SCHEDULE 14A INFORMATION
REVOCATION STATEMENT PURSUANT TO SECTION 14(A) OF
THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant {X}
Filed by a Party other than the Registrant {_}
Check the appropriate box:
{_} Preliminary Proxy Statement (Revocation of Consent Statement)
{_} Confidential, For Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
{X} Definitive Proxy Statement (Revocation of Consent Statement)
{_} Definitive Additional Materials
{_} Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
DESIGNS, INC.
-----------------------------------------
(Name of Registrant as specified in its charter)
-----------------------------------------
(Name of person(s) filing proxy statement, if other than Registrant)
Payment of Filing Fee (Check the appropriate box):
{X} No fee required.
{_} Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-
11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
(4) Proposed maximum aggregate value of transactions:
(5) Total fee paid.
--------
{_} Fee paid previously with preliminary materials.
{_} Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
[Designs, Inc. Letterhead]
December 23, 1998
Dear Fellow Stockholder:
We are writing to alert you that two dissident stockholders,
Seymour and Evelyn Holtzman, and certain entities they control, are
attempting to take complete control of your Company. In an effort to do
this, the Holtzmans, through Jewelcor Management, Inc., a Nevada
corporation controlled by the Holtzmans, are contacting stockholders of
Designs, Inc. and asking them to sign consent forms to remove, without
cause, your entire Board of Directors other than Stanley I. Berger and
replace your directors with the Holtzmans' own hand-picked nominees.
WE URGE YOU NOT TO SIGN ANY WHITE CONSENT CARD OR OTHER
FORMS WHICH MAY BE FURNISHED TO YOU BY THE HOLTZMANS OR
JEWELCOR.
Mr. and Mrs. Holtzman hold a controlling interest in the holding
company of Jewelcor, a real estate investment company. The Holtzmans have
disclosed no experience in operating or managing a specialty retail apparel
business such as Designs. The five people they would install as directors
of your Company consist of Mr. Holtzman and four other individuals who have
not invested in a single share of your Company's stock. We believe you
will agree that you cannot afford to put the future of your investment in
the hands of these people.
You can act today to protect your investment in the Company.
Whether or not you have previously signed Jewelcor's WHITE consent card,
please sign and date the enclosed BLUE Consent Revocation Card and return
it in the enclosed postage-paid envelope. The Holtzmans are trying to
stampede you and your fellow stockholders into acting immediately, so it is
important that you send in the BLUE Consent Revocation Card today!
We thank you for your continued trust and support.
Sincerely,
/s/ Joel H. Reichman
Joel H. Reichman
President and Chief Executive Officer
DESIGNS, INC.
66 B STREET
NEEDHAM, MASSACHUSETTS 02494
____________
CONSENT REVOCATION STATEMENT FURNISHED
BY THE BOARD OF DIRECTORS OF DESIGNS, INC.
IN OPPOSITION TO THE SOLICITATION OF CONSENTS BY
JEWELCOR MANAGEMENT, INC.
____________
DECEMBER 23, 1998
This Revocation of Consent Statement and the accompanying BLUE
Consent Revocation Card are being furnished by the Board of Directors (the
"Board") of Designs, Inc., a Delaware corporation ("Designs" or the
"Company"), to the holders of outstanding shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), in opposition to the
solicitation (the "Holtzman Solicitation") by the Holtzman Group of written
consents from the stockholders of Designs. The "Holtzman Group" consists
of Seymour Holtzman and Evelyn Holtzman, and certain entities they control,
including Jewelcor Management, Inc. ("Jewelcor").
The Holtzman Group is attempting to take complete control of
Designs. The purpose of the Holtzman Solicitation is to attempt to remove,
without cause, the Company's entire Board of Directors other than Stanley
I. Berger and replace them with five new directors selected by the Holtzman
Group. The Holtzman Group also is soliciting consents in support of two
proposed amendments to the Company's By-laws (the "By-laws") and one other
proposal, all as described in more detail below.
THE COMPANY'S BOARD OF DIRECTORS OPPOSES THE HOLTZMAN
SOLICITATION AND URGES YOU NOT TO SIGN THE WHITE CONSENT CARD OR ANY OTHER
FORMS WHICH MAY BE SENT TO YOU BY THE HOLTZMAN GROUP.
EVEN IF YOU PREVIOUSLY SIGNED AND RETURNED THE HOLTZMAN GROUP'S
WHITE CONSENT CARD, YOU HAVE EVERY RIGHT TO REVOKE YOUR CONSENT. WE URGE
YOU TO SIGN, DATE AND MAIL THE ENCLOSED BLUE CONSENT REVOCATION CARD IN THE
POSTAGE-PAID ENVELOPE PROVIDED. YOUR PROMPT ACTION IS IMPORTANT. PLEASE
RETURN THE BLUE CONSENT REVOCATION CARD TODAY. IN ORDER TO BE SURE THAT
YOU ARE REVOKING A PRIOR CONSENT, YOU MUST EITHER MARK THE "REVOKE CONSENT"
BOX OR THE "ABSTAIN" BOX ON THE BLUE CONSENT REVOCATION CARD, OR SIGN THE
BLUE CONSENT REVOCATION CARD WITHOUT MARKING ANY BOXES.
IF YOUR SHARES ARE HELD IN "STREET NAME," ONLY YOUR BROKER OR
BANKER CAN VOTE YOUR SHARES. PLEASE CONTACT THE PERSON RESPONSIBLE FOR
YOUR ACCOUNT AND INSTRUCT HIM OR HER TO VOTE A BLUE CONSENT REVOCATION CARD
ON YOUR BEHALF TODAY.
This Consent Revocation Statement and the enclosed BLUE Consent
Revocation Card are first being furnished to stockholders on or about
December 23, 1998.
If you have any questions about giving your revocation of consent
or require assistance, please call Innisfree M&A Incorporated
("Innisfree"), the firm assisting Design in this solicitation, at the phone
numbers shown below:
INNISFREE M&A INCORPORATED
501 MADISON AVENUE, 20TH FLOOR
NEW YORK, NEW YORK 10022
CALL TOLL FREE: (888) 750-5834
BANKS & BROKERS CALL COLLECT: (212) 750-5833
____________
REASONS FOR OPPOSING THE HOLTZMAN SOLICITATION
DESIGNS' BOARD OF DIRECTORS OPPOSES THE HOLTZMAN SOLICITATION AND
URGES YOU NOT TO SIGN THE WHITE CONSENT CARD OR ANY OTHER FORMS WHICH MAY
BE SENT TO YOU BY THE HOLTZMAN GROUP. The Holtzman Group is soliciting
written consents to take the following actions without a stockholders
meeting (collectively, the "Holtzman Proposals"). The five Holtzman
Proposals are listed below and the text of the proposed amendments to the
Company's By-laws is set forth in Appendix A hereto:
HOLTZMAN PROPOSAL 1:
Remove (i) all current members of the Company's Board of
Directors other than Stanley I. Berger and (ii) any other person or persons
(other than any persons elected pursuant to the Holtzman Solicitation)
elected or appointed to the Board of Directors prior to the effective time
of this stockholder action in addition to or in place of any of such
current members (including any persons elected or appointed in lieu of
Stanley I. Berger) to fill any newly created directorship or vacancy on the
Board of Directors or otherwise.
HOLTZMAN PROPOSAL 2:
Elect Jesse H. Choper, Seymour Holtzman, Peter R. McMullin,
Deborah M. Rhem-Jackson and Steve R. Tomasi as directors of the Company to
serve until their respective successors are duly elected and qualified.
HOLTZMAN PROPOSAL 3:
Amend Section 4.1 of the By-laws of the Company to set the number
of directors on the Board of Directors at six.
HOLTZMAN PROPOSAL 4:
Amend Section 4.16 of the By-laws to clarify that a stockholder
seeking to nominate candidates for election to the Board of Directors
pursuant to a stockholder action by written consent need not comply with
the advance notification provisions of the By-laws applicable to the
nomination of candidates in connection with meetings of the stockholders.
HOLTZMAN PROPOSAL 5:
Repeal any By-laws adopted by the Board of Directors subsequent
to December 11, 1995, the effective date of the By-laws most recently filed
by the Company with the Securities and Exchange Commission prior to the
filing of the Holtzman Group's Preliminary Consent Statement on December 7,
1998 and prior to the effectiveness of the Holtzman Proposals other than
any By-Laws adopted pursuant to the Holtzman Proposals as contemplated
above.
In furtherance of their goal of seeking to take complete control
of the Company without offering stockholders any value at all for their
shares, and without presenting any specific plan for increasing stockholder
value, the Holtzman Group is seeking written consents of the Company's
stockholders to remove, without cause, the entire Board of Directors other
than Stanley I. Berger and to replace the directors with five persons
selected by the Holtzman Group. The Holtzman Group also is seeking
consents in support of the other three Holtzman Proposals which, taken
together, are designed to enable the Holtzman Group to take control of your
Company's Board. Holtzman Proposal 5 is designed to nullify unspecified
By-laws which may be adopted by your Board in its efforts to act in and
protect the interests of the Company. In response to the Holtzman
Solicitation, the Board of Directors is asking the Company's stockholders
not to provide their consent and is soliciting from the Company's
stockholders revocations of any consents that may have been given. The
recommendations of the Board of Directors of the Company described in this
Consent Revocation Statement were adopted unanimously with Mr. Berger
abstaining and Mr. Shapiro absent.
On December 11, 1998, the Company announced that its Board of
Directors had formed a committee of independent outside directors to
consider the Company's strategic alternatives, including a possible sale of
the Company, with a view towards maximizing stockholder value in the near
term. The members of the special committee are James G. Groninger, Bernard
M. Manuel and Peter L. Thigpen. In furtherance of this process, the
Company, through the special committee and its financial advisor, plans to
contact those third parties believed to be potentially interested in
acquiring the Company. While there have been some preliminary contacts
between the Company and third parties, as of the date of this Consent
Revocation Statement, the financial advisor has not yet formally begun the
process of contacting interested parties. No assurance can be given that
the process conducted by the Company will be successful or will result in a
definitive agreement for the sale of the Company.
The Company believes that the consideration of its strategic
alternatives and, in particular, the implementation of such strategic
alternatives could best be achieved by the current Board of Directors which
is most familiar with the Company and its operations. The Company also
believes that its relationship with Levi Strauss & Co. ("Levi Strauss") is
the most significant asset of the Company, and the Company is not currently
able to assess whether a change in the composition of the Board would
adversely affect that relationship.
The Amended and Restated Trademark License Agreement, dated as of
October 31, 1998 (the "License Agreement"), between the Company and Levi
Strauss prohibits any assignment or transfer by the Company of any of its
rights or obligations under the License Agreement, including in connection
with "a direct or indirect transfer of control" of the Company, without the
prior approval of Levi Strauss. Accordingly, in connection with any sale
transaction involving such a transfer of control, the Company would be
required to obtain the prior consent of Levi Strauss in order to avoid a
breach of the terms of the License Agreement. The Company believes that it
is unlikely that a sale of the Company would be consummated without the
prior consent of Levi Strauss. In discussing the effect the Holtzman
Proposals, if successful, would have under the License Agreement, the
Holtzman Group's Definitive Consent Solicitation Statement dated December
21, 1998 (the "Definitive Consent Statement"), states the Holtzman Group's
belief that either (i) the election of the Holtzman Group's nominees to the
Board will not constitute a "transfer of control" for purposes of the
License Agreement or (ii) if Levi Strauss were to assert that the election
of the Holtzman Group's nominees to the Board constitutes a "transfer of
control" for purposes of the License Agreement then Levi Strauss's consent
could be obtained after such election. The Company believes that failure
of both clause (i) and clause (ii) above to be true could have a material
adverse effect on the Company.
The Amended and Restated Loan and Security Agreement, dated as of
June 4, 1998 (the "Credit Agreement"), between the Company and BankBoston
Retail Finance Inc. ("BankBoston") provides that a "Change in Control" of
the Company, as defined in the Credit Agreement, would constitute an "event
of default" for purposes of the Credit Agreement, which would result in an
acceleration of the Company's repayment obligations thereunder.
