SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
[X] Quarterly Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the quarterly period ended October 31, 1998
[ ] Transition Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from to
Commission File Number: 1-1594
CROWLEY, MILNER AND COMPANY
(Exact name of registrant as specified in its charter)
Michigan 38-0454910
(State or other jurisdiction of (IRS Employer
Incorporation or organization) Identification No.)
2301 West Lafayette Boulevard, Detroit, Michigan 48216
(Address of principal executive offices)(Zip Code)
(313) 962-2400
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months, and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
The number of shares outstanding of Registrant's common stock, as of
December 11, 1998, was 1,552,462
<PAGE> 1
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CROWLEY, MILNER AND COMPANY AND CONSOLIDATED SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED QUARTER ENDED
----------------- -------------
October 31 November 1 October 31 November 1
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues
Net sales--owned departments $112,176,736 $121,887,917 $ 38,883,968 $ 45,423,791
Net sales--leased departments 12,355,471 12,855,347 3,926,043 4,116,822
---------- ---------- ---------- ----------
Total net sales 124,532,207 134,743,264 42,810,011 49,540,613
Investment income 54,731 79,071 19,345 24,980
Other income (expense) (101,945) 336,175 10,688 18,153
----------- ---------- ---------- ----------
124,484,993 135,158,510 42,840,024 49,583,746
Costs and Expenses
Cost of merchandise and services sold 80,236,323 91,852,634 24,916,613 31,651,408
Operating expenses 47,438,649 45,456,624 16,548,455 16,155,830
Interest 3,026,819 2,354,251 1,049,973 1,036,213
---------- ---------- ---------- ----------
130,701,791 139,663,509 42,515,041 48,843,451
Earnings (Loss) Before Income Taxes (6,216,798) (4,504,999) 324,983 740,295
Federal income taxes -- -- -- --
---------- ---------- ---------- ----------
Net Earnings (Loss) $ (6,216,798) $ (4,504,999) $ 324,983 $ 740,295
========== ========== ========== ==========
Per Share Data:
Net earnings (loss) $ (4.03) $ (2.93) $ 0.21 $ 0.48
Average number of common and common
equivalent shares outstanding for
earnings per share 1,552,462 1,535,834 1,552,462 1,544,344
</TABLE>
<PAGE> 2
CROWLEY, MILNER AND COMPANY AND CONSOLIDATED SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
<TABLE>
<CAPTION>
October 31 January 31 November 1
1998 1998 1997
---- ---- ----
<S> <C> <C> <C>
Assets
Current Assets
Cash and cash equivalents
(cash equivalents of $613,520 at 10/31/98,
$275,494 at 1/31/98 and $513,188 at 11/1/97) $ 762,561 $ 563,615 $ 697,917
Accounts receivable, less allowances
($66,558 at 10/31/98, $66,558 at 1/31/98, and
$66,558 at 11/1/97) 2,208,436 2,778,501 1,906,036
Inventories at FIFO cost 65,050,323 46,089,589 56,753,197
Refundable Income taxes 310,028 310,028 -
Deferred property taxes 18,591 315,610 231,881
Other current assets 2,247,653 1,530,506 893,957
---------- ---------- ----------
Total Current Assets 70,597,592 51,587,849 60,482,988
---------- ---------- ----------
Other Assets
Deposits under EDC financing arrangements 634,308 634,308 634,308
Deferred tax asset 1,040,000 1,040,000 1,580,000
Miscellaneous 3,107,258 3,211,797 2,909,703
---------- ---------- ----------
4,781,566 4,886,105 5,124,011
---------- ---------- ----------
Properties
Land 315,000 315,000 321,000
Buildings 13,371,001 13,274,700 13,311,168
Leasehold improvements 8,436,525 7,359,388 7,965,237
Furniture, fixtures and equipment 9,196,961 7,943,931 7,992,611
---------- ---------- ----------
32,319,487 28,893,019 29,590,166
Less: Allowance for depreciation and
amortization 16,764,082 15,159,544 16,315,210
---------- ---------- ----------
15,555,405 13,733,475 13,274,956
---------- ---------- ----------
Total Assets $90,934,564 $70,207,429 $78,881,955
========== ========== ==========
</TABLE>
<PAGE> 3
CROWLEY, MILNER AND COMPANY AND CONSOLIDATED SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
<TABLE>
<CAPTION>
October 31 January 31 November 1
1998 1998 1997
---- ---- ----
<S> <C> <C> <C>
Liabilities and Shareholders' Equity
Current Liabilities
Accounts payable $ 29,103,371 $ 14,992,802 $ 19,554,591
Notes payable short term 41,214,452 26,862,759 30,752,215
Compensation and amounts withheld therefrom 606,150 1,356,784 1,067,949
Property taxes - 61,379 162,120
Income and other taxes 2,667 255,142 372,852
Current maturities of long-term debt 1,009,481 1,001,228 575,000
Current maturities of capital lease obligations 303,810 288,882 263,977
---------- ---------- ----------
Total Current Liabilities 72,239,931 44,818,976 52,748,704
---------- ---------- ----------
Long-Term Liabilities
Long-term debt 4,916,720 4,998,772 4,750,000
Capital lease obligations 5,787,094 6,018,683 6,139,902
Other 2,019,349 2,215,572 1,977,372
---------- ---------- ----------
12,723,163 13,233,027 12,867,274
---------- ---------- ----------
Shareholders' Equity
Common stock, (authorized 4,000,000 shares,
outstanding 1,552,462 shares at 10/31/98,
1,544,462 shares at 1/31/98 and 1,544,462
shares at 11/1/97) 1,552,462 1,544,462 1,544,462
Other capital 3,421,519 3,396,877 3,371,043
Retained earnings 997,489 7,214,087 8,350,472
---------- ---------- ----------
5,971,470 12,155,426 13,265,977
---------- ---------- ----------
Total Liabilities and Shareholders' Equity $ 90,934,564 $ 70,207,429 $ 78,881,955
========== ========== ==========
</TABLE>
<PAGE> 4
CROWLEY, MILNER AND COMPANY AND CONSOLIDATED SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
October 31 November 1
1998 1997
---- ----
