<PAGE>
As filed with the Securities and Exchange Commission on January __, 2000.
Registration No. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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BRAUN'S FASHIONS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-1195422
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2400 XENIUM LANE NORTH, PLYMOUTH, MINNESOTA 55441
(Address of principal executive offices, including zip code)
BRAUN'S FASHIONS CORPORATION
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
Copy to:
Andrew K. Moller Kevin L. Crudden
Chief Financial Officer Robins, Kaplan, Miller & Ciresi L.L.P.
Braun's Fashions Corporation 2800 LaSalle Plaza
2400 Xenium Lane North 800 LaSalle Avenue
Plymouth, Minnesota 55441 Minneapolis, Minnesota 55402
(612) 349-8500
(612) 551-5000
(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed
sale: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS
REGISTRATION STATEMENT.
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE(1) PRICE(1) FEE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 337,500 shares $16.32 $5,508,000 $1,653.00
$.01 par value
- --------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(c), the per share price is estimated, solely for
the purpose of determining the registration fee, based upon the average
of the high and low prices for such common stock on January 25, 2000 as
reported on The Nasdaq National Market.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Braun's Fashions
Corporation (the "Company") (File No. 0-19972) with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") and are incorporated by reference herein:
a. The Company's Annual Report on Form 10-K405 for the fiscal year ended
February 27, 1999;
b. The Company's Quarterly Reports on Form 10-Q for the quarters ended May
29, 1999, August 28, 1999 and November 27, 1999; and
c. The descriptions of the Company's capital stock contained in the
Company's Registration Statement on Form S-1 (Registration No.
33-45719) and incorporated by reference into the Company's Registration
Statement on Form 8-A (File No. 0-19972), filed with the Commission.
All documents filed with the Commission by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all such securities then remaining to be sold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof,
except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
The common stock, par value $.01 per share (the "Common Stock"), of
the Company offered pursuant to this Registration Statement is registered
under Section 12(g) of the Exchange Act. The description of the Company's
Common Stock is incorporated by reference pursuant to Item 3 above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements incorporated in this
Registration Statement by reference to the Annual Report on Form 10-K405 for
the year ended February 27, 1999, have been so incorporated in reliance on
the report of PriceWaterhouseCoopers LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
2
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Company's Bylaws provides that the Company shall
indemnify the directors and officers to such extent as permitted by Section
145 of the Delaware General Corporation Law, as now enacted or hereafter
amended.
Further, the Company has purchased director and officer liability
insurance that insures directors and officers against certain liabilities in
connection with the performance of their duties as directors and officers,
including liabilities under the Securities Act of 1933, as amended, and
provides for payment to the Company of costs incurred by it in indemnifying
its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement on
Form S-8:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1 Certificate of Incorporation of the Company (incorporated
herein by reference to the Company's Registration Statement on
Form S-1 (Registration No. 33-45719))
4.2 Bylaws of the Company (incorporated herein by reference to the
Company's Registration Statement on Form S-1 (Registration No.
33-45719))
5.1 Opinion of Robins, Kaplan, Miller & Ciresi L.L.P. as to the
legality of Common Stock of the Company (filed electronically
herewith)
23.1 Consent of PricewaterhouseCoopers LLP (filed electronically
herewith)
23.2 Consent of Robins, Kaplan, Miller & Ciresi L.L.P. (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page and filed
electronically herewith)
99.1 Braun's Fashions Corporation 1997 Stock Incentive Plan, as
amended (filed electronically herewith)
</TABLE>
3
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) RULE 415 OFFERING.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
4
<PAGE>
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) STATEMENT REQUIRED BY ITEM 512(h) IN CONNECTION WITH FILING OF
REGISTRATION STATEMENT ON FORM S-8.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Plymouth, State of Minnesota on January 26, 2000.