Accordingly, in order to avoid an "event of default" in connection with any
sale transaction involving the Company which would constitute a "Change in
Control," the Company would be required to obtain the prior consent of
BankBoston or arrange for the repayment of all obligations under the Credit
Agreement in connection with such transaction. In addition, a change in
the majority of the Board as contemplated by the Holtzman Proposals would
constitute a "Change in Control" which would result in an "event of
default" under the Credit Agreement, unless the Company obtains the prior
consent of BankBoston or arranges for the repayment of all obligations
under the Credit Agreement. The Company's obligations under the Credit
Agreement are secured by the Company's assets, and as of December 21, 1998,
the amount outstanding under the Credit Agreement was $10,000,000.
THE BOARD OF DIRECTORS OF THE COMPANY BELIEVES THAT THE HOLTZMAN
PROPOSALS ARE NOT IN THE BEST INTERESTS OF THE COMPANY'S STOCKHOLDERS AND
URGES STOCKHOLDERS TO REJECT SUCH PROPOSALS. YOUR BOARD OF DIRECTORS
THEREFORE REQUESTS THAT YOU SIGN, DATE AND RETURN THE ENCLOSED BLUE
REVOCATION OF CONSENT CARD, WHETHER OR NOT YOU HAVE PREVIOUSLY SIGNED AND
RETURNED THE WHITE CONSENT CARD SOLICITED BY THE HOLTZMAN GROUP.
The proposed shift in the Company's business strategy articulated
in the Holtzman Group's consent solicitation statement substantially
mirrors the shift in business strategy announced by the Company during its
1997 fiscal year and described in the Company's Annual Report on Form 10-K
for the Fiscal Year Ended January 31, 1998 and in subsequent Company public
filings and announcements. In fact, the Company (i) had abandoned its
vertically-integrated private label business by the end of fiscal 1997,
(ii) closed unprofitable stores in fiscal 1997 and continues to close
unprofitable stores in fiscal 1998 and (iii) has already increased its
focus on its Levi's(R) and Dockers(R) Outlet by Designs stores through the
addition of 36 new stores and the redirection of significant corporate
resources to the operation of this business in fiscal 1998.
The Holtzman Group has not proposed any new business strategy for
the Company -- rather, the Holtzman Group has articulated a business
strategy previously articulated by the Company, one which the Company has
already taken substantial steps to execute. The persons whom the Holtzman
Group has nominated to serve as directors of the Company have indicated in
the Holtzman Group's public filings no experience in managing a specialty
retail apparel business like Designs. The Company's Board of Directors
believes that the Holtzman Group does not understand the current industry
conditions, does not have the experience in the specialty retail apparel
industry to effect a turnaround of the Company and, in the Board's
judgment, there is no basis to believe that the Holtzman Group will in any
way enhance stockholder value.
Your Board of Directors is and always has been committed to
increasing value for all stockholders. There is no reason to believe that
the Holtzman Group will be any more successful in executing the Company's
revised strategic plan than the Company's existing Board of Directors.
YOUR BOARD OF DIRECTORS OPPOSES THE HOLTZMAN SOLICITATION AND
URGES YOU NOT TO SIGN THE WHITE CONSENT CARD OR ANY OTHER FORMS WHICH MAY
BE SENT TO YOU BY THE HOLTZMAN GROUP.
EVEN IF YOU PREVIOUSLY SIGNED AND RETURNED THE HOLTZMAN GROUP'S
WHITE CONSENT CARD, YOU HAVE EVERY RIGHT TO CHANGE YOUR VOTE. WE URGE YOU
TO SIGN, DATE AND MAIL THE ENCLOSED BLUE CONSENT REVOCATION CARD IN THE
POSTAGE-PAID ENVELOPE PROVIDED. IN ORDER TO BE SURE THAT YOU ARE REVOKING
A PRIOR CONSENT, YOU MUST EITHER MARK THE "REVOKE CONSENT" BOX OR THE
"ABSTAIN" BOX ON THE BLUE CONSENT REVOCATION CARD OR SIGN THE BLUE CONSENT
REVOCATION CARD WITHOUT MARKING ANY BOXES.
IF YOU HAVE ANY QUESTIONS, PLEASE CALL INNISFREE, THE FIRM
ASSISTING THE COMPANY IN THIS SOLICITATION, TOLL-FREE AT (888) 750-5834.
BANKS AND BROKERS SHOULD CALL COLLECT AT (212) 750-5833.
THE CONSENT PROCEDURE
Under Section 228 of the General Corporation Law of the State of
Delaware (the "DGCL"), unless otherwise provided in the certificate of
incorporation, any action which may be taken at an annual or special
meeting of stockholders of a corporation may be taken without a meeting if
consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted, and
such consents are duly delivered to the corporation.
Thus, the unrevoked consent of the holders of not less than a
majority of the shares of Common Stock outstanding and entitled to vote on
the Record Date (as defined below) must be obtained within the time limits
specified herein to adopt each of the Holtzman Proposals. Each share of
Common Stock is entitled to one vote per share. Since consents are
required from the holders of record of not less than a majority of the
outstanding shares of Common Stock in order for each of the Holtzman
Proposals to be adopted, an abstention from voting on the Holtzman Group's
WHITE Consent Card or a broker non-vote will have the practical effect of a
vote against such proposals.
Under Section 228 of the DGCL, in order to be effective, consents
with respect to the Holtzman Proposals must be delivered within 60 days of
the earliest dated consent with respect to the Holtzman Proposals delivered
to Designs. On December 7, 1998, a consent with respect to 1,570,200
shares of Common Stock executed on behalf of Jewelcor was delivered to the
Company. Accordingly, the record date (the "Record Date") for
stockholders entitled to consent is December 7, 1998 and the consents will
not be effective unless the requisite number of unrevoked consents are
obtained on or before February 5, 1998. As of the Record Date, there were
15,878,233 shares of Common Stock issued and outstanding.
A stockholder may revoke any previously signed consent by
signing, dating and returning a BLUE Consent Revocation Card in the
postage-paid envelope provided, and either marking the "Revoke Consent"
box, the "Abstain" box or not marking any boxes. A consent may also be
revoked by delivery of a written consent revocation to the Holtzman Group.
STOCKHOLDERS ARE URGED, HOWEVER, TO DELIVER ALL CONSENT REVOCATIONS TO
INNISFREE, THE FIRM ASSISTING DESIGNS IN THIS SOLICITATION, AT INNISFREE
M&A INCORPORATED, 501 MADISON AVENUE, 20TH FLOOR, NEW YORK, NEW YORK 10022.
Designs requests that if a consent revocation is instead delivered to the
Holtzman Group, a photostatic copy of the revocation also be delivered to
Designs c/o Innisfree at the address set forth above, so that Designs will
be aware of all revocations. Any consent revocation may itself be revoked
at any time by signing, dating and returning to the Holtzman Group a
subsequently dated WHITE consent card, or by delivery of a written
revocation of such consent revocation to Designs or the Holtzman Group.
According to the Definitive Consent Statement filed on December
21, 1998 by the Holtzman Group with the Securities and Exchange Commission,
the Holtzman Group has stated that it will cease the solicitation of
consents once it has determined that valid and unrevoked consents
representing a majority of the issued and outstanding shares of Common
Stock as of the Record Date have been obtained and that it will deliver
such consents to the Company in the manner required by Section 228 of the
DGCL as soon as practicable thereafter. Accordingly, it is important that
any stockholder who has executed a consent and desires to revoke such
consent sign, date and mail the BLUE Consent Revocation Card as soon as
possible.
If any shares of Common Stock that you owned on the Record Date
were held for you in an account with a stock brokerage firm, bank nominee
or other similar "street name" holder, you are not entitled to vote such
shares directly, but rather must give instructions to the stock brokerage
firm, bank nominee or other "street name" holder to grant or revoke consent
for the shares of Common Stock held in your name. Accordingly, you should
contact the person responsible for your account and direct him or her to
execute the enclosed BLUE Consent Revocation Card on your behalf. You are
urged to confirm in writing your instructions to the person responsible for
your account and provide a copy of those instructions to Designs in care of
Innisfree at the address set forth above so that Designs will be aware of
your instructions and can attempt to ensure such instructions are followed.
YOU HAVE THE RIGHT TO REVOKE ANY CONSENT YOU MAY HAVE PREVIOUSLY
GIVEN TO THE HOLTZMAN GROUP. TO DO SO, YOU NEED ONLY SIGN, DATE AND RETURN
IN THE ENCLOSED POSTAGE-PAID ENVELOPE THE BLUE CONSENT REVOCATION CARD
WHICH ACCOMPANIES THIS REVOCATION STATEMENT. IF YOU DO NOT INDICATE A
SPECIFIC VOTE ON THE BLUE CONSENT REVOCATION CARD WITH RESPECT TO ANY
HOLTZMAN PROPOSAL, THE CARD WILL BE USED IN ACCORDANCE WITH THE DESIGNS
BOARD'S RECOMMENDATION TO REVOKE ANY CONSENT WITH RESPECT TO SUCH PROPOSAL.
IF YOU ARE AGAINST THE HOLTZMAN PROPOSALS AND HAVE NOT SIGNED A
HOLTZMAN GROUP CONSENT, YOU MAY SHOW YOUR OPPOSITION TO THE HOLTZMAN
PROPOSALS BY SIGNING, DATING AND RETURNING THE ENCLOSED BLUE CONSENT
REVOCATION CARD. THIS WILL BETTER ENABLE DESIGNS TO KEEP TRACK OF HOW MANY
STOCKHOLDERS OPPOSE THE HOLTZMAN PROPOSALS.
Designs has retained Innisfree to assist in communicating with
stockholders in connection with the Holtzman Solicitation and to assist in
our efforts to obtain consent revocations. If you have any questions about
how to complete or submit your BLUE Consent Revocation Card or any other
questions, Innisfree will be pleased to assist you. You may call Innisfree
toll-free at (888) 750-5834.
CERTAIN INFORMATION REGARDING THE COMPANY'S DIRECTORS AND OFFICERS
Set forth below is certain information concerning the Board of
Directors and the executive officers of the Company:
NAME AGE POSITIONS
-------------- ------ --------
Stanley I. Berger 68 Director and Chairman of the Board
Joel H. Reichman 48 President, Chief Executive Officer
and Director
Scott N. Semel 42 Executive Vice President, General
Counsel and Secretary
Carolyn R. Faulkner 37 Vice President, Chief Financial
Officer and Treasurer
James G. Groninger 54 Director
Melvin I. Shapiro 84 Director
Peter L. Thigpen 59 Director
Bernard M. Manuel 51 Director
_________________________
JOEL H. REICHMAN has been President and Chief Executive Officer
of the Company since December 1994. Prior to that time, he served as the
Company's President and Chief Operating Officer since January 1993. Mr.
Reichman has been employed by the Company since 1976 and served as its
Executive Vice President from 1985 until January 1993. Mr. Reichman has
been a director of the Company since 1987. Mr. Reichman has worked in the
retail clothing business for more than 25 years.
SCOTT N. SEMEL has been employed as General Counsel to the
Company since 1986. Mr. Semel was elected Secretary and Vice President of
the Company in March 1990, and Senior Vice President of the Company in
March 1994. Mr. Semel was elected Executive Vice President of the Company
in April 1996.
CAROLYN R. FAULKNER joined the Company as its Controller in June
1993. In March 1994, Mrs. Faulkner was elected as a Vice President of the
Company. In July 1996, Mrs. Faulkner was elected Chief Financial Officer.
On January 20, 1998, Mrs. Faulkner was elected Treasurer of the Company.
Prior to joining the Company, from 1985 through May 1993, Mrs. Faulkner
held various positions with Coopers & Lybrand L.L.P., an independent
accounting firm, including the position of Business Assurance Manager.