<S> <C> <C>
Operating Activities
Net earnings (loss) $(6,216,798) $(4,504,999)
Adjustments to reconcile net earnings (loss)
to net cash provided by (used in) operating
activities
Depreciation and amortization 1,365,415 1,224,794
Amortization of restricted stock award 24,842 --
Changes in operating assets and liabilities
(Increase) decrease in net accounts
receivable 570,065 907,723
(Increase) decrease in inventories (18,960,734) (10,197,428)
(Increase) decrease in prepaid expense
and other assets (315,589) 2,234,477
Increase (decrease) in accounts payable 14,110,568 2,482,609
(Increase) decrease in accrued compensation
and other liabilities (1,260,711) (2,400,408)
---------- ---------
Net Cash Provided By (Used In) Operating Activities (10,682,942) (10,253,232)
Investment Activities
Purchase of properties (3,187,345) (1,880,591)
---------- ----------
Net Cash Used in Investment Activities (3,187,345) 156,640,179
Financing Activities
Proceeds from revolving line of credit 148,869,144 156,640,179
Principal payments on revolving line of credit (134,517,421) (143,980,758)
Principal payments on capital lease obligations (290,490) (167,555)
Proceeds from sale of common stock 8,000 124,558
---------- ----------
Net Cash Provided By (Used In) Financing Activities 14,069,233 12,616,424
---------- ----------
Increase (Decrease) in Cash and Cash Equivalents 198,946 482,601
Cash and Cash Equivalents at beginning of year 563,615 215,316
---------- ----------
Cash and Cash Equivalents at End of Period $ 762,561 $ 697,917
========== ==========
</TABLE>
<PAGE> 5
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
October 31, 1998
Note A - Basis of Presentation
The accompanying condensed, consolidated, and unaudited financial statements
for the Company have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X. As a result,
the financial statements do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments necessary for a
fair presentation of quarterly operating results are reflected herein, and
are of a normal, recurring nature. For purposes of this report the
"Company" refers to Crowley, Milner and Company ("Crowley's") and its
wholly-owned subsidiary, Steinbach Stores, Inc. ("Steinbach"), collectively.
Given the seasonal nature of the specialty department store business,
operating results for the nine months ended October 31, 1998 are not
necessarily indicative of the results that may be expected for the year
ending January 30, 1999.
It is suggested that these condensed, consolidated and unaudited financial
statements be read in conjunction with the financial statements and notes to
financial statements included in the Company's Annual Report on Form 10-K
for the year ended January 31, 1998.
Note B - Earnings Per Share
On January 31, 1998, the Company adopted SFAS No. 128 which establishes
standards for computing and presenting earnings per share ("EPS"), and
attempts to simplify the approach for computing EPS previously required in
APB Opinion No. 15. The computation of EPS is shown below:
<TABLE>
<CAPTION>
Nine Months Ended Three Months Ended
October 31, November 1, October 31, November 1,
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Numerator
Net earnings (loss) $(6,216,798) $(4,504,999) $324,983 $740,295
Denominator
Weighted average shares--basic 1,548,462 1,535,834 1,552,462 1,544,344
Effect of nonvested restricted shares -- -- -- --
Dilutive weighted average shares 1,548,462 1,535,834 1,552,462 1,544,344
Dilutive earnings (loss) per share $(4.02) $(2.33) $.21 $0.48
</TABLE>
PART I - FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
STATEMENT ON FORWARD-LOOKING INFORMATION
This report includes various "forward-looking statements" within the meaning
of the Private Securities Reform Act of 1995 that represent the Company's
expectations or beliefs concerning future events and involve risks and
uncertainties. Expressions such as "believes", "anticipates", "intends",
"plans" or "expects" are intended to identify these forward-looking
statements. Although the Company believes its expectations are based upon
reasonable assumptions, the Company cautions that such forward-looking
statements are subject to important factors that could cause actual results
to differ materially from those anticipated. There can be no assurances
that actual results will not materially differ from expected results. These
factors include, but are not limited to, increasing competition in existing
markets; adverse economic conditions either nationally or in existing
markets; unexpected or severe weather conditions, and possible
unavailability of merchandise from existing vendors. The Company is under no
obligation to update such forward-looking statements to reflect events or
circumstances after the date hereof.
RESULTS OF OPERATIONS
Quarter Ended October 31, 1998 Compared To Quarter Ended November 1, 1997
The Company anticipates that sales for the remainder of the year will
continue at substantially lower levels than during the fourth quarter of
1997. The Company's comparable store net sales decrease for the third
quarter was caused primarily by unseasonably warm weather, continued lower
sales at all stores due to the Company's strategy of limiting its promo-
tional activity and continued lower sales at the two stores in the chain
that were undergoing complete renovations during the previous quarter.
Comparable store sales results for the quarter ended October 31, 1998,
decreased 17.4%, to $40.9 million, from $49.5 million for the quarter ended
November 1, 1997.
As a percentage of net sales, gross profit increased to 41.8% for the
quarter ended October 31, 1998 from 36.1% for the comparable period in 1997.
