule 4.3(a) and assuming that the notices,
authorizations, approvals, Orders, permits or consents set forth on Schedule 4.3(b) are made, given
or obtained (as applicable), the execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated hereby, do not:
(i) violate the certificate of formation, limited liability company agreement or equivalent
organizational documents of Purchaser; (ii) violate any Law applicable to Purchaser or by which
any property or asset of Purchaser is bound; or (iii) result in any breach of, constitute a default (or
an event that, with notice or lapse of time or both, would become a default) under, create in any
party thereto the right to terminate or cancel, or require any consent under, or result in the creation
or imposition of any Encumbrance on any property or asset of Purchaser under, any Contract;
except, in each case, for any such violations, breaches, defaults or other occurrences that would
not, individually or in the aggregate, reasonably be expected to prevent or materially delay the
ability of Purchaser to consummate the transactions contemplated hereby.
(b)
Except as set forth on Schedule 4.3(a), Purchaser is not required to file, seek
or obtain any notice, authorization, approval, Order, permit or consent of or with any
Governmental Body in connection with the execution, delivery and performance by Purchaser of
this Agreement or the consummation by Purchaser of the transactions contemplated hereby, except

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(i) such filings as may be required by any applicable federal or state securities or “blue sky” Laws,
or (ii) where failure to obtain such consent, approval, authorization or action, or to make such
filing or notification, would not, individually or in the aggregate, reasonably be expected to prevent
or materially delay the ability of Purchaser to consummate the transactions contemplated hereby.
4.4
Financing. Purchaser has, and will have at the Closing, sufficient funds in an
aggregate amount necessary to pay the Purchase Price, to perform the Assumed Liabilities as they
become due in accordance with their terms and to consummate all of the other transactions
contemplated by this Agreement, including the payment of the Purchase Price and all fees,
expenses of, and other amounts required to be paid by, Purchaser in connection with the
transactions contemplated by this Agreement. Purchaser is and shall be capable of satisfying the
conditions contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to
the Assigned Contracts and the related Assumed Liabilities.
4.5
Brokers. There is no investment banker, broker, finder, or other intermediary which
has been retained by or is authorized to act on behalf of Purchaser that might be entitled to any fee
or commission in connection with the transactions contemplated by this Agreement.
4.6
No Litigation. There are no Actions pending or, to Purchaser’s knowledge,
threatened against or affecting Purchaser that will adversely affect Purchaser’s performance under
this Agreement or the consummation of the transactions contemplated by this Agreement.
4.7
Certain Arrangements. As of the date hereof, there are no Contracts, undertakings,
commitments, agreements or obligations, whether written or oral, between any member of the
Purchaser Group, on the one hand, and any member of the management or board of directors (or
applicable governing body) of the Company or its Subsidiaries, any holder of equity or debt
securities of the Company or its Subsidiaries, or any lender or creditor of the Company or its
Subsidiaries, on the other hand, (a) relating in any way to the acquisition of the Acquired Assets
or the other transactions contemplated by this Agreement or (b) that would be reasonably likely to
prevent, restrict, impede or affect adversely the ability of the Company to entertain, negotiate or
participate in any such transactions.
4.8
Customer Data. Notwithstanding anything contained in this Agreement to the
contrary, Purchaser further acknowledges and agrees that the copy of Customer Data transferred
to Purchaser hereunder must be used in compliance with all applicable Laws and, except to the
extent that Purchaser obtains the necessary consents from consumers permitting broader uses, may
be used solely in connection with the marketing and sale of merchandise to consumers under the
Transferred Trademarks and in compliance with applicable Law and Sellers’ privacy policy
(including the privacy policy update notification) attached hereto as Schedule 4.8 (collectively, the
“Customer Data Use Requirements”).
4.9
No Additional Representations or Warranties. Except for the representations and
warranties contained in this Article IV, each of Sellers acknowledges that neither Purchaser nor
any other Person on behalf of Purchaser makes any other express or implied representation or
warranty with respect to Purchaser or with respect to any other information provided to any Seller
by Purchaser.

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4.10 No Outside Reliance. Notwithstanding anything contained in this Article IV or any
other provision of this Agreement to the contrary, Purchaser acknowledges and agrees, on its own
behalf and on behalf of the Purchaser Group, that the representations and warranties made by
Sellers to Purchaser in Article III (as qualified by the Schedules and in accordance with the express
terms and conditions (including limitations and exclusions) of this Agreement) (the “Express
Representations”) are the sole and exclusive representations, warranties and statements of any kind
made to Purchaser or any member of the Purchaser Group and on which Purchaser and the
Purchaser Group may rely in connection with the transactions contemplated by this Agreement.
Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that
(other than solely to the extent expressly set forth in the Express Representations) all other
representations, warranties and statements of any kind or nature expressed or implied, whether in
written, electronic or oral form, including (a) with respect to the completeness or accuracy of, or
any omission to state or to disclose, any information, including in the Projections, the confidential
information presentation prepared by Guggenheim Securities, LLC (the “Information
Presentation”), in that certain datasite administered by Intralinks (the “Dataroom”), any
Projections or in any meetings, calls or correspondence with management of the Company and its
Subsidiaries or any other Person on behalf of the Company, its Subsidiaries or any of their
respective Affiliates or Advisors and (b) the historical, current or future business, financial
condition, results of operations, assets, liabilities, properties, contracts, or prospects of the
Company or any of its Subsidiaries, or the quality, quantity or condition of the Company’s or its
Subsidiaries’ assets, in each case, are specifically disclaimed by Sellers, and that neither Purchaser
nor any member of the Purchaser Group has relied on any such representations, warranties or
statements. Purchaser acknowledges and agrees, on its own behalf and on behalf of the Purchaser
Group, that it has conducted to its full satisfaction an independent investigation and verification of
the business, financial condition, results of operations, assets, liabilities, properties, contracts and
prospects of the Company and its Subsidiaries, and, in making its determination to proceed with
the transactions contemplated by this Agreement, Purchaser has relied solely on the results of the
Purchaser Group’s own independent investigation and verification, and has not relied on, is not
relying on, and will not rely on, the Information Presentation, any Projections or any information,
statements, disclosures, documents, projections, forecasts or other material made available to
Purchaser or any of its Affiliates or Advisors in the Dataroom or otherwise, in each case, whether
written or oral, made or provided by, or as part of, any of the foregoing or the Company, its
Subsidiaries or any of their respective Affiliates or Advisors, or any failure of any of the foregoing
to disclose or contain any information, except to the extent express set forth in the Express
Representations (it being understood that Purchaser and the Purchaser Group have relied only on
the Express Representations).
ARTICLE V
BANKRUPTCY COURT MATTERS
5.1

Bankruptcy Actions.

(a)
As promptly as practicable after the date hereof, but in any event no later
than five (5) Business Days hereafter, the Sellers shall file with the Bankruptcy Court a motion
seeking approval of (i) the Bidding Procedures Order, (ii) the form of this Agreement and the
Sellers’ authority to enter into this Agreement (the “Bidding Procedures Motion”) and (iii) the Sale

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Order. Purchaser shall promptly take all actions as are reasonably requested by the Company to
assist in obtaining the Bankruptcy Court’s entry of the Sale Order and any other Order reasonably
necessary in connection with the transactions contemplated by this Agreement as promptly as
practicable, including furnishing affidavits, financial information, or other documents or
information for filing with the Bankruptcy Court and making such employees and Advisors of
Purchaser and its Affiliates available to testify before the Bankruptcy Court for the purposes of,
among other things providing necessary assurances of performance by Purchaser under this
Agreement and the Plan, and demonstrating that Purchaser is a “good faith” purchaser under
section 363(m) of the Bankruptcy Code, as well as demonstrating Purchaser’s ability to pay and
perform or otherwise satisfy any Assumed Liabilities following the Closing.
(b)
As promptly as practicable after the date hereof, but in any event no later
than five (5) Business Days hereafter, the Company shall file with the Bankruptcy Court a motion
seeking approval of the form of this Agreement and Sellers’ authority to enter into this Agreement.
(c)
If an Auction is conducted, and Purchaser is not the prevailing party at the
conclusion of such Auction (such prevailing party, the “Successful Bidder”) but is the next highest
bidder at the Auction, Purchaser shall be required to serve as a back-up bidder (the “Backup
Bidder”) and keep Purchaser’s bid to consummate the transactions contemplated by this
Agreement on the terms and conditions set forth in this Agreement (as the same may be revised in
the Auction) open and irrevocable until this Agreement is otherwise terminated. If the Successful
Bidder fails to consummate the applicable Alternative Transaction, the Backup Bidder will be
deemed to have the new prevailing bid, and the Company may consummate the transactions
contemplated by this Agreement on the terms and conditions set forth in this Agreement as such
terms may have been improved upon in the Auction. For the avoidance of doubt, nothing herein
shall bind Purchaser to serve as the Successful Bidder or the Backup Bidder beyond the Outside
Date.
(d)
The Company and Purchaser acknowledge that this Agreement and the sale
of the Acquired Assets are subject to higher and better bids and Bankruptcy Court approval. The
Company and Purchaser acknowledge that Sellers must take reasonable steps to demonstrate that
they have sought to obtain the highest or otherwise best price for the Acquired Assets, including
giving notice thereof to the creditors of Sellers and other interested parties, providing information
about the Company to prospective bidders, entertaining higher and better offers from such
prospective bidders, and, in the event that additional qualified prospective bidders desire to bid for
the Acquired Assets, conducting an Auction. The bidding procedures to be employed with respect
to this Agreement and any Auction shall be those approved in the Bidding Procedures Order.
(e)
Notwithstanding any other provision of this Agreement to the contrary,
Purchaser acknowledges that Sellers and their Affiliates and Advisors are and may continue
soliciting inquiries, proposals, or offers for the Acquired Assets in connection with any Alternative
Transaction.
(f)
Purchaser shall provide adequate assurance of future performance as
required under section 365 of the Bankruptcy Code for the Assigned Contracts. Purchaser agrees
that it will take all actions reasonably required to assist in obtaining a Bankruptcy Court finding
that there has been an adequate demonstration of adequate assurance of future performance under

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the Assigned Contracts, such as furnishing affidavits, non-confidential financial information, and
other documents or information for filing with the Bankruptcy Court and making Purchaser’s
Advisors available to testify before the Bankruptcy Court.
(g)
Nothing in this Section 5.1 shall prevent Sellers from modifying the bidding
procedures as necessary or appropriate to maximize value for Sellers’ estates in accordance with
each Seller’s fiduciary obligations; provided, however, that this Section 5.1(g) shall not be
construed as a waiver of Purchaser’s right to terminate this Agreement in accordance with Section
8.1.
(h)
The Company shall promptly serve true and correct copies of the motion
seeking entry of the Sale Order and all related pleadings in accordance with the Bidding Procedures
Order, the Bankruptcy Code, the Bankruptcy Rules and any other applicable Order of the
Bankruptcy Court.
5.2
Cure Costs. Subject to entry of the Sale Order, Purchaser shall, on or prior to the
Closing (or, in the case of any Contract that is to be assigned following the Closing pursuant to
Section 1.5, on or prior to the date of such assignment), pay the Cure Costs and cure any and all
other defaults and breaches under the Transferred Contracts so that such Contracts may be assumed
by the applicable Seller and assigned to Purchaser in accordance with the provisions of section
365 of the Bankruptcy Code and this Agreement.
5.3
The Sale Order. The Sale Order shall, among other things, (a) approve, pursuant to
sections 105, 363, and 365 of the Bankruptcy Code, (i) the execution, delivery and performance
by Sellers of this Agreement, (ii) the sale of the Acquired Assets to Purchaser on the terms set
forth herein and free and clear of all Encumbrances (other than Encumbrances included in the
Assumed Liabilities and Permitted Encumbrances), and (iii) the performance by Sellers of their
respective obligations under this Agreement; (b) authorize and empower Sellers to assume and
assign to Purchaser the Assigned Contracts; (c) find that Purchaser is a “good faith” buyer within
the meaning of section 363(m) of the Bankruptcy Code, find that Purchaser is not a successor to
any Seller, and grant Purchaser the protections of section 363(m) of the Bankruptcy Code; (d) find
that Purchaser shall have no Liability or responsibility for any Liability or other obligation of any
Seller arising under or related to the Acquired Assets other than as expressly set forth in this
Agreement, including successor or vicarious Liabilities of any kind or character, including any
theory of antitrust, successor, or transferee Liability, labor law, de facto merger, or substantial
continuity; (e) find that Purchaser has provided adequate assurance (as that term is used in section
365 of the Bankruptcy Code) of future performance in connection with the assumption of the
Assigned Contracts; and (f) find that Purchaser shall have no Liability for any Excluded Liability.
Purchaser agrees that it will promptly take such actions as are reasonably requested by the
Company to assist in obtaining Bankruptcy Court approval of the Sale Order, including furnishing
affidavits or other documents or information for filing with the Bankruptcy Court for purposes,
among others, of (x) demonstrating that Purchaser is a “good faith” purchaser under
section 363(m) of the Bankruptcy Code and (y) establishing adequate assurance of future
performance within the meaning of section 365 of the Bankruptcy Code.
5.4
Bid Protections. Notwithstanding Section 8.2, in the event that (a) this Agreement
is terminated pursuant to Section 8.1(m) and (b) at the time of such termination, Purchaser is not

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then in material breach of any of its representations, warranties, covenants or agreements
hereunder, Sellers shall pay to Purchaser a cash amount equal to $600,000 (the “Break-Up Fee”)
and the Expense Reimbursement as set forth below. The Break-Up Fee and Expense
Reimbursement will be due and payable upon the earlier of (x) the consummation of an Alternative
Transaction and (y) the termination of a definitive agreement providing for an Alternative
Transaction pursuant to which Sellers are entitled to retain a deposit made by the purchaser in
connection with the Alternative Transaction that would, if such termination had not occurred, have
been applied to the purchase price thereunder upon the consummation of such Alternative
Transaction. Notwithstanding anything to the contrary contained in this Agreement, the Parties
agree that (i) the Purchaser’s right to receive the Break-Up Fee and the Expense Reimbursement
as set forth herein is not a penalty, but rather is liquidated damages in a reasonable amount that
will compensate the Purchaser for its efforts and resources expended and the opportunities
foregone while negotiating this Agreement and in reliance on this Agreement and on the
expectation of the consummation of the transactions contemplated hereby, which amount would
otherwise be impossible to calculate with precision as of the date hereof, and (ii) the Purchaser’s
receipt of the Break-Up Fee and the Expense Reimbursement as provided herein shall be the sole
and exclusive remedy of Purchaser against Sellers and any of their respective Affiliates for, and
upon payment of the Break-Up Fee and the Expense Reimbursement in accordance herewith
Sellers and their respective representatives and Affiliates shall be fully released and discharged
from, any Liability, damage or other loss suffered by Purchaser or any of its Affiliates under or
resulting from this Agreement or the transactions contemplated hereby, and Purchaser shall have
no other remedy or cause of action under or relating to this Agreement.
5.5
Approval. Sellers’ obligations under this Agreement and in connection with the
transactions contemplated hereby are subject to entry of and, to the extent entered, the terms of
any Orders of the Bankruptcy Court (including entry of the Sale Order). Nothing in this Agreement
shall require the Company or its Affiliates to give testimony to or submit a motion to the
Bankruptcy Court that is untruthful or to violate any duty of candor or other fiduciary duty to the
Bankruptcy Court or its stakeholders.
ARTICLE VI
COVENANTS AND AGREEMENTS
6.1
Conduct of Business of Sellers. Until the earlier of the termination of this
Agreement and the Closing, except (v) for any limitations on operations imposed by the
Bankruptcy Court or the Bankruptcy Code or the Sellers’ debtor-in-possession financing, (w) as
required by applicable Law, (x) as otherwise required by or reasonably necessary to carry out the
terms of this Agreement or as set forth on Schedule 6.1, (y) actions taken in good faith business
judgement in response to the “coronavirus” or “COVID-19” and any Laws or government action
taken in connection therewith or (z) with the prior written consent of Purchaser (which consent
shall not be unreasonably withheld, conditioned or delayed), the Sellers shall conduct their
business with respect to the ownership, operation and use of the Acquired Assets and Assumed
Liabilities only in the Ordinary Course and shall not:

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(a)
terminate (other than by expiration), or amend or modify (other than by
automatic extension or renewal) in any material respect the terms of any Assigned Contract (other
than any purchase orders);
(b)
settle or compromise any pending or threatened Action that would
reasonably be expected to give rise to Liabilities that are not Excluded Liabilities;
(c)
sell, assign, license, transfer, convey, lease, surrender, relinquish or
otherwise dispose of any material portion of the Acquired Assets, other than (i) sales of Inventory
in the Ordinary Course, (ii) licenses of Intellectual Property granted on a non-exclusive basis, (iii)
the expiration of Intellectual Property at the end of the governing terms thereof, or (iv) pursuant to
existing Contracts;
(d)
subject any material portion of the Acquired Assets, taken as a whole, to
any Encumbrance, except for Permitted Encumbrances;
(e)
authorize any of, or commit or agree, in writing or otherwise, to take any
of, the foregoing actions.
Nothing contained in this Agreement is intended to give Purchaser or its Affiliates, directly
or indirectly, the right to control or direct the business of the Sellers prior to the Closing.
6.2

Access to Information.

(a)
From the date hereof until the Closing (or the earlier termination of this
Agreement pursuant to Article VIII), the Company (in its discretion) will provide Purchaser and
its authorized Advisors with reasonable access and upon reasonable advance notice and during
regular business hours to the books and records of the Company and its Subsidiaries with respect
to the ownership, operation and use of the Acquired Assets and Assumed Liabilities, in order for
Purchaser and its authorized Advisors to access such information regarding the Acquired Assets
and Assumed Liabilities as Purchaser reasonably deems necessary in connection with effectuating
the transactions contemplated by this Agreement, including such information regarding the
attributes and structure of data maintained by the Sellers with respect to the E-Commerce Business
as Purchaser shall reasonably request in writing in order to establish its own platform from which
to operate the E-Commerce Business in the manner in which it is operated by the Sellers; provided
that (i) such access does not unreasonably interfere with the normal operations of the Company
and its Subsidiaries, (ii) such access will occur in such a manner as the Company reasonably
determines to be appropriate to protect the confidentiality of the transactions contemplated by this
Agreement, (iii) all requests for access will be directed to Michael Gottlieb or such other Person(s)
as the Company may designate in writing from time to time and (iv) nothing herein will require
the Company to provide access to, or to disclose any information to, Purchaser if such access or
disclosure (A) would cause significant competitive harm to the Company or any of its Subsidiaries
if the transactions contemplated by this Agreement are not consummated, (B) would require the
Company or any of its Subsidiaries to disclose any financial or proprietary information of or
regarding the Affiliates of the Company (other than the Subsidiaries of the Company) or otherwise
disclose information regarding the Affiliates of the Company (other than the Subsidiaries of the
Company) that the Company deems to be commercially sensitive, (C) would waive any legal

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privilege or (D) would be in violation of applicable Laws or the provisions of any agreement to
which the Company or any of its Subsidiaries is bound or would violate any fiduciary duty;
provided that, in the event that the Company withholds access or information in reliance on the
foregoing clause (C) or (D), the Company shall provide (to the extent possible without waiving or
violating the applicable legal privilege or Law) notice to Purchaser that such access or information
is being so withheld and shall use commercially reasonable efforts to provide such access or
information in a way that would not risk waiver of such legal privilege or applicable Law.
(b)
From the date hereof until the Closing, the Company will provide
reasonable assistance to Purchaser with respect to contacting the Company’s existing stock
vendors to enable Purchaser to build a direct relationship with such vendors in furtherance of
potential future orders. Such assistance shall be requested upon reasonable advance notice and
during regular business hours and (i) such assistance shall not unreasonably interfere with the
normal operations of the Company and its Subsidiaries, (ii) such assistance will occur in such a
manner as the Company reasonably determines to be appropriate to protect the confidentiality of
the transactions contemplated by this Agreement, (iii) all requests for such assistance will be
directed to Michael Gottlieb or such other Person(s) as the Company may designate in writing
from time to time and (iv) nothing herein will require the Company to provide assistance to, or to
disclose any information to, Purchaser if such assistance or disclosure (A) would cause significant
competitive harm to the Company or any of its Subsidiaries if the transactions contemplated by
this Agreement are not consummated, (B) would require the Company or any of its Subsidiaries
to disclose any financial or proprietary information of or regarding the Affiliates of the Company
(other than the Subsidiaries of the Company) or otherwise disclose information regarding the
Affiliates of the Company (other than the Subsidiaries of the Company) that the Company deems
to be commercially sensitive, (C) would waive any legal privilege or (D) would be in violation of
applicable Laws or the provisions of any agreement to which the Company or any of its
Subsidiaries is bound or would violate any fiduciary duty; provided that, in the event that the
Company withholds assistance or information in reliance on the foregoing clause (C) or (D), the
Company shall provide (to the extent possible without waiving or violating the applicable legal
privilege or Law) notice to Purchaser that such assistance or information is being so withheld and
shall use commercially reasonable efforts to provide such access or information in a way that
would not risk waiver of such legal privilege or applicable Law.
(c)
In the event Purchaser is the Successful Bidder at the Auction, Sellers shall,
from the conclusion of the Auction through the Closing Date, use reasonable best efforts to
reasonably cooperate with Purchaser in its preparation in order to minimize the services to be
provided under the Transition Services Agreement, including preparation for moving the Acquired
Inventory out of Sellers’ distribution center and preparation for transfer of the Customer Data.
(d)
The information provided pursuant to this Section 6.2 will be used solely
for the purpose of effecting the transactions contemplated hereby, and will be governed by all the
terms and conditions of the Confidentiality Agreement, which Confidentiality Agreement shall not
terminate upon the execution of this Agreement notwithstanding anything to the contrary therein.
Purchaser will, and will cause its Advisors to, abide by the terms of the Confidentiality Agreement
with respect to such access and any information furnished to Purchaser or any of its Advisors.
Neither the Company nor any of Sellers makes any representation or warranty as to the accuracy

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of any information, if any, provided pursuant to this Section 6.2, and Purchaser may not rely on
the accuracy of any such information, in each case, other than the Express Representations.
(e)
From and after the Closing for a period of three (3) years following the
Closing Date (or, if later, the closing of the Bankruptcy Case), Purchaser will provide Sellers and
their Advisors with reasonable access, during normal business hours, and upon reasonable advance
notice, to the books and records, including work papers, schedules, memoranda, Tax Returns, Tax
schedules, Tax rulings, and other documents (for the purpose of examining and copying) relating
to the Acquired Assets, the Excluded Assets, the Assumed Liabilities or the Excluded Liabilities
with respect to periods or occurrences prior to the Closing Date, and reasonable access, during
normal business hours, and upon reasonable advance notice, to employees, officers, Advisors,
accountants, offices and properties of Purchaser (including for the purpose of better understanding
the books and records). Unless otherwise consented to in writing by the Company, Purchaser will
not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose
of any of the books and records without first offering to surrender to the Company such books and
records or any portion thereof that Purchaser may intend to destroy, alter or dispose of. From and
after the Closing, Purchaser will, and will cause its employees to, provide Sellers with reasonable
assistance, support and cooperation with Sellers’ wind-down and related activities (e.g., helping
to locate documents or information related to preparation of Tax Returns or prosecution or
processing of insurance claims).
(f)
Purchaser will not, and will not permit any member of the Purchaser Group
to, contact any officer, manager, director, employee, customer, supplier, lessee, lessor, lender,
licensee, licensor, distributor, noteholder or other material business relation of the Company or its
Subsidiaries prior to the Closing with respect to the Company, its Subsidiaries, their business or
the transactions contemplated by this Agreement without the prior written consent of the Company
for each such contact, which consent shall not be unreasonably withheld.
6.3

Regulatory Approvals.