STANLEY I. BERGER is a founder of the Company and has been its
Chairman of the Board since January 1993. Mr. Berger also served as the
Company's Chief Executive Officer from January 1993 until December 1994.
Prior to January 1993, Mr. Berger served as the President and Chief
Operating Officer of the Company since 1977. Mr. Berger has been a
director of the Company since its inception.
JAMES G. GRONINGER was elected a director of the Company in 1987.
Mr. Groninger is the founder and president of The BaySouth Company, a
financial advisory firm. Prior to becoming associated with The BaySouth
Company, from 1988 through 1994, Mr. Groninger held various positions with
PaineWebber Incorporated, an investment banking and brokerage firm,
including the position of Managing Director. Mr. Groninger is a member of
the Board of Directors of Cygne Designs, Inc., a private label designer and
manufacturer of clothing for women, and NPS Pharmaceuticals, Inc., a
research and development pharmaceutical company.
BERNARD M. MANUEL was elected a director of the Company in 1990.
Mr. Manuel is the Chairman of the Board and Chief Executive Officer of
Cygne Designs, Inc., and Chairman of the Board and Chief Executive Officer
of Amvent, Inc., an international financial consulting company. Mr. Manuel
has been associated with these companies since prior to 1990.
MELVIN I. SHAPIRO was elected a director of the Company in 1990.
Mr. Shapiro retired from the independent accounting firm of Tofias,
Fleishman, Shapiro & Co., P.C. in April 1998. Until his retirement, Mr.
Shapiro had been a partner in that firm for more than 25 years.
PETER L. THIGPEN was elected a director of the Company in March
1994. Mr. Thigpen is a partner and a founder of Executive Reserves, a
consulting firm specializing in marketing strategy, quality processes and
the development of strategic business plans. Prior to becoming associated
with Executive Reserves, Mr. Thigpen held various positions with Levi
Strauss & Co. covering a period of more than 23 years, including the
position of Senior Vice President, U.S. Operations. Mr. Thigpen has been a
lecturer at the Haas School of Business at the University of California,
Berkeley since 1992. Mr. Thigpen is presently a member of the Board of
Directors of The Gymboree Corporation, a children's apparel and accessories
retailer and Radica Games Limited, a developer, manufacturer and
distributor of electronic handheld and tabletop games.
BOARD OF DIRECTORS AND COMMITTEE MEETINGS
The Board of Directors met seven times during fiscal year 1997.
Messrs. Reichman, Berger, Groninger, Manuel and Thigpen attended all
meetings of the Board. Mr. Shapiro attended six meetings of the Board.
The Board of Directors has an Audit Committee consisting of
Messrs. Berger, Groninger, Shapiro and Thigpen, a Compensation Committee
consisting of Messrs. Groninger, Manuel and Thigpen, and a Corporate
Governance Committee consisting of Messrs. Berger, Groninger, Manuel,
Shapiro and Thigpen.
The Audit Committee meets periodically with management and the
Company's independent accountants to review matters relating to the
Company's financial reporting, the adequacy of internal accounting controls
and the scope and results of audit work. The Audit Committee met four
times during fiscal year 1997. Messrs. Groninger, Shapiro and Thigpen
attended all meetings of the Audit Committee. Mr. Berger was elected to
the Audit Committee on June 10, 1997 and attended the two meetings of the
Audit Committee held following his election to the Committee.
The Compensation Committee meets periodically to review executive
and employee compensation and benefits (including stock-based compensation
awards under the Company's 1992 Stock Incentive Plan, as amended (the "1992
Stock Incentive Plan")), supervise benefit plans and make recommendations
regarding them to the Board of Directors. The Compensation Committee met
four times in fiscal year 1997 and all members attended each meeting.
The Corporate Governance Committee is responsible for performing
functions related to governance of the Company, including, but not limited
to, planning for the succession and promotion of executive officers of the
Company, nominating individuals for election to the Board of Directors and
establishing, coordinating and maintaining the Company's corporate
compliance programs. The Corporate Governance Committee met twice during
fiscal year 1997. Messrs. Groninger, Manuel, Shapiro and Thigpen attended
all meetings of the Corporate Governance Committee. Mr. Berger was elected
to the Corporate Governance Committee on June 10, 1997 and attended the one
meeting of the Corporate Governance Committee held following his election
to the Committee.
The Corporate Governance Committee is responsible for reviewing
the nomination of individuals for election to the Board of Directors by
stockholders of the Company. Stockholders wishing to nominate an
individual for election to the Board of Directors must send a letter to the
Secretary of the Company stating the name and qualifications of the
proposed nominee. The letter must be received by the Company within the
time limits set by, and must in all other respects comply with, Section
4.16 of the By-laws in order for the proposed nominee to be considered for
election to the Board of Directors. Any stockholder who has complied with
the timing, informational and other requirements set forth in Section 4.16
and who seeks to make such a nomination, or such stockholder's
representative, must be present in person at the Annual Meeting of
Stockholders of the Company at which such nominee's election is to be
considered.
STOCK OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
BY DIRECTORS AND EXECUTIVE OFFICERS
The following table and the notes thereto set forth information,
as of December 7, 1998, concerning beneficial ownership (as defined in Rule
13d-3 under the Securities Exchange Act of 1934) of Common Stock by (i)
each director of the Company, (ii) each of the executive officers of the
Company named in the Summary Compensation Table under "Executive and
Director Compensation," and (iii) all executive officers and directors of
the Company as a group (9 persons).
NUMBER OF SHARES PERCENTAGE OF
NAME OF OF COMMON STOCK COMMON STOCK
BENEFICIAL OWNER BENEFICIALLY OWNED OUTSTANDING (1)
---------------- ------------------ ---------------
Stanley I. Berger . . . . . . 1,197,106(2) 7.4%
Joel H. Reichman . . . . . . 349,121(3) 2.2%
Scott N. Semel . . . . . . . 267,203(4) 1.7%
Carolyn R. Faulkner . . . . . 55,333(5) *
Mark S. Lisnow . . . . . . . -0-(6) *
James G. Groninger . . . . . 49,604(7) *
Melvin I. Shapiro . . . . . . 57,326(8) *
Bernard M. Manuel . . . . . . 61,706(9) *
Peter L. Thigpen . . . . . . 28,304(10) *
All executive officers and
directors of the Company
as a group (9 people) . . . . 2,065,703(11) 12.3%
-------------------
* Less than 1%
(1) A total of 15,878,233 shares of Common Stock was outstanding as of
December 7, 1998.
(2) Includes 238,500 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998.
(3) Includes 303,166 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998, as well as 280 shares
owned by Mr. Reichman's wife and 427 shares owned by Mr. Reichman's
children, as to which 707 shares Mr. Reichman disclaims beneficial
ownership.
(4) Includes 229,166 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998, as well as 450 shares
owned by Mr. Semel's daughter, as to which he disclaims beneficial
ownership.
(5) Includes 42,466 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998.
(6) Mr. Lisnow's employment with the Company and his service as an officer
of the Company ended on February 13, 1998. The information in the
table with respect to shares beneficially owned by Mr. Lisnow is based
solely upon information available to the Company.
(7) Includes 40,500 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998.
(8) Includes 40,500 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998 and 450 shares owned by
Mr. Shapiro's wife as to which he disclaims beneficial ownership.
(9) Includes 40,500 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998.
(10) Includes 19,000 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998.
(11) Includes 953,798 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998. See also Notes 2
through 5 and 7 through 10 above for further details concerning such
options.
BY OTHERS
The following named persons were the only persons or entities
believed by the Company to be the beneficial owners of more than five
percent of the issued and outstanding shares of Common Stock as of December
7, 1998. The Company is informed that, except as indicated, all of them
have sole voting and investment power with respect to all shares of Common
Stock shown as beneficially owned by them, subject to community property
laws where applicable.
PERCENTAGE(1)
NAME AND ADDRESS OF NUMBER OF SHARES OF COMMON
BENEFICIAL OWNER BENEFICIALLY OWNED STOCK
------------------- ------------------- -------------
Heartland Advisors, Inc. . . . . . 1,097,000(2) 6.9%
790 North Milwaukee Street
Milwaukee, Wisconsin 53202
Franklin Resources, Inc. . . . . . 1,900,000(3) 12.1%
777 Mariners Island Boulevard
San Mateo, California 94403
Jewelcor Management, Inc. . . . . . 1,570,200(4) 9.9%
100 North Wilkes-Barre Blvd.
Wilkes-Barre, Pennsylvania 18702
Grace & White, Inc. . . . . . . . . 1,206,250(5) 7.6%
515 Madison Avenue
New York, New York 10022
Stanley I. Berger . . . . . . . . . 1,197,106(6) 7.4%
66 B Street
Needham, Massachusetts 02494
Dimensional Fund Advisors Inc. . . 910,300(7) 5.7%
1299 Ocean Avenue, 11th Floor
Santa Monica, California 90401
(1) A total of 15,878,233 shares of Common Stock was outstanding as of
December 7, 1998.
(2) The Company received a report on Schedule 13G dated November 30, 1998,
stating that Heartland Advisors, Inc. ("HAI") was the beneficial owner
of and had sole dispositive power with respect to the number of shares
of Common Stock set forth opposite its name in the table. The report
on Schedule 13G described the relationship among HAI and certain
investment advisory accounts and a registered investment company but
did not affirm the existence of a group. Nevertheless, the Company
believes that HAI, such investment accounts and the investment company
may be deemed to constitute a "group" as that term is used in Section
13(d)(3) of the Exchange Act, and that such group may be deemed to be
the beneficial owner of the shares described in this footnote.
(3) Franklin Resources, Inc. ("Franklin") informed the Company that, as of
May 6, 1998, it was the beneficial owner of the number of shares of
Common Stock set forth opposite its name in the table and that, as of
such date, Franklin had the sole voting and dispositive power with
respect to all such shares. The Company previously received a report
on Schedule 13G with a signature dated January 16, 1998 stating that
Franklin, as parent holding company of Franklin Advisory Services,
Inc. ("FASI"), was reporting the beneficial ownership of FASI and its
principal shareholders, Charles B. Johnson and Rupert H. Johnson, Jr.,
as result of FASI acting as an investment adviser to several
investment companies and other managed accounts registered under the
Investment Company Act. The report on Schedule 13G indicates that at
December 31, 1997 FASI had sole voting power with respect to 1,494,000
shares and that FASI may be deemed to beneficially own, within the
meaning of Rule 13d-3 of the Exchange Act, 1,494,000 shares over which
it had sole dispositive power. The report described the relationship
among Franklin, FASI, Charles B. Johnson and Rupert H. Johnson, Jr.,
but it denied the existence of a group. Nevertheless, the Company
believes that Franklin, FASI, Charles B. Johnson and Rupert H.
Johnson, Jr., may be deemed to constitute a "group" as that term is
used in Section 13(d)(3) of the Exchange Act, and that such group may
be deemed to be the beneficial owner of the shares described in this
footnote.
(4) The Company received an Amendment No. 1 to a report on Schedule 13D
dated November 30, 1998 stating that Jewelcor was the beneficial owner
of the number of shares of Common Stock set forth opposite its name in
the table, over which it had sole voting and dispositive power. The
Amendment No. 1 to the report on Schedule 13D indicates that each of
Seymour Holtzman, Evelyn Holtzman, S.H. Holdings, Inc. and Jewelcor,
Inc., are reporting persons and thus may be deemed beneficial owners
of the securities held by Jewelcor. The Company received Amendment
No. 2 to the report on Schedule 13D dated December 7, 1998 indicating
that the Holtzman Group had filed a Preliminary Consent Solicitation
Statement and preliminary form of consent of stockholders to action
without a meeting with respect to the Holtzman Solicitation.
(5) The Company received a report on Schedule 13G dated February 12, 1998
stating that Grace & White, Inc. ("Grace & White") was the beneficial
owner of the number shares of Common Stock set forth opposite its name
in the table. The report on Schedule 13G indicates that at December
31, 1997 Grace & White had sole voting power with respect to 30,100
shares and that Grace & White may be deemed to beneficially own,
within the meaning of Rule 13d-3 of the Exchange Act, 1,206,250 shares
over which it had sole dispositive power. The report indicated that
the shares were acquired in the ordinary course of Grace & White's
investment advisory business and not with the purpose of changing or
influencing the control of the Company.