The Company's gross profit dollars for the quarter ended October 31, 1998,
were virtually unchanged at $17.9 million. Stronger gross profits were the
result of tighter controls over inventory and fewer promotional markdowns.
Total operating expenses for the quarter ended October 31, 1998, increased
$393,000 or 2.4%, to $16.5 million, from $16.2 million for the quarter ended
November 1, 1997. This overall increase was primarily due to additional
operating expenses of $639,000 related to the two new Steinbach stores
opened during the fall of 1997. This increase was partially offset by
decreases in variable sales payroll and chargecard discounts as a result of
lower sales volume. Operating expenses expressed as a percentage of net
sales increased to 38.6% in the third quarter of 1998 from 32.6% for the
comparable period last year due principally to the decrease in sales during
the quarter.
Interest expense for the quarter ended October 31, 1998 increased to
$1,049,000, from $1,036,000 of interest expense incurred for the quarter
ended November 1, 1997. The Company's interest expense expressed as a
percentage of net sales was 2.5% in the third quarter of 1998 compared to
2.1% for the comparable period last year.
The Company reported net income of $324,983, or $.21 per share, for the
third quarter of 1998 compared to net income of $740,295 or $0.48 per share,
for the third quarter of 1997. The Company has fully exhausted all tax loss
carry backs and is in a net operating loss carry forward position, thus pre-
tax and after-tax results are the same.
Nine Months Ended October 31, 1998 Compared To Nine Months Ended November 1,
1997
As indicated in the analysis of the Company's quarterly performance
mentioned previously, management acknowledges that results for the nine
months were disappointing as well. The Company's comparable store net sales
for the nine months ended October 31, 1998, decreased 10.5%, to $118.6
million, from $132.5 million of comparable store net sales for the nine
months ended November 1, 1997. The decrease in sales was partially a result
of a reduction in promotional sales that was initiated to lower the amount
of markdowns and increase margin. Additionally the third quarter's
unseasonably warm weather, lower than anticipated sales at the two remodeled
stores and the two new Steinbach stores opened during the fall of 1997, and
delays in restocking key commodity items, were key contributors to the
decline in sales.
The Company's gross profit for the nine months ended October 31, 1998
increased 3.3%, to $44.3 million, from $42.9 million of gross profit for the
nine months ended November 1, 1997. As a percentage of net sales, gross
profit increased to 35.6% from 31.8%. The improvement in gross profit was
due to the change in promotional strategy and a favorable shrink result for
the mid-year physical inventory.
The Company's operating expenses for the nine months ended October 31, 1998
increased to $47.4 million from $45.5 million for the nine months ended
November 1, 1997. Operating expenses as a percentage of net sales were
38.1% for the first nine months of 1998 and 33.7% for the same period last
year. The change is primarily attributable to the operation of two new
Steinbach stores opened in the fall of 1997. The nine months ending
November 1, 1997, included two months of operating expenses for these
stores, while 1998 included nine months of expenses. The variance as a
result of the new store expenses was $2.6 million. Offsetting the change
were expense reductions resulting from the closing of the Eatontown
distribution facility and consolidation of all distribution activities to
the Detroit distribution facility, as well as payroll and chargecard
discounts as mentioned above. The sales decrease also caused an increase in
operating expenses as a percentage of net sales.
Interest expense for the nine months ended October 31, 1998 increased to
approximately $3,027,000 from $2,354,000 incurred for the first nine months
of 1997. The Company's interest expense expressed as a percentage of net
sales increased to 2.4% for the first nine months of 1988 from 1.8% for the
comparable period a year ago. The increase in interest expense over the
prior year is due to increased borrowing levels resulting mainly from the
following: (1) higher inventory levels caused primarily by the addition and
stocking of two new Steinbach stores in the fall of 1997, (2) short term
financing of $3.5 million was used to renovate two existing stores this
year, and (3) the Company's purchase of and conversion to a new computer
system to ensure the Company is year 2000 compliant. The hardware portion
was later converted to a term loan.
For the nine months ended October 31, 1998, the Company reported a net loss
of $6,216,798, or $4.02 per share, compared to a net loss of $4,504,999, or
$2.93 per share, for the comparable period last year. The Company has fully
exhausted all tax loss carry backs and is in a net operating loss carry
forward position, thus pre-tax and after-tax results are the same.
FINANCIAL CONDITION
Cash and cash equivalents for the Company increased to $763,000 at October
31, 1998 from $564,000 at January 31, 1998 and $698,000 at November 1, 1997.
Net cash used in operating activities was $10.7 million for the first nine
months of 1998, compared with net cash used in operating activities of $10.3
million reported during the first nine months of 1997. This difference was
due to the net effect of two larger, but offsetting trends. The net loss of
$6.2 million in 1998 was larger than the 1997 loss by $1.7 million.
Offsetting the impact of the loss was a slowing of the growth of inventory
over accounts payable. In 1998 the growth of inventory out-paced the growth
in accounts payable by $4.8 million, while in 1997 the growth in inventories
exceeded payables by $7.8 million. This was a result of utilization of a
$7.0 million increase in availability on the Company's revolving line of
credit in the quarter ended November 1, 1997. The Company used the excess
availability to pay down a buildup of accounts payable that occurred in the
earlier part of the year. The remainder of the difference in the year to
year change was the result of reclassifications among several balance sheet
accounts in the quarter ended November 1, 1997.
Investing activities used cash of $3.2 million during the first nine months
of 1998, compared to $1.9 million of cash used in investing activities for
the first nine months of 1997. Investing activities included capital
expenditures for the remodel and re-fixturing of two existing stores, and
upgrades to the Company's information systems.