BRAUN'S FASHIONS CORPORATION
By /s/ Andrew K. Moller
--------------------------------
Andrew K. Moller
Chief Financial Officer
6
<PAGE>
POWER OF ATTORNEY
We, the undersigned directors and officers of Braun's Fashions
Corporation, do hereby severally constitute and appoint William J. Prange and
Andrew K. Moller, and each of them singly, our true and lawful attorneys and
agents, to do any and all things and acts in our names in the capacities
indicated below and to execute any and all instruments for us and in our
names in the capacities indicated below which said William J. Prange or
Andrew K. Moller, or either of them, may deem necessary or advisable to
enable Braun's Fashions Corporation to comply with the Securities Act of
1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the Registration
Statement on Form S-8 relating to the offering of Common Stock, including
specifically, but not limited to, power and authority to sign for us or any
of us in our names in the capacities indicated below the Registration
Statement and any and all amendments (including post-effective amendments)
thereto; and we hereby ratify and confirm all that William J. Prange and
Andrew K. Moller, or either of them, shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Chairman and Chief Executive January 26, 2000
/s/ William J. Prange Officer (Principal Executive
- ------------------------ Officer)
William J. Prange
President and Chief Operating January 26, 2000
/s/ Joseph C. Pennington Officer
- ------------------------
Joseph C. Pennington
Chief Financial Officer January 26, 2000
/s/ Andrew K. Moller (Principal Financial Officer
- ------------------------ and Principal Accounting
Andrew K. Moller Officer)
Chairman of the Board January 26, 2000
/s/ Nicholas H. Cook and Director
- ------------------------
Nicholas H. Cook
/s/ Marc C. Ostrow Director January 26, 2000
- ------------------------
Marc C. Ostrow
/s/ James J. Fuld, Jr. Director January 26, 2000
- ------------------------
James J. Fuld, Jr.
7
<PAGE>
/s/ Larry C. Barenbaum
- ------------------------
Larry C. Barenbaum Director January 26, 2000
/s/ Donald D. Beeler Director January 26, 2000
- ------------------------
Donald D. Beeler
/s/ Anne L. Jones Director January 26, 2000
- ------------------------
Anne L. Jones
</TABLE>
8
<PAGE>
EXHIBIT 5.1
OPINION OF ROBINS, KAPLAN, MILLER & CIRESI, L.L.P.
ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
January 26, 2000
Braun's Fashions Corporation
2400 Xenium Lane North
Plymouth, MN 55441
Re: REGISTRATION STATEMENT ON FORM S-8
1997 STOCK INCENTIVE PLAN
REGISTRATION OF 337,500 SHARES OF COMMON STOCK
Ladies and Gentlemen:
We have acted as legal counsel for Braun's Fashions Corporation (the
"Company") in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission, and the Prospectus to be used in conjunction with the
Registration Statement (the "Prospectus"), relating to the registration under
the Securities Act of 1933, as amended, of 337,500 shares (the "Shares") of
common stock, $.01 par value (the "Common Stock"), to be issued by the
Company pursuant to the Braun's Fashions Corporation 1997 Stock Incentive
Plan, (the "Plan") in the manner set forth in the Registration Statement and
the Prospectus.
In connection therewith, we have examined (a) the Certificate of
Incorporation and Bylaws of the Company, both as amended to date; (b) the
corporate proceedings of the Company relative to its organization and to the
authorization and issuance of the Shares; and (c) the Registration Statement
and the Prospectus. In addition to such examination, we have reviewed such
other proceedings, documents and records and have ascertained or verified
such additional facts as we deem necessary or appropriate for purposes of
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company has been legally incorporated and is validly existing under
the laws of the State of Delaware.
<PAGE>
2. All necessary corporate action has been taken by the Company to
authorize the issuance of the Shares.
3. The Shares are validly authorized by the Company's Certificate of
Incorporation, as amended, and when issued and paid for as contemplated
in the Registration Statement and Prospectus, will be validly issued,
fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to this
Registration Statement on Form S-8.
Sincerely,
/s/ ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated April 2, 1999, relating
to the financial statements which appear in Braun's Fashions Corporation's
Annual Report on Form 10-K for the year ended February 27, 1999. We also
consent to the reference to us as Experts in Item 5 in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
Minneapolis, Minnesota
January 26, 2000
<PAGE>
EXHIBIT 99.1
BRAUN'S FASHIONS CORPORATION
1997 STOCK INCENTIVE PLAN
1. PURPOSE. The purposes of the Plan are to: (1) advance the
interest of Braun's Fashions Corporation, a Delaware corporation (the
"Company"), and its shareholders by providing an incentive to attract and
retain the officers and other key employees of the Company and its
subsidiaries who are primarily responsible for the management and successful
growth of the business of the Company and its subsidiaries; and (2) closely
associate the interests of the management and directors of the Company with
the shareholders by reinforcing the relationship between employee stock
options and shareholder gains; (3) provide management with an equity
ownership in the Company commensurate with the Company's performance as
reflected in increased shareholder value; and (4) maintain competitive
compensation levels. It is intended that this purpose will be effected
through the granting of stock options and/or stock awards (collectively, the
"Grants") as provided herein.