(6) Includes 238,500 shares issuable pursuant to outstanding stock options
exercisable within 60 days of December 7, 1998.
(7) The Company received a report on Schedule 13G with a signature dated
February 9, 1998 stating that Dimensional Fund Advisors Inc. ("DFAI")
was reporting the beneficial ownership of DFAI and advisory clients of
DFAI, including DFA Investment Dimensions Group Inc. ("DFA Fund") and
The DFA Investment Trust Company ("DFA Trust"), each an open-end
management investment company under the Investment Company Act of
1940, as amended. The report on Schedule 13G and the correspondence
accompanying the report indicated that at December 31, 1997 DFAI had
sole voting power with respect to 588,900 shares and that DFAI may be
deemed to beneficially own, within the meaning of Rule 13d-3 of the
Exchange Act, 910,300 shares over which it had sole dispositive power.
The report described the relationship among DFAI, DFA Fund and DFA
Trust but did not affirm the existence of a group. Nevertheless, the
Company believes that DFAI, DFA Fund and DFA Trust may be deemed to
constitute a "group" as that term is used in Section 13(d)(3) of the
Exchange Act, and that such group may be deemed to be the beneficial
owner of the shares described in this footnote.
DIRECTOR AND EXECUTIVE COMPENSATION
COMPENSATION OF DIRECTORS
During the Company's fiscal year ended January 31, 1998 ("fiscal year
1997"), non-employee directors of the Company were paid $3,000 plus
expenses for each meeting of the Board of Directors in which they
participated. During fiscal year 1997, non-employee directors of the
Company were paid, in addition to reimbursement of expenses, for meetings
of committees of the Board in which they participated as follows: $3,000
for each Compensation Committee meeting; $1,500 for each Audit Committee
meeting; and $1,500 for each Corporate Governance Committee meeting.
During fiscal year 1997, non-employee directors of the Company were, and
during the fiscal year ending January 30, 1999 ("fiscal year 1998") such
directors continue to be, eligible to participate in the 1992 Stock
Incentive Plan. Under the provisions of the 1992 Stock Incentive Plan,
each non-employee director of the Company who is elected by the
stockholders to the Board initially will automatically be granted, upon
such election, a stock option to purchase up to 10,000 shares of Common
Stock at the then fair market value of Common Stock. Each non-employee
director of the Company who is re-elected by the stockholders to the Board
is granted, upon such re-election, a stock option to purchase up to 3,000
shares of Common Stock at the then fair market value of Common Stock. The
1992 Stock Incentive Plan further provides that each such stock option
becomes exercisable in three equal annual installments commencing twelve
months following the date of grant and has a ten year term. The 1992 Stock
Incentive Plan also provides that non-employee directors of the Company may
elect to receive all or a portion of their directors' fees, on a current or
deferred basis, in shares of Common Stock that are free of any restrictions
under the 1992 Stock Incentive Plan ("Unrestricted Stock") by entering into
an irrevocable agreement with the Company in advance of the beginning of a
calendar year. On April 13, 1998 the Board of Directors amended the 1992
Stock Incentive Plan expressly to provide the Compensation Committee of the
Board of Directors (the "Compensation Committee") with the authority to
waive the requirement that such an irrevocable agreement be delivered prior
to the beginning of the calendar year in which a non-employee director
wishes to receive shares of Unrestricted Stock in lieu of directors' fees
otherwise due. On April 13, 1998 the Compensation Committee waived, with
respect to calendar year 1998, compliance with the requirement that such
irrevocable agreements be delivered prior to the beginning of the calendar
year. This waiver is applicable to meetings of the Board of Directors and
its committees held on April 13, 1998 and thereafter through the end of
calendar year 1998. All non-employee directors have agreed to receive one-
half of their directors' fees (excluding reimbursement of expenses) in
shares of Unrestricted Stock for meetings of the Board of Directors and its
committees in which they participate in calendar year 1998 beginning with
the meetings held on April 13, 1998.
EXECUTIVE COMPENSATION
The following table sets forth for the periods indicated
information concerning the compensation of the President and Chief
Executive Officer and the three other executive officers of the Company who
received in excess of $100,000 in compensation during fiscal year 1997 (the
"Named Executive Officers").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
ANNUAL COMPENSATION COMPENSA-
------------------- TION AWARDS:
NAME AND SECURITIES ALL OTHER
PRINCIPAL FISCAL UNDERLYING COMPENSA-
POSITION YEAR SALARY ($) BONUS ($) OPTIONS (#) TIONS($)(1)
--------- ------ ---------- --------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Joel H. Reichman .......... 1997 $375,000 $ -0- 270,000 $ 3,621
President and 1996 $375,000 $ -0- 40,000 $ 2,451
Chief Executive 1995 $375,000 $ -0- 50,000 $ 3,295
Officer
Scott N. Semel ............ 1997 $290,000 $ -0- 150,000 $ 3,566
Executive Vice 1996(2) $290,000 $ -0- 40,000 $ 3,472
President, 1995 $255,000 $ -0- 50,000 $ 2,578
General Counsel
and Secretary
Carolyn R. Faulkner ....... 1997(3) $210,000 $ -0- 80,000 $ 3,453
Vice President, 1996(4) $158,808 $ -0- 20,000 $ 2,412
Chief Financial 1995 $120,394 $ -0- 5,000 $ 2,661
Officer and
Treasurer
Mark S. Lisnow (5) ........ 1997 $300,000 $ -0- 80,000 $312,186
Former Senior 1996 $300,000 $ -0- 20,000 $ 1,233
Vice President, 1995 $132,692 $ -0- 35,000 $ 65
Merchandising
</TABLE>
(1) The amounts disclosed in this column covering fiscal year 1997
represent: (i) payments by the Company of insurance premiums for term
life insurance for the benefit of the executive officers (Mr.
Reichman, $421; Mr. Semel, $366; Mrs. Faulkner, $253; and Mr. Lisnow,
$379); (ii) matching contributions equal to $3,200 that were made by
the Company for the benefit of each of the named Executive Officers to
the Company's retirement plan (the "401(k) Plan") established pursuant
to Section 401(k) of the Internal Revenue Code of 1986, as amended
(the "Internal Revenue Code"); and (iii) as to Mr. Lisnow, severance
benefits under his Employment Agreement with the Company (described
below) and his Separation Agreement with the Company dated February 9,
1998 (described below), consisting of a lump sum payment of $300,000
that was recorded by the Company in fiscal year 1997 and was paid on
February 26, 1998, and payments for medical insurance benefits to be
paid by the Company through May 1999 in the aggregate amount of
$8,607.
(2) Mr. Semel was elected Executive Vice President of the Company on April
17, 1996.
(3) Mrs. Faulkner was elected Treasurer of the Company on January 20,
1998.
(4) Mrs. Faulkner was elected Chief Financial Officer of the Company on
July 16, 1996.
(5) Mr. Lisnow joined the Company on August 25, 1995 and was elected
Senior Vice President, Merchandising, of the Company on September 18,
1995. Mr. Lisnow's employment with the Company and his service as an
officer of the Company ended on February 13, 1998.
Option Grants Table. The following Option Grants Table sets
forth certain information as of January 31, 1998 regarding stock options
granted during fiscal year 1997 by the Company to the Named Executive
Officers.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
POTENTIAL
REALIZABLE
VALUE OF
INDIVIDUAL GRANTS ASSUMED
ANNUAL RATES
NUMBER OF OF STOCK PRICE
OPTIONS PERCENT OF APPRECIATION
GRANTED TOTAL OPTIONS EXERCISE FOR OPTION
TO PURCHASE GRANTED TO PRICE PER TERM (4)
COMMON STOCK EMPLOYEES IN SHARE EXPIRATION ----------------
(#) (1) FISCAL YEAR (2) ($/SH) DATE (3) 5% 10%
------------ --------------- --------- ---------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Joel H. Reichman 270,000 38.9% $12.00 04/28/07 $ -0- $ -0-
Scott N. Semel 150,000 21.6% $12.00 04/28/07 $ -0- $ -0-
Carolyn R. Faulkner 80,000 11.5% $12.00 04/28/07 $ -0- $ -0-
Mark S. Lisnow 80,000 11.5% $12.00 04/28/07 $ -0- $ -0-
</TABLE>
(1) Options were granted to Messrs. Reichman, Semel and Lisnow and Mrs.
Faulkner under the 1992 Stock Incentive Plan, and become exercisable
in five equal annual installments commencing twelve months following
the date of grant. The last sale price of Common Stock on the date of
grant, as reported by the Nasdaq Stock Market, Inc. ("Nasdaq") was
$5.00 per share. These options are subject to forfeiture if the
Company's Common Stock does not close at or above a price of $12.00
per share for at least five trading days during a period of ten
consecutive trading days ending on or prior to April 28, 2002.
(2) Options covering 693,750 shares of Common Stock were granted to
employees of the Company during fiscal year 1997.
(3) Subject to the forfeiture provisions described above, all options
described above expire ten years following the date of grant.
(4) Amounts represent hypothetical gains that could be achieved for the
respective options if exercised at the end of the option term. These
gains are based upon assumed rates of share price appreciation set by
the Securities and Exchange Commission (the "Commission") of five
percent and ten percent compounded annually from the date the
respective options were granted. Actual gains, if any, are dependent
on the performance of shares of Common Stock. Also, the options are
subject to forfeiture if the Company's Common Stock does not close at
or above a price of $12.00 per share for at least five trading days
during a period of ten consecutive trading days ending on or prior to
April 28, 2002. An increase of ten percent or less, compounded
annually from the date of grant, would not be sufficient to achieve
the target price by April 28, 2002, and the option would thus be
forfeited. There can be no assurance that the amounts shown will be
realized.
Fiscal Year-End Option Table. The following Fiscal Year-End
Option Table sets forth certain information regarding stock options
exercised during fiscal year 1997 and stock options held as of January 31,
1998 by the Named Executive Officers.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF UNEXERCISED VALUE OF UNEXERCISED
OPTIONS TO PURCHASE IN-THE-MONEY
SHARES COMMON STOCK AT OPTIONS AT FISCAL
ACQUIRED FISCAL YEAR-END (#) YEAR-END (3)
ON VALUE ---------------------------- ----------------------------
EXERCISE REALIZED UNEXERCISABLE
(#) ($) (1) EXERCISABLE (2) EXERCISABLE UNEXERCISABLE
--------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Joel H. Reichman 22,498 $58,684 219,166 313,334 $ -0- $ -0-
Scott N. Semel 33,748 $95,644 169,166 193,334 $ -0- $ -0-
Carolyn R. Faulkner -0- $ -0- 16,466 99,534 $ -0- $ -0-
Mark S. Lisnow -0- $ -0- 29,999 105,001 $ -0- $ -0-
</TABLE>
(1) "Value Realized" means the difference between the option exercise
price and the market value, as of the date of exercise, of the shares
of Common Stock acquired upon exercise.
(2) Includes 270,000, 150,000, 80,000 and 80,000 options for Mr. Reichman,
Mr. Semel, Mrs. Faulkner and Mr. Lisnow, respectively, which are
subject to forfeiture if the per share price of Common Stock does not
close at or above $12.00 for at least five trading days ending on or
prior to April 28, 2002.
(3) Value is based on the last sale price of Common Stock ($2.1875 per
share) on Friday, January 30, 1998, as reported by Nasdaq, less the
applicable option exercise price.
EMPLOYMENT AGREEMENTS
The Company entered into employment agreements, effective as of
October 16, 1995, with each of Joel H. Reichman, Scott N. Semel and Mark S.