Financing activities provided cash of $14.0 million during the first nine
months of 1998, compared to $12.6 million of cash provided last year. This
increase was primarily as a result of an increase in net loss of $1.7
million. On June 10, 1998, the Company amended its revolving line of credit
to increase its borrowing capacity to $43 million from $35 million, with an
additional borrowing capacity up to $50 million during the peak borrowing
periods. For additional information related to the amended revolving line
of credit, see "Other Developments" below.
On October 31, 1998, the Company's working capital position was $(642,000)
compared to $7.7 million of working capital available at November 1, 1997.
At October 31, 1998, the Company's working capital ratio was 0.99, as
compared to 1.15 reported at November 1, 1997. The decrease in working
capital is primarily the result of the funding of cash losses in the 12
months from November 2, 1997 to October 31, 1998 of approximately $4.9
million and investments in long term assets of $4.8 million offset by $1.0
million of principal payments on long term debt and capital leases
obligations. As a result there was a decrease in working capital and
working capital ratio.
During the nine-month periods ended October 31, 1998 and November 1, 1997,
the Company did not pay or declare any cash dividends with respect to its
stock.
OTHER DEVELOPMENTS
As disclosed in its Report on Form 10-Q filed on September 15, 1998, the
Company amended its Loan and Security Agreement in June 1998 to increase its
revolving line of credit to $43 million from $35 million, with an additional
borrowing capacity up to $50 million during the peak borrowing periods of
September 1 through December 1, 1998. In addition, the borrowing base was
increased to 34% of eligible retail inventory from 30% and a LIBOR pricing
option was added. The Loan and Security Agreement was further modified on
December 4, 1998 to extend the increased borrowing capacity of $50 million
until December 15, 1998. The Company believes that this expanded facility,
together with cash provided by operating activities, will be sufficient to
meet the funding needs for the remainder of the fiscal year.
The Company performed an extensive study completed in August 1997, which
included an overall evaluation of the Company's risk and preparedness for
the year 2000. Specifically considered were the Company's core operating
system including purchase orders, inventory tracking, accounts payable,
point of sale system and collateral support systems including reporting
systems and PC's, and reliance on third party vendors. As a result, the
Company initiated a "Year 2000" conversion project in the first quarter of
1998 with a $2.5 million budget to upgrade its core operating system during
the fiscal years 1998 and 1999. Currently, the Company estimates that the
actual cost of a "total solution" to the "Year 2000" issue, which includes
hardware, software, and all related collateral support will be approximately
$3.0 million, the cost of which will be capitalized. To date, expenditures
on the project exceed $2.8 million. The Company financed the total solution
partially through a third party hardware vendor, and has a portion of the
financing collateralized by a letter of credit in the amount of $1.3
million.
The objective of phase I of the project was to replace antiquated
merchandising, distribution, payroll, and back office hardware, as well as,
achieve year 2000 compliance through all hardware, software and collateral
support systems. An early 1999 conversion date is expected after completion
of system testing. The testing of the new system is 75% complete with the
old system running parallel. This conversion will allow the Company to
achieve "Year 2000" compliance and to track merchandise inventory and trends
to better position merchandise to the needs of the customer as well as cut
costs associated with the merchandise procurement process.
Reliance on third party vendors and suppliers has been addressed with key
suppliers of merchandise. The Company's suppliers that represent 80% of the
merchandise sold have been surveyed, and will be fully EDI compatible and
"Year 2000" compliant by early in 1999. The company has established a
timetable of the first half of 1999 to complete the process with remaining
suppliers and operational vendors such as energy providers, elevator and
escalator vendors, and financial institutions to establish an evaluation of
readiness and contingency plans in the event of negative findings. There
can be no assurance that the systems of other companies on which the
Company's systems rely also will be timely converted or that any such
failure to convert by another company would not have an adverse effect on
the Company's systems.
Phase II of the conversion program, to be initiated in the first quarter of
1999, will focus on establishing a data warehouse capability and upgrade of
the existing financial and point of sale systems to further improve supply
chain management processes, inventory controls and reporting capabilities.
While Phase II initiatives are essential for competitive reasons, they are
not essential to "Year 2000" compliance.
The net loss accumulated through October 31, 1998, has caused the Company's
consolidated net worth to decline to $5,971,470. In connection with the
Company's economic revenue bonds issued by The Economic Development
Corporation of the City of Detroit in 1979 to finance the acquisition and
renovation of its corporate headquarters and distribution center, the
Company has agreed to maintain consolidated net worth of not less than $5
million. Failure to maintain this minimum net worth would constitute an
event of default for purposes of such bonds, and would also constitute
default under the Company's current credit arrangement. The Company is
exploring alternatives to address this situation, including the possibility
of re-financing the bond indebtedness either through a sale - lease back of
the corporate headquarters or a buy-out of the bonds.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
None
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Severance Compensation Agreement, dated as of August 17, 1998,
between the Company and Ray Attebery
10.2 Severance Compensation Agreement, dated as of August 17, 1998,
between the Company and John Freudenthal
10.3 Agreement dated December 4, 1998, between the Company and Congress
Financial Corporation (Central) amending the Company's Loan and
Security Agreement with Congress Financial
27 Financial Data Schedule (EDGAR filing only).
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended October 31, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CROWLEY, MILNER AND COMPANY
(Registrant)
By: /S/ RAY ATTEBERY
Ray Attebery
Senior Vice President
(principal financial and duly authorized officer)
DATE: December 15, 1998
SEVERANCE COMPENSATION AGREEMENT
THIS AGREEMENT is entered into as of August 17, 1998, between Crowley,
Milner & Company, a Michigan corporation (the "Company"), and Ray Attebery,
currently an executive officer of the Company employed in the position of
Senior Vice President, Secretary and Treasurer (the "Executive").