(a)
The Company will (i) make or cause to be made all filings and submissions
required to be made by the Company or its Subsidiaries under any applicable Laws for the
consummation of the transactions contemplated by this Agreement set forth on Schedule 6.3,
(ii) cooperate with Purchaser in exchanging such information and providing such assistance as
Purchaser may reasonably request in connection with the foregoing and (iii) (A) supply promptly
any additional information and documentary material that may be requested in connection with
such filings and (B) use reasonable best efforts to take all actions necessary to obtain all required
clearances in connection with such filings.
(b)
The Purchaser will, and will cause its Affiliates and Advisors to, (i) make
or cause to be made all filings and submissions required to be made by any member of the
Purchaser Group under any applicable Laws for the consummation of the transactions
contemplated by this Agreement, (ii) cooperate with the Company in exchanging such information
and providing such assistance as the Company may reasonably request in connection with all of
the foregoing, and (iii) (A) supply promptly any additional information and documentary material
that may be requested in connection with such filings and (B) use reasonable best efforts to take
all actions necessary to obtain all required clearances.

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Reasonable Efforts; Cooperation.

(a)
Subject to the other terms of this Agreement provisions hereof, each Party
shall, and shall cause its Advisors to, use its reasonable best efforts to perform its obligations
hereunder and to take, or cause to be taken, and do, or cause to be done, all things necessary,
proper, advisable or permitted under applicable Law to cause the transactions contemplated herein
to be effected as soon as practicable, but in any event on or prior to the Outside Date, in accordance
with the terms hereof and to cooperate with each other Party and its Advisors in connection with
any step required to be taken as a part of its obligations hereunder. The “reasonable best efforts”
of the Company will not require the Company or any of its Subsidiaries, Affiliates or Advisors to
expend any money, to remedy any breach of any representation or warranty, to commence any
Action, to waive or surrender any right, to modify any Contract or to waive or forego any right,
remedy or condition hereunder.
(b)
The obligations of the Company pursuant to this Agreement, including this
Section 6.4, shall be subject to any Orders entered, or approvals or authorizations granted or
required, by or under the Bankruptcy Court or the Bankruptcy Code (including in connection with
the Bankruptcy Case), the Sellers’ debtor-in-possession financing, and each of Sellers’ obligations
as a debtor-in-possession to comply with any Order of the Bankruptcy Court (including the
Bidding Procedures Order and the Sale Order) and Sellers’ duty to seek and obtain the highest or
otherwise best price for the Acquired Assets as required by the Bankruptcy Code.
6.5

Notification of Certain Matters.

(a)
The Company will promptly notify Purchaser of: (i) any notice or other
communication from any Person alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement; (ii) any notice or other
communication from any Governmental Body related to or in connection with the transactions
contemplated by this Agreement; and (iii) promptly upon discovery thereof, any variances from,
or the existence or occurrence of any event, fact or circumstance arising after the execution of this
Agreement that would reasonably be expected to cause, any of the representations and warranties
contained in Article III to be untrue or inaccurate such that the condition set forth in Section 7.2(b)
not to be satisfied. If the subject matter of any such notification required by the previous sentence
requires any change in the Schedules, the Company shall deliver to Purchaser prior to the Closing
a supplement to such Schedule (the “Updated Schedules”) with such change; provided that in no
event will any Updated Schedule serve to amend, supplement or modify the Schedules for purposes
of Section 7.2(b); provided further that if the Closing occurs, the Updated Schedules will be
considered and deemed to be part of the Schedules for all purposes under this Agreement, and each
reference in this Agreement to a particular Schedule will mean such Schedule in, or as updated by,
the Updated Schedules.
(b)
Purchaser will promptly notify the Company of: (i) any notice or other
communication from any Person alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement; (ii) any notice or other
communication from any Governmental Body related to or in connection with the transactions
contemplated by this Agreement; (iii) any Actions relating to or involving or otherwise affecting
Purchaser or its Affiliates that, if pending on the date of this Agreement, would have been required

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to have been disclosed pursuant to Section 4.6 or that relate to the transactions contemplated by
this Agreement; and (iv) any breach or inaccuracy of any representation or warranty contained in
this Agreement at any time during the term hereof that could reasonably be expected to cause the
conditions set forth in Article VII not to be satisfied; provided that the delivery of any notice
pursuant to this Section 6.5(a) will not limit the remedies available to Sellers under or with respect
to this Agreement.
6.6
Further Assurances. From time to time from and after Closing, as and when
requested by any Party and at such requesting Party’s expense, any other Party will execute and
deliver, or cause to be executed and delivered, all such documents and instruments and take, or
cause to be taken, all such further or other actions (including, for the avoidance of doubt, with
respect to the Sellers, taking all steps reasonably requested by Purchaser to deliver the Acquired
Assets to or as directed by Purchaser) as such requesting Party may reasonably deem necessary or
desirable to evidence and effectuate the transactions contemplated by this Agreement.
6.7
Insurance Matters. Purchaser acknowledges that, upon Closing, all nontransferable
insurance coverage provided in relation to Sellers and the Acquired Assets that is maintained by
any Seller or its Affiliates (whether such policies are maintained with third party insurers or with
such Seller or its Affiliates) shall cease to provide any coverage to Purchaser and the Acquired
Assets and no further coverage shall be available to Purchaser or the Acquired Assets under any
such policies.
6.8
Receipt of Misdirected Assets. From and after the Closing, if any Seller or any of
its respective Affiliates receives any right, property or asset that is an Acquired Asset, the
applicable Seller shall promptly transfer or cause such of its Affiliates to transfer such right,
property or asset (and shall promptly endorse and deliver any such asset that is received in the
form of cash, checks or other documents) to Purchaser, and such asset will be deemed the property
of Purchaser held in trust by such Seller for Purchaser until so transferred. From and after the
Closing, if Purchaser or any of its Affiliates receives any right, property or asset that is an Excluded
Asset, Purchaser shall promptly transfer or cause such of its Affiliates to transfer such asset (and
shall promptly endorse and deliver any such right, property or asset that is received in the form of
cash, checks, or other documents) to the Company, and such right, property or asset will be deemed
the property of the Company held in trust by Purchaser for the Company until so transferred.
6.9

Acknowledgment by Purchaser.

(a)
Purchaser acknowledges and agrees, on its own behalf and on behalf of the
Purchaser Group, that it has conducted to its full satisfaction an independent investigation and
verification of the business, financial condition, results of operations, assets, Liabilities, properties,
Contracts and prospects of the Company and its Subsidiaries and the Acquired Assets and the
Assumed Liabilities, and, in making its determination to proceed with the transactions
contemplated by this Agreement, Purchaser and the Purchaser Group have relied solely on the
results of the Purchaser Group’s own independent investigation and verification and have not
relied on, are not relying on, and will not rely on, any information, statements, disclosures,
documents, projections, forecasts or other material made available to Purchaser or any of its
Affiliates or Advisors in the Dataroom, the Information Presentation, or the Projections or any
information, statements, disclosures or materials, in each case, whether written or oral, made or

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provided by, or as part of, any of the foregoing or any other Seller Party, or any failure of any of
the foregoing to disclose or contain any information, except to the extent expressly set forth in the
Express Representations (it being understood that Purchaser and the Purchaser Group have relied
only on the Express Representations). Purchaser acknowledges and agrees, on its own behalf and
on behalf of the Purchaser Group, that (i) the Express Representations are the sole and exclusive
representations, warranties and statements of any kind made to Purchaser or any member of the
Purchaser Group and on which Purchaser or any member of the Purchaser Group may rely in
connection with the transactions contemplated by this Agreement; and (ii) (other than solely to the
extent expressly set forth in the Express Representations) all other representations, warranties and
statements of any kind or nature expressed or implied, whether in written, electronic or oral form,
including (1) with respect to the completeness or accuracy of, or any omission to state or to
disclose, any information including in the Dataroom, Information Presentation, Projections,
meetings, calls or correspondence with management of the Company and its Subsidiaries, any of
the Seller Parties or any other Person on behalf of the Company, its Subsidiaries or any of the
Seller Parties or any of their respective Affiliates or Advisors and (2) the historical, current or
future business, financial condition, results of operations, assets, Liabilities, properties, contracts,
or prospects of the Company or any of its Subsidiaries, or the quality, quantity or condition of the
Company’s or its Subsidiaries’ assets, in each case, are specifically disclaimed by the Company,
on its behalf and on behalf of the Seller Parties, and each Seller. Purchaser, on its own behalf and
on behalf of the Purchaser Group: (x) disclaims reliance on the items in clause (ii) in the
immediately preceding sentence and (y) acknowledges and agrees that it has relied on, is relying
on and will rely on only the items in clause (i) in the immediately preceding sentence. Without
limiting the generality of the foregoing, Purchaser acknowledges and agrees, on its own behalf and
on behalf of the Purchaser Group, that neither the Company, nor any other Person (including the
Seller Parties), has made, is making or is authorized to make, and Purchaser, on its own behalf and
on behalf of the Purchaser Group, hereby waives, all rights and claims it or they may have against
any Seller Party with respect to the accuracy of, any omission or concealment of, or any
misstatement with respect to, (A) any potentially material information regarding the Company, its
Subsidiaries or any of their respective assets (including the Acquired Assets), Liabilities (including
the Assumed Liabilities) or operations and (B) any warranty or representation (whether in written,
electronic or oral form), express or implied, as to the quality, merchantability, fitness for a
particular purpose, or condition of the Company’s or its Subsidiaries’ business, operations, assets,
Liabilities, prospects or any portion thereof, except, in each case, solely to the extent expressly set
forth in the Express Representations.
(b)
Without limiting the generality of the foregoing, in connection with the
investigation by the Purchaser Group of the Company and its Subsidiaries, Purchaser and the
members of the Purchaser Group, and the Advisors of each of the foregoing, have received or may
receive, from or on behalf of the Company, certain projections, forward-looking statements and
other forecasts (whether in written, electronic, or oral form, and including in the Information
Presentation, Dataroom, management meetings, etc.) (collectively, “Projections”). Purchaser
acknowledges and agrees, on its own behalf and on behalf of the Purchaser Group, that (i) such
Projections are being provided solely for the convenience of Purchaser to facilitate its own
independent investigation of the Company and its Subsidiaries, (ii) there are uncertainties inherent
in attempting to make such Projections, (iii) Purchaser is familiar with such uncertainties, and (iv)
Purchaser is taking full responsibility for making their own evaluation of the adequacy and

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accuracy of all Projections (including the reasonableness of the assumptions underlying such
Projections).
(c)
Purchaser acknowledges and agrees, on its own behalf and on behalf of the
Purchaser Group, that it will not assert, institute, or maintain, and will cause each member of the
Purchaser Group not to assert, institute or maintain, any Action that makes any claim contrary to
the agreements and covenants set forth in this Section 6.9, including any such Action with respect
to the distribution to Purchaser or any member of the Purchaser Group, or Purchaser’s or any
member of the Purchaser Group’s use, of the information, statements, disclosures or materials in
the Information Presentation, the Dataroom or Projections or any other information, statements,
disclosures, or materials, in each case whether written or oral, provided by them or any other Seller
Party or any failure of any of the foregoing to disclose any information.
(d)
Purchaser acknowledges and agrees, on its own behalf and on behalf of the
Purchaser Group, that the covenants and agreements contained in this Section 6.9 (i) require
performance after the Closing to the maximum extent permitted by applicable Law and will
survive the Closing for five (5) years; and (ii) are an integral part of the transactions contemplated
by this Agreement and that, without these agreements set forth in this Section 6.9, Sellers would
not enter into this Agreement.
6.10 Use of Customer Data after Closing. From and after the Closing Date, Purchaser
shall at all times use the Customer Data in compliance with the Customer Data Use Requirements,
and Purchaser shall defend, indemnify and hold harmless Sellers and their Affiliates, from and
against any and all losses, liabilities, costs and expenses (including reasonable attorneys’ fees)
arising out of any breach of this Section 6.10.
6.11 Wind Down License. From and after the Closing Date, Purchaser hereby grants to
each Seller and its Affiliates a non-exclusive, royalty-free, fully paid-up, worldwide, irrevocable
right and license (with the right to sublicense in the ordinary course of business), under the
Transferred Intellectual Property, to use, sell, offer for sale, commercialize, copy, distribute,
modify, create derivative works of, or display the Transferred Intellectual Property in connection
with the administration of the Bankruptcy Case, until the later of (a) the entry of an Order closing
the Bankruptcy Case and (b) the closing of all brick-and-mortar retail stores operated under or with
respect to a Transferred Trademark; provided, however, that in no event shall such license be
provided for a period of time exceeding two (2) months after the Closing Date. In addition to the
foregoing, Sellers may continue to use the Transferred Trademarks and Customer Data following
the Closing (i) for billing and collections purposes in connection with the wind down of Sellers’
private label consumer credit and debit cards until such wind down is completed and (ii) as required
by applicable Law. For the avoidance of doubt, nothing in this Agreement shall prohibit or
otherwise restrict the Company and its Affiliates from winding down their respective operations
and affairs or dissolving their respective business entities following the Closing Date.
6.12

Non-Solicitation.

(a)
From the Closing Date until the first (1st) anniversary of the Closing Date
(the “Restricted Period”), without the prior written consent of the Company, the Purchaser shall
not (and shall cause each of its Affiliates not to) directly or indirectly through another Person,

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(i) induce or attempt to induce any employee or individual independent contractor of the Company
or any of its Affiliates (each, an “Employee”) to leave the employment or services of the Company
or any such Affiliate or (ii) hire any person who was an Employee at any time during the twelve
(12) month period immediately prior to the date on which such hiring would take place; provided
that nothing herein shall prohibit the Purchaser from (x) soliciting, employing or otherwise
engaging any Employee (A) after his or her employment or engagement to provide services is
terminated by the Company or such Affiliate or (B) whose services as an Employee are all or
substantially all dedicated to the E-Commerce Business or the “Catherines” brand or (y) placing
general advertisements that are not specifically targeted toward any Employee.
(b)
If any court of competent jurisdiction holds that the duration or scope of any
of the restrictions set forth in Section 6.12(a) are unreasonable under applicable circumstances, the
Parties agree that the maximum duration or scope under such circumstances shall be substituted
for the stated duration or scope, and such court shall be allowed and directed to revise such
restrictions contained herein to cover the maximum period, scope and area permitted by Law. Each
of the Parties has consulted with legal counsel regarding the terms of Section 6.12(a) and based on
such consultation has determined and hereby acknowledges that such terms are reasonable in terms
of duration and scope and are necessary to protect the goodwill of the Company’s and its
Subsidiaries’ ongoing businesses.
(c)
Without limitation on Section 10.12, if Purchaser breaches, or threatens to
commit a breach of, any of the terms of Section 6.12(a), the Company shall have the right and
remedy (in addition to and not in lieu of any other rights and remedies available to such Parties at
law or in equity) to require the Purchaser to have the terms of Section 6.12(a) specifically enforced
by any court of competent jurisdiction, it being agreed that any breach or threatened breach of
Section 6.12(a) would cause irreparable injury to the Company and that money damages would
not provide an adequate remedy to the Company.
ARTICLE VII
CONDITIONS TO CLOSING
7.1
Conditions Precedent to the Obligations of Purchaser and Sellers. The respective
obligations of each Party to this Agreement to consummate the transactions contemplated by this
Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by
each of Sellers and Purchaser) on or prior to the Closing Date, of each of the following conditions:
(a)
no court or other Governmental Body has issued, enacted, entered,
promulgated or enforced any Law or Order (that has not been vacated, withdrawn or overturned)
restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement;
(b)

the Bankruptcy Court shall have entered the Sale Order; and

(c)
Sellers shall have completed an Inventory taking in order to prepare and
deliver the Estimated Inventory Statement to Purchaser.
7.2
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser
to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or
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to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to
the Closing Date, of each of the following conditions:
(a)

Sellers shall have delivered to Purchaser a certified copy of the Sale Order;

(b)
the representations and warranties made by Sellers in Article III shall be
true and correct as of the Closing Date (disregarding all qualifications or limitations as to
“materiality” or “Material Adverse Effect” and words of similar import set forth therein), as though
such representations and warranties had been made on and as of the Closing Date (except that
representations and warranties that are made as of a specified date need be true and correct only
as of such date), except where the failure of such representations and warranties to be true and
correct has not had, and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect; provided that the representations set forth in Sections 3.1, 3.2, and 3.11
will be true and correct in all material respects;
(c)
Sellers shall have performed or caused to be performed, in all material
respects, all of the obligations and covenants required by this Agreement to be performed by
Sellers by the Closing; and
(d)
Sellers shall have delivered, or caused to be delivered, to Purchaser all of
the items set forth in Section 2.5.
7.3
Conditions Precedent to the Obligations of the Company. The obligations of Sellers
to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or
to the extent permitted by Law, written waiver by Sellers in their sole discretion), on or prior to
the Closing Date, of each of the following conditions:
(a)
the representations and warranties made by Purchaser in Article IV shall be
true and correct in all material respects (without giving effect to any materiality or similar
qualification contained therein), in each case as of the date hereof and as of the Closing Date, with
the same force and effect as though all such representations and warranties had been made as of
the Closing Date (other than representations and warranties that by their terms address matters
only as of another specified date, which shall be so true and correct only as of such other specified
date), except where the failure of such representations or warranties to be so true and correct has
not had, and would not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on Purchaser’s ability to consummate the transactions contemplated hereby;
(b)
Purchaser shall have performed or caused to be performed, in all material
respects, all of the obligations and covenants required by this Agreement to be performed by
Purchaser by the Closing; and
(c)
Purchaser shall have delivered, or caused to be delivered, to Sellers all of
the items set forth in Section 2.6.
7.4
Waiver of Conditions. Upon the occurrence of the Closing, any condition set forth
in this Article VII that was not satisfied as of the Closing will be deemed to have been waived for
all purposes by the Party having the benefit of such condition as of and after the Closing. None of
Purchaser or Sellers may rely on the failure of any condition set forth in this Article VII, as
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applicable, to be satisfied if such failure was caused by such Party’s failure to use, as required by
this Agreement, its reasonable best efforts to consummate the transactions contemplated hereby.
ARTICLE VIII
TERMINATION
8.1
Termination of Agreement. This Agreement may be terminated only in accordance
with this Section 8.1. This Agreement may be terminated at any time prior to the Closing:
(a)

by the mutual written consent of the Company and Purchaser;