2. EFFECTIVE DATE AND TERM OF PLAN. The effective date of the Plan
shall be July 16, 1997. No Grants shall be made after July 15, 2007,
provided, however, that the Plan and all Grants made on or before July 15,
2007, shall remain in effect until they have been satisfied or terminated in
accordance with the terms thereof.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Stock Compensation Committee (the "Committee") of the Board of Directors of
the Company, which shall consist of at least two (2) directors, none of whom,
while serving on the Committee, shall be, or within one year prior thereto
have been, eligible to receive Grants under the Plan. The Committee shall
have authority to adopt rules and regulations for carrying out the Plan, to
select the individuals to whom Grants will be made, to determine the number
of shares to be optioned or awarded to each such individual to interpret,
construe and implement the provisions of the Plan. Decisions of the Committee
shall be binding upon the Company and upon all individuals eligible to
participate in the Plan. No member of the Committee shall be liable for any
action taken or decision made in good faith relating to the Plan or to any
award thereunder.
4. STOCK SUBJECT TO THE PLAN. The aggregate number of shares subject
to the Plan shall be three hundred thousand (300,000) shares of the Common
Stock of the Company, $.01 par value per share. Such shares may be authorized
and unissued shares or may be treasury shares. Any shares subject to an
option or award which for any reason expires or is terminated unexercised as
to such shares may again be subject to an option or award under the Plan.
5. ELIGIBILITY. Grants of "incentive options" (defined below) may be
made only to officers and other key employees of the Company or any
subsidiary of the Company. Full or part-time employees, directors who are
not employees, consultants or independent contractors to the
<PAGE>
Company or any subsidiary of the Company shall be eligible to receive options
which do not qualify as "incentive options."
In making this selection and determining the form and
amount of Grants, the Committee shall consider any factors deemed relevant,
including the individual's functions, responsibilities, value of services to
the Company and past and potential contributions to the Company's
profitability and growth.
6. INCENTIVE STOCK OPTIONS. Certain options granted hereunder shall
be "incentive options" under the provisions of Section 422A of the Internal
Revenue Code of 1986 (the "Code"), as amended, and the regulations thereunder.
Incentive options shall be evidenced by written stock
option agreements in such form as the Committee shall approve from time to
time, which agreements shall conform with this Plan and shall contain in
substance the following terms and conditions:
a. NUMBER OF SHARES. The option agreement shall specify the
number of shares to which it pertains.
b. PURCHASE PRICE. The purchase price per share of stock under
each option shall be at least 100% of the fair market value of such
stock on the day the option is granted, as determined by the Committee.
c. TERM AND EXERCISE. Each such option may be exercised at
such time and in such manner (including, without limitation, in whole
or in part) as specified by the Committee which may, among other
things, provide that options may become subject to exercise in
installments; provided, however, that in no event shall an option be
exercisable more than ten (10) years from the date on which it is
granted. An optionee electing to exercise an option shall give written
notice to the Company of such election and of the number of shares
subject to such exercise. No option shall be exercisable for a
fractional share of stock.
d. PAYMENT. The purchase price of any stock purchased pursuant
to the exercise of an option granted hereunder shall be payable in full
on the exercise date in cash or by check or by delivery of shares of
Common Stock of the Company registered in the name of the optionee duly
assigned to the Company with the assignment guaranteed by a bank, trust
company or member firm of the New York Stock Exchange, or by a
combination of the foregoing. Any such shares so delivered shall be
deemed to have a value per share equal to the fair market value of the
shares on such date, as determined by the Committee. Subject to the
approval of the Committee, or of such person to whom the Committee may
delegate such authority (its "designee") (but such designee shall have
no authority to approve loans to himself), the Company may loan to the
employee a sum equal to an amount which is not in excess of 100% of the
purchase price of the shares so purchased, such loan to be
-2-
<PAGE>
evidenced by the execution and delivery of a promissory note. Interest
shall be paid annually on the unpaid balance of the promissory note at
such rate as shall be determined by the Committee or its designee. Such
promissory note shall be secured by the pledge to the Company of shares
having an aggregate fair market value on the date of purchase equal to
or greater than the amount of such note. An optionee shall have, as to
such pledged shares, all rights of ownership including the right to
vote such shares and to receive dividends paid on such shares, subject
to the security interest of the Company. Such shares shall not be
released by the Company from the pledge unless the proportionate amount
of the note secured thereby has been repaid to the Company. All notes
executed and delivered pursuant hereto shall be payable at such times
and in such amounts and shall contain such other terms as shall be
specified by the Committee or its designee or stated in the option
agreement; provided, however, that such terms shall conform to
requirements contained in any applicable regulations which are issued
by any governmental authority.