RECITALS:
A. The Board of Directors of the Company (the "Board") recognizes
that the Executive has contributed to the management and performance of the
Company due to his industry, dedication and services.
B. The Board believes that it is in the best interests of the
Company and its shareholders if the Executive is assured that he will receive
appropriate financial protection in the event of a Change in Control (as
defined in Section 2 below), thus ensuring that the Executive will have an
incentive to perform valuable services for the Company and will not be
distracted in the event of an actual or threatened Change in Control, and that
this will also encourage the Executive to remain in the employ of the Company
through the transition period following a Change in Control, which is in the
best interests of the Company and its shareholders.
C. In addition, the Board believes that the assurance of
appropriate financial protection to the Executive in the event of a Termination
of Employment (as defined in Section 1 below) of the Executive is in the best
interests of the Company because it will ensure that the Executive will have
an incentive to continue to perform valuable services to the Company.
D. The Executive is willing to provide dedicated services to the
Company on the condition that he receives adequate assurance that he will
receive the financial protections provided herein.
In consideration of the premises and the mutual promises made
hereafter, the parties agree as follows:
1. Severance Payment. (a) The Executive shall be entitled to a
cash severance benefit equal to 100% of the Executive's then current annual
salary, as most recently approved by the Compensation Committee of the Board
of Directors if there shall occur (i) a Termination of Employment of the
Executive (as defined in paragraph (b) below) or (ii) a Change in Control
Termination (as defined in paragraph (c) below). This cash severance benefit,
when aggregated with any other "parachute payments", as defined under Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), payable
under any other plans, agreements or policies of the Company, shall be reduced
to the highest amount permissible under Sections 280G and 4999 of the Code
before the Executive becomes subject to the excess parachute payment excise tax
under Section 4999 of the Code and the Company loses all or part of its
compensation deduction for such payments.
(b) For purposes of this Agreement a "Termination of Employment"
shall mean either (i) the Executive's involuntary termination by the Company
for any reason other than death, Disability, Retirement or Cause; or (ii) the
Executive's voluntary termination of his employment due to the Company's breach
of any provision in this Agreement.
(c) For purposes of this Agreement, a "Change of Control
Termination" shall be deemed to have occurred if any of the following events
shall occur following a Change in Control (as defined in Section 2 below):
(i) Any reassignment of the Executive to duties
substantially inconsistent with his position, title, duties,
responsibilities and status with the Company immediately prior to the
Change in Control, or a change in the Executive's reporting
responsibilities, including a change in the identity or the corporate
position to which the Executive reports, or a change in title (except
for a promotion) in effect immediately prior to the Change in Control;
or
(ii) Any reduction in the Executive's base salary in effect
immediately prior to the Change in Control, or failure by the Company
to continue any bonus, stock or incentive plans in effect immediately
prior to the Change in Control (without the implementation of a
comparable successor plans which provides equivalent benefits), or any
removal of the Executive from participation in such aforementioned
plans; or
(iii) A discontinuance or reduction in benefits to the
Executive of any qualified or nonqualified retirement or welfare plan
maintained by the Company immediately prior to the Change in Control,
or the discontinuance of any fringe benefits or other perquisites which
the Executive received immediately prior to the Change in Control; or
(iv) Any requirement that the Executive relocate to an
office outside of Wayne, Oakland, Macomb or Washtenaw Counties,
Michigan, in order to perform his assigned duties.
2. Change in Control. A Change in Control shall be deemed to
have occurred:
(a) If any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
in effect on the date hereof) or group of persons acting in concert, other than
(i) the Company or (ii) any employee benefit plan of the Company becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange
Act) of securities of the Company representing 40% or more of the combined
voting power of all classes of the Company's then outstanding securities
ordinarily having the right to vote in the election of directors ("voting
stock"). Notwithstanding the foregoing, the beneficial ownership requirement
in this Section 2(a) shall not be satisfied if the attainment of the applicable
percentage of beneficial ownership is the result of an acquisition of voting
stock by the Company which, by reducing the number of shares outstanding
increases the proportionate number of shares beneficially owned by any person;
provided, however, that if a person shall become the beneficial owner of 40%
or more of the voting stock of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the Company
become the beneficial owner of any additional voting stock, then the beneficial
ownership requirement in this Section 2(a) shall have been satisfied; or
(b) if there is a change in the majority of the members of the
Board within any twenty-four month period, unless the election or nomination
for election of each new director was approved by a vote of at least a majority
of the directors still in office who were directors at the beginning of the
period; or
(c) if there shall be consummated any merger or consolidation (or
series of mergers or consolidations) of the Company, or any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company other
than (i) a merger or consolidation which would result in the voting stock of
the Company immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting stock of the surviving
entity) more than 60% of the combined voting power of the voting stock of the
Company (or such surviving entity) outstanding immediately after such merger
or consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization (or similar transaction) of the Company in which no person
becomes the owner of 40% or more of the combined voting power of the then
outstanding voting stock of the Company, or (iii) a merger or consolidation
effected to implement a reorganization of the Company's ownership wherein the
Company shall become a wholly-owned subsidiary of another corporation and the
shareholders of the Company shall become shareholders of such other corporation
without any material change in each shareholder's proportionate ownership of
such other corporation from that owned in the Company prior to such merger or
consolidation.
3. Other Defined Terms. For purposes of this Agreement, the
following terms shall have the meanings set forth below:
(a) "Disability" shall mean the Executive's total and permanent
disability which prevents the Executive from performing the duties he was
assigned for a continuous period exceeding 9 months. The determination of
Disability shall be made by a medical board certified physician mutually
acceptable to the Company and the Executive (or the Executive's legal
representative, if one has been appointed), and if the parties cannot mutually
agree to the selection of a physician, then each party shall select such a
physician and the two physicians so selected shall select a third physician who
shall make this determination.