(b)
by written notice of either Purchaser or the Company, upon the issuance by
any Governmental Body of an Order restraining, enjoining, or otherwise prohibiting the
consummation of the transactions contemplated by this Agreement or declaring unlawful the
transactions contemplated by this Agreement, and such Order having become final, binding and
non-appealable; provided that no termination may be made by a Party under this Section 8.1(b) if
the issuance of such Order was caused by the breach or action or inaction of such Party;
(c)
by written notice of either Purchaser or the Company, if the Closing shall
not have occurred on or before October 15, 2020 (the “Outside Date”); provided that a Party shall
not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure of the
Closing to have occurred by the Outside Date was caused by the breach or action or inaction of
such Party;
(d)
by written notice of either Purchaser or the Company, if the Bankruptcy
Case is dismissed or converted to a case or cases under Chapter 7 of the Bankruptcy Code, or if a
trustee or examiner with expanded powers to operate or manage the financial affairs or
reorganization of the Company is appointed in the Bankruptcy Case;
(e)
by written notice from Purchaser to the Company, if Sellers announce any
stand-alone plan of reorganization or liquidation (or support any such plan filed by any other
party), other than a wind-down plan of Sellers’ estates post-Closing;
(f)
by written notice from Purchaser to the Company delivered within one (1)
Business Day after delivery of the Estimated Inventory Statement, if the Estimated Acquired
Inventory Amount set forth on the Estimated Inventory Statement is less than $4,000,000;
(g)
by written notice from the Company to Purchaser, upon a breach of any
covenant or agreement on the part of Purchaser, or if any representation or warranty of Purchaser
will have become untrue, in each case, such that the conditions set forth in Section 7.3(a) or 7.3(b)
would not be satisfied, including a breach of Purchaser’s obligation to consummate the Closing;
provided that (i) if such breach is curable by Purchaser then the Company may not terminate this
Agreement under this Section 8.1(e) unless such breach has not been cured by the date which is
the earlier of (A) two (2) Business Days prior to the Outside Date and (B) thirty (30) days after the
Company notifies Purchaser of such breach and (ii) the right to terminate this Agreement pursuant
to this Section 8.1(e) will not be available to the Company at any time that the Company is in
material breach of, any covenant, representation or warranty hereunder;
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(h)
by written notice from Purchaser to the Company, upon a breach of any
covenant or agreement on the part of any Seller, or if any representation or warranty of any Seller
will have become untrue, in each case, such that the conditions set forth in Section 7.2(b) or 7.2(c);
provided that (i) if such breach is curable by such Seller then Purchaser may not terminate this
Agreement under this Section 8.1(h) unless such breach has not been cured by the date which is
the earlier of (A) two (2) Business Days prior to the Outside Date and (B) thirty (30) days after
Purchaser notifies the Company of such breach and (ii) the right to terminate this Agreement
pursuant to this Section 8.1(h) will not be available to Purchaser at any time that Purchaser is in
material breach of, any covenant, representation or warranty hereunder;
(i)
by written notice from the Company to Purchaser, if all of the conditions
set forth in Sections 7.1 and 7.2 have been satisfied (other than conditions that by their nature are
to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the
Closing) or waived and Purchaser fails to complete the Closing at the time required by
Section 2.2(e);
(j)
by written notice from the Company to Purchaser, if any Seller or the board
of directors (or similar governing body) of any Seller determines that proceeding with the
transactions contemplated by this Agreement or failing to terminate this Agreement would be
inconsistent with its or such Person’s or body’s fiduciary duties;
(k)
by written notice from Purchaser to the Company, if the Bankruptcy Court
fails to enter an Order approving the payment of the Break-Up Fee and Expense Reimbursement
on or before August 31, 2020;
(l)
by written notice of either Purchaser or the Company, if (i) any Seller enters
into one or more Alternative Transactions with one or more Persons other than Purchaser or the
Successful Bidder or the Backup Bidder at the Auction or (ii) the Bankruptcy Court approves an
Alternative Transaction other than with the Successful Bidder or the Backup Bidder; or
(m)
by written notice from Purchaser to the Company, if Purchaser is not the
Successful Bidder or the Backup Bidder at the Auction.
8.2
Effect of Termination. In the event of termination of this Agreement pursuant to
Section 8.1, this Agreement shall forthwith become void and there shall be no liability on the part
of any Party or any of its partners, officers, directors or shareholders; provided that Section 2.2,
Section 5.4, this Section 8.2 and Article X shall survive any such termination; provided further
that no termination will relieve either Party from any Liability for damages (including damages
based on the loss of the economic benefits of the transactions contemplated by this Agreement,
including receipt of the Cash Purchase Price, to Sellers), losses, costs, or expenses (including
reasonable legal fees and expenses) resulting from any willful breach of this Agreement prior to
the date of such termination (which, for the avoidance of doubt, will be deemed to include any
failure by Purchaser to consummate the Closing if and when it is obligated to do so hereunder).

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ARTICLE IX
TAXES
9.1
Transfer Taxes. Any sales, use, purchase, transfer, franchise, deed, fixed asset,
stamp, documentary stamp, use, or other Taxes and recording charges payable by reason of the
sale of the Acquired Assets or the assumption of the Assumed Liabilities under this Agreement or
the transactions contemplated hereby (the “Transfer Taxes”) shall be borne and timely paid by
Purchaser, and Purchaser shall timely file all Tax Returns related to any Transfer Taxes. Sellers
and Purchaser shall use commercially reasonable efforts and cooperate in good faith to exempt all
such transactions from any Transfer Taxes.
9.2
Allocation of Purchase Price. For U.S. federal and applicable state and local income
Tax purposes, Purchaser, Sellers, and their respective Affiliates shall allocate the Purchase Price
(and any Assumed Liabilities or other items treated as part of the purchase price for applicable
income Tax purposes) among the Acquired Assets in accordance with the methodology set forth
in Schedule 9.2 (the “Allocation Methodology”). As soon as commercially practicable, but no later
than sixty (60) days following the determination of the final Purchase Price, Purchaser shall
provide a proposed allocation to Sellers setting forth the allocation of the Purchase Price (and other
amounts treated as Purchase Price for U.S. federal income Tax purposes) among the Acquired
Assets in accordance with the Allocation Methodology (the “Allocation”). If Sellers deliver a
written objection within thirty (30) days after receipt of the draft Allocation proposed by Purchaser,
then Purchaser and Sellers shall negotiate in good faith to resolve any such objection, and, if Sellers
and Purchaser cannot resolve such dispute within thirty (30) days of Purchaser’s receipt of Sellers’
objection, then a nationally recognized accounting firm mutually acceptable to Purchaser and
Sellers shall resolve such dispute and the resolution of such dispute shall be final and binding on
the Parties. The Parties and their respective Affiliates shall file all Tax Returns in accordance with
such Allocation (as finally determined under this Section 9.2) and not take any Tax related action
inconsistent with the Allocation, in each case, unless otherwise required by a “determination”
within the meaning of Section 1313(a) of the Code.
9.3
Cooperation. Purchaser and Sellers shall reasonably cooperate, as and to the extent
reasonably requested by the other Party, in connection with the filing of Tax Returns and any
Action, audit, litigation, or other proceeding with respect to Taxes.
9.4

Preparation of Tax Returns and Payment of Taxes.

(a)
Except as otherwise provided by Section 9.1, Sellers shall prepare and
timely file (i) all Tax Returns for any Tax period ending on or before the Closing Date and (ii) all
income Tax Returns of Sellers. Except to the extent any Tax reflected on a return required to be
prepared and filed by Sellers pursuant to this Section 9.4 is otherwise reflected as an adjustment
to Purchase Price or constitutes an Assumed Liability, Sellers shall be responsible for paying any
Taxes reflected on any Tax Return that Sellers are obligated to prepare and file under this Section
9.4(a).
(b)
Purchaser shall prepare and timely file all other Tax Returns with respect to
the Acquired Assets that are not addressed by Section 9.4(a). With respect to any Straddle Period,

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Purchaser shall prepare such Tax Returns consistent with past practice, and shall provide Sellers
with a draft of such Tax Returns at least thirty days prior to the filing of any such Tax Return.
Purchaser shall incorporate any changes reasonably requested by Sellers with respect to such Tax
Returns. Purchaser shall be responsible for paying any Taxes reflected on any Tax Return that
Purchaser is obligated to prepare and file under this Section 9.4(b).
(c)
Purchaser shall not file any Tax Return, file an amendment to any
previously-filed Tax Return, or otherwise take any Tax position that has the effect of increasing
any Tax due for a Pre-Closing Tax Period or portion of a Straddle Period ending on the Closing.
9.5
Wage Reporting. Purchaser and Sellers agree to utilize, or cause their respective
Affiliates to utilize, the “alternate procedure” set forth in Revenue Procedure 2004-53 with respect
to wage reporting.
ARTICLE X
MISCELLANEOUS
10.1 Non-Survival of Representations and Warranties and Certain Covenants; Certain
Waivers. Each of the representations and warranties and the covenants and agreements (to the
extent such covenant or agreement contemplates or requires performance by such Party prior to
the Closing) of the Parties set forth in this Agreement or in any other document contemplated
hereby, or in any certificate delivered hereunder or thereunder, will terminate effective
immediately as of the Closing such that no claim for breach of any such representation, warranty,
covenant or agreement, detrimental reliance or other right or remedy (whether in Contract, in tort
or at law or in equity) may be brought with respect thereto after the Closing. Each covenant and
agreement that explicitly contemplates performance after the Closing, will, in each case and to
such extent, expressly survive the Closing in accordance with its terms, and if no term is specified,
then for five (5) years following the Closing Date, and nothing in this Section 10.1 will be deemed
to limit any rights or remedies of any Person for breach of any such surviving covenant or
agreement. Purchaser and Sellers Parties acknowledge and agree, on their own behalf and on behalf
of the Purchaser Group or the Seller Parties, as the case may be, that the agreements contained in
this Section 10.1 (a) require performance after the Closing to the maximum extent permitted by
applicable Law and will survive the Closing for five (5) years; and (b) are an integral part of the
transactions contemplated hereby and that, without the agreements set forth in this Section 10.1,
none of the Parties would enter into this Agreement.
10.2 Expenses. Whether or not the Closing takes place, except as otherwise provided
herein (including, for the avoidance of doubt, Section 8.2), all fees, costs and expenses (including
fees, costs and expenses of Advisors) incurred in connection with the negotiation of this
Agreement and the other agreements contemplated hereby, the performance of this Agreement and
the other agreements contemplated hereby and the consummation of the transactions contemplated
hereby and thereby will be paid by the Party incurring such fees, costs and expenses; it being
acknowledged and agreed that all Transfer Taxes will be allocated pursuant to Section 9.1 and all
Cure Costs will be allocated pursuant to Section 5.2.

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10.3 Notices. Except as otherwise expressly provided herein, all notices, demands and
other communications to be given or delivered under or by reason of the provisions of this
Agreement will be in writing and will be deemed to have been given (a) when personally delivered,
(b) when transmitted by electronic mail, (c) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service or (d) the third (3rd) Business
Day following the day on which the same is sent by certified or registered mail, postage prepaid,
in each case, to the respective Party at the number, electronic mail address or street address, as
applicable, set forth below, or at such other number, electronic mail address or street address as
such Party may specify by written notice to the other Party.
Notices to Purchaser:
Phil Ryan, CEO
Munraj Dhaliwal, CFO
City Chic
151‐163 Wyndham Street, Alexandria NSW 2015
Phone: 61 2 9059 4343
Email: munraj.dhaliwal@citychic.com.au
phil.ryan@citychic.com.au
with a copy to (which shall not constitute notice):
Halperin Battaglia Benzija, LLP
40 Wall Street, 37th Floor
New York, NY 10005
Attention: Christopher J. Battaglia, Esq.
Julie Dyas Goldberg, Esq.
Phone: 212-765-9100
Email: cbattaglia@halperinlaw.net
goldberg@halperinlaw.net
Notices to Sellers:
Gary Muto, CEO
Ascena Retail Group, Inc.
7 Times Square
New York, NY 10036
Email: gary.muto@ascenaretail.com
Dan Lamadrid, CFO
Ascena Retail Group, Inc.
933 MacArthur Boulevard
Mahwah, NJ 07430
Email: dan.lamadrid@ascenaretail.com

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with a copy to (which shall not constitute notice):
Ascena Retail Group, Inc.
933 MacArthur Boulevard
Mahwah, NJ 07430
Attention: Michael Veitenheimer
Gary Holland
Email: michael.veitenheimer@ascenaretail.com
gary.holland@ascenaretail.com
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attention: Steve Toth
Mariska S. Richards
John R. Luze
Email:
steve.toth@kirkland.com
mariska.richards@kirkland.com
john.luze@kirkland.com
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Steven N. Serajeddini
Email:
steven.serajeddini@kirkland.com
10.4 Binding Effect; Assignment. This Agreement shall be binding upon Purchaser and,
subject to the terms of the Bidding Procedures Order (with respect to the matters covered thereby)
and the entry and terms of the Sale Order, Sellers, and shall inure to the benefit of and be so binding
on the Parties and their respective successors and permitted assigns, including any trustee or estate
representative appointed in the Bankruptcy Case or any successor Chapter 7 case; provided that
neither this Agreement nor any of the rights or obligations hereunder may be assigned or delegated
without the prior written consent of Purchaser and the Company, and any attempted assignment or
delegation without such prior written consent shall be null and void.
10.5 Amendment and Waiver. Any provision of this Agreement or the Schedules or
exhibits hereto may be (a) amended only in a writing signed by Purchaser and the Company or
(b) waived only in a writing executed by the Person against which enforcement of such waiver is
sought. No waiver of any provision hereunder or any breach or default thereof will extend to or
affect in any way any other provision or prior or subsequent breach or default.

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10.6 Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing
expressed or referred to in this Agreement will be construed to give any Person other than the
Parties any legal or equitable right, remedy, or claim under or with respect to this Agreement or
any provision of this Agreement.
10.7 Non-Recourse. This Agreement may only be enforced against, and any Action
based upon, arising out of or related to this Agreement may only be brought against, the Persons
that are expressly named as parties to this Agreement. Except to the extent named as a party to this
Agreement, and then only to the extent of the specific obligations of such parties set forth in this
Agreement, no past, present or future shareholder, member, partner, manager, director, officer,
employee, Affiliate, agent or Advisor of any Party or any Subsidiary of Sellers will have any
liability (whether in Contract, tort, equity or otherwise) for any of the representations, warranties,
covenants, agreements or other obligations or Liabilities of any of the parties to this Agreement or
for any Action based upon, arising out of or related to this Agreement.
10.8 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable Law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable Law in any jurisdiction,
such provision will be ineffective only to the extent of such prohibition or invalidity in such
jurisdiction, without invalidating the remainder of such provision or the remaining provisions of
this Agreement or in any other jurisdiction.
10.9 Construction. The language used in this Agreement will be deemed to be the
language chosen by the Parties to express their mutual intent, and no rule of strict construction will
be applied against any Person. The headings of the sections and paragraphs of this Agreement have
been inserted for convenience of reference only and will in no way restrict or otherwise modify
any of the terms or provisions hereof.
10.10 Schedules. The Schedules have been arranged for purposes of convenience in
separately numbered sections corresponding to the sections of this Agreement; however, each
section of the Schedules will be deemed to incorporate by reference all information disclosed in
any other section of the Schedules. Capitalized terms used in the Schedules and not otherwise
defined therein have the meanings given to them in this Agreement. The specification of any dollar
amount or the inclusion of any item in the representations and warranties contained in this
Agreement, the Schedules or the attached exhibits is not intended to imply that the amounts, or
higher or lower amounts, or the items so included, or other items, are or are not required to be
disclosed (including whether such amounts or items are required to be disclosed as material or
threatened) or are within or outside of the Ordinary Course, and no Party will use the fact of the
setting of the amounts or the fact of the inclusion of any item in this Agreement, the Schedules,
Updated Schedules, or exhibits in any dispute or controversy between the Parties as to whether
any obligation, item or matter not set forth or included in this Agreement, the Schedules or exhibits
is or is not required to be disclosed (including whether the amount or items are required to be
disclosed as material or threatened) or are within or outside of the Ordinary Course. In addition,
matters reflected in the Schedules are not necessarily limited to matters required by this Agreement
to be reflected in the Schedules. Such additional matters are set forth for informational purposes
only and do not necessarily include other matters of a similar nature. No information set forth in
the Schedules will be deemed to broaden in any way the scope of the Parties’ representations and

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warranties. Any description of any agreement, document, instrument, plan, arrangement or other
item set forth on any Schedule is a summary only and is qualified in its entirety by the terms of
such agreement, document, instrument, plan, arrangement, or item which terms will be deemed
disclosed for all purposes of this Agreement. The information contained in this Agreement, in the
Schedules and exhibits hereto is disclosed solely for purposes of this Agreement, and no
information contained herein or therein will be deemed to be an admission by any Party to any
third party of any matter whatsoever, including any violation of Law or breach of Contract.
10.11 Complete Agreement. This Agreement, together with the Confidentiality
Agreement and any other agreements expressly referred to herein or therein, contains the entire
agreement of the Parties respecting the sale and purchase of the Acquired Assets and the Assumed
Liabilities and the transactions contemplated by this Agreement and supersedes all prior
agreements among the Parties respecting the sale and purchase of the Acquired Assets and the
Assumed Liabilities and the transactions contemplated by this Agreement. In the event an
ambiguity or question of intent or interpretation arises with respect to this Agreement, the terms
and provisions of the execution version of this Agreement will control and prior drafts of this
Agreement and the documents referenced herein will not be considered or analyzed for any
purpose (including in support of parol evidence proffered by any Person in connection with this
Agreement), will be deemed not to provide any evidence as to the meaning of the provisions hereof
or the intent of the Parties with respect hereto and will be deemed joint work product of the Parties.
10.12 Specific Performance. The Parties agree that irreparable damage, for which
monetary relief, even if available, would not be an adequate remedy, would occur in the event that
any provision of this Agreement is not performed in accordance with its specific terms or is
otherwise breached, including if any of the Parties fails to take any action required of it hereunder
to consummate the transactions contemplated by this Agreement. It is accordingly agreed that
(a) the Parties will be entitled to an injunction or injunctions, specific performance or other
equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in the courts described in Section 10.13 without proof of damages or otherwise,
this being in addition to any other remedy to which they are entitled under this Agreement, and
(b) the right of specific performance and other equitable relief is an integral part of the transactions
contemplated by this Agreement and without that right, neither Sellers nor Purchaser would have
entered into this Agreement. The Parties acknowledge and agree that any Party pursuing an
injunction or injunctions or other Order to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in accordance with this Section 10.12 will
not be required to provide any bond or other security in connection with any such Order. The
remedies available to Sellers pursuant to this Section 10.12 will be in addition to any other remedy
to which they were entitled at law or in equity, and the election to pursue an injunction or specific
performance will not restrict, impair or otherwise limit any Seller from seeking to collect or
collecting damages. If, prior to the Outside Date, any Party brings any action, in each case in
accordance with Section 10.12, to enforce specifically the performance of the terms and provisions
hereof by any other Party, the Outside Date will automatically be extended (y) for the period during
which such action is pending, plus ten (10) Business Days or (z) by such other time period
established by the court presiding over such action, as the case may be. In no event will this Section
10.2 be used, alone or together with any other provision of this Agreement, to require any Seller
to remedy any breach of any representation or warranty of any Seller made herein.