Lisnow for three year terms ending October 15, 1998, and an employment
agreement, effective as of May 9, 1997, with Carolyn R. Faulkner for a
three year term ending May 8, 2000. Each of these employment agreements
(collectively, the "Employment Agreements") provides for automatic renewal
for successive one year terms unless either party notifies the other to the
contrary at least 90 days prior to expiration of the then current term.
The Employment Agreements require each executive officer to devote
substantially all of the executive officer's time and attention to the
business of the Company as necessary to fulfill his or her duties.
Pursuant to the Employment Agreements, Messrs. Reichman, Semel and Lisnow
and Mrs. Faulkner were each initially entitled to be paid base salary at an
annual rate of $375,000, $255,000, $300,000 and $210,000, respectively.
The Employment Agreements provide that the executive officers' annual rate
of base salary for the remaining years of employment may be increased by
the Compensation Committee in its sole discretion. The Employment
Agreements further provide that, effective as of the first day of each
fiscal year of the Company, each executive officer's annual rate of base
salary will be increased by at least the percentage increase in the cost of
living in Boston, Massachusetts. The Employment Agreements also provide
for the payment of bonuses in such amounts as may be determined by the
Compensation Committee. While an executive officer is employed by the
Company, the Company provides the executive officer with a full size
automobile for the executive officer's personal use and for use in
performance of his or her employment duties and obligations, including
maintenance of and fuel for such automobile. Each executive officer is
entitled to vacations and to participate in and receive any other benefits
customarily provided by the Company to its senior executives (including any
bonus, retirement, short and long-term disability insurance, major medical
insurance and group life insurance plans in accordance with the terms of
such plans), including stock option plans, all as determined from time to
time by the Compensation Committee.
The Employment Agreements provide that in the event the executive
officer's employment is terminated by the Company at any time for any
reason other than "justifiable cause" (as defined in the Employment
Agreements), disability or death, or in the event that the Company shall
fail to renew the Employment Agreement at any time within two years
following the date of a "Change in Control of the Company," the Company is
required, upon such termination or failure to renew, immediately to pay to
the executive officer, in a lump sum, a severance payment equal to the
greater of (i) one-twelfth of the executive officer's then annual base
salary multiplied by the number of months remaining in the term of the
Employment Agreement or (ii) a sum equal to his or her annual base salary
then in effect multiplied by (a) two years in the case of Messrs. Reichman
and Semel and Mrs. Faulkner, and (b) one year in the case of Mr. Lisnow.
In addition, in the event the executive officer's employment is terminated
under such circumstances, the executive officer is also entitled to
continue to participate, at the Company's expense, in the Company's health
insurance and disability insurance programs to the extent permitted by such
programs for a period of (a) two years in the case of Messrs. Reichman and
Semel and Mrs. Faulkner, and (b) one year in the case of Mr. Lisnow. The
Employment Agreements also provide that in the event the Company elects not
to renew such Employment Agreement (other than within two years following a
Change in Control of the Company), the Company will pay the executive
officer a sum equal to the greater of (i) one year's annual base salary or
(ii) two months base salary plus one-sixth of the executive officer's
bonus, if any, relating to the most recently completed fiscal year, for
each year the executive officer has been employed by the Company. If an
executive officer dies while he or she is on Company business, then the
Company is required to pay such executive officer's estate one-half of his
or her then annual base salary. The Company and Mr. Lisnow agreed to
terminate his Employment Agreement when his employment with the Company and
his service as an officer of the Company ended on February 13, 1998.
Each Employment Agreement contains confidentiality provisions
pursuant to which each executive officer agrees not to disclose
confidential information regarding the Company. Each Employment Agreement
also contains covenants pursuant to which each executive officer agrees
during the term of his or her employment and for a one year period
following the termination of his or her employment, not to have any
connection with any business which competes with the business of the
Company. Each Employment Agreement provides that in the event of
termination of employment (unless such termination is because the Company
fails to renew the Employment Agreement or the Company terminates the
executive officer's employment within two years following a Change in
Control of the Company), the executive officer will be available on a
part-time basis to advise and consult with the Company, with respect to the
affairs of the Company, for up to one year following termination of
employment. In the event the Company elects not to renew an executive
officer's Employment Agreement, or terminates the executive officer's
employment within two years following a Change in Control of the Company,
or fails to make the required severance payments described above, then the
non-competition covenants contained in such executive officer's Employment
Agreement will automatically terminate.
Under the Employment Agreements, the executive officer may
terminate his or her employment at any time upon 30 days' prior notice.
Upon the executive officer's termination of employment or election not to
renew his or her Employment Agreement, the non-competition covenants
contained in such executive officer's Employment Agreement will terminate
unless the Company pays the executive officer the severance payments
described above. In such event, the executive officer will be entitled to
receive such portion of his or her annual base salary and bonus, if any, as
had been accrued to date.
For purposes of the Employment Agreements, a "Change in Control
of the Company" is deemed to occur if: (i) there is consummated (a) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the
Company's Common Stock would be converted into cash, securities or other
property, other than a merger of the company in which the holders of the
Company's Common Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (b) 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; or (ii) the
stockholders of the Company approve any plan or proposal for liquidation or
dissolution of the Company; or (iii) any person (as such term is used in
Sections 13(d) and14(d)(2) of the Exchange Act) becomes the beneficial
owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 40% or more of the Company's outstanding Common Stock other than
pursuant to a plan or arrangement entered into by such person and the
Company; or (iv) during any period of two consecutive years, individuals
who at the beginning of such period constitute the entire Board of
Directors of the Company cease for any reason to constitute a majority
thereof unless the election, or the nomination for election by the
Company's stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors
at the beginning of the period. If the Holtzman Group Solicitation were
successful, it would constitute a "Change in Control of the Company" for
purposes of the Employment Agreements.
The Employment Agreements also provide that if, in connection
with a change of ownership or control of the Company or a change in
ownership of a substantial portion of the assets of the Company (all within
the meaning of Section 280G(b)(2) of the Internal Revenue Code), an excise
tax is payable by the executive officer under Section 4999 of the Internal
Revenue Code, then the Company will pay to the executive officer additional
compensation which will be sufficient to enable the executive officer to
pay such excise tax as well as the income tax and excise tax on such
additional compensation, such that, after the payment of income and excise
taxes, the executive officer is in the same economic position in which he
would have been if the provisions of Section 4999 of the Internal Revenue
Code had not been applicable.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
James G. Groninger, Bernard M. Manuel and Peter L. Thigpen served
on the Compensation Committee during all of fiscal year 1997. Persons
serving on the Compensation Committee had no relationships with the company
in fiscal year 1997 other than their relationship to the Company as
directors entitled to the receipt of standard compensation as directors and
members of certain committees of the Board and their relationship to the
Company as beneficial owners of shares of Common Stock and options
exercisable for shares of Common Stock. No person serving on the
Compensation Committee or on the Board of Directors is an executive officer
of another entity for which an executive officer of the Company serves on
the board of directors or on that entity's compensation committee.
COMPENSATION COMMITTEE REPORT
Decisions concerning the compensation of the Company's executive
officers generally are made by the three-member Compensation Committee.
Each member of the Compensation Committee is a non-employee director of the
Company. This Report summarizes the Company's executive officer
compensation practices and policies for fiscal year 1997.
COMPENSATION POLICIES
The Company's compensation policies are designed to link
executive officer compensation to the annual and long-term performance of
the Company and to provide industry-competitive compensation for such
officers. The compensation mix reflects a balance of annual cash payments,
consisting of annual base salary payments and annual incentive bonus
payments, and long-term stock-based incentives in the form of stock
options. Annual incentive cash bonuses are earned by eligible executive
officers under the Company's Senior Executive Incentive Plan (the "SEIP")
adopted in fiscal year 1996 based upon the achievement of measurable
corporate performance goals established prior to or in the first quarter of
each fiscal year. However, emphasis in incentive compensation is placed on
the more strategic stock-based plans which more closely align the interests
of the executive officers with those of the stockholders of the Company and
which provide incentives to attract individuals and to motivate and retain
executive officers over the long-term.
The company's executive officer compensation consists of two key
components: (1) an annual component, consisting of base salary and bonus,
if any, and (2) a long-term component consisting of the grant of stock
options. The policies with respect to each of these elements, as well as
the basis for determining the compensation of the Company's Chief Executive
Officer, Joel H. Reichman, are described below.
(1) Annual Component: Base Salary and Annual Bonus
Base Salary: The Employment Agreements described above specify
initial base salaries and annual cost of living increases for the four
executive officers who had such Agreements in fiscal year 1997 and permit
increases in such base salaries by the Compensation Committee. The
Compensation Committee reviews all base salaries for executive officers and
establishes them by reviewing the performance of each executive officer,
evaluating the responsibilities of each executive officer's position and
comparing the executive officers' salaries with salaries of executive
officers of other companies in the specialty retail apparel industry (the
"Industry"). The Compensation Committee defines the Industry as public
companies in the specialty retail apparel business with similar sales and
market capitalization. In connection with base salary amounts set for
fiscal year 1997, members of the Compensation Committee reviewed five
professionally-prepared surveys that included compensation information
concerning certain companies in the Industry to determine competitive base
salaries in the Industry. Annual base salary adjustments are influenced by
the Company's performance in the previous fiscal year and the individual's
contribution to that performance, the individual's performance, promotions
of the individual that may have occurred during the fiscal year, and any
increases in the individual's level of responsibility (which is measured by
various factors including, but not limited to, the number of departments
and employees for which the executive officer is responsible). The
increase in base salary in fiscal year 1997 for Mrs. Faulkner, in
particular, reflects, among other things, an effort to set her base salary
at a rate competitive with executives holding the same position with other
companies in the Industry. Each of the four executive officers declined to
accept cost of living increases set forth in their Employment Agreements
for fiscal year 1997 and fiscal year 1998.
Annual Bonus: The concept underlying the SEIP is to link
compensation to the performance of the Company based on measurable
corporate performance criteria. The Compensation Committee annually
determines which executive officers are eligible to participate in the SEIP
for the following fiscal year. Generally, an executive officer's
eligibility is determined based upon an assessment of such officer's
performance during the previous fiscal year as well as other factors which
members of the Compensation Committee may take into account. In order for
bonuses to be paid under the SEIP in fiscal year 1997, the SEIP required
the achievement of two quantifiable corporate performance goals measured by
earnings per share and return on net assets. These corporate performance
goals were determined without regard to the effect of any non-recurring
item of income or expense recorded during the fiscal year. In the first
quarter of fiscal 1997,the Compensation Committee established the goals for
each measure of performance. These corporate performance goals, as well as
certain other features of the SEIP, are the same performance criteria and
features used in the annual incentive compensation plans in which other
eligible employees of the Company participate. Under the SEIP for fiscal
year 1997, if a certain threshold level of corporate performance relating
to either goal was met during the fiscal year, then the Company's executive
officers would have been entitled to receive a bonus for that portion of
the fiscal year during which the individual served as an executive officer
of the Company. Depending upon the extent to which each of the minimum
corporate performance goals is exceeded, each of the executive officers
could have received a maximum bonus for fiscal year 1997 equal to 50% of
the executive officer's base salary for that portion of the fiscal year
during which the individual served as an executive officer. During fiscal
year 1997, neither of the corporate performance goals was met.
Accordingly, none of the executive officers participating in the SEIP was
paid a bonus for the fiscal year.
(2) Long-Term Component: Stock Options
To align executive officers' interests more closely with the
interests of the stockholders of the Company, the Company's long-term
compensation program emphasizes the grant of stock options exercisable for
shares of Common Stock. The amount of such awards is determined one or
more times in each fiscal year by the Compensation Committee. Stock
options normally are granted to executive officers in amounts based largely
upon the size of stock-based awards of other companies in the Industry for
comparable positions as well as the availability of shares of Common Stock
under the 1992 Stock Incentive Plan. The Compensation Committee may take
into account other factors in determining the size of stock option grants
including, but not limited to, the need to attract and retain individuals
the Compensation Committee perceives to be valuable to the Company. In
connection with stock option grants in fiscal year 1997, the members of the
Compensation Committee reviewed a professionally-prepared survey in order
to determine competitive amounts of stock option grants for the executive
officers. The Compensation Committee also considered the advice of an
independent executive compensation consultant with regard to the
advisability of utilizing premium priced stock options as an element of the
Company's stock-based incentive program for senior executives.