(b) "Retirement" shall mean retirement on or after age 65.
(c) "Cause" shall mean the Executive's willful gross misconduct,
willful and material breach of his duties or an act of fraud or dishonesty by
the Executive that directly or indirectly results in material harm to the
Company.
4. Time of Payment. The Executive's severance benefit shall be
paid in a lump sum cash payment within 10 days following a Termination of
Employment or a Change in Control Termination. Any payment made later than 10
days following a Termination of Employment or a Change in Control Termination,
for whatever reason, shall include interest at the prime rate plus 4% per
annum, which shall begin accruing on the 10th day following the Termination of
Employment or the Change in Control Termination. For purposes of this Section,
the "prime rate" shall be determined by reference to the prime rate established
by NBD Bank (or its successor), in effect from time to time commencing on the
10th day following the Termination of Employment or the Change in Control
Termination.
5. No Mitigation or Duty to Seek Reemployment. The Executive
shall be under no duty or obligation to seek or accept other employment after
a Termination of Employment or a Change in Control Termination and shall not
be required to mitigate the amount of any payments provided for by this
Agreement by seeking employment or otherwise.
6. Tax Withholding. The Company may withhold from any amounts
payable to the Executive under this Agreement to satisfy all applicable
Federal, State, local or other withholding taxes. In the event the Company
fails to withhold such sums for any reason, it may require the Executive to
promptly remit to the Company sufficient cash to satisfy all applicable income
and employment withholding taxes.
7. Binding Effect. (a) This Agreement shall be binding upon the
successors and assigns of the Company. The Company shall take whatever actions
are necessary to ensure that any successor to its operations (whether by
purchase, merger, consolidation, sale of substantially all assets or otherwise)
assumes the obligations under this Agreement and will cause such successor to
evidence the assumption of such obligations in an agreement satisfactory to the
Executive. Notwithstanding any other provisions in this Agreement, if the
Company fails to obtain an agreement evidencing the assumption of the Company's
obligations by any such successor, the Executive shall be entitled to immediate
payment of the severance compensation provided hereunder, irrespective of
whether there has occurred a Change in Control Termination. For purposes of
implementing the foregoing, the date on which any succession becomes effective
shall be deemed to constitute the date of the Change in Control Termination.
(b) This Agreement shall be binding upon the Executive and shall
inure to the benefit of and be enforceable by his legal representatives and
heirs. However, the rights of the Executive under this Agreement shall not be
assigned, transferred, pledged, hypothecated or otherwise encumbered, except
by operation of law.
8. Notices. Any notice required or permitted by this Agreement
shall be in writing, sent by registered or certified mail, return receipt
requested, addressed to the Company at the Company's then principal office, or
to the Executive at the Executive's last address on file with the Company, as
the case may be, or to such other address as a party hereto may from time to
time specify in writing in a notice given to the other party in compliance with
this Section. Notices shall be deemed given when received.
9. Miscellaneous. This Agreement may not be modified or amended
except by instrument in writing signed by the parties hereto. The invalidity
or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which
shall continue in full force and effect. This Agreement shall not be deemed
to create a contract of employment between the Company and the Executive and
shall create no right in the Executive to continue in the Company's employment
for any specific period of time, or to create any other rights in the Executive
or obligations on the part of the Company, except as set forth herein. This
Agreement shall not restrict the right of the Company to terminate the
Executive, or restrict the right of the Executive to terminate his employment.
The headings in this Agreement are inserted for convenience of reference only
and shall not be a part of or control or affect the meaning of any provision
hereof.
10. Entire Agreement. This document represents the entire
agreement and understanding of the parties with respect to the subject matter
of the Agreement and it may not be altered or amended except by an agreement
in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
Detroit, Michigan, on the date first written above.
CROWLEY, MILNER AND COMPANY
By: /S/ DENNIS P. CALLAHAN
Dennis P. Callahan, Chairman and President
/S/ RAY ATTEBERY
Executive
SEVERANCE COMPENSATION AGREEMENT
THIS AGREEMENT is entered into as of August 17, 1998, between Crowley,
Milner & Company, a Michigan corporation (the "Company"), and John Freudenthal,
currently an executive officer of the Company employed in the position of
Senior Vice President (the "Executive").
RECITALS:
A. The Board of Directors of the Company (the "Board") recognizes
that the Executive has contributed to the management and performance of the
Company due to his industry, dedication and services.
B. The Board believes that it is in the best interests of the
Company and its shareholders if the Executive is assured that he will receive
appropriate financial protection in the event of a Change in Control (as
defined in Section 2 below), thus ensuring that the Executive will have an
incentive to perform valuable services for the Company and will not be
distracted in the event of an actual or threatened Change in Control, and that
this will also encourage the Executive to remain in the employ of the Company
through the transition period following a Change in Control, which is in the
best interests of the Company and its shareholders.
C. In addition, the Board believes that the assurance of
appropriate financial protection to the Executive in the event of a Termination
of Employment (as defined in Section 1 below) of the Executive is in the best
interests of the Company because it will ensure that the Executive will have
an incentive to continue to perform valuable services to the Company.
D. The Executive is willing to provide dedicated services to the
Company on the condition that he receives adequate assurance that he will
receive the financial protections provided herein.