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10.13 Jurisdiction and Exclusive Venue. Each of the Parties irrevocably agrees that any
Action that may be based upon, arising out of, or related to this Agreement or the negotiation,
execution or performance of this Agreement and the transactions contemplated hereby brought by
any other Party or its successors or assigns will be brought and determined only in (a) the
Bankruptcy Court and any federal court to which an appeal from the Bankruptcy Court may be
validly taken or (b) if the Bankruptcy Court is unwilling or unable to hear such Action, in the
Delaware Chancery Court and any state court sitting in the State of Delaware to which an appeal
from the Delaware Chancery Court may be validly taken (or, if the Delaware Chancery Court
declines to accept jurisdiction over a particular matter, any state or federal court within the state
of Delaware) ((a) and (b), the “Chosen Courts”), and each of the Parties hereby irrevocably submits
to the exclusive jurisdiction of the Chosen Courts for itself and with respect to its property,
generally and unconditionally, with regard to any such Action arising out of or relating to this
Agreement and the transactions contemplated hereby. Each of the Parties agrees not to commence
any Action relating thereto except in the Chosen Courts, other than Actions in any court of
competent jurisdiction to enforce any Order, decree or award rendered by any Chosen Court, and
no Party will file a motion to dismiss any Action filed in a Chosen Court on any jurisdictional or
venue-related grounds, including the doctrine of forum non-conveniens. The Parties irrevocably
agree that venue would be proper in any of the Chosen Courts, and hereby irrevocably waive any
objection that any such court is an improper or inconvenient forum for the resolution of such
Action. Each of the Parties further irrevocably and unconditionally consents to service of process
in the manner provided for notices in Section 10.3. Nothing in this Agreement will affect the right
of any Party to this agreement to serve process in any other manner permitted by Law.
10.14 Governing Law; Waiver of Jury Trial.
(a)
Except to the extent the mandatory provisions of the Bankruptcy Code
apply, this Agreement, and any Action that may be based upon, arising out of or related to this
Agreement or the negotiation, execution or performance of this Agreement or the transactions
contemplated hereby will be governed by and construed in accordance with the internal Laws of
the State of Delaware applicable to agreements executed and performed entirely within such State
without regards to conflicts of law principles of the State of Delaware or any other jurisdiction that
would cause the Laws of any jurisdiction other than the State of Delaware to apply.
(b)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, THE DOCUMENTS
AND AGREEMENTS CONTEMPLATED HEREBY AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES AND THEREFORE HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY ACTION BASED ON, ARISING OUT OF OR RELATED TO THIS
AGREEMENT, ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH OF THE PARTIES
AGREES AND CONSENTS THAT ANY SUCH ACTION WILL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT THE PARTIES THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE IRREVOCABLE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY (I) CERTIFIES THAT NO

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ADVISOR OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
10.15 No Right of Set-Off. Purchaser, on its own behalf and on behalf the Purchaser
Group and its and their respective successors and permitted assigns, hereby waives any rights of
set-off, netting, offset, recoupment, or similar rights that Purchaser, any member of the Purchaser
Group or any of its or their respective successors and permitted assigns has or may have with
respect to the payment of the Cash Purchase Price or any other payments to be made by Purchaser
pursuant to this Agreement or any other document or instrument delivered by Purchaser in
connection herewith.
10.16 Counterparts and PDF. This Agreement and any other agreements referred to herein
or therein, and any amendments hereto or thereto, may be executed in multiple counterparts, any
one of which need not contain the signature of more than one party hereto or thereto, but all such
counterparts taken together will constitute one and the same instrument. Any counterpart, to the
extent signed and delivered by means of a facsimile machine, .PDF or other electronic
transmission, will be treated in all manner and respects as an original Contract and will be
considered to have the same binding legal effects as if it were the original signed version thereof
delivered in person. Minor variations in the form of the signature page to this Agreement or any
agreement or instrument contemplated hereby, including footers from earlier versions of this
Agreement or any such other document, will be disregarded in determining the effectiveness of
such signature. At the request of any party or pursuant to any such Contract, each other party hereto
or thereto will re-execute original forms thereof and deliver them to all other parties. No party
hereto or to any such Contract will raise the use of a facsimile machine, .PDF or other electronic
transmission to deliver a signature or the fact that any signature or Contract was transmitted or
communicated through the use of facsimile machine, .PDF or other electronic transmission as a
defense to the formation of a Contract and each such party forever waives any such defense.
10.17 Publicity. Neither the Company nor Purchaser shall issue any press release or public
announcement concerning this Agreement or the transactions contemplated hereby without
obtaining the prior written approval of the other Party, which approval will not be unreasonably
withheld or delayed, unless, in the reasonable judgment of Purchaser or the Company, disclosure
is otherwise required by applicable Law or by the Bankruptcy Court with respect to filings to be
made with the Bankruptcy Court in connection with this Agreement or by the applicable rules of
any stock exchange on which Purchaser or the Company lists securities, provided that the Party
intending to make such release shall use its best efforts consistent with such applicable Law or
Bankruptcy Court requirement to consult with the other Party with respect to the text thereof.
10.18 Bulk Sales Laws. The Parties intend that pursuant to section 363(f) of the
Bankruptcy Code, the transfer of the Acquired Assets shall be free and clear of any Encumbrances
in the Acquired Assets including any liens or claims arising out of the bulk transfer laws except
Permitted Encumbrances, and the Parties shall take such steps as may be necessary or appropriate
to so provide in the Sale Order. In furtherance of the foregoing, each Party hereby waives

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compliance by the Parties with the “bulk sales,” “bulk transfers” or similar Laws and all other
similar Laws in all applicable jurisdictions in respect of the transactions contemplated by this
Agreement.
10.19 Fiduciary Obligations. Nothing in this Agreement, or any document related to the
transactions contemplated hereby, will require any Seller or any of their respective directors,
officers or members, in each case, in their capacity as such, to take any action, or to refrain from
taking any action, to the extent inconsistent with their fiduciary obligations. For the avoidance of
doubt, Sellers retain the right to pursue any transaction or restructuring strategy that, in Sellers’
business judgment, will maximize the value of their estates.
ARTICLE XI
ADDITIONAL DEFINITIONS AND INTERPRETIVE MATTERS
11.1

Certain Definitions.

(a)
“Action” means any action, claim (including a counterclaim, cross-claim,
or defense), complaint, grievance, summons, suit, litigation, arbitration, mediation, audit,
proceeding (including any civil, criminal, administrative, investigative or appellate proceeding),
prosecution, contest, hearing, inquiry, inquest, audit, examination or investigation, of any kind
whatsoever, regardless of the legal theory under which such Liability or obligation may be sought
to be imposed, whether sounding in Contract or tort, or whether at law or in equity, or otherwise
under any legal or equitable theory, commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental Body or arbitrator.
(b)
“Advisors” means, with respect to any Person, any directors, officers,
employees, investment bankers, financial advisors, accountants, agents, attorneys, consultants, or
other representatives of such Person.
(c)
“Affiliate” means, with respect to any Person, any other Person that, directly
or indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, such Person, and the term “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through ownership of voting
securities, by Contract or otherwise.
(d)
“Alternative Transaction” means any transaction (or series of transactions)
with a Person or Persons other than Purchaser in which any Seller sells, transfers or otherwise
disposes of, whether directly or indirectly, through a sale, merger, acquisition, issuance, financing,
recapitalization, reorganization, liquidation or disposition, any of the Acquired Assets held thereby
(in any form of transaction, whether by merger, sale of assets or equity or otherwise); provided,
however, that the foregoing shall not include sales of Inventory in the Ordinary Course.
(e)
Procedures Order.

“Auction” shall have the meaning ascribed to such term in the Bidding

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(f)
“Bidding Procedures Order” means an Order substantially in the form
attached hereto as Exhibit D, or that is otherwise reasonable acceptable to Purchaser.
(g)
“Business Day” means any day other than a Saturday, Sunday or other day
on which banks in New York City, New York are authorized or required by Law to be closed.
(h)
“Cash and Cash Equivalents” means all of the Company’s cash (including
petty cash and checks received on the Closing Date), checking account balances, marketable
securities, certificates of deposits, time deposits, bankers’ acceptances, commercial paper, security
entitlements, securities accounts, commodity Contracts, commodity accounts, government
securities, credit card receivables and any other cash equivalents, whether on hand, in transit, in
banks or other financial institutions, or otherwise held.
(i)
“Closing Inventory Amount” means the cost of the Acquired Inventory
other than damaged or defective Inventory not salable in the Ordinary Course, calculated as of
12:01 AM on the Closing Date in a manner consistent with Sellers’ past accounting practices and
principles.
(j)

“Code” means the United States Internal Revenue Code of 1986.

(k)
“Confidentiality Agreement” means that certain letter agreement, dated as
of May 28, 2020, by and between the Company and Purchaser.
(l)
“Consent” means any approval, consent, ratification, permission, waiver or
other authorization, or an Order of the Bankruptcy Court that deems or renders unnecessary the
same.
(m)
“Contract” means any contract, purchase order, service order, sales order,
indenture, note, bond, lease, sublease, mortgage, agreement, guarantee, purchase order, license or
other agreement that is binding upon a Person or its property.
(n)
“Customer Data” means (i) information pertaining to current or former
customers, or prospective customers, exclusively used or held for use in the E-Commerce
Business, including email addresses and other contact information and (ii) information pertaining
to current or former customers, or prospective customers, of the Catherines brick-and-mortar retail
stores (for the avoidance of doubt, expressly not limited to the E-Commerce Business), including
email addresses and other contact information; information pertaining to the Customer Loyalty
Program and customer file information and associated transaction data (where applicable),
including Facebook contact information and Instagram contact information.
(o)
“Customer Loyalty Programs” means those customer loyalty programs set
forth on Schedule 11.1(o).
(p)
“Documents” means all of the Company’s written files, documents,
instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets,
forecasts, plans, operating records, safety and environmental reports, data, studies, and documents,
Tax Returns, ledgers, journals, title policies, customer lists, regulatory filings, operating data and
plans, research material, technical documentation (design specifications, engineering information,
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test results, maintenance schedules, functional requirements, operating instructions, logic manuals,
processes, flow charts, etc.), user documentation (installation guides, user manuals, training
materials, release notes, working papers, etc.), marketing documentation (sales brochures, flyers,
pamphlets, web pages, etc.), and other similar materials, in each case whether or not in electronic
form.
(q)
“E-Commerce Business” means Sellers’ business of marketing and selling
Inventory to consumers who place orders for such Inventory through, the “www.catherines.com”
(and similar permutations thereof) website and related internet or mobile application based sales,
marketing, advertising and social media channels.
(r)
“Encumbrance” means any lien (as defined in section 101(37) of the
Bankruptcy Code), encumbrance, claim (as defined in section 101(5) of the Bankruptcy Code),
charge, mortgage, deed of trust, option, pledge, security interest or similar interests,
hypothecations, easements, rights of way, encroachments, Orders and conditional sale or other title
retention agreements.
(s)
“Expense Reimbursement” means an amount, not to exceed $200,000, of
Purchaser’s actual, reasonable, documented out-of-pocket expenses incurred in connection with
the transactions contemplated by this Agreement, including professional fees.
(t)
“GAAP” means United States generally accepted accounting principles as
in effect from time to time.
(u)
“Gift Card Liabilities” means any and all outstanding pre-funded monetary
value issued under the Company’s and its Affiliates’ gift card programs that, in accordance with
the terms of such programs, are accepted as a form of payment by the E-Commerce Business,
subject to the terms of such gift card programs and the redemption policies of the Company and
its Affiliates.
(v)
“Governmental Authorization” means any permit, license, certificate,
approval, consent, permission, clearance, designation, qualification or authorization issued,
granted, given or otherwise made available by or under the authority of any Governmental Body
or pursuant to any Law.
(w)
“Governmental Body” means any government, quasi governmental entity,
or other governmental or regulatory body, agency or political subdivision thereof of any nature,
whether foreign, federal, state or local, or any agency, branch, department, official, entity,
instrumentality or authority thereof, or any court or arbitrator (public or private) of applicable
jurisdiction.
(x)
“Intellectual Property” means all of the following: (i) patents, patent
applications and patent disclosures; (ii) trademarks, service marks, trade dress and corporate
names, registrations and applications for any of the foregoing, together with all goodwill associated
with each of the foregoing (collectively, “Trademarks”); (iii) copyright registrations and copyright
applications; (iv) internet domain name registrations and social media accounts; and (v) trade
secrets.

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(y)
“Inventory” means all inventory (including finished goods, supplies, raw
materials, work in progress, spare, replacement and component parts) maintained or held by, stored
by or on behalf of, or in transit to, any of Sellers.
(z)
“Inventory Deficit” means the amount by which the Lower Target Inventory
Amount exceeds the Closing Inventory Amount; provided that the “Inventory Deficit” shall be $0
if the Closing Inventory Amount is equal to or greater than the Lower Target Inventory Amount.
(aa) “Inventory Surplus” means the amount by which the Closing Inventory
Amount exceeds the Upper Target Inventory Amount; provided that the “Inventory Surplus” shall
be $0 if the Upper Target Inventory Amount is equal to or greater than the Closing Inventory
Amount.
(bb) “knowledge of the Company,” “Company’s knowledge” and words of
similar import mean the actual knowledge of Scott Glaser and Eric Hunter.
(cc) “Law” means any federal, state, provincial, local, municipal, foreign or
international, multinational or other law, statute, legislation, constitution, principle of common
law, resolution, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation,
ruling, directive, pronouncement, determination, decision, opinion or requirement issued, enacted,
adopted, promulgated, implemented or otherwise put into effect by or under the authority of any
Governmental Body.
(dd) “Liability” means, as to any Person, any debt, adverse claim, liability
(including any liability that results from, relates to or arises out of tort or any other product liability
claim), duty, responsibility, obligation, commitment, assessment, cost, expense, loss, expenditure,
charge, fee, penalty, fine, contribution, or premium of any kind or nature whatsoever, whether
known or unknown, asserted or unasserted, absolute or contingent, direct or indirect, accrued or
unaccrued, liquidated or unliquidated, or due or to become due, and regardless of when sustained,
incurred or asserted or when the relevant events occurred or circumstances existed.
(ee)

“Lower Target Inventory Amount” means $6,250,000.

(ff)
“Material Adverse Effect” means any event, change, occurrence, or effect
(each, an “Effect”) that, individually or in the aggregate with all other Effects, has had, or would
reasonably be expected to have, a material adverse effect on the Acquired Assets and Assumed
Liabilities, taken as whole; provided that none of the following shall constitute, or be taken into
account in determining whether or not there has been, a Material Adverse Effect: (i) Effects in,
arising from or relating to general business or economic conditions affecting the industry in which
the Company and its Subsidiaries operate, (ii) Effects in, arising from or relating to national or
international political or social conditions, including the engagement by the United States in
hostilities or the escalation thereof, whether or not pursuant to the declaration of a national
emergency or war, or the occurrence or the escalation of any military, cyber or terrorist attack upon
the United States, or any of its territories, possessions, or diplomatic or consular offices or upon
any military installation, asset, equipment or personnel of the United States, (iii) Effects in, arising
from or relating to financial, banking, or securities markets (including (A) any disruption of any
of the foregoing markets, (B) any change in currency exchange rates, (C) any decline or rise in the

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price of any security, commodity, Contract or index and (D) any increased cost, or decreased
availability, of capital or pricing or terms related to any financing for the transactions contemplated
by this Agreement), (iv) Effects in, arising from or relating to changes in, GAAP, (v) Effects in,
arising from or relating to changes in, Laws or other binding directives or determinations issued
or made by or agreements with or consents of any Governmental Body, (vi) Effects in, arising
from or relating to (A) the taking of any action permitted or contemplated by this Agreement or at
the request of Purchaser or its Affiliates, (B) the failure to take any action if such action is
prohibited by this Agreement, (C) Purchaser’s failure to consent to any of the actions restricted in
Section 6.1 or (D) the negotiation, announcement or pendency of this Agreement or the
transactions contemplated hereby or the identity, nature or ownership of Purchaser, including the
impact thereof on the relationships, contractual or otherwise, of the business of the Company or
any of its Subsidiaries with employees, customers, lessors, suppliers, vendors or other commercial
partners, (vii) Effects in, arising from or relating to any existing event, occurrence, or circumstance
with respect to which Purchaser has knowledge as of the date hereof, including any matter set forth
in the Schedules, (viii) Effects that arise from any seasonal fluctuations in the business, (ix) any
failure, in and of itself, to achieve any budgets, projections, forecasts, estimates, plans, predictions,
performance metrics or operating statistics or the inputs into such items (whether or not shared
with Purchaser or its Affiliates or Advisors) (but, for the avoidance of doubt, not the underlying
causes of any such failure to the extent such underlying cause is not otherwise excluded from the
definition of Material Adverse Effect), (x) the effect of any action taken by Purchaser or its
Affiliates with respect to the transactions completed by this Agreement or the financing thereof or
any breach by Purchaser of the Agreement, (xi) (A) the commencement or pendency of the
Bankruptcy Case; (B) any objections in the Bankruptcy Court to (1) this Agreement or any of the
transactions contemplated hereby or thereby, (2) the reorganization of Sellers, (3) the Bidding
Procedures Order or (4) the assumption or rejection of any Assigned Contract; (C) any Order of
the Bankruptcy Court or any actions or omissions of Sellers or their Subsidiaries in compliance
therewith, or (xii) any fire, flood, hurricane, earthquake, tornado, windstorm, other calamity or act
of God, global or national health concern, epidemic, pandemic (whether or not declared as such
by any Governmental Body), viral outbreak (including the “Coronavirus” or “COVID-19”) or any
quarantine or trade restrictions related thereto or any other force majeure; except in the case of the
clauses (i), (ii) or (iii), to the extent such Effects have a materially disproportionate impact on the
Acquired Assets, as compared to other participants engaged in the industries and geographies in
which Sellers operate.
(gg) “Order” means any order, injunction, order, decree, ruling, writ, assessment
or arbitration award of a Governmental Body, including any order entered by the Bankruptcy Court
in the Bankruptcy Case (including the Sale Order).
(hh) “Ordinary Course” means the ordinary and usual course of operations of the
business of the Company and its Subsidiaries taken as a whole consistent with past practice and
taking into account the commencement and pendency of the Bankruptcy Case.
(ii)

“Upper Target Inventory Amount” means $6,750,000.

(jj)
“Permitted Encumbrances” means (i) Encumbrances for utilities and
current Taxes not yet due and payable, being contested in good faith, or the nonpayment of which
is permitted or required by the Bankruptcy Code; (ii) easements, rights of way, restrictive

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covenants, encroachments and similar non-monetary encumbrances or non-monetary impediments
against any of the Acquired Assets which do not, individually or in the aggregate, adversely affect
the operation of the Acquired Assets, (iii) applicable zoning Laws, building codes, land use
restrictions and other similar restrictions imposed by Law, (iv) materialmans’, mechanics’,
artisans’, shippers’, warehousemans’ or other similar common law or statutory liens incurred in
the Ordinary Course for amounts not yet due and payable, (v) licenses granted on a non-exclusive
basis in the Ordinary Course, (vi) such other Encumbrances or title exceptions as Purchaser may
approve in writing in its sole discretion or which do not, individually or in the aggregate, materially
and adversely affect the operation of the Acquired Assets, (vii) any Encumbrances set forth on
Schedule 11.1(jj), and (viii) any Encumbrances that will be removed or released by operation of
the Sale Order.
(kk) “Person” means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization, labor union, estate,
Governmental Body or other entity or group.
(ll)
“Post-Closing Tax Period” means (1) any taxable period beginning after the
Closing Date and (2) the portion of any Straddle Period beginning after the Closing Date.
(mm) “Pre-Closing Tax Period” means any Tax period ending on or before the
Closing Date.
(nn)
privacy or security.

“Privacy Laws” means all applicable Laws concerning data protection,

(oo) “Purchaser Group” means Purchaser, any Affiliate of Purchaser and each of
their respective former, current or future Affiliates, officers, directors, employees, partners,
members, managers, agents, Advisors, successors or permitted assigns.
(pp) “Sale Order” means an Order of the Bankruptcy Court reasonably
acceptable to the Parties approving this Agreement and authorizing the Sellers to undertake the
transactions contemplated hereunder.
(qq) “Seller Parties” means Sellers and the Company’s Subsidiaries and each of
their respective former, current, or future Affiliates, officers, directors, employees, partners,
members, equityholders, controlling or controlled Persons, managers, agents, Advisors, successors
or permitted assigns.
(rr)
the Closing Date.

“Straddle Period” means any Tax period beginning before, and ending after,

(ss)
“Subsidiary” or “Subsidiaries” means, with respect to any Person, any
corporation of which a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of such Person or a combination thereof or any partnership, association or
other business entity of which a majority of the partnership or other similar ownership interest is

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at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries
of such Person or a combination thereof.
(tt)
“Tax” or “Taxes” means any federal, state, local, provincial, foreign or other
income, accumulated earnings, personal holding company, net worth, capital, intangibles, windfall
profits, goods and services, excise, customs duties, conveyance, mortgage, registration,
documentary, recording, premium, severance, environmental, natural resources, intangibles, rent,
occupancy, license, employment, workers’ compensation, payroll, health care, gross receipts,
capital stock, franchise, profits, withholding, social security, unemployment, disability, real
property, ad valorem/personal property, stamp, excise, occupation, sales, use, transfer, value
added, import, export, alternative minimum or estimated other similar tax, duty, levy, or other
governmental charge or assessment or deficiency thereof (including all interest, penalties thereon
and additions thereto, whether disputed or not).
(uu) “Tax Refund” means any Tax refund, credit or similar benefit with respect
to or related to Taxes (including any interest paid or credited with respect thereto).
(vv) “Tax Return” means any return, declaration, claim for refund, report,
statement or information return or other document (including any related or supporting estimates,
elections, schedules, statements, information or amendments) filed or required to be filed in
connection with the determination, assessment, or collection of any Tax or the administration of
any laws, regulations or administrative requirements, including any schedule or attachment
thereto, and including any amendments thereof.
11.2

Index of Defined Terms.
Closing Date Payment ...............................12
Company......................................................6
Cure Costs....................................................9
Customer Data Use Requirements.............22
Dataroom ...................................................23
Deposit.......................................................12
Disputed Items ...........................................14
Employee ...................................................34
Enforceability Exceptions..........................17
Estimated Cash Payment ...........................12
Estimated Inventory Deficit.......................13
Estimated Inventory Statement..................13
Estimated Inventory Surplus......................13
Excluded Assets...........................................8
Excluded Contracts......................................8
Excluded Liabilities ...................................10
Express Representations ............................23
Final Cash Payment ...................................14
Independent Accountant ............................14
Information Presentation ...........................23

Acquired Assets ...........................................6
Acquired Inventory......................................7
Agreement....................................................6
Allocation ..................................................38
Allocation Methodology............................38
Assigned Contracts ......................................6
Assignment and Assumption Agreement ..15
Assumed Liabilities .....................................9
Backup Bidder ...........................................24
Bankruptcy Case..........................................6
Bankruptcy Code .........................................6
Bankruptcy Court.........................................6
Bankruptcy Rules.........................................6
Base Amount .............................................12
Bidding Procedures Motion.......................23
Break-Up Fee.............................................26
Cash Payment ............................................12
Chosen Courts............................................44
Closing.......................................................15
Closing Date ..............................................15

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Review Period............................................13
Scheduled Patents ........................................7
Seller ............................................................6
Sellers ..........................................................6
Statement of Objections.............................13
Successful Bidder ......................................24
Transfer Taxes ...........................................38
Transferred Intellectual Property .................7
Transferred Trademarks...............................7
Transition Services Agreement..................16
Updated Schedules.....................................30

IP Assignment Agreement.........................15
Outside Date ..............................................36
Parties ..........................................................6
Party.............................................................6
Permits .......................................................18
Projections .................................................32
Purchase Price............................................12
Purchaser......................................................6
Purchaser Closing Inventory Statement.....13
Resolution Period.......................................14
Restricted Period........................................33

11.3 Rules of Interpretation. Unless otherwise expressly provided in this Agreement, the
following will apply to this Agreement, the Schedules and any other certificate, instrument,
agreement or other document contemplated hereby or delivered hereunder.
(a)
Accounting terms which are not otherwise defined in this Agreement have
the meanings given to them under GAAP consistently applied. To the extent that the definition of
an accounting term defined in this Agreement is inconsistent with the meaning of such term under
GAAP, the definition set forth in this Agreement will control.
(b)
The terms “hereof,” “herein” and “hereunder” and terms of similar import
are references to this Agreement as a whole and not to any particular provision of this Agreement.
Section, clause, schedule and exhibit references contained in this Agreement are references to
sections, clauses, schedules and exhibits in or to this Agreement, unless otherwise specified. All
Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made
a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule
or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.
(c)
Whenever the words “include,” “includes” or “including” are used in this
Agreement, they will be deemed to be followed by the words “without limitation.” Where the
context permits, the use of the term “or” will be equivalent to the use of the term “and/or.”
(d)

The words “to the extent” shall mean “the degree by which” and not “if.”