e. RIGHTS AS A SHAREHOLDER. The optionee shall have no rights
as a shareholder with respect to any shares covered by his option until
the date of issuance of a stock certificate to him for such shares. No
adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
f. PURCHASE FOR INVESTMENT. Each employee acquiring shares
hereunder will be required to give a representation that he is
acquiring such shares as an investment and not with a view to, or for
sale in connection with, the distribution of any such shares. This
requirement shall be imposed solely for the purpose of enabling the
Company to comply with the provisions of the Securities Act of 1933, as
amended. If at any time the stock which may be issued pursuant to this
Plan is registered with the Securities and Exchange Commission, this
section and any representation given hereunder shall become
inoperative.
g. MAXIMUM VALUE OF SHARES. No incentive option shall be
granted to an employee in any calendar year under this or any other
incentive option plan of the Company or its subsidiaries to purchase
shares as to which the aggregate fair market value (determined on the
date of grant) of shares which first become exercisable thereunder in
any calendar year exceeds $100,000.
h. NONTRANSFERABILITY. No option shall be transferable by the
optionee except by will or the laws of descent and distribution. During
the life of an optionee, an option shall be exercisable only by such
person or such person's guardian or legal representative.
i. TEN PERCENT SHAREHOLDER RULE. Notwithstanding any other
provision in the Plan, if at any time an option is to be granted
pursuant to the Plan, the optionee owns, directly or indirectly, shares
of the Company's Common Stock possessing more than ten percent (10%) of
the total combined voting power of the Common Stock, then any incentive
options to be granted to such optionee pursuant to the Plan shall
satisfy the requirements of Section 422(c)(5) of the Code, and the
option price shall be not less than 110% of the fair
-3-
<PAGE>
market value of the Common Stock of the Company as described herein,
and such option by its terms shall not be exercisable after the
expiration of five (5) years from the date such option is granted.
7. NONQUALIFIED OPTIONS. Options other than "incentive written
options" may be granted hereunder. Such nonqualified options shall be
evidenced by written stock option agreements in such form as the Committee
shall approve from time to time, which agreements shall conform with this
Plan and shall contain in substance the terms and conditions specified in
Section 6 (with the exception of subsections (b), (g) and (i) thereof) of
this Plan plus such other terms and conditions as the Committee shall
designate.
8. RESTRICTED STOCK AWARDS. The Committee may make awards, evidenced
by such written agreement as the Committee shall, from time to time,
prescribe, consisting of a specified number of shares of the Company's Common
Stock with an appropriate restrictive legend affixed thereto or the right to
receive such number of shares (hereinafter called "Restricted Stock"). Such
award shall be neither an option nor a sale, but shall be subject to the
following conditions and restrictions:
a. Restricted Stock may not be sold or otherwise transferred
by the employee until ownership vests at such time and in such manner
as specified by the Committee which may, among other things, provide
that only a certain percentage of such shares shall vest each year.
b. Except as otherwise determined by the Committee, all rights
and title to Restricted Stock granted to a participant under the Plan
shall terminate and be forfeited to the Company upon failure to fulfill
all conditions and restrictions applicable to such Restricted Stock,
including, without limitation, continuation of the participant's
employment with the Company or a subsidiary of the Company.
c. Except for the restrictions set forth herein and those
specified by the Committee, a holder of Restricted Stock shall possess
all the rights of a holder of the Company's Common Stock; provided,
however, that in those cases where the Grant of Restricted Stock
consists of the grant of the right to receive a specified number of
shares of the Company's Common Stock, the holder of such Restricted
Stock shall have the rights of a holder of the Company's Common Stock
only with respect to the shares which shall have fully vested.
d. All other provisions of the Plan not inconsistent with this
section shall apply to Restricted Stock or the holder thereof, as
appropriate, unless otherwise determined by the Committee.
9. RECAPITALIZATION. In the event there is any recapitalization in the
form of a stock dividend, distribution, split, subdivision or combination of
shares of Common Stock of the
-4-
<PAGE>
Company, resulting in an increase or decrease in the number of shares of
Common Stock outstanding, the number of shares of Common Stock available
under the Plan, shall be increased or decreased proportionately, as the case
may be, and the number of shares covered by each outstanding Grant and the
exercise price per share under the outstanding options shall be increased or
decreased proportionately, as the case may be, without change in the
aggregate exercise price.
10. REORGANIZATION. If, pursuant to any reorganization, sale or
exchange of assets, consolidation or merger, outstanding Common Stock of the
Company is or would be exchanged for other securities of the Company or of
another corporation which is a party to such transaction, or for property,
any option or other award under the Plan theretofore granted shall apply to
the securities or property into which the Common Stock covered thereby would
have been changed or for which such Common Stock would have been exchanged
had such Common Stock been outstanding at the time. In any of such events the
total number of class of shares then remaining available for issuance under
the Plan (including shares reserved for outstanding options and awards and
shares available for future grant of options or other award under the Plan)
shall likewise be adjusted so that the Plan shall thereafter cover the number
and class of shares equivalent to the shares covered by the Plan immediately
prior to such event.