In consideration of the premises and the mutual promises made
hereafter, the parties agree as follows:
1. Severance Payment. (a) The Executive shall be entitled to a
cash severance benefit equal to 100% of the Executive's then current annual
salary, as most recently approved by the Compensation Committee of the Board
of Directors if there shall occur (i) a Termination of Employment of the
Executive (as defined in paragraph (b) below) or (ii) a Change in Control
Termination (as defined in paragraph (c) below). This cash severance benefit,
when aggregated with any other "parachute payments", as defined under Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), payable
under any other plans, agreements or policies of the Company, shall be reduced
to the highest amount permissible under Sections 280G and 4999 of the Code
before the Executive becomes subject to the excess parachute payment excise tax
under Section 4999 of the Code and the Company loses all or part of its
compensation deduction for such payments.
(b) For purposes of this Agreement a "Termination of Employment"
shall mean either (i) the Executive's involuntary termination by the Company
for any reason other than death, Disability, Retirement or Cause; or (ii) the
Executive's voluntary termination of his employment due to the Company's breach
of any provision in this Agreement.
(c) For purposes of this Agreement, a "Change of Control
Termination" shall be deemed to have occurred if any of the following events
shall occur following a Change in Control (as defined in Section 2 below):
(i) Any reassignment of the Executive to duties
substantially inconsistent with his position, title, duties,
responsibilities and status with the Company immediately prior to the
Change in Control, or a change in the Executive's reporting
responsibilities, including a change in the identity or the corporate
position to which the Executive reports, or a change in title (except
for a promotion) in effect immediately prior to the Change in Control;
or
(ii) Any reduction in the Executive's base salary in effect
immediately prior to the Change in Control, or failure by the Company
to continue any bonus, stock or incentive plans in effect immediately
prior to the Change in Control (without the implementation of a
comparable successor plans which provides equivalent benefits), or any
removal of the Executive from participation in such aforementioned
plans; or
(iii) A discontinuance or reduction in benefits to the
Executive of any qualified or nonqualified retirement or welfare plan
maintained by the Company immediately prior to the Change in Control,
or the discontinuance of any fringe benefits or other perquisites which
the Executive received immediately prior to the Change in Control; or
(iv) Any requirement that the Executive relocate to an
office outside of Wayne, Oakland, Macomb or Washtenaw Counties,
Michigan, in order to perform his assigned duties.
2. Change in Control. A Change in Control shall be deemed to
have occurred:
(a) If any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
in effect on the date hereof) or group of persons acting in concert, other than
(i) the Company or (ii) any employee benefit plan of the Company becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange
Act) of securities of the Company representing 40% or more of the combined
voting power of all classes of the Company's then outstanding securities
ordinarily having the right to vote in the election of directors ("voting
stock"). Notwithstanding the foregoing, the beneficial ownership requirement
in this Section 2(a) shall not be satisfied if the attainment of the applicable
percentage of beneficial ownership is the result of an acquisition of voting
stock by the Company which, by reducing the number of shares outstanding
increases the proportionate number of shares beneficially owned by any person;
provided, however, that if a person shall become the beneficial owner of 40%
or more of the voting stock of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the Company
become the beneficial owner of any additional voting stock, then the beneficial
ownership requirement in this Section 2(a) shall have been satisfied; or
(b) if there is a change in the majority of the members of the
Board within any twenty-four month period, unless the election or nomination
for election of each new director was approved by a vote of at least a majority
of the directors still in office who were directors at the beginning of the
period; or
(c) if there shall be consummated any merger or consolidation (or
series of mergers or consolidations) of the Company, or any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company other
than (i) a merger or consolidation which would result in the voting stock of
the Company immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting stock of the surviving
entity) more than 60% of the combined voting power of the voting stock of the
Company (or such surviving entity) outstanding immediately after such merger
or consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization (or similar transaction) of the Company in which no person
becomes the owner of 40% or more of the combined voting power of the then
outstanding voting stock of the Company, or (iii) a merger or consolidation
effected to implement a reorganization of the Company's ownership wherein the
Company shall become a wholly-owned subsidiary of another corporation and the
shareholders of the Company shall become shareholders of such other corporation
without any material change in each shareholder's proportionate ownership of
such other corporation from that owned in the Company prior to such merger or
consolidation.
3. Other Defined Terms. For purposes of this Agreement, the
following terms shall have the meanings set forth below:
(a) "Disability" shall mean the Executive's total and permanent
disability which prevents the Executive from performing the duties he was
assigned for a continuous period exceeding 9 months. The determination of
Disability shall be made by a medical board certified physician mutually
acceptable to the Company and the Executive (or the Executive's legal
representative, if one has been appointed), and if the parties cannot mutually
agree to the selection of a physician, then each party shall select such a
physician and the two physicians so selected shall select a third physician who
shall make this determination.
(b) "Retirement" shall mean retirement on or after age 65.
(c) "Cause" shall mean the Executive's willful gross misconduct,
willful and material breach of his duties or an act of fraud or dishonesty by
the Executive that directly or indirectly results in material harm to the
Company.
4. Time of Payment. The Executive's severance benefit shall be
paid in a lump sum cash payment within 10 days following a Termination of
Employment or a Change in Control Termination. Any payment made later than 10
days following a Termination of Employment or a Change in Control Termination,
for whatever reason, shall include interest at the prime rate plus 4% per
annum, which shall begin accruing on the 10th day following the Termination of
Employment or the Change in Control Termination. For purposes of this Section,
the "prime rate" shall be determined by reference to the prime rate established
by NBD Bank (or its successor), in effect from time to time commencing on the
10th day following the Termination of Employment or the Change in Control
Termination.