(e)
When calculating the period of time before which, within which or
following which any act is to be done or step taken pursuant to this Agreement, the date that is the
reference date in calculating such period will be excluded. If the last day of such period is a day
other than a Business Day, the period in question will end on the next succeeding Business Day.
(f)
Words denoting any gender will include all genders, including the neutral
gender. Where a word is defined herein, references to the singular will include references to the
plural and vice versa.
(g)
The word “will” will be construed to have the same meaning and effect as
the word “shall”. The words “shall,” “will,” or “agree(s)” are mandatory, and “may” is permissive.

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(h)
All references to “$” and dollars will be deemed to refer to United States
currency unless otherwise specifically provided.
(i)
All references to a day or days will be deemed to refer to a calendar day or
calendar days, as applicable, unless otherwise specifically provided.
(j)
Any document or item will be deemed “delivered,” “provided” or “made
available” by the Company, within the meaning of this Agreement if such document or item (a) is
included in the Dataroom, (b) actually delivered or provided to Purchaser or any of Purchaser’s
Advisors or (c) made available upon request, including at the Company’s or any of its Subsidiaries’
offices.
(k)
Any reference to any agreement or Contract will be a reference to such
agreement or Contract, as amended, modified, supplemented or waived.
(l)
Any reference to any particular Code section or any Law will be interpreted
to include any amendment to, revision of or successor to that section or Law regardless of how it
is numbered or classified; provided that, for the purposes of the representations and warranties set
forth herein, with respect to any violation of or non-compliance with, or alleged violation of or
non-compliance, with any Code section or Law, the reference to such Code section or Law means
such Code section or Law as in effect at the time of such violation or non-compliance or alleged
violation or non-compliance.
(m)
All references to a day or days shall be deemed to refer to a calendar day or
calendar days, as applicable, unless otherwise specifically provided.
(n)
A reference to any Party to this Agreement or any other agreement or
document shall include such Party’s successors and permitted assigns.
[Signature page(s) follow.]

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized officers as of the date first above written.
ASCENA RETAIL GROUP, INC.
By: ______________________________
Name: Dan Lamadrid
Title: Executive Vice President, Chief Financial
Officer and Assistant Treasurer

Signature Page to Asset Purchase Agreement

                            
             
 
       
     

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CATHERINES STORES CORP.
By: ______________________________
Name: Scott Glaser
Title: Senior Vice President, Chief Financial
Officer

Signature Page to Asset Purchase Agreement

                            
             
 
       
     

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CATHERINES INC.
By: ______________________________
Name: Scott Glaser
Title: Senior Vice President, Chief Financial
Officer

Signature Page to Asset Purchase Agreement

                            
             
 
       
     

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CHARMING SHOPPES, INC.

By: ______________________________
Name: Scott Glaser
Title: Senior Vice President, Chief Financial
Officer

Signature Page to Asset Purchase Agreement

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EXHIBIT A

)250 2) BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
This BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
(this “Agreement”) is executed as of [●], 2020 (the “Closing Date”), by and among (i) City Chic
Collective USA Incorporated, a Delaware corporation (“Assignee”) and (ii) Ascena Retail
Group, Inc., a Delaware corporation (the “Company”), and the subsidiaries of the Company that
are indicated on the signature pages attached hereto (together with the Company, each an
“Assignor” and collectively “Assignors”). Assignors and Assignee may be referred to herein,
individually, as a “Party” and, collectively, as the “Parties.”
WHEREAS, this Agreement is being delivered in connection with the Closing of the
transactions contemplated by that certain Asset Purchase Agreement, dated as of July 2 , 2020, 
by and among the Assignors and Assignee (the “Purchase Agreement”);
WHEREAS, pursuant to the Purchase Agreement, each Assignor has agreed to sell,
transfer, assign and convey to Assignee, and Assignee has agreed to purchase, acquire and accept
from such Assignors, all of such Assignors’ direct or indirect right, title and interest in, to and
under certain assets and liabilities;
WHEREAS, this Agreement, as duly executed by Assignee and each Assignor, is being
delivered as of the date hereof by each Party to the other Parties effective as of the Closing.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements herein contained and intending to be legally bound hereby, Assignee and Assignors
do hereby agree as follows:
I.
BILL OF SALE; ASSIGNMENT AND ASSUMPTION
1.1.
Definitions. Capitalized terms used but not defined in this Agreement have the
meanings given to such terms in the Purchase Agreement.
1.2.
Assignment. On the terms and subject to the conditions set forth in Section 1.1 of
the Purchase Agreement, effective as of the Closing, Assignee will purchase from Assignors and
Assignors will sell, transfer, assign and convey to Assignee, at the Closing all of the Assignors’
rights, titles and interests in, to and under the Acquired Assets.
1.3.
Excluded Assets. Assignors except, reserve, and exclude all of Assignors’ rights,
titles and interests in, to and under the Excluded Assets, as provided in the Purchase Agreement.
Without limiting the foregoing, Assignors do not hereby sell, transfer, assign and convey to
Assignee any right, title or interest in any assets, properties and rights of Assignors that are not
Acquired Assets.
1.4.
Assumed Liabilities. On the terms and subject to the conditions set forth in
Section 1.3 of the Purchase Agreement, effective as of the Closing, Assignee will assume and
become responsible for the Assumed Liabilities. Assignee agrees to pay, perform, honor and

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discharge, or cause to be paid, performed, honored and discharged, all Assumed Liabilities in a
timely manner in accordance with the terms thereof.
1.5.
Excluded Liabilities. Assignee shall not assume, be deemed to have assumed or
be liable or obligated to pay, perform or otherwise discharge or in any other manner be liable or
responsible for the Excluded Liabilities, as provided in the Purchase Agreement.
II.
MISCELLANEOUS
2.1.
Purchase Agreement. This Agreement is expressly made subject to the terms of
the Purchase Agreement. The delivery of this Agreement shall not amend, affect, enlarge,
diminish, supersede, modify, replace, rescind, waive or otherwise impair any of the
representations, warranties, covenants, indemnities, terms or provisions of the Purchase
Agreement or any of the rights, remedies or obligations of any Assignor or Assignee provided
for therein or arising therefrom in any way, all of which shall remain in full force and effect in
accordance with their terms. The representations, warranties, covenants, indemnities, terms and
provisions contained in the Purchase Agreement shall not be merged with or into this Agreement
but shall survive the execution and delivery of this Agreement to the extent, and in the manner,
set forth in the Purchase Agreement. In the event of any conflict or inconsistency between the
terms of the Purchase Agreement and the terms of this Agreement (including the schedules
hereto), the terms of the Purchase Agreement shall control.
2.2.
Successors and Assigns. The provisions of this Agreement shall bind and inure to
the benefit of Assignors and Assignee and their respective successors and permitted assigns.
2.3.
Amendment and Waiver. Any provision of this Agreement may be (a) amended
only in a writing signed by Assignors and Assignee or (b) waived only in a writing executed by
the Person against which enforcement of such waiver is sought. No waiver of any provision
hereunder or any breach or default thereof will extend to or affect in any way any other provision
or prior or subsequent breach or default.
2.4.
Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable Law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such
provision shall be ineffective as to such jurisdiction to the extent of such invalidity, illegality or
unenforceability without invalidating or affecting the remaining provisions hereof or affecting
the validity, legality or enforceability of such provision in any other jurisdiction. Upon such a
determination, the Parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the Parties hereto as closely as possible in a reasonably acceptable
manner in order that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
2.5.

Governing Law; Consent to Jurisdiction and Venue; Jury Trial Waiver

(a)
Except to the extent the mandatory provisions of the Bankruptcy Code
apply, this Agreement, and any Action that may be based upon, arise out of or relate to this
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Agreement or the negotiation, execution or performance of this Agreement or the transactions
contemplated hereby will be governed by and construed in accordance with the internal Laws of
the State of Delaware applicable to agreements executed and performed entirely within such
State without regards to conflicts of law principles of the State of Delaware or any other
jurisdiction that would cause the Laws of any jurisdiction other than the State of Delaware to
apply.
(b)
Each of the Parties irrevocably agrees that any Action that may be based
upon, arising out of or related to this Agreement or the negotiation, execution or performance of
this Agreement and the transactions contemplated hereby brought by any other Party or its
successors or assigns will be brought and determined only in (a) the Bankruptcy Court and any
federal court to which an appeal from the Bankruptcy Court may be validly taken or (b) in the
event the Bankruptcy Case is closed, or if the Bankruptcy Court is unwilling or unable to hear
such Action, in the Delaware Chancery Court or any state court sitting in the State of Delaware
to which an appeal from the Delaware Chancery Court may be validly taken (or, if the State of
Delaware Chancery Court declines to accept jurisdiction over a particular matter, any state of
federal court within the State of Delaware) ((a) and (b), the “Chosen Courts”), and each of the
Parties hereby irrevocably submits to the exclusive jurisdiction of the Chosen Courts for itself
and with respect to its property, generally and unconditionally, with regard to any such Action
arising out of or relating to this Agreement and the transactions contemplated hereby. Each of
the Parties agrees not to commence any Action relating thereto except in the Chosen Courts,
other than Action in any court of competent jurisdiction to enforce any judgment, decree or
award rendered by any Chosen Court, and no Party will file a motion to dismiss any Action filed
in a Chosen Court on any jurisdictional or venue-related grounds, including the doctrine of
forum non-conveniens. The Parties irrevocably agree that venue would be proper in any of the
Chosen Courts, and hereby irrevocably waive any objection that any such court is an improper or
inconvenient forum for the resolution of such Action. Each of the Parties further irrevocably and
unconditionally consents to service of process in the manner provided for notices in Section 10.3
of the Purchase Agreement. Nothing in this Agreement will affect the right of any Party to this
Agreement to serve process in any other manner permitted by Law.
(c)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, THE DOCUMENTS
AND AGREEMENTS CONTEMPLATED HEREBY AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES AND THEREFORE HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY ACTION BASED ON, ARISING OUT OF OR RELATED TO THIS
AGREEMENT, ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY OR
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH OF THE
PARTIES AGREES AND CONSENTS THAT ANY SUCH ACTION WILL BE DECIDED BY
COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE
IRREVOCABLE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY (I)
CERTIFIES THAT NO ADVISOR OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
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EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II)
ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 2.5(c).
2.6.
Captions. The captions and article and section numbers in this Agreement are for
convenience only and do not constitute a part of this Agreement and shall not affect in any way
the meaning or interpretation of this Agreement. References in this Agreement to articles and
sections are to articles and sections of this Agreement unless otherwise specified.
2.7.
Counterparts and PDF. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which together will constitute
one and the same instrument. This Agreement or any counterpart may be executed and delivered
by facsimile copies or delivered by electronic communications by portable document format
(.pdf), each of which shall be deemed an original. At the request of any Party, each other Party
hereto will re-execute original forms of this Agreement and deliver them to all other parties. No
Party will raise the use of a facsimile machine, .PDF or other electronic transmission to deliver a
signature or the fact that any signature or contract was transmitted or communicated through the
use of facsimile machine, .PDF or other electronic transmission as a defense to the formation of a
contract and each such Party forever waives any such defense.
[Signature Pages Follow]

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized officers as of the date first above written, to be effective as of the
Closing Date.
ASSIGNORS:
ASCENA RETAIL GROUP, INC.
By: ______________________________
Name:
Title:

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CATHERINES STORES CORP.
By: ______________________________
Name:
Title:

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CATHERINES INC.
By: ______________________________
Name:
Title:

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CHARMING SHOPPES, INC.
By: ______________________________
Name:
Title:

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ASSIGNEE:
CITY CHIC COLLECTIVE USA
INCORPORATED
By: ______________________________
Name:
Title:

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EXHIBIT B

FORM OF IP ASSIGNMENT AGREEMENT
This IP ASSIGNMENT AGREEMENT (this “Agreement”), dated as of [●], 2020 (the
“Effective Date”), is by and between Catherines, Inc., a Delaware corporation (“Assignor”) and
City Chic Collective USA Incorporated, a Delaware Corporation (“Assignee”).
WHEREAS, Assignor is the owner of certain trademarks and service marks (such
trademarks and service marks, common law or otherwise, registered or not registered, registrations
and, to the extent assignable, applications therefor (including intent to use applications), as well as
all goodwill appurtenant thereto, being referred to herein as the “Trademarks”);
WHEREAS, Assignee is the successor of the ongoing and existing business or portion
thereof of Assignor’s business to which the Trademarks pertain; and
WHEREAS, Assignor wishes to assign such Trademarks to Assignee;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1.
As of the Effective Date, Assignor hereby assigns and transfers to Assignee, all of
its right, title and interest in all Trademarks owned by Assignor, together with the goodwill of the
business symbolized by and appurtenant to the Trademarks, including those listed in Attachment
1 hereto, free and clear of any charge, lien, claim, security interest or other similar restriction, and
including Assignor’s right to sue for and collect damages and other recoveries for past, present
and future infringement thereof and the right to prosecute and maintain trademark applications and
the registrations for the Trademarks.
2.
Assignor hereby authorizes and requests the U.S. Patent and Trademark Office, and
the corresponding entities or agencies in any applicable foreign countries, to record Assignee as
the assignee and owner of the Trademarks, and to issue all corresponding registrations to the
Assignee, its successors, legal representatives and assigns, in accordance with the terms of this
Agreement. Assignee shall be responsible for any and all costs and expenses associated with
recording this Agreement with the applicable trademark office(s).
3.
The terms of this Agreement shall be binding upon, and inure to the benefit of and
be enforceable by the respective successors and permitted assigns of the parties hereto
4.
This Agreement contains the entire agreement between the parties and supersedes
any previous communications, representations, or agreements, verbal or written, relating to the
subject matter of this Agreement. This Agreement may only be amended by a writing signed by
both parties.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
[Signatures follow on next page]

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CATHERINES, INC.

CITY CHIC COLLECTIVE USA
INCORPORATED

By:
__________________________________

By:
__________________________________

Name:
________________________________

Name:
________________________________

Title:
_________________________________

Title:
_________________________________

Dated:
________________________________

Dated:
________________________________

Signature Page to IP Assignment Agreement

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EXHIBIT C
TRANSITION SERVICES AGREEMENT

This Transition Services Agreement (this “Agreement”) is dated as of [●] (the “Effective
Date”) by and between City Chic Collective USA Incorporated, a Delaware corporation (“Service
Recipient”), and Ascena Retail Group, Inc., a Delaware corporation (the “Service Provider”).
Service Recipient and Service Provider are referred to herein individually as a “Party” and
collectively as the “Parties.” Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Purchase Agreement (as defined below).
RECITALS
WHEREAS, as set forth in the Asset Purchase Agreement, dated as of July 2 , 2020 (the
“Purchase Agreement”), by and among Service Recipient, Service Provider and the Subsidiaries
of Service Provider party thereto, Service Recipient has agreed to purchase from Service Provider
and Service Provider has agreed to sell, transfer, assign and deliver to Service Recipient, in
accordance with Sections 105, 363 and 365 and the other applicable provisions of the Bankruptcy
Code, the Acquired Assets, together with certain Assumed Liabilities, upon the terms and subject
to the conditions set forth in the Purchase Agreement; and
WHEREAS, in connection with the transactions contemplated by the Purchase
Agreement, Service Provider will provide Service Recipient certain services, as described herein;
NOW, THEREFORE, in consideration of the recitals and the mutual covenants,
representations, warranties and agreements contained herein, the Parties agree as follows:
1. 

Services Provided.
1.1.

During the period commencing on the Effective Date and ending on the
Termination Date, subject to the terms hereof, Service Provider shall provide to
Service Recipient the services described on Annex A to this Agreement (each a
“Service” and collectively, the “Services”), in each case until such Services are
terminated in accordance with the terms hereof. Unless otherwise agreed to in
writing by the Parties, all fees for such Services will be paid by Service Recipient
in accordance with Section 2 and Section 3 below. Service Recipient acknowledges
and agrees that Service Provider and certain of its Subsidiaries are debtors in the
Bankruptcy Case and that, as such, it and such Subsidiaries are subject to limitations
on debtors under chapter 11 of the Bankruptcy Code and subject to any orders of
the Bankruptcy Court, and that, in addition, Service Provider has significant
limitations on its resources. Service Recipient agrees that the obligations and efforts
(including commercially reasonable efforts) of the Service Provider set forth herein
are qualified accordingly.

1.2.

Service Provider shall perform the Services in a commercially reasonable manner
not materially inconsistent, to the extent feasible, with the level of quality and the
manner of the performance of such services by Service Provider in respect of the
operations of the E-Commerce Business during the twelve (12)-month period
immediately prior to the Effective Date, subject to the limitations set forth in the
last two sentences of Section 1.1 above. In furtherance of the foregoing, Service
{00314122.4 / 1218-003 }

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Recipient acknowledges that, in connection with performing the Services
hereunder, Service Provider shall have no obligation to change any practices or
processes used by it prior to the Effective Date in performing the Services. Except
as set forth in the first sentence of this Section 1.2, the Services are furnished
hereunder on an “as is” condition and on a “where is” basis, and without
representation, warranty or condition of any kind, express or implied, including any
warranty or condition of non-infringement, merchantability or fitness for any
particular purpose. Nothing in this Agreement shall require Service Provider to take
or refrain from taking any action that, in Service Provider’s reasonable judgment,
could reasonably be expected to result in any breach or violation of any Law or any
contract to which Service Provider or any of its Subsidiaries is a party.
1.3.

The Services will be provided during normal working hours and otherwise as
reasonably requested or reasonably necessary to perform the Services. To the extent
that Service Recipient is required to gain access to the Service Provider’s
information technology infrastructure during the course of the provision of the
Services, Service Provider shall provide Service Recipient and its employees such
access to such information technology infrastructure in the same general manner as
it made such information technology infrastructure available to Service Provider’s
employees and contractors prior to the Effective Date.

1.4.

Service Provider may as it deems necessary or appropriate in its sole discretion,
(a) use its personnel, its Subsidiaries, and the personnel of such Subsidiaries, and/or
(b) employ the services of other third parties, in each case, to perform any or all of
Service Provider’s obligations to provide Services under this Agreement (provided
that, for the purpose of providing any of the Services hereunder, the employment
of any third party not already, as of the Effective Date, used by the Service Provider
to perform functions included in such Services shall require the consent of Service
Recipient, which consent shall not be unreasonably withheld). Service Provider
shall have no liability for the failure of any subcontractor to continue providing
Services, except to the extent that such failure is due to the fault of Service Provider
(which fault includes, for the avoidance of doubt, the failure of Service Provider to
pay amounts owing to such subcontractor, unless such failure to pay results from
the failure of Service Recipient to pay amounts owed hereunder).

1.5.

Service Recipient shall have the right to direct the provision of the Services to the
extent the Services pertain to the marketing and sale of the Acquired Inventory on
the E-Commerce Platform (as defined in Annex A hereto), the transfer of the
Acquired Inventory to Service Recipient (the “Inventory Delivery Services”) and
customer privacy-related matters. Management of, and control over, the provision
of all other Services and portions of the Services in accordance with the terms
hereof (including the determination or designation at any time of the equipment,
employees and other resources of Service Provider to be used in connection with
the provision of such Services) shall reside solely with Service Provider, including
with respect to all labor matters relating to any employees of Service Provider.

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1.6.

The Parties each agree to (a) designate an appropriate point of contact and
coordination for all questions and issues relating to the Services during the Term
(as defined below) of this Agreement (each a “Transition Manager” and
collectively, the “Transition Managers”) and (b) make available the services of
appropriate qualified employees and resources to allow for the provision of the
Services and to allow each Party to perform its duties, responsibilities and
obligations related to the Services. The Transition Manager for Service Provider
will be [●] and the Transition Manager for Service Recipient will be [●].

1.7.

