As Filed with the Securities and Exchange Commission on April 12, 1995
Registration No. 33-89718
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
AMENDMENT NO.2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
______________________________
FREDERICK'S OF HOLLYWOOD, INC.
(Exact name of Registrant as specified in its charter)
______________________________
DELAWARE 95-2666265
(State or other Jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
6608 Hollywood Boulevard
Los Angeles, California 90028
(213) 466-5151
(Address, including Zip Code, and telephone number, including area code, of
Registrant's principal executive office)
John B. Hatfield
Executive Vice President
Frederick's of Hollywood, Inc.
6608 Hollywood Boulevard
Los Angeles, California 90028
(Name, address, including Zip Code, and telephone number, including area c
ode, of Registrant's Agent of Service of Process)
COPIES OF COMMUNICATIONS TO:
Morton R. Field Esq.
1880 Century Park East, 5th Floor
Los Angeles, California 90067
(310) 553-5050
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box: x
SUBJECT TO COMPLETION, DATED APRIL 12, 1995
PROSPECTUS
FREDERICK'S OF HOLLYWOOD, INC.
500,000 Shares of Class B Capital Stock
($1.00 Par Value)
The shares of non-voting Capital Stock ("Class B
Stock") of Frederick's of Hollywood, Inc. (the
"Company") covered by this Prospectus are outstanding
shares which are being offered and sold for the account
of the Selling Shareholders set forth under "Selling
Shareholders." The Company will receive no part of the
proceeds from the sale of the Class B Stock. The
Selling Shareholders will pay all expenses of the
offering as well as all applicable stock transfer taxes
and underwriting and brokerage commissions.
The Class B Stock registered hereby may be offered for
sale from time to time on the New York Stock Exchange
("NYSE") and in the over-the-counter market or
otherwise at market prices prevailing at the time of
sale or at negotiated prices, and without payment of
any underwriting discounts or commissions except for
usual and customary selling commissions paid to brokers
or dealers. All expenses incurred in connection with
the registration of Class B Stock held by the Selling
Shareholders, estimated at $13,341.00 will be borne by
the Selling Shareholders.
The Class B Stock offered hereby are listed on the
NYSE. On April 6, 1995, the composite closing price
per share of Class B Stock of the Company was $5.00 per
share (which composite includes trades on the NYSE and
other transactions reported by the National Association
of Securities Dealers).
The principal executive offices of the Company are
located at 6608 Hollywood Boulevard, Los Angeles,
California 90028 (telephone 213-466-5151).
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
April __, 1995
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 2
THE COMPANY 3
SELLING SHAREHOLDERS 3
USE OF PROCEEDS 4
PLAN OF DISTRIBUTION 4
LEGAL MATTERS 4
EXPERTS 4
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES 5
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). The
reports and other information filed by the Company with the
Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices at 7 World Trade Center, New York, New York
10048, and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material
also can be obtained from the Public Reference Section of the
Commission, Washington, D.C. 20549, at prescribed rates. In
addition, material filed by the Company can be inspected at the
offices of the NYSE, 20 Broad Street, New York, New York 10005,
on which the Company's Class B Stock is listed.
The Company has filed with the Commission a Registration
Statement on Form S-3 (together with any amendments thereto, the
"Registration Statement") under the Securities Act of 1933 (the
"Securities Act") with respect to the securities covered by this
Prospectus. This Prospectus does not contain all the information
set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the
Registration Statement and the exhibits filed as part thereof.
Statements contained herein concerning any document filed as an
exhibit are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an
exhibit to the Registration Statement. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the
Company (File No. 1-8252) pursuant to the Exchange Act are
incorporated by reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the year
ended September 3, 1994 (the Company's 10-K) filed on November
22, 1994;
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended December 3, 1994 filed on January 13, 1995;
3. The Company's Quarterly Report on Form 10-Q for the
quarter ended March 4, 1995 filed on April 11, 1995;
4. The Company's Proxy Statement for the Annual Meeting of
Shareholders held on February 2, 1995 filed on December 15, 1994;
and
5. The description of the Company's Class B Stock
contained in the Company's Registration Statement on Form 8-A
filed with the Commission on September 23, 1993, Registration No.
1-8252.