Accordingly, in order to focus management on business performance that
creates stockholder value and to reward management only for superior
results, all stock options granted to executive officers in fiscal year
1997 have an exercise price 140% higher than the fair market value of
shares of Common Stock on the day of grant. The premium priced stock
options granted to the executive officers of the Company in fiscal year
1997 cover significantly greater amounts of shares of Common Stock than the
amounts historically granted because such greater amounts significantly
align the interests of the executive officers with the interests of the
Company's stockholders and handsomely reward senior management in the event
that the Company's market capitalization increases in excess of $109
million within the five year period following the date of grant of the
options. The Compensation Committee believes that the use of premium
priced options places a greater portion of senior management's compensation
at risk under an incentive compensation program that is closely aligned
with creation of stockholder value. To encourage the executive officers
further to achieve superior performance and to create stockholder value
within a defined time frame, the premium priced options include a
forfeiture provision that is applicable if the per share price of Common
Stock does not reach $12.00 by April 28, 2002. In addition, the options
are subject to time-based vesting at a rate of 20% per annum over five
years. If the market price of shares of Common Stock reaches $12.00 per
share prior to April 28, 2002, the options would continue in effect for a
period of ten years from the date of grant and the five year time-based
vesting would continue. The Compensation Committee believes that the
premium priced stock options granted to the executive officers of the
Company in fiscal year 1997 provide a strong incentive for creation of
stockholder value over the long term since the full benefit of this element
of the compensation package cannot be realized unless appreciation in the
price of Common Stock occurs over a specified number of years.
In addition to the foregoing, executive officers receive benefits
under certain group health, long-term disability and life insurance plans
which are generally available to the Company's eligible employees. After
one year of service with the Company, the executive officers are eligible
to participate in the 401(k) Plan. Benefits under these plans are not tied
to corporate performance.
The Commission requires that this Report comment upon the
Compensation Committee's policy with respect to Section 162(m) of the
Internal Revenue Code, which limits the Company's tax deduction with regard
to compensation in excess of $1 million paid to the chief executive officer
and the four most highly compensated executive officers (other than the
chief executive officer) at the end of any fiscal year unless the
compensation qualifies as "performance-based compensation." The
Compensation Committee's policy with respect to Section 162(m) is to make
every reasonable effort to cause compensation to be deductible by the
Company while simultaneously providing executive officers of the Company
with appropriate rewards for their performance.
CHIEF EXECUTIVE OFFICER COMPENSATION
Mr. Reichman served as the Company's President and Chief
Executive Officer during all of fiscal year 1997. The following discussion
sets forth the bases for Mr. Reichman's compensation during fiscal year
1997 and the relationship between his compensation and the performance of
the Company.
Annual Base Salary: Mr. Reichman's base salary was initially
fixed in October 1995 by his Employment Agreement at $375,000 per annum.
Thereafter, it is subject to increase by the Compensation Committee and, as
of the first day of each fiscal year of the Company, is to be increased by
at least the percentage increase in the cost of living in Boston,
Massachusetts. After review of the Company's performance during fiscal
year 1996, the contributions of Mr. Reichman and the other executive
officers to that performance, their anticipated responsibilities in fiscal
year 1997 and the surveys and other materials accumulated for the
Committee's review, the Compensation Committee did not authorize an
increase in Mr. Reichman's base salary for fiscal year 1997. Mr. Reichman
previously declined to accept an increase in his base salary authorized by
the Committee for fiscal year 1996 and, like the other executive officers
of the Company, declined to accept a cost of living increase set forth in
his Employment Agreement for fiscal year 1997 and fiscal year 1998.
Annual Bonus: Like the other executive officers of the Company,
Mr. Reichman did not receive a bonus because the corporate performance
goals under the SEIP were not met during fiscal year 1997.
Stock Options: In light of the Company's performance in fiscal
year 1996 and Mr. Reichman's contribution to that performance and in
furtherance of the Compensation Committee's policy of more closely aligning
the executive officers interests with those of the stockholders, in the
first quarter of fiscal year 1997, the Compensation Committee granted Mr.
Reichman a premium priced stock option covering 270,000 shares of Common
Stock at an option price of $12.00 per share. This stock option is subject
to certain forfeiture provisions based upon the performance of the
Company's Common Stock during the five year period following the date of
grant of the option. Based on the survey reviewed by the Compensation
Committee and upon the advice of an independent executive compensation
consultant, the Compensation Committee believes, as described above, that
this option grant provides a strong incentive for Mr. Reichman to implement
the actions necessary for the Company to achieve superior performance and
create significant stockholder value within a defined period of time.
In fiscal year 1997, the Company's efforts to become less
dependent on Levi Strauss & Co. brands by undergoing a transition to a
vertically integrated private label apparel retailer proved unsuccessful.
The Company's gross margins and operating results were negatively affected
by merchandise markdowns associated with poor performing private label
brand products and markdowns necessitated by the liquidation of private
label brand products. In addition, the Company's operating performance,
like that of other apparel retailers that are heavily dependent on sales of
Levi's(R) brand merchandise, was significantly affected by reduced consumer
demand in the United States for Levi's(R) brand products. The erosion of
market share of the Levi's(R) brand in the United States and the limited
availability of the most popular Levi's(R) styles of apparel historically
sold in the Company's outlet stores were the most significant contributors
to the Company's negative comparable store sales during the fiscal year.
The reduced demand for Levi's(R) brand products resulted in decreases in
the Company's gross margins and operating results because of merchandise
markdowns and lower initial margins associated with these products.
In the context of these challenges, Mr. Reichman undertook,
beginning in the second quarter of fiscal year 1997, a number of steps to
place the Company in a position for improved operating performance in
fiscal year 1998. In June1997, Mr. Reichman announced a return to the
Company's core competency of operating specialty retail stores featuring
Levi's(R), Dockers(R) and other name brand products. This major shift in
the Company's strategic direction involved the discontinuance of the
Company's product development and sourcing operations and the closure of 33
poorly-performing stores. By the end of fiscal year 1997, the store
closure program was virtually complete and the obligations associated with
the product development and sourcing operation were terminated, each within
the Company's original estimate of the costs associated with the shift in
strategic direction. In light of lower sales than in the prior fiscal
year, Mr. Reichman took steps during fiscal year 1997 to reduce the
Company's expenses and overhead. Mr. Reichman implemented a headcount
freeze in the Company's corporate office in June 1997, and a reduction in
force in January 1998 that eliminated approximately 25% of the positions in
the Company's headquarters and field management staff. In addition, during
the latter half of the fiscal year, under Mr. Reichman's direction, the
Company shifted its merchandising strategy in its Boston Trading Co.(R) and
Designs stores and began testing the performance of a variety of
nationally-recognized brand products and a select group of emerging fashion
brands. During fiscal year 1997, Mr. Reichman was responsible for store
operations, store construction and design, and real estate, and, with the
recent departure from the Company of its chief merchant, Mr. Reichman has
become responsible for product merchandising, visual merchandising and
marketing. Although the Company's operating performance and the
performance of its Common Stock during the fiscal year were disappointing,
the Compensation Committee is satisfied with Mr. Reichman's contributions
to the Company in fiscal year 1997, particularly the steps he has taken to
position the Company for improved performance in fiscal year 1998, and
believes that his compensation was warranted for fiscal year 1997.
THE COMPENSATION COMMITTEE
James G. Groninger
Bernard M. Manuel
Peter L. Thigpen
PERFORMANCE GRAPH
The following Performance Graph compares the Company's cumulative
stockholder return with that of a broad market index (Standard & Poor's
Industrials Index) and one published industry index (Standard & Poor's
Retail (Specialty-Apparel) Index) for each of the most recent five years
ended January 31. The cumulative stockholder return for shares of Common
Stock and each of the indices is calculated assuming that $100 was invested
on January 31, 1993. The Company paid no cash dividends during the periods
shown. The performance of the indices is shown on a total return
(dividends reinvested) basis. The graph lines merely connect January 31 of
each year and do not reflect fluctuations between those dates.
COMPARISON OF FIVE-YEAR CUMULATIVE RETURN
[PERFORMANCE GRAPH]
S&P
MEASUREMENT PERIOD INDUSTRIALS
(FISCAL YEAR COVERED) DESIGNS, INC. INDEX
--------------------- ------------- -----------
1993 $100.00 $100.00
1994 67.11 111.06
1995 38.82 114.36
1996 30.26 157.34
1997 31.58 195.17
1998 11.51 249.79
The graph and other data used above were prepared by Standard &
Poor's Compustat Services, a division of The McGraw-Hill Companies.
ADDITIONAL INFORMATION
401(K) PLAN
On January 27, 1993, the Board of Directors adopted the 401(k)
Plan. All eligible employees of the Company are entitled to participate in
such Plan. The 401(k) Plan permits each participant to defer up to fifteen
percent of such participant's annual salary up to a maximum annual amount
($9,500 in calendar years 1996 and 1997). The Board of Directors of the
Company may determine, from fiscal year to fiscal year, whether and to what
extent the Company will contribute to the 401(k) Plan by matching
contributions made to such Plan by eligible employees. During fiscal year
1997, the matching contribution by the Company continued to be 50% of
contributions by eligible employees up to a maximum of six percent of
salary.
SENIOR EXECUTIVE INCENTIVE PLAN
The SEIP was initially adopted by the Board of Directors of the
Company during the fiscal year 1996. The SEIP is an incentive compensation
plan under which executive officers of the Company may be eligible to
receive annual cash bonus payments. For a more complete description of the
SEIP, please refer to the "Compensation Policies" portion of the
Compensation Committee Report set forth above.
KEY MAN INSURANCE
The Company has obtained a key man life insurance policy in the
amount of $2,000,000 on the life of Mr. Reichman. The Company pays the
premium for such policy and is the sole beneficiary thereof.
LIMITATION OF LIABILITY; INDEMNIFICATION
The Company's Restated Certificate of Incorporation, as amended
(the "Certificate of Incorporation"), provides that no director of the
Company shall be personally liable to the Company or to any of its
stockholders for monetary damages arising out of such director's breach of
fiduciary duty, except to the extent that the elimination or limitation of
liability is not permitted by the Delaware General Corporation Law. The
Delaware General Corporation Law, as currently in effect, permits charter
provisions eliminating the liability of directors for monetary damages for
breach of fiduciary duty, except that directors remain liable for (i) any
breach of the directors' duty of loyalty to a company or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) any payment of a dividend
or approval of a stock repurchase that is illegal under Section 174 of the
Delaware General Corporation Law, or (iv) any transaction from which the
directors derived an improper personal benefit. The effect of this
provision of the Certificate of Incorporation is that directors cannot be
held liable for monetary damages arising from breaches of their duty of
care, unless the breach involves one of the four exceptions described in
the preceding sentence. The provision does not prevent stockholders from
obtaining injunctive or other equitable relief against directors, nor does
it shield directors from liability under federal or state securities laws.
The Certificate of Incorporation and the By-Laws further provide
for indemnification of the Company's directors and officers to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law,
including circumstances in which indemnification is otherwise
discretionary.