In providing the Services, Service Provider shall not be obligated to: (a) hire any
additional employees; (b) maintain the employment of any specific employee; (c)
purchase, lease or license any additional equipment or software; (d) create or supply
any documentation or information not currently existing or available without
commercially unreasonable effort; (e) pay any costs related to the transfer or
conversion of data or other information to Service Recipient; (f) enter into
additional contracts or agreements or change the scope of current contracts or
agreements. Notwithstanding the foregoing, in the event the employees, services or
contracts of the Service Provider or its Subsidiaries required to provide any Service
or any portion of any Service are terminated or otherwise become unavailable to
Service Provider or its Subsidiaries, Service Provider shall use commercially
reasonable efforts to replace such employees, services and/or contracts (provided
that any replacement contracts shall be entered into by Service Recipient and not
Service Provider) at no more than substantially the same cost to Service Provider
as originally projected by Service Provider, and if unsuccessful, Service Provider
shall promptly notify Service Recipient and shall no longer be required to provide
such Service(s) or portion thereof, and Service Recipient shall not be required to
pay the Fees (as defined below) associated with such Services or portion thereof.

1.8.

Service Provider and Service Recipient each acknowledge the transitional nature of
the Services, and Service Recipient agrees that it shall use commercially reasonable
efforts to make a transition of each Service to its own internal organization or to
obtain alternate third-party sources to provide the Services as soon as reasonably
possible following the Closing.

1.9.

For the avoidance of doubt, the Services do not include any services that are
currently performed by the legal department of the Company or any of its
Subsidiaries.

Fees.
2.1.

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As consideration for the Services provided hereunder, Service Recipient shall pay
to Service Provider (a) $[_____]1 (the “Fixed Fee”), (b) any and all documented
out-of-pocket expenses and costs, including Taxes (including, for the avoidance of
doubt, sales Tax, value added Tax, use Tax, rent Tax, goods and services Tax or
similar Tax, but excluding Taxes on Service Provider’s income or ownership of

Parties to reasonably cooperate in good faith to determine amount prior to Closing.

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property and Inventory Sales Taxes), incurred by or on behalf of Service Provider
or any of its Subsidiaries in connection with the provision of the Services hereunder
to the extent such expenses and costs are not otherwise included in the Fixed Fee
(the “Reimbursable Expenses” and, collectively with the Fixed Fee, the “Fees”).
2.2.

The Fixed Fee is intended to compensate the Service Provider for:

(a)

the amount of all wages, bonuses and commissions, employee benefits (including
worker’s compensation and healthcare benefits), and payroll taxes relating to
employment or engagement of all employees, independent contractors or agents of
Service Provider that are providing Services;

(b)

the costs and expenses associated with the IT systems needed to provide such
Services (including with respect to extending any IT, license, software agreements);
and

(c)

the occupancy expenses for all real estate used to store the Acquired Inventory
during the Term.
All other out-of-pocket costs and expenses incurred by or on behalf of the Service
Provider or its Subsidiaries in providing the Services, including, for the avoidance
of doubt, fees or costs associated with (i) shipping and handling of Acquired
Inventory shipped to customers who place orders through the E-Commerce
Platform, (ii) transferring Acquired Inventory from the distribution center to
Service Recipient’s designated location (which transfer Service Recipient shall be
responsible for arranging and coordinating), including delivery and freight costs,
and (iii) credit / bank card fees and other service charges and chargebacks and credit
/ bank card discounts incurred in connection with the provision of the Services that
include the sale of the Acquired Inventory ordered through the E-Commerce
Platform (the “Inventory Sale Services”), shall be Reimbursable Expenses
hereunder.

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2.3.

The Parties acknowledge and agree that on the Effective Date, the Service Recipient
shall pay the aggregate of (a) the Fixed Fee and (b) $[●]2, as the estimated
Reimbursable Expenses to be incurred hereunder (the “Budgeted Reimbursable
Expenses”). Service Provider shall use reasonable efforts to apprise Service
Recipient of any material Reimbursable Expenses that are not Budgeted
Reimbursable Expenses prior to incurrence of such Reimbursable Expenses,
provided that this shall not be deemed to waive any right of Service Recipient to
reasonably challenge whether an asserted expense that is not a Budgeted
Reimbursable Expense qualifies as a Reimbursable Expense.

2.4.

Within five (5) Business Days following the Termination Date of this Agreement,
Service Provider shall provide to Service Recipient a report of the amounts of
Reimbursable Expenses incurred by or on behalf of Service Provider in providing
the Services during the Term (and reasonably detailed documentation evidencing
such amounts), and if such actual Reimbursable Expenses are different from the

Parties to reasonably cooperate in good faith to determine amount prior to Closing.

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aggregate amount of Budgeted Reimbursable Expenses and Reimbursable
Expenses paid to the Service Provider from the Designated Deposit Accounts
pursuant to Section 3.2(a) (such aggregate amount, the “Prepaid Reimbursable
Expenses”), then the Parties shall work in good faith to reconcile the discrepancy,
and the Service Provider shall pay to the Service Recipient (in the event such actual
Reimbursable Expenses are less than the Prepaid Reimbursable Expenses) or the
Service Recipient shall pay to the Service Provider (in the event such actual
Reimbursable Expenses exceed the Prepaid Reimbursable Expenses), as applicable,
the difference between such amounts as promptly as practicable, but in no event
later than three (3) Business Days, after such reconciliation (provided that any and
all Reimbursable Expenses that are Taxes actually incurred by or on behalf of
Service Provider or its Subsidiaries shall be the responsibility of Service Recipient,
and shall be paid promptly after receipt by Service Recipient of a copy of such
actual and documented Taxes). For the avoidance of doubt, the full amount of the
Fixed Fee shall be payable regardless of when the Term actually ends.
2.5.

3.

During the Term of this Agreement and for one month after the Termination Date,
Service Recipient shall have the right, during normal business hours and on prior
written notice to take such actions as are reasonably necessary to audit the amounts
payable hereunder.

Deposit and Application of Proceeds.
3.1.

If Service Provider receives proceeds from consumers in connection with the
Inventory Sale Services, including shipping and handling charges and Inventory
Sales Taxes paid by consumers (collectively, “Proceeds”), such Proceeds shall be
collected by Service Provider and deposited into one or more segregated depository
accounts designated by, and solely owned and in the name of, Service Provider,
which accounts shall be used for the deposit of the Proceeds and the disbursement
of amounts payable as Reimbursable Expenses hereunder (the “Designated Deposit
Accounts”).

3.2.

On each [Wednesday] during the Term, Service Provider and Service Recipient
shall cooperate to jointly determine the Proceeds received during the prior week
(i.e., Sunday through Saturday) and any additional Reimbursable Expenses that
were not prepaid as Budgeted Reimbursable Expenses and other deductions or
offsets to the Proceeds, if any (the “Weekly Sale Reconciliation”). Within five (5)
Business Days after each Weekly Sale Reconciliation, Service Provider shall
disburse the Proceeds attributable to such Weekly Sale Reconciliation from the
Designated Deposit Accounts in the following order of priority: (a) to pay any
Reimbursable Expenses incurred in excess of the Budgeted Reimbursable
Expenses; and (b) to pay Service Recipient any remaining Proceeds.

3.3.

Within thirty (30) days after the end of the Term, or as soon as practicable
thereafter, Service Provider and Service Recipient shall together work in good faith
to agree to a final, written reconciliation of the Proceeds attributable to the
Inventory Sale Services (the “Final Reconciliation”), as a final settlement of

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accounts between Service Provider and Service Recipient. Within five (5) Business
Days after the completion of the Final Reconciliation, Service Provider shall
disburse the remaining Proceeds in the Designated Deposit Accounts based on the
order of priority set forth in Section 3.2 above. During the Term and thereafter until
completion of the Final Reconciliation, Service Provider and Service Recipient
shall have reasonable access during normal business hours to the records of the
other Party relating to (1) the Acquired Inventory; (2) the Reimbursable Expenses;
(3) the Proceeds from sold Acquired Inventory; and (4) sales data from the
Inventory Sale Services.
3.4.

Terms of Sales to Consumers. Except as otherwise agreed to in writing by Service
Provider, with respect to all sales of the Acquired Inventory in connection with the
Inventory Sale Services, (a) Service Recipient will be the seller of record of the
Acquired Inventory; (b) the Acquired Inventory will be sold without any
representation or warranty of any kind; (c) consumers will use nationally
recognized bank credit and debit cards acceptable to Service Provider for the
purchase of the Acquired Inventory, provided that Service Provider shall allow
consumers to use any bank credit and debit cards that Service Provider accepted for
consumer sales of Inventory prior to the Effective Date; (d) coupons issued by
Service Provider prior to the Effective Date for the purchase of E-Commerce
Business merchandise that are valid as of the date of sale to consumers will be
accepted and honored; (e) Service Provider’s gift certificates, gift cards, return
credits, and similar merchandise credits issued by the Service Provider and
applicable to Acquired Inventory will be accepted and honored; and (f) consumers
will not be permitted to return the Acquired Inventory (provided that, for the
avoidance of doubt, Service Provider shall be permitted to process returns through
the E-Commerce Platform during the Term with regards to the Inventory sold prior
to the Closing.

4.

Inventory Sales Taxes. All sales, excise, gross receipts and other similar Taxes (excluding
Taxes on income) attributable to sales of the Acquired Inventory in connection with the
Inventory Sale Services that are payable to any Taxing authority (collectively, “Inventory
Sales Taxes”) shall be added to the sales price of the Acquired Inventory at the time of
such sale. Service Recipient shall prepare and file all applicable reports and documents
required by the applicable Taxing authorities, and Service Recipient shall pay all Inventory
Sales Taxes.

5.

Insurance. Service Recipient shall maintain, at its sole cost and expense throughout the
Term, insurance, including property insurance, with respect to the Acquired Inventory that
remains in Service Provider’s possession. Risk of loss of any such Acquired Inventory
will be for the account of Service Recipient and Service Recipient shall be financially
responsible therefor, except to the extent such loss was caused by, arose out of or resulted
from gross negligence or willful misconduct of the Service Provider. In the event of a claim

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under any such insurance policies, Service Recipient shall be responsible for the payment
of all deductibles, retentions or self-insured amounts thereunder.
6.

Term and Termination.
6.1.

Term. This Agreement shall become effective on the Effective Date and, unless
sooner terminated in accordance with the terms hereof, shall continue in effect until
thirty (30) days after the Effective Date (the “Termination Date”), except as
otherwise provided in this Section 6 (the “Term”). All Services will be terminated
on the Termination Date, except as otherwise provided in this Section 6.
Notwithstanding the foregoing, in the event that, as of the date that is thirty (30)
days after the Effective Date, Service Provider has not yet completed its obligations
hereunder with respect to the Inventory Delivery Services for the Acquired
Inventory then remaining in the possession of the Service Provider, the Parties shall
negotiate in good faith to extend the Termination Date and the Term hereunder
solely with respect to the Inventory Delivery Services in order to allow the delivery
to (or as directed by) Service Recipient of such Acquired Inventory as promptly as
reasonably practicable thereafter.

6.2.

Termination. This Agreement (or any of the individual Services) may be terminated
earlier (and the Termination Date (with respect to such individual Services, if
applicable) shall be effective as of such termination) in accordance with any of the
following provisions:
(a)

By mutual written consent of the Parties; or

(b)

By Service Recipient, upon fourteen (14) days’ prior written notice given at
any time to Service Provider, effective as of the date specified in such
written notice.

6.3.

Effect of Termination. For the avoidance of doubt, Service Recipient may terminate
any Services without terminating the entire Agreement. Upon termination of any or
all Services in accordance with this Section 6, (a) Service Provider shall have no
further obligation to provide the applicable terminated Services and (b) Service
Recipient will have no obligation to pay Fees to the extent incurred with respect to
actions taken in the provision of such terminated Services after such termination,
other than for or in respect of steps already taken by Service Provider in the
provision of such Services prior to such termination. Notwithstanding the
foregoing, upon the termination of this Agreement, or upon the termination of all
Services provided hereunder, Service Provider shall be entitled to prompt payment
or reimbursement of, and Service Recipient shall promptly pay and reimburse
Service Provider for, all amounts accrued (whether or not invoiced) or due
hereunder as of the date of such termination.

6.4.

Survival. Notwithstanding the expiration or early termination of this Agreement or
any Services hereunder, this Section 6 and Sections 8 through 17 will survive
termination of this Agreement.

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7.

Intellectual Property. Subject to the terms and conditions of this Agreement, and without
limitation on the terms of the Purchase Agreement, during the Term, Service Recipient
grants to Service Provider and Service Provider hereby accepts a limited, non-exclusive,
non-sublicenseable, non-transferable and non-assignable right to use the Acquired Assets
solely for the purposes of performing the Services in accordance with the terms of this
Agreement. Service Provider acknowledges that except as provided in the Purchase
Agreement, (a) it has no right, title or interest in or to the Acquired Assets, and (b) all
rights, title and interest in or to the Acquired Assets, express or implicit, belong exclusively
to Service Recipient.

8.

Confidentiality. Each Party (in such capacity, the “Receiving Party”) acknowledges that it
may have access to or otherwise receive certain information or data, regardless of whether
it is in tangible form, concerning the business, plans, strategies, customers, technology,
intellectual property, services, products and pricing (“Confidential Information”) of the
other Party (in such capacity, the “Disclosing Party”) that is confidential, regardless of
whether it is marked or identified as such. The terms and conditions of this Agreement will
also be considered each Party’s “Confidential Information” hereunder. Confidential
Information is of substantial value to the Disclosing Party, which value would be impaired
if it was disclosed to third parties. The Receiving Party shall (a) not use the Confidential
Information except for internal use to perform its obligations under this Agreement, (b) not
disclose Confidential Information other than to its directors, officers, employees,
representatives and advisors who are required to have access to such Confidential
Information in order to perform the Receiving Party’s obligations under this Agreement,
provided that such persons are directed to comply with the terms of this Section 9 as if they
were a Receiving Party hereunder, and provided further that the Receiving Party shall be
responsible for any breach of such terms by such persons, and (c) protect the confidentiality
of such Confidential Information and avoid disclosure and unauthorized use thereof. If a
Receiving Party is requested pursuant to, or required by, applicable Law or legal process
to make any disclosure of Confidential Information, it shall first provide the Disclosing
Party with prompt written notice of such request or requirement in order to enable the
Disclosing Party to seek an appropriate protective order or other remedy (and if the
Disclosing Party seeks such an order, the Receiving Party shall provide such cooperation
as the Disclosing Party shall reasonably request at the Disclosing Party’s expense) and shall
consult with the Disclosing Party with respect to taking steps to resist or narrow the scope
of such disclosure.

9.

Dispute Resolution. In the event of any dispute between the Parties with respect to the
provision of any Service pursuant to this Agreement, each Party’s Transition Manager shall
attempt to resolve the dispute and each Transition Manager will use his or her
commercially reasonable efforts to resolve the dispute promptly. If the Transition
Managers are unable to resolve the dispute within five (5) Business Days of the submission
of the dispute to them, the Parties hereby irrevocably consent to the exclusive jurisdiction
of the Bankruptcy Court for the resolution of any such dispute. The failure of the Transition
Managers to resolve a dispute pursuant to this Section 8 shall not relieve a Party hereto of
its obligations hereunder.

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10.

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Indemnification; Scope of Liability.
10.1.

Service Provider shall indemnify Service Recipient and its Affiliates, and each of
their respective officers, directors, members, representatives, agents and employees
against and hold them harmless from any loss, liability, damage, cost or expense
(including reasonable fees and expenses of counsel) (collectively, “Losses”)
incurred by any such indemnified person in connection with the performance of
Services by Service Provider or its Affiliates to the extent resulting from the gross
negligence or willful misconduct of Service Provider or its Affiliates in
performance of the Services, as determined by a court of competent jurisdiction in
a final and nonappealable judgment.

10.2.

Service Recipient shall indemnify Service Provider and its Affiliates and each of
their respective officers, directors, members, representatives, agents and employees
against and hold them harmless from any Losses incurred by any such indemnified
person to the extent resulting from the performance of Services by Service Provider
or any of its Affiliates, other than any Losses resulting from the gross negligence
or willful misconduct of Service Provider, as determined by a court of competent
jurisdiction in a final and nonappealable judgment.

10.3.

Except as otherwise specifically provided in this Agreement (and excluding the
Fees and any other amounts payable by Service Recipient hereunder or under the
Purchase Agreement), Service Provider and Service Recipient each acknowledge
that their sole and exclusive monetary remedy with respect to any claims relating
to this Agreement shall be pursuant to the terms of this Section 10. In furtherance
of the foregoing, Service Provider and Service Recipient each hereby waives, each
on behalf of itself and its respective Affiliates and indemnified parties hereunder,
from and after the Closing, any and all rights, claims and causes of action they may
otherwise have against Service Provider or any other party arising under or based
upon Law or otherwise to the extent relating to this Agreement. To the maximum
extent permitted by applicable Law, (i) in no event shall any Loss for which
indemnification is provided under this Section 10 include consequential, lost
profits, special, punitive, incidental or indirect damages and (ii) in no event shall
Service Provider’s aggregate liability under this Section 10 exceed the aggregate
amount of the Fees paid by Service Recipient to Service Provider under this
Agreement.

Independent Contractor. The Parties hereto understand and agree that this Agreement does
not make any of them an agent or legal representative of the other for any purpose
whatsoever. No Party is granted, by this Agreement or otherwise, any right or authority to
assume or create any obligation or responsibilities, express or implied, on behalf of or in
the name of any other Party, or to bind any other Party in any manner whatsoever. The
Parties expressly acknowledge that Service Provider is an independent contractor with
respect to Service Recipient in all respects, including the provision of the Services, that
Service Provider is solely responsible for its own employees and permitted contractors and
that the Parties are not partners, joint venturers, employees or agents of or with each other.

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12.

Force Majeure. In the event that performance of any Service is interrupted, or performance
of any terms or provisions of this Agreement (except for the payment of any Fees or any
other amounts payable by Service Recipient hereunder) is delayed or prevented, in whole
or in part, because of or related to compliance with any Order or Law, or because of riots,
war, public disturbance, pandemic, strike, labor dispute, fire, explosion, storm, flood,
earthquake, acts of God, acts of terrorism, unavailability of supplies, major breakdown or
failure of transportation, manufacturing, distribution or storage facilities, or for any other
reason that is not within the control of the Service Provider (each, a “Force Majeure
Event”), then upon prompt written notice to the Service Recipient providing reasonable
detail as to the nature of such Force Majeure Event, the Service Provider shall be excused
from its obligations hereunder so long as such Force Majeure Event continues, and no
liability shall attach against the Service Provider on account thereof.

13.

Entire Agreement. This Agreement and the Purchase Agreement (in each case, to the extent
referenced herein) constitute the entire agreement of the Parties with respect to the subject
matter hereof, and supersede all prior agreements, understandings and negotiations, both
written and oral, between the Parties with respect to the subject matter hereof.

14.

Amendment; Waiver. Any provision of this Agreement may be (a) amended only in a
writing signed by Service Provider and Service Recipient or (b) waived only in a writing
executed by the person against which enforcement of such waiver is sought. No waiver of
any provision hereunder or any breach or default thereof will extend to or affect in any way
any other provision or prior or subsequent breach or default.

15.

Assignment. Neither Party may, directly or indirectly, in whole or in part, by operation of
law or otherwise, assign or transfer this Agreement without the other Party’s prior written
consent. Any attempted assignment, transfer or delegation without such prior written
consent will be void. This Agreement will be binding upon and inure to the benefit of the
Parties and their permitted successors and assigns.

16.

Annexes. Annex A shall be construed with and as an integral part of this Agreement to the
same extent as if the same had been set forth verbatim herein. In the event of any
inconsistency between the terms of Annex A and the terms set forth in the main body of
this Agreement, the terms of this Agreement shall govern.

17.

Other Agreements. This Agreement is not intended to amend or modify, and should not be
interpreted to amend or modify in any respect the rights and obligations of Service Provider
and Service Recipient under the Purchase Agreement. Sections 10.3, 10.6, 10.8, 10.9,
10.12, 10.13, 10.14, 10.15, 10.16 and 11.3 of the Purchase Agreement are hereby
incorporated by reference and shall apply mutatis mutandis to the terms of this Agreement.
[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the Effective Date.
SERVICE RECIPIENT
CITY CHIC COLLECTIVE USA
INCORPORATED

By:
__________________________________
Name: __________________________________
Title: __________________________________

{00314122.4 / 1218-003 }Signature

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the Effective Date.
SERVICE PROVIDER
ASCENA RETAIL GROUP, INC.

By:
__________________________________
Name: __________________________________
Title: __________________________________

{00314122.4 / 1218-003 }Signature

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ANNEX A
TRANSITION SERVICES
Service

Service Description

E-Commerce
Services

Host, operate and maintain the www.catherines.com website and
the software applications integrated into and used in the operation
thereof, including those through which inventory is sold to
consumers who place orders for such inventory through such
website (collectively, the “E-Commerce Platform”), for the
purposes of marketing, offering for sale and selling Acquired
Inventory to consumers, including support for telephone sales and
IT support. Service Provider shall provide a weekly report on sales
made through the E-Commerce Platform, including sales and gross
margin information.

Marketing
Services

Market and promote the Transferred Trademarks and Acquired
Inventory, including through email marketing campaigns,
collection of customer data and website content management.

Distribution
Center Services

(i) Receive and store the Acquired Inventory at, (ii) ship orders of
the Acquired Inventory made by consumers through the ECommerce Platform from, and (iii) deliver the Acquired Inventory
to Service Recipient or at Service Recipient’s direction from,
Service Provider’s distribution centers.

Fulfillment
Services

Fulfill orders of Acquired Inventory made through the ECommerce Platform.