All documents and reports subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents or
reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
This Prospectus incorporates documents by reference which
are not presented herein or delivered herewith. Such documents
(other than exhibits to such documents unless such exhibits are
specifically incorporated by reference) are available to any
person to whom this Prospectus is delivered, on written or oral
request, without charge, directed to Frederick's of Hollywood,
Inc., 6608 Hollywood Boulevard, Los Angeles, California 90028
(telephone number (213) 466-5151), attention: John B. Hatfield.
No dealer, salesman or any other person has been authorized
to give any information or to make any representation not
contained in this Prospectus, and, if given or made, such
information and representation must not be relied upon as having
been authorized by the Company. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy
any of the securities offered hereby in any state to any person
to whom it is unlawful to make such offer in such state. Neither
the delivery of this Prospectus nor any sales made hereunder
shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date
hereof.
THE COMPANY
Frederick's of Hollywood, Inc. (the "Company") is a
specialty retailer of women's apparel merchandise through mail
order catalogs and through its retail stores located in 39
states. The Company, a Delaware corporation, has its executive
offices at 6608 Hollywood Boulevard, Los Angeles, California
90028 and its telephone number is (213) 466-5151.
SELLING SHAREHOLDERS
The 500,000 Class B Stock of the Company described in this
Prospectus are owned by the Frederick N. Mellinger Trust ("F.N.
Trust"), and the Harriett R. Mellinger Trust ("H.M. Trust"). The
shares of Class B Stock proposed to be sold hereunder were
acquired by the F.N. Trust and the H.M. Trust upon the death of
Frederick N. Mellinger and Harriett R. Mellinger, founders of the
Company. The shares were initially acquired by the founders in
1962 when the Company was incorporated. The F.N. Trust and the
H.M. Trust are the Controlling Shareholders of the Company by
virtue of their beneficial ownership of an aggregate of 41.3
percent of the outstanding voting Class A Capital Stock of the
Company.
<TABLE>
<CAPTION>
Number of
Shares of
Class B
Holdings Immediately Stock
Name and Address Prior to this Offering Being Sold Holdings After Offering
% of Class
Class A Stock Class B Stock Class A Stock Class B Stock B Stock
<S> <C> <C> <C> <C> <C> <C>
Frederick N. Mellinger Trust 820,193 1,610,886 250,000 820,193 1,360,886 23.05
Harriet M. Mellinger Trust 463,066 1,610,918 250,000 463,066 1,360,918 23.05
</TABLE>
USE OF PROCEEDS
The Company will receive none of the proceeds from the sale
of shares being offered by the Selling Shareholders.
PLAN OF DISTRIBUTION
The shares of Class B Stock offered by the Selling
Shareholders may be offered for sale from time to time at market
prices prevailing at the time of sale or at negotiated prices and
without payment of any underwriting discounts or commissions
except for usual and customary selling commission paid to brokers
or dealers.
Under the Exchange Act and the regulations thereto, any
person engaged in a distribution of the shares of Class B Stock
of the Company offered by this Prospectus may not simultaneously
engage in market making activities with respect to the Class B
Stock of the Company during the applicable "cooling off" periods
prior to the commencement of such distribution. In addition, and
without limiting the foregoing, each Selling Shareholder will be
subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder including, without limitation,
Rules 10b-6 and 10b-7, which provisions may limit the timing of
purchase and sale of Class B Stock by the Selling Shareholders.
The Selling Shareholders have advised the Company that they
intend, from time to time, to sell their shares of Class B Stock
on an appropriate securities exchange at prices then prevailing
or in private sales at negotiated prices. Sales made upon a
securities exchange will be made in regular brokerage
transactions and applicable brokerage commissions will be paid.
In making any such sales, each such security holder or dealer may
be deemed to be an underwriter within the meaning of the
Securities Act.
The Class B Stock is listed and traded on the New York Stock
Exchange. On April 6, 1995, the composite's last sales price of
the Class B Stock on the New York Stock Exchange was $5.00 per
share.
LEGAL MATTERS
Certain legal matters in connection with the Class B Stock
being registered hereby are being passed upon for the Company by
Spensley Horn Jubas & Lubitz, Los Angeles, California. Morton R.
Field, a director of the Company, is a partner of Spensley Horn
Jubas & Lubitz and beneficially owns 1,092 shares of Class B
Stock and 546 shares of Class A Capital Stock.