On December 10, 1998, the Company's Board of Directors authorized
the Company to enter into indemnification arrangements (the
"Indemnification Agreements") with each of the Company's directors and
executive officers (collectively, the "Indemnitees"). The Indemnification
Agreements would provide for the indemnification of and advancing of
expenses incurred by reason of any event or occurrence (an "Indemnifiable
Event") related to the fact that such Indemnitee is or was a director or
officer of the Company. Such expenses would include attorneys' fees and
all other costs or obligations paid or incurred in connection with
investigating, defending or being a witness in or preparing to defend, be a
witness in or participate in, any claim relating to an Indemnifiable Event.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company entered into a consulting agreement with Mr. Berger
dated as of December 21, 1994 (the "Consulting Agreement") in which he
agreed to provide an average of four days per week of consulting services
to the Company until December 20, 1997. As compensation for such services,
among other things, the Company agreed to pay Mr. Berger at the rate of
$250,000 per annum and to provide him and his spouse health benefits during
and after the term of the Consulting Agreement. The Consulting Agreement
contains covenants pursuant to which Mr. Berger agreed during the term of
the Consulting Agreement and for a two year period following expiration of
the Agreement, not to have any connection with any business that competes
with the business of the Company in the eastern United States. Under the
Consulting Agreement, the Company also agreed, during the term of the
Agreement, to make available to Mr. Berger an automobile for use in
connection with his work for the Company and to reimburse him for the
expenses of operation of the automobile. The Company further agreed to
transfer title to such automobile to Mr. Berger, without charge to him,
promptly after expiration of the term of the agreement, and such
automobile, having a value of approximately $19,800 at the time of
transfer, was transferred to Mr. Berger in January 1998. Following
December 20, 1997, Mr. Berger has continued to provide consulting services
to the Company on a month-to-month basis with respect to the Company's
Levi's(R) Outlet by Designs stores. As compensation for such services, the
Company pays Mr. Berger at the rate of $50,000 per annum.
In connection with the termination of Mr. Lisnow's employment
with the Company in February 1998, he entered into a Separation Agreement
with the Company dated February 9, 1998. In the Separation Agreement, and
in accordance with the terms of Mr. Lisnow's Employment Agreement, the
Company agreed, among other things, to pay Mr. Lisnow severance in a lump
sum equal to $300,000.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires the Company's officers
and directors, and persons who own more than 10% of a registered class of
the Company's equity securities, to file reports of ownership and changes
in ownership with the commission. Officers, directors and
greater-than-10%stockholders are required by Commission regulations to
furnish the Company with copies of all Section 16(a) forms they file.
Based solely upon a review of Forms 3 and 4 and amendments thereto
furnished to the Company during fiscal year 1997 and Forms 5 and amendments
thereto furnished to the Company with respect to fiscal year 1997, the
Company believes that all Section 16(a) filing requirements applicable to
its officers, directors and greater-than-10% stockholders were fulfilled in
a timely manner.
PARTICIPANTS IN THE SOLICITATION
Under applicable regulations of the SEC, each member of the
Board, the executive officers of the Company, certain other members of
management and employees of the Company and certain other persons may be
deemed to be a "participant" in the Company's solicitation of revocations
of consent. Information about the principal occupations of directors and
executive officers is set forth under the section entitled "Certain
Information Regarding the Company's Directors and Officers." Information
about the present ownership of the Company's securities by directors and
executive officers of Designs is provided in "Stock Ownership of Certain
Beneficial Owners and Management -- By Directors and Executive Officers."
Information about the present ownership of the Company's securities by
other participants is listed on Appendix B. Information about all
transactions in the Company's securities within the past two years by each
of the participants is provided in Appendix C.
SOLICITATION OF REVOCATIONS
The cost of the solicitation of revocations of consent will be
borne by Designs. Designs estimates that the total expenditures in
connection with such solicitation (including the fees and expenses of
Designs's attorneys, public relations advisers and solicitors, advertising,
printing, mailing, travel and other costs, but excluding salaries and wages
of officers and employees), will be approximately $350,000, of which
$100,000 has been spent to date. In addition to the Board's solicitation
by mail, directors, officers and other Designs employees may, without
additional compensation, solicit revocations by mail, in person, by
telecommunication or by other electronic means.
Designs has retained Innisfree, at an estimated fee of up to
$75,000 plus reasonable out-of-pocket expenses, to assist in the
solicitation of revocations, as well as to assist Designs with its
communications with its stockholders with respect to, and to provide other
services to Designs in connection with Designs's opposition to the Holtzman
Solicitation. Approximately 25 persons will be utilized by Innisfree in
its efforts. Designs will reimburse brokerage houses, banks, custodians
and other nominees and fiduciaries for out-of-pocket expenses incurred in
forwarding Designs's consent revocation materials to, and obtaining
instructions relating to such materials from, beneficial owners of Common
Stock. Designs has agreed to indemnify Innisfree against certain
liabilities and expenses in connection with its engagement, including
certain liabilities under the federal securities laws.
RELATIONSHIP WITH INDEPENDENT ACCOUNTANTS
On June 19, 1998, the Company dismissed its principal independent
accountants, Coopers & Lybrand L.L.P. ("Coopers & Lybrand"). On June 24,
1998, the Company engaged Arthur Andersen LLP ("Arthur Andersen") as its
new principal independent accountants. The Company's Board of Directors
and its Audit Committee unanimously approved the change of principal
independent accountants.
Since January 28, 1995 to date Arthur Andersen has served and
continues to serve as the principal independent accountant of The
Designs/OLS Partnership (the "OLS Partnership"), the joint venture
partnership between a subsidiary of the Company and a subsidiary of Levi's
Only Stores, Inc., a subsidiary of Levi Strauss & Co. For financial
reporting purposes, the OLS Partnership's assets, liabilities and results
of operations are consolidated with those of the Company.
During the Company's two most recently completed fiscal years and
thereafter until its engagement of Arthur Andersen, the Company did not
consult Arthur Andersen regarding the type of audit opinions that might be
rendered on the Company's financial statements relating to such periods.
Throughout those same periods, there were no matters that occurred that
constituted either a disagreement or the kind of event described in Item
304(a)(1)(v) of Regulation S-K promulgated by the Commission.
During the Company's two most recently completed fiscal years and
thereafter through June 19, 1998 there were no disagreements between the
Company and Coopers & Lybrand on matters of accounting principles or
practices, financial statement disclosure, or auditing scope or procedure
which, if not resolved to the satisfaction of Coopers & Lybrand, would have
caused Coopers & Lybrand to make reference to the subject matter thereof in
its reports. During the Company's two most recently completed fiscal years
and thereafter through June 19, 1998 there was no occurrence of the kinds
of events described in Item 304(a)(1)(v) of Regulation S-K promulgated by
the Commission. In addition, none of the reports issued by Coopers &
Lybrand concerning the Company's financial statements for the Company's
fiscal years ended February 1, 1997 and January 31, 1998 and thereafter
through June 19, 1998 contain any adverse opinion or disclaimer of opinion.
Such reports were not qualified or modified as to uncertainty, audit scope,
or accounting principles.
STOCKHOLDER PROPOSALS
Stockholder proposals for inclusion in the proxy materials
related to the 1999 Annual Meeting of Stockholders or Special Meeting in
lieu thereof must be received by the Company at its executive offices no
later than January 5, 1999.
In addition, the By-Laws provide that for business to be properly
brought before an Annual Meeting of Stockholders (or any Special Meeting in
lieu of Annual Meeting of Stockholders), a stockholder must: (i) give
timely written notice to the Secretary of the Company describing any
proposal to be brought before such meeting; and (ii) be present at such
Annual Meeting, either in person or by a representative. Such procedural
requirements are fully set forth in Section 3.14 of the By-Laws. A
stockholder's notice will be timely if delivered to, or mailed to and
received by, the Company not less than seventy-five days nor more than one
hundred twenty days prior to the anniversary date of the immediately
preceding Annual Meeting (the "Anniversary Date"). To bring an item of
business before the 1999 Annual Meeting, a stockholder must deliver the
requisite notice of such item to the Secretary of the Company not earlier
than February 9, 1999 nor later than March 26, 1999. In the event the
Annual Meeting is scheduled to be held on a date more than thirty days
before the Anniversary Date or more than sixty days after the Anniversary
Date, however, a stockholder's notice will be timely if delivered to, or
mailed to and received by, the Company not later than the close of business
on the later of (a) the seventy-fifth day prior to the scheduled date of
such Annual Meeting or (b) the fifteenth day following the day on which
public announcement of the date of such Annual Meeting is first made by the
Company.
IMPORTANT
1. If your shares are registered in your own names, please sign, date and
mail the enclosed BLUE Consent Revocation Card to Innisfree in the postage-
paid envelope provided.
2. If you have previously signed and returned a WHITE consent card to the
Holtzman Group, you have every right to change your vote. Only your latest
dated card will count. You may revoke any WHITE consent card already sent
to the Holtzman Group by signing, dating and mailing the enclosed BLUE
Consent Revocation Card in the postage-paid envelope provided.
3. If your shares are held in the name of a brokerage firm, bank nominee
or other institution, only it can sign a BLUE Consent Revocation Card with
respect to your shares and only after receiving your specific instructions.
To ensure that your shares are voted, you should also contact the person
responsible for your account and give instructions for a BLUE Consent
Revocation Card to be issued representing your shares.
4. After signing the enclosed BLUE Consent Revocation Card, do not sign
or return the WHITE consent card. Do not even use the Holtzman Group's
WHITE consent card or any other forms sent to you by the Holtzman Group to
indicate your opposition to the Holtzman Proposals.
If you have any questions about giving your revocation of consent or
require assistance, please call:
INNISFREE M&A INCORPORATED
501 MADISON AVENUE, 20th FLOOR
NEW YORK, NEW YORK 10022
CALL TOLL FREE: (888) 750-5834
BANKS & BROKERS CALL COLLECT: (212) 750-5833
APPENDIX A
FORM OF HOLTZMAN GROUP PROPOSED BY-LAW AMENDMENTS
1. HOLTZMAN GROUP PROPOSED AMENDMENT TO SECTION 4.1
The following paragraph sets forth the first sentence of Section
4.1 of the By-laws, as proposed by the Holtzman Group under Holtzman
Proposal 3.
"The Board of Directors shall consist of six members."
2. HOLTZMAN GROUP PROPOSED AMENDMENT TO SECTION 4.16
The following paragraph sets forth amendment to Section 4.16 of
the By-laws, as proposed by the Holtzman Group under Holtzman Proposal 4 by
adding the following sentence after the last sentence thereof:
"Notwithstanding anything contained in this Section 4.16 or
any other provision of these By-laws, any stockholder
seeking to nominate candidates for election to the Board of
Directors of the Corporation pursuant to stockholder action
by written consent need not comply with any advance
notification provisions contained in these By-laws,
including, without limitation, this Section 4.16."
APPENDIX B
INFORMATION CONCERNING THE DIRECTORS AND CERTAIN EXECUTIVE OFFICERS OF
DESIGNS AND CERTAIN EMPLOYEES OF DESIGNS AND OTHER PARTICIPANTS WHO MAY
ALSO SOLICIT REVOCATIONS OF CONSENTS
The following table sets forth the name, principal business address
and the present office or other principal occupation or employment, and the
name, principal business and the address of any corporation or other
organization in which such employment is carried on, of the directors and
certain executive officers of Designs and certain employees and other
representatives of Designs who may also solicit revocations of consents
from stockholders of Designs. Unless otherwise indicated, the principal
occupation refers to such person's position with Designs and the business
address is 66 B Street, Needham, MA 02494.
DIRECTORS
The principal occupations of the Company's directors who are deemed
participants in the solicitation are set forth on pages 8 and 9 of this
Consent Revocation Statement. The principal business address of Mr.
Reichman is that of the Company. The name, business and address of the
other director-participants' organization of employment are as follows:
Name Address
---- -------
Stanley I. Berger 66 B Street
Needham, MA 02494
James G. Groninger The Bay South Company
101 Shockoe Slip, Suite M
Richmond, VA 23219
Bernard M. Manuel Cygne Designs, Inc.
1372 Broadway
New York, NY 10018
Melvin I. Shapiro 2044 Beacon Street
Waban, MA 02168
Peter L. Thigpen Executive Reserves
700 Larkspur Landing Circle, Suite 273
Larkspur, CA 94939
EXECUTIVE OFFICERS AND MANAGEMENT
The principal occupation of the Company's executive officers and
certain other members of management and employees who are deemed
participants in the solicitation are set forth below. Except as otherwise
specified below, the principal business address of each of such persons is
that of the Company.