{00314122.4 / 1218-003 }Annex

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EXHIBIT D

KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (pro hac vice pending)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
-andJohn R. Luze (pro hac vice pending)
300 North LaSalle
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200

COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice in
DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899

Proposed Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
In re:
ASCENA RETAIL GROUP, INC., et al.,1
Debtors.

)
)
)
)
)
)
)

Chapter 11
Case No. 20-33113 (KRH)
(Joint Administration Requested)

BIDDING PROCEDURES
FOR THE SALE OF THE CATHERINES ASSETS
On July 23, 2020, the above-captioned debtors and debtors in possession (collectively,
the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States
Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”), in the United States Bankruptcy Court
for the Eastern District of Virginia (the “Bankruptcy Court”).
On [●], 2020, the Bankruptcy Court entered the Order (I) Approving the Stalking Horse
Protections, (II) Approving Bidding Procedures for the Sale of the Catherines Assets, and
(III) Approving Contract Assumption and Assignment Procedures [Docket No. [●]]

1

A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’
proposed claims and noticing agent at http://cases.primeclerk.com/ascena. The location of Debtor Ascena
Retail Group, Inc.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 933
MacArthur Boulevard, Mahwah, New Jersey 07430.

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(the “Bidding Procedures Order”),2 by which the Bankruptcy Court approved the following
procedures (the “Bidding Procedures”).
These Bidding Procedures set forth the process for a potential auction (the “Auction”)
and sale (the “Sale”) of the right, title, and interest of the Debtors in and to certain Catherines
Plus Sizes assets (the “Catherines Assets”), subject to the option of the Stalking Horse Bidder (as
defined below) to require the Debtors to consummate the Sale in accordance with the Stalking
Horse Purchase Agreement (as defined below).
The Debtors selected the bid (the “Stalking Horse Bid”) for the Catherines Assets
submitted by [City Chic Collective USA Incorporated] (“City Chic” and/or the “Stalking Horse
Bidder”), after a comprehensive public bidding process completed before the commencement of
these chapter 11 cases. The Stalking Horse Bidder has executed that certain purchase agreement
dated [●], 2020 entered into by and among certain of the Debtors and City Chic (as amended,
supplemented or otherwise modified by the parties thereto, and including the disclosure
schedules and exhibits attached thereto, the “Stalking Horse Purchase Agreement”) pursuant to
which the Stalking Horse Bidder has agreed to purchase the Acquired Assets (as defined in the
Stalking Horse Purchase Agreement), subject to the terms and conditions set forth therein.
Having announced the Stalking Horse Bid, the Debtors will now conduct a round of open
bidding during these chapter 11 cases intended to obtain the highest or otherwise best bid for the
Catherines Assets. The Stalking Horse Bid is subject to higher or better offers submitted in
accordance with the terms and conditions of these Bidding Procedures.
Copies of the Bidding Procedures Order or any other documents in the Debtors’ chapter 11
cases are available upon request to Prime Clerk LLC by calling (877) 930-4319 (toll free) or
(347) 899-4594 (international) or visiting the Debtors’ restructuring website at
(https://cases.primeclerk.com/ascena).
I.

Assets to be Auctioned.

These Bidding Procedures set forth the terms by which prospective bidders may qualify
for and participate in the Auction. The Catherines Assets will be offered for sale through the
Auction. The Debtors may consider bids from multiple bidders (including multiple bids
submitted by the same bidder) for the Catherines Assets. The Stalking Horse Bid referenced
herein provides for the Stalking Horse Bidder’s acquisition of the Catherines Assets in the
absence of a higher or otherwise better offer.
II.

Public Announcement of Auction.

As soon as reasonably practicable after the Petition Date, the Debtors shall (I) serve on
the Notice Parties (as defined below) a notice of the Auction and Sale (the “Sale Notice”), and
(II) publish the Sale Notice, with any modifications necessary for ease of publication, in The
New York Times (National Edition) to provide notice to any other potential interested parties.
2

All capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Motion
or the Bidding Procedures Order.

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Potential Bidder Requirements.

To participate in the bidding process or otherwise be considered for any purpose
hereunder, a person or entity (other than the Stalking Horse Bidder) interested in purchasing the
Catherines Assets (a “Potential Bidder”) must deliver or have previously delivered to the Debtors
the following preliminary documentation (collectively, the “Preliminary Bid Documents”):
a.

an executed confidentiality agreement (a “Confidentiality Agreement”) in form
and substance acceptable to the Debtors; and

b.

sufficient information that the Potential Bidder has or can reasonably obtain the
financial capacity to close the Sale (including current audited or verified financial
statements of, or verified financial commitments obtained by, the Potential Bidder
(or, if the Potential Bidder is an entity formed for the purpose of acquiring the
property to be sold, the party that will bear liability for a breach) as well as an
overview of any recent transactions), the adequacy of which must be acceptable to
the Debtors.

Only those Potential Bidders that have submitted acceptable Preliminary Bid
Documentation (each, an “Acceptable Bidder”) to the reasonable satisfaction of the Debtors and
their advisors may submit bids to purchase the Catherines Assets.
IV.

Qualified Bid Requirements.

To participate in the Auction, an Acceptable Bidder (other than the Stalking Horse
Bidder) must deliver to the Debtors and their advisors an irrevocable offer for the purchase of the
Catherines Assets (each, a “Bid”), and shall meet the following criteria:
a.

Purchased Assets and Assumed Liabilities: Each Bid must clearly state which
of the Catherines Assets the Acceptable Bidder seeks to acquire and which
liabilities of the applicable Debtor the Acceptable Bidder agrees to assume;

b.

Good Faith Deposit: The Bid must be accompanied by a cash deposit in the
amount equal to [10]% of the aggregate purchase price of the Bid to be held in an
interest-bearing escrow account to be identified and established by the Debtors
(the “Good Faith Deposit”);

c.

Purchase Price: Each Bid must clearly set forth the cash purchase price to be
paid, assuming a purchase of the Catherines Assets and any assumption of
liabilities (the “Purchase Price”). The Purchase Price should be a single point
value in U.S. Dollars for the applicable Catherines Assets on a cash-free,
debt-free basis;

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d.

Minimum Bid: At a minimum, each Bid must have a Purchase Price equal to, or
in excess of, the sum of $[●] plus the Initial Minimum Overbid Amount.3

e.

Markup of the Purchase Agreement: Each Acceptable Bidder must provide a
draft purchase agreement as well as a redline of such agreement marked to reflect
the amendments and modifications made to the form of the Stalking Horse
Purchase Agreement, which amendments and modifications may not be
inconsistent with these Bidding Procedures. Significant alterations to the Stalking
Horse Purchase Agreement are discouraged and may negatively impact a Bid;

f.

Same or Better Terms; Bid Documents: Except as otherwise provided in
the Bidding Procedures, each Bid must be, in the Debtors’ reasonable business
judgment, substantially on the same or better terms than the terms of the Stalking
Horse Purchase Agreement. Each Bid must include duly executed transaction
documents, including a proposed purchase agreement and any other ancillary
documentation necessary to effectuate the transactions contemplated in such Bid
(such documents, the “Bid Documents”);

g.

Employee Obligations: Each Bid must indicate whether the Acceptable Bidder
intends to hire all employees who are primarily employed in connection with
the Catherines Assets included in such Bid;

h.

Sources of Financing: To the extent that the Bid is not accompanied by evidence
of the Acceptable Bidder’s capacity to consummate the Sale set forth in its Bid
with cash on hand, the Bid must include committed financing, documented to the
Debtors’ satisfaction, that demonstrates that the Acceptable Bidder has received
sufficient debt and/or equity funding commitments to satisfy the Acceptable
Bidder’s obligations under the proposed Sale and other obligations under its Bid.
Such funding commitments or other financing must be unconditional and must
not be subject to any internal approvals, syndication requirements, diligence, or
credit committee approvals, and shall have covenants and conditions acceptable to
the Debtors;

i.

Contingencies; No Financing or Diligence Outs: Any Bid shall not be
conditioned on the obtaining or the sufficiency of financing, any internal
approval, or on the outcome or review of due diligence;

j.

Identity: Each Bid must fully disclose the identity of each entity and each
entity’s shareholders, partners, investors, and ultimate controlling entities that will
be bidding for or purchasing the applicable assets or otherwise participating in
connection with such Bid, and the complete terms of any such participation, along
with sufficient evidence that the Acceptable Bidder is legally empowered to
complete the transactions on the terms contemplated by the parties. Each Bid

“Initial Minimum Overbid Amount” means an amount equal to the sum of (a) $[●] plus (b) the Break-Up Fee
(as defined in the Stalking Horse Purchase Agreement) plus (c) the Expense Reimbursement (as defined in the
Stalking Horse Purchase Agreement).

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must also include contact information for the specific person(s) whom
Guggenheim and Kirkland should contact regarding such Bid;
k.

As-Is, Where-Is: Each Bid must include a written acknowledgement and
representation that the Acceptable Bidder: (i) has had an opportunity to conduct
any and all due diligence prior to making its offer; (ii) has relied solely upon its
own independent review, investigation, and/or inspection of any documents
and/or the assets in making its Bid; and (iii) did not rely upon any written or oral
statements, representations, promises, warranties, or guaranties whatsoever,
whether express, implied, by operation of law, or otherwise, regarding the
completeness of any information provided in connection therewith, except as
expressly stated in the Acceptable Bidder’s proposed purchase agreement;

l.

Authorization: Each Bid must contain evidence that the Acceptable Bidder has
obtained all necessary authorizations or approvals from its shareholders and/or its
board of managers or directors, or any other internal and other approvals, as
applicable, with respect to the submission of its Bid and the consummation of the
transactions contemplated in such Bid;

m.

Adequate Assurance of Future Performance: Each Bid (other than the
Stalking Horse Bid) must (i) identify the Catherines Executory Contracts and
unexpired leases to be assumed or assumed and assigned in connection with the
proposed Sale, (ii) provide for the payment of all Cure Amounts related to such
executory contracts and unexpired leases by the Acceptable Bidder, and
(iii) demonstrate, in the Debtors’ reasonable business judgment, that the
Acceptable Bidder can provide adequate assurance of future performance under
all such Catherines Executory Contracts and unexpired leases;

n.

Compliance with Bankruptcy Code and Non-Bankruptcy Law;
Acknowledgment: Each Bid must comply in all respects with the Bankruptcy
Code and any applicable non-bankruptcy law;

o.

No Collusion: The Acceptable Bidder must acknowledge in writing (a) that it
has not engaged in any collusion with respect to any Bids or the Sale, specifying
that it did not agree with any Acceptable Bidders or Potential Bidders to control
price; and (b) agree not to engage in any collusion with respect to any Bids, the
Auction, or the Sale. For the avoidance of doubt, this requirement does not
restrict Potential Bidder(s) from working with other Potential Bidder(s) with the
Debtors’ written consent (email shall suffice);

p.

Good Faith Offer: The Bid must constitute a good faith, bona fide offer to
consummate the Sale;

q.

Irrevocable: Each Bid must state that in the event a Bid is chosen as the
Back-Up Bid (as defined below), it shall remain irrevocable until the Debtors and
the Successful Bidder consummate the applicable Sale;

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r.

Back-Up Bid: Each Bid shall provide that the Acceptable Bidder will serve as a
backup bidder if the Acceptable Bidder’s Bid is the next highest or otherwise best
bid;

s.

Conditions to Closing: Each Bid must identify with particularity each and every
condition to closing, including the Catherines Executory Contracts and unexpired
leases (each as defined in the Bidding Procedures Order) for which assumption
and assignment is required; and

t.

Expected Closing Date: Each Bid must state the Acceptable Bidder’s expected
date of closing of the Sale.

Only Bids fulfilling all of the preceding requirements contained in this section may, or
otherwise in the Debtors’ reasonable discretion be deemed to be “Qualified Bids,” and only those
parties submitting Qualified Bids may, at the Debtors’ reasonable discretion, be deemed to
be “Qualified Bidders.”
Within one business day after the Bid Deadline, the Debtors shall determine which
Acceptable Bidders are Qualified Bidders and will notify the Acceptable Bidders whether Bids
submitted constitute Qualified Bids, which will enable such Qualified Bidders to participate in
the Auction. Any Bid that is not deemed a Qualified Bid shall not be considered by the Debtors;
provided that if the Debtors receive a Bid prior to the Bid Deadline that does not satisfy the
requirements of a Qualified Bid, the Debtors may provide the Acceptable Bidder with the
opportunity to remedy any deficiencies prior to the Auction. The Stalking Horse Bidder shall be
deemed to be a Qualified Bidder, the Stalking Horse Bid shall be deemed a Qualified Bid, and
the Stalking Horse Bidder may participate in the Auction with respect to the Catherines Assets.
V.

Obtaining Due Diligence Access.

Only Acceptable Bidders shall be eligible to receive due diligence information, access to
the Debtors’ electronic data room, and additional non-public information regarding the Debtors.
No Acceptable Bidder will be permitted to conduct any due diligence without entry into a
Confidentiality Agreement. Beginning on the date the Debtors determine that a party is an
Acceptable Bidder, or as soon as reasonably practicable thereafter, the Debtors will provide such
Acceptable Bidder with access to an electronic data room and reasonable due diligence
information, as requested by such Acceptable Bidder, as soon as reasonably practicable after
such request. The Debtors shall post substantially all written due diligence provided to any
Acceptable Bidder to the Debtors’ electronic data room for the benefit of all Acceptable Bidders.
Acceptable Bidders will not, directly or indirectly, contact or initiate or engage in discussions in
respect of matters relating to the Debtors or a potential transaction with any customer, supplier,
or other contractual counterparty of the Debtors without the prior written consent of the Debtors.
The due diligence period will end on the Bid Deadline and subsequent to the Bid Deadline the
Debtors shall have no obligation to furnish any due diligence information.
In connection with the provision of due diligence information to Acceptable Bidders,
the Debtors shall not furnish any confidential information relating to the Debtors or a potential

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transaction to any person except an Acceptable Bidder or such Acceptable Bidder’s duly
authorized representatives to the extent provided in an applicable Confidentiality Agreement.
The Debtors and their advisors shall coordinate all reasonable requests for additional
information and due diligence access from Acceptable Bidders; provided that the Debtors may
decline to provide such information to Acceptable Bidders who, in the Debtors’ reasonable
business judgment have not established, or who have raised doubt, that such Acceptable Bidders
intend in good faith to, or have the capacity to, consummate a Sale. For any bidder who is a
competitor or customer of the Debtors or is affiliated with any competitors or customers of the
Debtors, the Debtors reserve the right to withhold or modify any diligence materials that the
Debtors determine are business-sensitive or otherwise inappropriate for disclosure to such
bidder.
A.

Communications with Acceptable Bidders (including Qualified
Bidders).

Notwithstanding anything to the contrary in these Bidding Procedures, all substantive
direct communications, including any diligence requests, with Acceptable Bidders (including any
Qualified Bidders) shall be through Guggenheim.
B.

Due Diligence from Acceptable Bidders (including Qualified Bidders).

Each Acceptable Bidder (including any Qualified Bidder) shall comply with all
reasonable requests for additional information and due diligence access requested by the Debtors
or their advisors and their respective advisors, regarding the ability of such Acceptable Bidder
(including any Qualified Bidder) to consummate its contemplated transaction. Failure by an
Acceptable Bidder (including any Qualified Bidder) to comply with such reasonable requests for
additional information and due diligence access may be a basis for the Debtors, to determine that
such bidder is no longer an Acceptable Bidder (including any Qualified Bidder) or that a bid
made by such bidder is not a Qualified Bid.
Guggenheim Securities LLC, 330 Madison Avenue, New York, New York 10017,
Attn.: Michael Gottlieb (Michael.Gottlieb@guggenheimpartners.com) and Stuart
Erickson (Stuart.Erickson@guggenheimpartners.com), shall coordinate all requests for
additional information and due diligence access on behalf of the Debtors.
VI.

Indications of Interest.

The Debtors reserve the right to require Acceptable Bidders to submit written indications
of interest prior to the Bid Deadline specifying, among other things, the Catherines Assets
proposed to be acquired, the amount and type of consideration to be offered, and any other
material terms to be included in a bid by such party. If an Acceptable Bidder fails to comply
with any such request by the Debtors, the Debtors may, in consultation with one or more Initial
Consenting Stakeholders under the RSA, deny such Acceptable Bidder further diligence access
or deny such Acceptable Bidder further participation in the Auction process. The Debtors also
reserve the right to exclude any Acceptable Bidder (prior to its submission of a Qualified Bid)
from continuing in the Auction process if the Debtors determine, in consultation with one or
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more Initial Consenting Stakeholders under the RSA, that the consideration proposed to be paid
by such Acceptable Bidder is insufficient.
VII.

Bid Deadline.

Binding Bids must be received by (a) the Debtors’ counsel, Kirkland & Ellis LLP, 300
North LaSalle Street, Chicago, Illinois 60654, Attn: John R. Luze (john.luze@kirkland.com)
and Jeff Michalik (jeff.michalik@kirkland.com), (b) the Debtors’ financial advisor, Guggenheim
Securities, LLC, 330 Madison Avenue, New York, New York 10017, Attn: Michael Gottlieb
(Michael.Gottlieb@guggenheimpartners.com)
and
Stuart
Erickson
(Stuart.Erickson@guggenheimpartners.com), in each case so as to be actually received no later
than 5:00 p.m. (prevailing Eastern Time) on [●], 2020 (the “Bid Deadline”).
VIII. Evaluation of Qualified Bids.
The Debtors shall evaluate Qualified Bids and identify the Qualified Bid that is, in
the Debtors’ business judgment, the highest or otherwise best Qualified Bid or combination of
Qualified Bids for the Catherines Assets (the “Starting Bid”). When determining the highest or
otherwise best Qualified Bid, as compared to other Qualified Bids, the Debtors may consider the
following factors, in addition to any other factors that the Debtors deem appropriate: (a) the
amount and nature of the total consideration; (b) the likelihood of the Qualified Bidder’s ability
to close a transaction and the timing thereof; (c) the net economic effect of any changes to the
value to be received by each of the Debtors’ estates from the transaction contemplated by the Bid
Documents; and (d) the tax consequences of such Qualified Bid. Two business days prior to the
date of the Auction, the Debtors shall notify the Stalking Horse Bidder and all Qualified Bidders
as to which Qualified Bid is the Starting Bid for the Auction with respect to the applicable assets.
At such time, the Debtors shall also distribute copies of the Starting Bid to the Stalking Horse
Bidder and each Qualified Bidder.
IX.

No Qualified Bids.

If no Qualified Bids other than the Stalking Horse Bid are received by the Bid Deadline,
then the Debtors may cancel the Auction, and may decide, in the Debtors’ reasonable business
judgment, to designate the Stalking Horse Bid as the Successful Bid and pursue entry of an order
approving a Sale of the Catherines Assets to the Stalking Horse Bidder pursuant to the Stalking
Horse Purchase Agreement. The Debtors shall promptly file notice of any cancellation of the
Auction and designation of the Stalking Horse Bid as the Successful Bid with the Bankruptcy
Court.
X.

Auction.

If one or more Qualified Bids (other than the Stalking Horse Bid) are received by the Bid
Deadline with respect to any applicable assets, then the Debtors shall conduct the Auction with
respect to such assets. The Auction for the Catherines Assets shall commence on [●], 2020, at
[●] (prevailing Eastern Time) via videoconference or such other form of remote
communication arranged by counsel to the Debtors, or such later time or other place as the
Debtors determine, in which case the Debtors shall timely notify the Stalking Horse Bidder and

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all other Qualified Bidders of such later time or other place, and file a notice of the change on the
Bankruptcy Court’s docket for these chapter 11 cases.
The Auction will be conducted in accordance with the following procedures
(the “Auction Procedures”):
a.

the Auction will be conducted openly;

b.

only Qualified Bidders shall be entitled to bid at the Auction;

c.

the Qualified Bidders shall appear at the Auction in person or through duly
authorized representatives;

d.

only a reasonable number of authorized representatives of the Debtors and each
Qualified Bidder, and in the case of the Debtors and each Qualified Bidder, their
respective advisors, shall be permitted to attend the Auction;

e.

bidding shall begin with the Starting Bid;

f.

subsequent bids (each, an “Overbid”) shall be made in minimum increments
of $[●];

g.

each Qualified Bidder will be permitted a reasonable time to respond to previous
bids at the Auction, as determined by the Debtors;

h.

during the course of the Auction, the Debtors shall, after submission of each
Overbid, promptly inform each Qualified Bidder of the terms of the previous bids
and inform each Qualified Bidder which Overbid(s) reflect, in the Debtors’ view,
the highest or otherwise best bid(s) for the Catherines Assets;

i.

the Auction will be transcribed to ensure an accurate recording of the bidding at
the Auction;

j.

each Qualified Bidder will be required to confirm on the record that it has not
engaged in any collusion with respect to the bidding or any Sale;

k.

each Qualified Bidder will be required to confirm that its bid is a good faith, bona
fide offer and it intends to consummate the Sale if selected as the Successful Bid;

l.

the Bankruptcy Court and the Debtors will not consider bids made after the
Auction has been closed; and

m.

notwithstanding anything herein to the contrary, the Debtors may at any time
choose to adjourn the Auction by announcement at the Auction. The Debtors
shall promptly file notice of such adjournment with the Bankruptcy Court.