EXPERTS
The consolidated financial statements and related supporting
schedules included in the Annual Report on Form 10-K have been
incorporated by reference herein and elsewhere in the
Registration Statement in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, and upon
the authority of such firm as experts in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Company's Certificate of Incorporation limits, to the
maximum extent permitted by the Delaware General Corporation Law
("Delaware Law"), the personal liability of directors for
monetary damages for breach of their fiduciary duties as
directors. The Company's By-Laws provide that the Company shall
indemnify its officers and directors and may indemnify its
employees and other agents to the fullest extent permitted by
law. The Company has entered into indemnification agreements
with its directors and officers containing provisions that are in
some respects broader than the specific indemnification
provisions contained in Delaware law. The indemnification
agreements may require the Company, among other things, to
indemnify such directors and officers against certain liabilities
that may arise by reason of their status or service as directors
or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses
incurred as a result of any proceeding against them as to which
they could be indemnified, and to obtain directors' and officers'
insurance, if available on reasonable terms. The Company
believes that these agreements are necessary to attract and
retain qualified persons as directors and officers.
Section 145 of the Delaware Law provides that a corporation
may indemnify a director, officer, employee or agent made or
threatened to be made a party to an action by reason of the fact
that he was a director, officer, employee or agent of the
corporation or was serving at the request of the corporation
against expenses actually and reasonably incurred in connection
with such action if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Delaware Law does not permit a corporation to eliminate a
director's duty of care, and the indemnification provisions
contained in the Company's Certificate of Incorporation have no
effect on the availability of equitable remedies, such as
injunction or rescission, for a director's breach of the duty of
care. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing
provisions and agreements, the Company has been informed that, in
the opinion of the staff of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
At present, there is no pending litigation or proceeding
involving any director, officer, employee or agent of the Company
where indemnification will be required or permitted. The Company
is not aware of any material or threatened litigation or
proceeding that may result in a claim for such indemnification.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be paid by the Selling Shareholders in
connection with the issuance and distribution of the Class B
Stock being registered, other than underwriting discounts and
commissions are:
Filing Fee for Registration Statement $ 840.00
Legal Fees and Expenses 5,000.00
Accounting Fees and Expenses 3,000.00
Printing Fees 5,000.00
Miscellaneous 1,500.00
Total $ 15,340.00
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law
provides, in pertinent part, that a corporation may indemnify a
director or officer made a party to any action, suit or
proceeding (other than an action by or in the right of the
corporation) by reason of the fact that he is or was an officer
or director of the corporation, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with an action
against such officer or director if such officer or director
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section
145 also provides that a corporation may indemnify a director or
officer in connection with a suit by or in the right of the
corporation by reason of the fact that he was or is a director or
officer of the corporation, against expenses incurred in
connection with his defense if such officer or director acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no
indemnification shall be made if such person shall be adjudged
liable to the corporation, unless, and only to the extent that,
the court determines that despite the adjudication of liability
but in view of all of the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expense
as the court deems proper.
The Company's Certificate of Incorporation generally
provides that a director is not personally liable for monetary
damages to the Company or its shareholders for breach of the
fiduciary duty as a director. This provision does not eliminate
the director's duty of care or eliminate a shareholder's right to
seek equitable remedies such as an injunction or other forms of
non-monetary relief. Each director will continue to be subject
to liability for (i) breach of the duty of the director's duty of
loyalty to the Company or its shareholders; (ii) acts or
omissions not in good faith or which involve intentional
misconduct or knowing violation of law; (iii) improper
declarations of dividends; and (iv) transactions from which the
director derived an improper personal benefit.
Article V of the Company's By-Laws provides that the Company
shall indemnify each of its directors and officers, whether or
not then in office (and his executor, administrator and heirs),
against all reasonable expenses actually and necessarily incurred
by him in connection with the defense of any litigation to which
he may have been made a party because he is or was a director or
officer of the Company. He shall have no right to reimbursement,
however, in relation to matters to which he has been adjudged
liable to the Company for gross negligence or culpable misconduct
in the performance of his duties. The right to indemnify all
expenses shall also apply to the expenses of suits which are
compromised if the court having jurisdiction of the matter shall
approve such settlement. The foregoing right of indemnification
shall be in addition to all other rights to which such director
or officer may be entitled, under Section 145 of the Delaware
General Corporation Law.