5. No Mitigation or Duty to Seek Reemployment. The Executive
shall be under no duty or obligation to seek or accept other employment after
a Termination of Employment or a Change in Control Termination and shall not
be required to mitigate the amount of any payments provided for by this
Agreement by seeking employment or otherwise.
6. Tax Withholding. The Company may withhold from any amounts
payable to the Executive under this Agreement to satisfy all applicable
Federal, State, local or other withholding taxes. In the event the Company
fails to withhold such sums for any reason, it may require the Executive to
promptly remit to the Company sufficient cash to satisfy all applicable income
and employment withholding taxes.
7. Binding Effect. (a) This Agreement shall be binding upon the
successors and assigns of the Company. The Company shall take whatever actions
are necessary to ensure that any successor to its operations (whether by
purchase, merger, consolidation, sale of substantially all assets or otherwise)
assumes the obligations under this Agreement and will cause such successor to
evidence the assumption of such obligations in an agreement satisfactory to the
Executive. Notwithstanding any other provisions in this Agreement, if the
Company fails to obtain an agreement evidencing the assumption of the Company's
obligations by any such successor, the Executive shall be entitled to immediate
payment of the severance compensation provided hereunder, irrespective of
whether there has occurred a Change in Control Termination. For purposes of
implementing the foregoing, the date on which any succession becomes effective
shall be deemed to constitute the date of the Change in Control Termination.
(b) This Agreement shall be binding upon the Executive and shall
inure to the benefit of and be enforceable by his legal representatives and
heirs. However, the rights of the Executive under this Agreement shall not be
assigned, transferred, pledged, hypothecated or otherwise encumbered, except
by operation of law.
8. Notices. Any notice required or permitted by this Agreement
shall be in writing, sent by registered or certified mail, return receipt
requested, addressed to the Company at the Company's then principal office, or
to the Executive at the Executive's last address on file with the Company, as
the case may be, or to such other address as a party hereto may from time to
time specify in writing in a notice given to the other party in compliance with
this Section. Notices shall be deemed given when received.
9. Miscellaneous. This Agreement may not be modified or amended
except by instrument in writing signed by the parties hereto. The invalidity
or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which
shall continue in full force and effect. This Agreement shall not be deemed
to create a contract of employment between the Company and the Executive and
shall create no right in the Executive to continue in the Company's employment
for any specific period of time, or to create any other rights in the Executive
or obligations on the part of the Company, except as set forth herein. This
Agreement shall not restrict the right of the Company to terminate the
Executive, or restrict the right of the Executive to terminate his employment.
The headings in this Agreement are inserted for convenience of reference only
and shall not be a part of or control or affect the meaning of any provision
hereof.
10. Entire Agreement. This document represents the entire
agreement and understanding of the parties with respect to the subject matter
of the Agreement and it may not be altered or amended except by an agreement
in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
Detroit, Michigan, on the date first written above.
CROWLEY, MILNER AND COMPANY
By: /S/ DENNIS P. CALLAHAN
Dennis P. Callahan, Chairman and President
/S/ JOHN FREUDENTHAL
Executive
December 1, 1998
Reference is made to that certain Amended and Restated Loan and
Security Agreement, dated as of September 5, 1996, as amended or otherwise
modified from time to time (the "Loan Agreement") between Congress Financial
Corporation (Central)("Lender") and each of Crowley, Milner and Company, a
Michigan corporation ("Crowley") and Steinbach Stores, Inc., an Ohio
corporation ("Steinbach"). Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
Pursuant to Section 1.23 of the Loan Agreement, the Maximum Credit for
(i) the period commencing on September 1, 1998 through and including November
30, 1998 is $50,000,000 and (ii) the period commencing on December 1, 1998
through and including August 31, 1999 is $43,000,000. Notwithstanding the
foregoing, Borrowers have requested that Lender consent to the modification of
the Maximum Credit (the "Maximum Credit Modification") such that, for the
period commencing on September 1, 1998 through and including December 15, 1998,
the Maximum Credit shall be $50,000,000. Lender hereby consents to the Maximum
Credit Modification, it being understood and agreed that, on and after December
16, 1998, the Maximum Credit shall be as provided by Section 1.23 of the Loan
Agreement without regard to the contents of this consent. It is hereby
understood that such consent shall not constitute (a) a modification or
alteration of the terms, conditions or covenants of the Loan Agreement or any
document entered into in connection therewith, or (b) a waiver, release or
limitation upon the exercise by Lender of any of its rights, legal or
equitable, hereunder, except as to the matters to which Lender herein expressly
consents. Except as set forth above, Lender reserves any and all rights and
remedies which it has had, has or may have under the Loan Agreement. Except
as expressly provided herein, the Loan Agreement remains unchanged and in full
force and effect.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ BRETT MOOK
--------------------------
Its: Vice President
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-31-1999
<PERIOD-END> OCT-31-1998
<CASH> 762,561
<SECURITIES> 0
<RECEIVABLES> 2,274,994
<ALLOWANCES> 66,558
<INVENTORY> 65,050,323
<CURRENT-ASSETS> 70,597,592
<PP&E> 32,319,487
<DEPRECIATION> 16,764,082
<TOTAL-ASSETS> 90,934,564
<CURRENT-LIABILITIES> 72,239,931
<BONDS> 4,750,000
<COMMON> 1,552,462
0
0
<OTHER-SE> 3,421,519
<TOTAL-LIABILITY-AND-EQUITY> 90,934,564
<SALES> 124,532,207
<TOTAL-REVENUES> 124,484,993
<CGS> 80,236,323
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 47,438,649
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,026,819
<INCOME-PRETAX> (6,216,798)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,216,798)
<EPS-PRIMARY> (4.02)
<EPS-DILUTED> (4.02)
</TABLE>