At the Auction, the Debtors shall have the right to modify the Auction Procedures or
adopt and announce additional Auction Procedures, including, for example and without

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limitation, other Auction Procedures necessary for the Debtors to consider any bids to purchase
fewer than all of the Catherines Assets; provided, however that the Debtors shall not modify the
Auction Procedures such that the bidding is not transparent to the Qualified Bidders.
XI.

Acceptance of the Successful Bid.

The Auction shall continue until (i) there is only one Qualified Bid or a combination of
Qualified Bids that the Debtors determine, in their reasonable business judgment and in a manner
consistent with the exercise of their fiduciary duties and outlined below in further detail, is the
highest or otherwise best bid to purchase any or all of the Catherines Assets (each, a “Successful
Bid”), and (ii) the Debtors determine, in their reasonable business judgment, that further bidding
is unlikely to result in a different Successful Bid or Successful Bids that would be reasonably
acceptable to the Debtors, at which point, the Auction will be closed.
When determining the highest or otherwise best Qualified Bid, as compared to other
Qualified Bids, the Debtors may consider the following factors in addition to any other factors
that the Debtors deem appropriate: (a) the amount and nature of the total consideration; (b) the
likelihood of the Qualified Bidder’s ability to close a transaction and the timing thereof; (c) the
net economic effect of any changes to the value to be received by each of the Debtors’ estates
from the transaction contemplated by the Bid Documents; and (d) the tax consequences of such
Qualified Bid.
Any Qualified Bidder that submits a Successful Bid will be deemed
a “Successful Bidder” with respect to the Catherines Assets. The Debtors shall promptly file
notice of the Successful Bid and the Successful Bidder with the Bankruptcy Court. Following
conclusion of the Auction and selection of a Successful Bidder, the Debtors shall present the
results of the Auction at a hearing (the “Sale Hearing”) and shall seek Bankruptcy Court
approval to enter into a binding purchase agreement with the Successful Bidder on the terms of
the Successful Bid (the order approving such entry, the “Definitive Purchase Agreement Order”).
For the avoidance of doubt, the Definitive Purchase Agreement Order shall deem the Debtors’
selection of the Successful Bid final and, subject to the designation of the Back-Up Bid (defined
below), the Debtors shall not solicit and /or accept any further bids or offers to submit a bid after
such selection; provided that, notwithstanding anything to the contrary in these Bidding
Procedures, nothing in these Bidding Procedures shall require the board of directors, board of
managers, or such similar governing body of any Debtor to take or refrain from taking any action
that would be inconsistent with applicable law or its fiduciary obligations under applicable law.
Within one business day of the selection of the Successful Bidder, such Successful
Bidder (other than the Stalking Horse Bidder) shall make a cash deposit, in addition to its Good
Faith Deposit, in an amount calculated on the basis of the increased aggregate purchase price,
submitted by wire transfer of immediately available funds to an escrow account to be identified
and established by the Debtors pursuant to a customary and reasonable escrow agreement. Each
Successful Bidder and the Debtors shall, as soon as commercially reasonable and practicable,
complete and sign all agreements, contracts, instruments, or other documents evidencing and
containing the terms upon which each such Successful Bid was made.

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Designation of Back-Up Bidder.

The Qualified Bidder with the second highest or otherwise best bid or combination of
bids (the “Back-Up Bid”) to purchase any or all of the Catherines Assets (the “Back-Up Bidder”)
will be determined by the Debtors at the conclusion of the Auction and will be announced at that
time to all the Qualified Bidders participating in the Auction. The Debtors’ selection of a
Back-Up Bid shall be deemed final and the Debtors shall not accept any further bids or offers to
submit a bid after such selection. If for any reason a Successful Bidder fails to consummate the
purchase of such assets within the time permitted, then the Back-Up Bidder will automatically be
deemed to have submitted the Successful Bid for such assets, and the Back-Up Bidder shall be
deemed a Successful Bidder for such assets and shall be required to consummate any Sale with
the Debtors as soon as is reasonably practicable without further order of the Bankruptcy Court,
provided that the Debtors shall file a notice with the Bankruptcy Court.
XIII. Approval of the Sale.
The Debtors will present the results of the Auction to the Bankruptcy Court for approval
at the Sale Hearing, at which certain findings will be sought from the Bankruptcy Court
regarding the Auction, including, among other things, that: (1) the Auction was conducted, and
the Successful Bidder was selected, in accordance with the Bidding Procedures; (2) the Auction
was fair in substance and procedure; (3) the Successful Bid was a Qualified Bid as defined in
the Bidding Procedures; and (4) consummation of any Sale as contemplated by the Successful
Bid in the Auction will provide the highest or otherwise best offer for the Catherines Assets and
is in the best interests of the Debtors and their estates.
XIV. Return of Good Faith Deposit.
The Good Faith Deposit of a Successful Bidder shall, upon consummation of any Sale, be
credited to the Purchase Price paid for the applicable Catherines Assets. If a Successful Bidder
fails to consummate any Sale, then the Good Faith Deposit shall be forfeited to, and retained
irrevocably by, the Debtors, and all parties in interest, and the Debtors specifically, reserve the
right to seek all available damages from the defaulting Successful Bidder.
The Good Faith Deposit of any Qualified Bidders that are not Successful Bidders or
Back-Up Bidders will be returned within five business days after the Auction or upon the
permanent withdrawal of the proposed Sale, and the Good Faith Deposit of any Back-Up Bidders
will be returned within five business days after the consummation of any Sale.
XV.

Reservation of Rights.

The Debtors reserve their rights to, subject to the terms of the Stalking Horse Purchase
Agreement, modify these Bidding Procedures in their reasonable business judgment and in a
manner consistent with the exercise of their fiduciary duties in any manner that will best promote
the goals of the bidding process, or impose, at or before the Auction, additional customary terms
and conditions on the sale of the Catherines Assets and Interests, including, without limitation:
(1) extending the deadlines set forth in the Bidding Procedures; (2) adjourning the Auction
without further notice; (3) adding procedural rules that are reasonably necessary or advisable
under the circumstances for conducting the Auction; (4) canceling the Auction; (5) rejecting any
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or all Bids or Qualified Bids; and (6) adjusting the applicable minimum overbid increment. The
Debtors shall provide notice in writing of any such modification to any Qualified Bidder,
including the Stalking Horse Bidder. For the avoidance of doubt, the Debtors reserve the right at
any point prior to the selection of the Successful Bidder to terminate the Sale processes
contemplated hereunder with respect to any or all of the Catherines Assets.
All parties expressly reserve all of their rights (and do not waive any such rights) to seek
Bankruptcy Court relief with regard to the Auction, the Bidding Procedures, the Sale, and any
related items (including, if necessary, to seek an extension of the Bid Deadline).
XVI. Consent to Jurisdiction.
All Qualified Bidders at the Auction will be deemed to have consented to the core
jurisdiction of the Bankruptcy Court and waived any right to a jury trial in connection with any
disputes relating to the Sale, the Auction and the construction and enforcement of these Bidding
Procedures, and/or any written indications of interest, Preliminary Bid Documents, or the Bid
Documents, as applicable, and consented to the entry of a final order or judgment in any way
related to these Bidding Procedures, the bid process, the Auction, the Sale Hearing, or the
construction and enforcement of any agreement or any other document relating to a Sale if it is
determined that the Bankruptcy Court would lack Article III jurisdiction to enter such a final
order or judgment absent the consent of the parties.
Any parties raising a dispute relating to these Bidding Procedures must request that such
dispute be heard by the Bankruptcy Court on an expedited basis.
XVII. Fiduciary Out.
Notwithstanding anything to the contrary in these Bidding Procedures, nothing in these
Bidding Procedures or the Bidding Procedures Order shall require a Debtor or the board of
directors, board of managers, or similar governing body of a Debtor to take any action or to
refrain from taking any action related to any sale transaction or with respect to these Bidding
Procedures, to the extent such Debtor, board of director, board of managers, or such similar
governing body reasonably determines in good faith, in consultation with counsel, that taking or
failing to take such action, as applicable, would be inconsistent with applicable law or its
fiduciary obligations under applicable law.
XVIII. Alternative Proposals.
Further, notwithstanding anything to the contrary in these Bidding Procedures, through
the acceptance of the Successful Bid, the Debtors and their respective directors, officers,
employees, investment bankers, attorneys, accountants, consultants, and other advisors or
representatives shall have the right to: (a) consider, respond to, and facilitate alternate proposals
for sales or other restructuring transactions involving any or all of the Catherines Assets (each
an “Alternate Proposal”); (b) subject to the terms and conditions of these Bidding Procedures,
provide access to non-public information concerning the Debtors to any entity or enter into
confidentiality agreements or nondisclosure agreements with any entity; (c) maintain or continue
discussions or negotiations with respect to Alternate Proposals; (d) otherwise cooperate with,
assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternate
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Proposals; and (e) enter into or continue discussions or negotiations with holders of claims
against or equity interests in a Debtor, any other party in interest in these chapter 11 cases
(including any official committee and the United States Trustee), or any other entity regarding
Alternate Proposals.
XIX. Notice Parties.
Information that must be provided to the “Notice Parties” under these Bidding Procedures
must be provided to the following parties or their respective counsel, if known (collectively,
the “Notice Parties”): (a) the United States Trustee for the Eastern District of Virginia; (b) the
holders of the 50 largest unsecured claims against the Debtors (on a consolidated basis); (c) the
agents under the Debtors’ prepetition secured facilities and counsel thereto; (d) the DIP Agents
and their respective counsel thereto; (e) the United States Attorney’s Office for the Eastern
District of Virginia; (f) the Internal Revenue Service; (g) the office of the attorneys general for
the states in which the Debtors operate; (h) the Securities and Exchange Commission; (i) the
Stalking Horse Bidder (and counsel to the Stalking Horse Bidder); (j) all parties who have
expressed a written interest in some or all of the Catherines Assets; (k) all known holders of
liens, encumbrances, and other claims secured by the Catherines Assets; (l) each governmental
agency that is an interested party with respect to the Sale and transactions proposed thereunder;
and (m) any party that has requested notice pursuant to Bankruptcy Rule 2002.
XX.

Consultation Rights of the Consultation Parties.

The Debtors will consult with the Consultation Parties4 (a) with respect to any action,
evaluation, or determination by the Debtors that is expressly contemplated or authorized by these
Bidding Procedures, or (b) to the extent not explicitly required by these Bidding Procedures, in
any event before making any material decision with respect to the Sale or Auction.
[Remainder of this page is intentionally left blank]

4

The term “Consultation Parties” shall mean (a) the DIP Agents, (b) the DIP Lenders, (c) counsel to the DIP
Agents, (d) one or more Initial Consenting Stakeholders under the RSA; (e) counsel to the Ad Hoc Group; and
(f) the Committee and counsel to the Committee; provided that any party otherwise included as a Consultation
Party shall not serve as a Consultation Party with respect to the sale of Assets to which such party has submitted
a Bid unless and until such party unequivocally revokes its Bid and waives its right to continue in the Auction
process; provided further that any member of the Committee that submits a Bid shall not participate in any
deliberations by the Committee as a Consultation Party.

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Exhibit A-3
Cure Notice

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KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
-andJohn R. Luze (admitted pro hac vice)
300 North LaSalle
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200

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COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice
in
DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899

Proposed Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
In re:
ASCENA RETAIL GROUP, INC., et al.,1
Debtors.

)
)
)
)
)
)
)

Chapter 11
Case No. 20-33113 (KRH)
(Jointly Administered)

NOTICE TO CONTRACT PARTIES
TO POTENTIALLY ASSUMED OR ASSUMED
AND ASSIGNED CATHERINES EXECUTORY CONTRACTS
YOU ARE RECEIVING THIS NOTICE BECAUSE YOU
OR ONE OF YOUR AFFILIATES IS A COUNTERPARTY TO A
CATHERINES EXECUTORY CONTRACT WITH ONE OR MORE OF
THE DEBTORS AS SET FORTH ON EXHIBIT A ATTACHED HERETO.
PLEASE TAKE NOTICE that on [__], 2020, the United States Bankruptcy Court for
the Eastern District of Virginia (the “Court”) entered the Order (I) Approving the Stalking Horse
Protections, (II) Approving Bidding Procedures for the Sale of the Catherines Assets, and
(III) Approving Contract Assumption and Assignment Procedures [Docket No. [__]]

1

A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’
claims and noticing agent at http://cases.primeclerk.com/ascena. The location of Debtor Ascena Retail Group,
Inc.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 933 MacArthur
Boulevard, Mahwah, New Jersey 07430.

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(the “Bidding Procedures Order”),2 authorizing the Debtors to conduct an auction
(the “Auction”) to select the party to purchase the Catherines Assets. The Auction will be
governed by the bidding procedures approved pursuant to the Bidding Procedures Order
(attached to the Bidding Procedures Order as Exhibit A-1, the “Bidding Procedures”).
PLEASE TAKE FURTHER NOTICE that, pursuant to the Bidding Procedures and the
terms of any Successful Bid, the Debtors may assume or assume and assign to the Successful
Bidder certain Catherines Executory Contracts, listed on the Assigned Contracts Schedule,
attached hereto as Exhibit A, to which you are a counterparty, upon approval of the Sale.
The Catherines Executory Contracts Schedule can also be viewed on the Debtors’ case website
(https://cases.primeclerk.com/ascena). The Debtors have conducted a review of their books and
records and have determined that the cure amount for unpaid monetary obligations under such
Catherines Executory Contracts is as set forth on Exhibit A attached hereto
(the “Cure Amounts”).
PLEASE TAKE FURTHER NOTICE that if you disagree with the proposed Cure
Amounts, object to a proposed assignment to the Successful Bidder of any Catherines Executory
Contract, or object to the ability of the Successful Bidder to provide adequate assurance of future
performance with respect to any Catherines Executory Contract, your objection must: (i) be in
writing; (ii) comply with the applicable provisions of the Bankruptcy Rules, Local Bankruptcy
Rules, and any order governing the administration of these chapter 11 cases; (iii) state with
specificity the nature of the objection and, if the objection pertains to the proposed Cure
Amounts, state the correct cure amount alleged to be owed to the objecting Contract Party,
together with any applicable and appropriate documentation in support thereof; and (iv) if you
object to proposed Cure Amounts or a proposed assignment to the Successful Bidder of any
Catherines Executory Contract, be filed with the Court and served and actually received within
14 days of the date of service of the Cure Notice (the “Cure Objection Deadline”) and if you
object to the ability of the Successful Bidder to provide adequate assurance of future
performance with respect to any Catherines Executory Contract, be filed with the Court and
actually received no later than the earlier of (a) the Cure Objection Deadline, and (b) 4:00
p.m. (prevailing Eastern Time) on the date that is 14 days following (x) the date of service
of the Cure Notice, or (y) the date of service of the Supplemental Cure Notice, as
applicable, in each case, by the following parties: (a) counsel for the Debtors, Kirkland & Ellis
LLP, 300 North LaSalle Street, Chicago, Illinois 60654, Attn.: John R. Luze and Jeff Michalik;
(b) counsel to the ABL Agent, (i) Morgan Lewis & Bockius LLP, One Federal Street, Boston,
Massachusetts 02110, Attn.: Matthew F. Furlong, Julia Frost-Davies and Christopher L. Carter,
and (ii) Hunton Andrews Kurth LLP, Riverfront Plaza, East Tower, 951 East Byrd Street,
Richmond, Virginia 23219, Attn.: Tyler P Brown; (c) counsel to the Ad Hoc Group, Milbank
LLP, 55 Hudson Yards, New York, NY 10001, Attn.: Evan R. Fleck; (d) the United States
Trustee for the Eastern District of Virginia, 701 East Broad Street, Suite 4304, Richmond,
Virginia 23219, Attn: Kathryn Montgomery; and (e) proposed counsel to the Creditors’
Committee, Pachulski Stang Ziehl & Jones LLP, 780 Third Avenue, 34 Fl Attn: Robert
Feinstein, Bradford Sandler, and Shirley Cho.
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All capitalized terms used but not otherwise defined herein shall have the meaning given to them in the Bidding
Procedures Order.

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PLEASE TAKE FURTHER NOTICE that if no objection to (a) the Cure Amounts,
(b) the proposed assignment or assumption and assumption of any Catherines Executory
Contract, or (c) adequate assurance of the Successful Bidder’s ability to perform is filed by the
Cure Objection Deadline, then (i) you will be deemed to have stipulated that the Cure Amounts
as determined by the Debtors are correct, (ii) you will be forever barred, estopped, and enjoined
from asserting any additional cure amount under the proposed assumed or assumed and assigned
Catherines Executory Contracts, and (iii) you will be forever barred, estopped, and enjoined from
objecting to such proposed assignment to the Successful Bidder on the grounds that the
Successful Bidder has not provided adequate assurance of future performance as of the closing
date of the Sale.
PLEASE TAKE FURTHER NOTICE that any objection to the proposed assumption
or assumption and assignment of a Catherines Executory Contract or related Cure Amounts in
connection with the Successful Bid that otherwise complies with these procedures yet remains
unresolved as of the commencement of the Confirmation Hearing, shall be heard at a later date
as may be fixed by the Court.
PLEASE THAT FURTHER NOTICE that, notwithstanding anything herein, the mere
listing of any Catherines Executory Contract on the Cure Notice does not require or guarantee
that such Catherines Executory Contract will be assumed or assumed by the Debtors at any time
or assumed or assumed and assigned, and all rights of the Debtors and the Successful Bidder
with respect to such Catherines Executory Contract are reserved. Moreover, the Debtors
explicitly reserve their rights, in their reasonable discretion, to seek to reject or assume each
Catherines Executory Contract pursuant to section 365(a) of the Bankruptcy Code and in
accordance with the procedures allowing the Debtors and/or the Successful Bidder, as applicable,
to designate any Catherines Executory Contract as either rejected or assumed on a post-closing
basis.
PLEASE TAKE FURTHER NOTICE that, nothing herein (i) alters in any way the
prepetition nature of the Catherines Executory Contracts or the validity, priority, or amount of
any claims of a counterparty to any Catherines Executory Contract against the Debtors that may
arise under such Catherines Executory Contract, (ii) creates a postpetition contract or agreement,
or (iii) elevates to administrative expense priority any claims of a counterparty to any Catherines
Executory Contract against the Debtors that may arise under such Catherines Executory
Contract.
ANY COUNTERPARTY TO ANY CATHERINES EXECUTORY CONTRACT
WHO FAILS TO TIMELY OBJECT TO THE PROPOSED ASSUMPTION OR
ASSUMPTION AND ASSIGNMENT OF SUCH CATHERINES EXECUTORY
CONTRACT OR THE RELATED CURE AMOUNTS IN CONNECTION WITH THE
SUCCESSFUL BID SHALL BE DEEMED TO HAVE CONSENTED TO SUCH
ASSUMPTION OR ASSUMPTION AND ASSIGNMENT AND THE CURE AMOUNTS
SET FORTH ON EXHIBIT A ATTACHED HERETO AND FOREVER BARRED FROM
ASSERTING ANY OBJECTION OR CLAIMS AGAINST THE DEBTORS, THE
SUCCESSFUL BIDDER(S), OR THE PROPERTY OF ANY SUCH PARTIES,
RELATING TO THE ASSUMPTION OR ASSUMPTION AND ASSIGNMENT OF
SUCH CATHERINES EXECUTORY CONTRACT, INCLUDING ASSERTING
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ADDITIONAL CURE AMOUNTS WITH RESPECT TO SUCH CATHERINES
EXECUTORY CONTRACT.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN SUCH CATHERINES EXECUTORY CONTRACT, OR ANY OTHER
DOCUMENT, THE CURE AMOUNTS SET FORTH IN EXHIBIT A ATTACHED
HERETO SHALL BE CONTROLLING AND WILL BE THE ONLY AMOUNT
NECESSARY TO CURE OUTSTANDING DEFAULTS UNDER THE APPLICABLE
ASSUMED CATHERINES EXECUTORY CONTRACT UNDER SECTION 365(B) OF
THE BANKRUPTCY CODE ARISING OUT OF OR RELATED TO ANY EVENTS
OCCURRING PRIOR TO THE CLOSING OF THE SALE, WHETHER KNOWN OR
UNKNOWN, WHETHER DUE OR TO BECOME DUE, WHETHER ACCRUED,
ABSOLUTE, CONTINGENT, OR OTHERWISE.
Richmond, Virginia
Dated: August 26, 2020
/s/Cullen D. Speckhart
COOLEY LLP
Cullen D. Speckhart (VSB 79096)
Admitted to practice in New York, Virginia, Missouri and
Texas; Not admitted to practice in DC, supervised by
members of DC bar
Olya Antle (VSB 83153)
Admitted to practice in Virginia; Not admitted to practice
in DC, supervised by members of DC bar
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone:
(202) 842-7800
Facsimile:
(202) 842-7899
Email:
cspeckhart@cooley.com
oantle@cooley.com-

KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Edward O. Sassower, P.C.
Steven N. Serajeddini, P.C. (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone:
(212) 446-4800
Facsimile:
(212) 446-4900
Email:
edward.sassower@kirkland.com
steven.serajeddini@kirkland.com
-andJohn R. Luze (admitted pro hac vice)
300 North LaSalle Street
Chicago, Illinois 60654
Telephone:
(312) 862-2000
Facsimile:
(312) 862-2200
Email:
john.luze@kirkland.com

Proposed Co-Counsel to the Debtors and Debtors in Possession

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