Section 317 of the California Corporations Code allows a
corporation to advance expenses incurred by an officer or
director in defending any proceeding prior to the final
disposition of such proceeding upon receipt of an undertaking to
repay such amount, unless such person is ultimately entitled to
indemnification. In non-derivative actions, an officer or
director is entitled to reimbursement for expenses, fines,
judgments and settlements if such individual has acted in good
faith and in a manner he believed to be in the best interests of
the corporation and, in the case of criminal proceedings, he had
no reasonable cause to believe the conduct was unlawful. With
regard to derivative actions (a suit brought on behalf of the
Registrant), such person is entitled to reimbursements for
expenses if the officer or director acted in good faith, in a
manner the officer or director believed to be in the best
interests of the corporation and with such care, including
reasonable inquiry, as an ordinary and prudent person in like
position would use in similar circumstances; provided, however,
that no indemnification shall be made (1) if the officer or
director is found liable to the corporation, except as may be
determined by the court in which the action is pending; (2) for
the amounts paid in settling an action or (3) for amounts paid in
defending such action which is terminated without court approval.
If indemnification is authorized by Section 317, but not
required, then it shall be determined by (i) a majority vote of
the disinterested members of the directors, (ii) a majority vote
of the disinterested shareholders or (iii) the court in which the
action is pending. If the officer or director is successful in
the defense of an action, Section 317 provides that such
individual shall be entitled to indemnification. Finally,
Section 317 authorizes a corporation to maintain officers' and
directors' liability insurance.
The Company and its directors and officers are covered by
liability insurance. In addition, the directors and officers of
the Company are covered by individual indemnification agreements
with the Company.
Item 16. Exhibits
* 5 Legal opinion of Spensley Horn Jubas & Lubitz.
23.1 Consent of KPMG Peat Marwick LLP.
* 23.2 Consent of Spensley Horn Jubas & Lubitz (included in Exhibit 5).
* 24 Power of Attorney as set forth on the signature
pages II-4 and II-5.
___________________________________
* Previously filed
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospects any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) For purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers,
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Los Angeles, State of California on February 23,
1995.
FREDERICK'S OF HOLLYWOOD, INC.
By: /s/ George W. Townson
George W. Townson,
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints George W. Townson and Morton R. Field, and each of them,
with full power of substitution, for him and in his name, place
and stead, in any and all capacities, to sign, file or deliver
any amendment, including any post-effective amendment, or papers
supplemental to this registration statement, together with all
exhibits thereto and any and all instruments in connection
therewith, as fully to all intents and purposes as he might do in
person, and hereby ratifies and confirms all that each of said
attorneys-in-fact and agents may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed on February 23, 1995
by the following persons in the capacities indicated.
Signatures Title
Chairman of the Board,
President
/s/ George W. Townson Chief Executive Officer and Director
George W. Townson (Principal Executive Officer)
/s/ John B. Hatfield Executive Vice President,
Secretary and Treasurer
John B. Hatfield (Principal Financial and Accounting Officer)
/s/ Hugh V. Hunter Director
Hugh V. Hunter
Director
William J. Barrett
/s/ Sylvan Lefcoe Director
Sylvan Lefcoe
/s/ Morton R. Field Director
Morton R. Field
/s/ Richard O. Starbird Director
Richard O. Starbird
/s/ Merle A. Johnston Director
Merle A. Johnston
EXHIBIT INDEX
Exhibit No. Description Page
23.1 Consent of KPMG Peat Marwick LLP.
The Directors and Stockholders
Frederick's of Hollywood, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-3 of Frederick's of Hollywood, Inc. of our
report dated October 31, 1994 relating to the consolidated
balance sheets of Frederick's of Hollywood, Inc. and subsidiaries
as of September 3, 1994 and August 28, 1993, and the related
consolidated statement of income, changes in stockholders'
equity, and cash flows and related schedules for each of the
years in the three-year period ended September 3, 1994, which
report appears in the 1994 annual report on Form 10-K of
Frederick's of Hollywood, Inc.
KPMG Peat Marwick LLP
Los Angeles, California
April 6, 1995