Name Principal Occupation
---- --------------------
Scott N. Semel Executive Vice President, General
Counsel and Secretary
Carolyn R. Faulkner Vice President, Chief Financial Officer
and Treasurer
Anthony E. Hubbard Vice President and Deputy General
Counsel
SHIELDS & COMPANY, INC.
Designs has retained Shields & Company, Inc. ("Shields" or the
"Financial Advisor") to act as its financial advisor in connection with the
Solicitation for which it may receive substantial fees, as well as
reimbursement of reasonable out-of-pocket expenses. In addition, Designs
has agreed to indemnify the Financial Advisor and certain persons related
to it against certain liabilities arising out of their engagement. The
Financial Advisor is an investment banking and advisory firm that provides
a range of financial services for institutional and individual clients.
The Financial Advisor does not admit that it or any of its directors,
officers or employees is a "participant" as defined in Schedule 14A
promulgated under the Securities Exchange Act of 1934, as amended, in the
Solicitation, or that Schedule 14A requires the disclosure of certain
information concerning the Financial Advisor. In connection with the
Financial Advisor's role as financial advisor to Designs, the Financial
Advisor and certain of its investment banking employees of the Financial
Advisor may communicate in person, by telephone or otherwise with a limited
number of institutions, brokers or other persons who are stockholders of
Designs. Shields through an affiliate may trade securities of Designs for
its own account and the account of its customers and, accordingly, may at
any time hold a long or short position in such securities. As of December
7, 1998, Shields did not hold a position in shares of Common Stock for its
own account. Additionally, in the normal course of its business, Shields
may finance securities positions by bank and other borrowings and
repurchase and securities borrowing transactions.
Information with respect to the employees of Shields who may be deemed
"participants" is set forth below. None of the individuals named below
owns any shares of Common Stock or has engaged in any transaction involving
Designs Common Stock during the past two years. The principal business
address of each of the persons listed below is 150 Federal Street, Boston,
MA 02110.
Name Principal Occupation
---- --------------------
Thomas J. Shields Investment Banking and Advisory Services
Jeffrey C. Bloomberg Investment Banking and Advisory Services
INFORMATION REGARDING OWNERSHIP OF THE COMPANY'S SECURITIES BY PARTICIPANTS
None of the participants owns any of the Company's securities of
record but not beneficially. The number of shares of Common Stock held by
directors and the named executive officers is set forth on pages 10 and 11
of this Consent Revocation Statement. The number of shares of Common Stock
held by the other participants is set forth below:
Share
Name Ownership
---- ---------
Thomas J. Shields None
Jeffrey C. Bloomberg None
Anthony E. Hubbard 9,900 shares of Common Stock
MISCELLANEOUS INFORMATION CONCERNING PARTICIPANTS
Except as described in this Appendix B or in the Consent Revocation
Statement, to the knowledge of the Company none of the participants nor any
of their respective affiliates or associates (together, the "Participant
Affiliates"), (i) directly or indirectly beneficially owns any shares of
Common Stock of the Company or any securities of any subsidiary of the
Company or (ii) has had any relationship with the Company in any capacity
other than as a stockholder, employee, officer and director. Furthermore,
except as described in this Appendix B or in the Consent Revocation
Statement, no Participant Affiliate is either a party to any transaction or
series of transactions since February 1, 1997, or has knowledge of any
currently proposed transaction or series of transactions, (i) to which the
Company or any of its subsidiaries was or is to be a party, (ii) in which
the amount involved exceeds $60,000, and (iii) in which any Participant
Affiliate had, or will have, a direct or indirect material interest.
Except for the employment and consulting agreements described in the
Consent Revocation Statement, to the knowledge of the Company no
Participant Affiliate has entered into any agreement or understanding with
any person respecting any future employment by the Company or its
affiliates or any future transactions to which the Company or any of its
affiliates will or may be a party. Except as described in this Appendix B
or in the Consent Revocation Statement, to the knowledge of the Company
there are no contracts, arrangements or understandings by any Participant
Affiliate within the past year with any person with respect to the
Company's securities.
APPENDIX C
INFORMATION CONCERNING CERTAIN TRANSACTIONS IN DESIGNS' SECURITIES
WITHIN THE PAST TWO YEARS
The following table sets forth all purchases and sales of Designs'
securities by the participants referred to above during the last two years:
Number of Shares Date of
Name Purchased (or Sold) Purchase or Sale Footnote
---- ------------------- ---------------- --------
Stanley I. Berger 175,250 5/30/96 (2)
(2,270) 6/5/96 (3)
3,000 6/11/96 (1)
(3,120) 12/26/96 (3)
3,000 6/10/97 (1)
(4,000) 10/1/97 (3)
(5,780) 12/5/97 (3)
1,090 4/13/98 (4)
1,000 6/1/98 (4)
1,440 6/9/98 (4)
3,000 6/9/98 (1)
1,200 8/13/98 (4)
1,846 9/28/98 (4)
Joel H. Reichman 40,000 4/1/96 (1)
270,000 4/28/97 (1)
1,000 5/23/97 (2)
5,000 6/9/98 (2)
10,000 11/23/98 (2)
Scott N. Semel 40,000 4/1/96 (1)
150,000 4/28/97 (1)
(4,837) 11/14/97 *
(1,161) 12/30/97 (3)
5,000 11/23/98 (2)
Carolyn R. Faulkner 20,000 8/16/96 (1)
80,000 4/28/97 (1)
200 7/15/97 (2)
800 10/15/97 (2)
12,000 12/07/98 (2)
James G. Groninger 3,000 6/11/96 (1)
3,000 6/10/97 (1)
1,818 4/13/98 (4)
1,000 6/1/98 (4)
1,440 6/9/98 (4)
3,000 6/9/98 (1)
1,200 6/13/98 (4)
1,846 9/28/98 (4)
Melvin I. Shapiro 3,000 6/11/96 (1)
3,000 6/10/97 (1)
(10,000) 10/8/97 (5)
(5,000) 10/15/97 (5)
1,090 4/13/98 (4)
1,440 6/9/98 (4)
3,000 6/9/98 (1)
1,846 9/28/98 (4)
Bernard M. Manuel 3,000 6/11/96 (1)
3,000 6/10/97 (1)
1,818 4/13/98 (4)
1,000 6/1/98 (4)
960 6/9/98 (4)
3,000 6/9/98 (1)
1,200 8/13/98 (4)
1,842 9/28/98 (4)
Peter L. Thigpen 3,000 6/11/96 (1)
3,000 6/10/97 (1)
1,000 6/12/97 (2)
500 8/20/97 (2)
1,000 1/20/98 (2)
1,818 4/13/98 (4)
1,440 6/9/98 (4)
3,000 6/9/98 (1)
1,200 8/13/98 (4)
1,846 9/28/98 (4)
Anthony M. Hubbard 1,000 9/30/96 (1)
2,500 10/6/97 (1)
5,500 6/9/98 (1)
Footnotes:
(1) Stock option award.
(2) Open market or private purchase.
(3) Disposition pursuant to a bona fide gift.
(4) Acquisition of shares via Director compensation.
(5) Open market or private sale.
DESIGNS, INC.
THIS REVOCATION OF CONSENT IS SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS OF DESIGNS, INC.
IN OPPOSITION TO THE SOLICITATION BY THE HOLTZMAN GROUP
The undersigned, a holder of shares of Common Stock, par value $.01
per share (the "Common Stock"), of Designs, Inc. ("Designs"), acting with
respect to all of the shares of Common Stock held by the undersigned,
hereby revokes any and all consents that the undersigned may have given
with respect to each of the following proposals:
THE BOARD OF DIRECTORS OF DESIGNS RECOMMENDS THAT YOU "REVOKE CONSENT".
PLEASE SIGN, DATE AND MAIL THIS CONSENT REVOCATION CARD TODAY.
IF NO DIRECTION IS MADE WITH RESPECT TO ONE OR MORE OF THE FOLLOWING
PROPOSALS, OR IF YOU MARK EITHER THE "REVOKE CONSENT" OR "ABSTAIN" BOX WITH
RESPECT TO ONE OR MORE OF THE FOLLOWING PROPOSALS, THIS REVOCATION CARD
WILL REVOKE ALL PREVIOUSLY EXECUTED CONSENTS WITH RESPECT TO SUCH
PROPOSALS.
HOLTZMAN PROPOSAL 1: Remove (i) all current members of the Company's Board
of Directors other than Stanley I. Berger, and (ii) any other person or
persons (other than any persons elected pursuant to the Holtzman
Solicitation) elected or appointed to the Board of Directors prior to the
effective time of this stockholder action in addition to or in place of any
of such current members (including any persons elected or appointed in lieu
of Stanley I. Berger) to fill any newly created directorship or vacancy on
the Board of Directors or otherwise.
[__] REVOKE CONSENT [__] DO NOT REVOKE CONSENT [ ] ABSTAIN
HOLTZMAN PROPOSAL 2: Elect Jesse H. Choper, Seymour Holtzman, Peter R.
McMullin, Deborah M. Rhem-Jackson and Steve R. Tomasi as directors of the
Company to serve until their respective successors are duly elected and
qualified.
[__] REVOKE CONSENT [__] DO NOT REVOKE CONSENT [ ] ABSTAIN
INSTRUCTIONS: TO REVOKE CONSENT, WITHHOLD REVOCATION OF CONSENT OR ABSTAIN
FROM CONSENTING TO THE ELECTION OF ALL THE HOLTZMAN GROUP NOMINEES, CHECK
THE APPROPRIATE BOX. IF YOU WISH TO REVOKE THE CONSENT TO THE ELECTION OF
CERTAIN OF SUCH NOMINEES, BUT NOT ALL OF THEM, CHECK THE "REVOKE CONSENT"
BOX AND WRITE THE NAME OF EACH SUCH PERSON AS TO WHOM YOU DO NOT WISH TO
REVOKE CONSENT IN THE FOLLOWING SPACE:
HOLTZMAN PROPOSAL 3: Amend Section 4.1 of the By-laws of the Company to
set the number of directors on the Board of Directors at six. (For complete
text of the proposed By-law amendment, see Appendix A.)
[__] REVOKE CONSENT [__] DO NOT REVOKE CONSENT [__] ABSTAIN
HOLTZMAN PROPOSAL 4: Amend Section 4.16 of the By-laws to clarify that a
stockholder seeking to nominate candidates for election to the Board of
Directors pursuant to a stockholder action by written consent need not
comply with the advance notification provisions of the By-laws applicable
to the nomination of candidates in connection with meetings of the
stockholders. (For complete text of the proposed By-law amendment, see
Appendix A.)
[__] REVOKE CONSENT [__] DO NOT REVOKE CONSENT [__] ABSTAIN
HOLTZMAN PROPOSAL 5: Repeal any By-laws adopted by the Board of Directors
subsequent to December 11, 1995, the effective date of the By-laws most
recently filed by the Company with the Securities Exchange Commission prior
to the filing of the Holtzman Group's Preliminary Consent Statement on
December 7, 1998 and prior to the effectiveness of the Holtzman Proposals
other than any By-Laws adopted pursuant to the Holtzman Proposals as
contemplated above.
[__] REVOKE CONSENT [__] DO NOT REVOKE CONSENT [__] ABSTAIN
IF NO DIRECTION IS MADE, THIS REVOCATION CARD WILL BE DEEMED TO
REVOKE ALL PREVIOUSLY EXECUTED CONSENTS WITH RESPECT TO ANY OR ALL OF THE
PROPOSALS SET FORTH HEREIN.
Please sign your name below exactly as it appears hereon. If
shares are held jointly, each stockholder should sign. When signing as
attorney, executor, administrator, trustee or guardian, please give full
title as such. If a corporation, please sign in full corporate name by
president or authorized officer. If a partnership, please sign in
partnership name by authorized person.
Dated: __________________, 1998
__________________________________________________________
Name:
Title:
__________________________________________________________
Name: (if held jointly)
Title:
PLEASE SIGN, DATE AND RETURN THIS CONSENT REVOCATION PROMPTLY.