11. GENERAL RESTRICTIONS.
a. The Company will not be obligated to make any Grant or
issue shares of Common Stock, or make any payment if counsel to the
Company determines that such Grant, issuance or payment would violate
any law or regulation of any governmental authority or any agreement
between the Company and the NASD or any national securities exchange
upon which the Common Stock is quoted or listed. In connection with any
Grant, issuance or transfer, the person acquiring the shares shall, if
requested by the Company, give assurances satisfactory to counsel to
the Company regarding such matters as the Company may deem desirable to
assure compliance with all legal requirements. Each Grant shall be
subject to the requirement that if at any time the Committee shall
determine, in its discretion, that the listing, registration or
qualification of the shares subject to such Grant upon NASDAQ, any
securities exchange or under any state or federal law, or that the
consent or approval of any government regulatory body, is necessary or
desirable as a condition of, or in connection with, such Grant or the
issue or purchase of shares thereunder, such Grant shall be subject to
the condition that such listing, registration, qualification, consent
or approval shall have been effected or obtained free of any conditions
not acceptable to the Committee.
b. Certificates evidencing shares of Common Stock issued
pursuant to the Plan may bear a legend describing restrictions on
transfer thereof.
12. TERMINATION OF EMPLOYMENT. Subject to the specific provisions of
any executive or any other employment agreement entered into by the Company,
incentive options and nonqualified options, shall terminate immediately upon
the termination of the optionee's employment by the Company or any
subsidiary; provided, however, that in the event such
-5-
<PAGE>
termination of employment results from (i) the optionee's retirement with the
consent of the Company, such options may be exercised within three (3) months
of the date of termination, and (ii) the optionee's disability (as defined in
Section 105(d)(4) of the Internal Revenue Code of 1986, as amended) or death,
such options may be exercised by the optionee's legal representative, heir or
devisee, as appropriate, within one (1) year from the date of disability or
death. Notwithstanding clause (i) of the preceding sentence, the Company may
terminate and cancel an incentive option or a nonqualified option during the
three-month period referred to in such clause if the optionee engages in
employment or activities contrary, in the opinion of the Board of Directors
or the Committee, to the best interests of the Company or any subsidiary. In
addition, the Committee shall, in each case in which clause (i) of the second
preceding sentence may be applicable, determine whether a termination of
employment shall be considered retirement with the consent of the Company.
Notwithstanding the foregoing, (i) no incentive option or nonqualified option
shall be exercisable after the expiration date of such option, and (ii) no
incentive option or nonqualified option (or portion thereof) which is not
exercisable on the date of termination of employment shall be exercisable
thereafter without the consent of the Committee.
13. DEFINITIONS. Any terms or provisions used herein which are
defined in Sections 421, 422A or 425 of the Code, or the regulations
thereunder or corresponding provisions of subsequent laws and regulations in
effect at the time Grants are made hereunder shall have the meaning as
therein defined.
14. AMENDMENT OF THE PLAN. The Board of Directors of the Company,
may, from time to time, terminate the Plan or modify or amend its term or the
terms of any agreement entered into pursuant hereto in any respect
whatsoever, including, without limitation, the making of such amendments or
revisions as the Board shall deem advisable in order to conform the Plan to
any change in any law or regulation applicable thereto; provided, however,
that the Board shall not, without approval by a majority vote of the
outstanding shares of the Company having general voting power, (i) increase
the aggregate number of shares subject to the Plan (other than increases due
to changes in capitalization), (ii) change the manner of determining the
minimum option price, (iii) extend the period during which options may be
granted or exercised, (iv) change the designation of the class of employees
eligible to receive Grants, (v) amend the Plan in any manner that will cause
incentive options issued under it to fail to meet the requirements of Section
422A of the Code, or (vi) materially increase the benefits accruing to
participants under the Plan. No termination, modification or amendment of the
Plan or any agreements hereunder shall, without the consent of the employee
to whom any Grant shall theretofore have been made, impair the rights of such
employee thereunder.
15. NO EMPLOYMENT RIGHTS. The Plan and any Grants made under the
Plan shall not confer upon any employee any right with respect to continuance
of employment by the Company or any subsidiary, or interfere in any way with
the right of the Company or any subsidiary by which an employee is employed
to terminate his employment at any time, with or without cause.
16. LEAVES OF ABSENCE. The Committee shall be entitled to make such
rules, regulations, and determinations as it deems appropriate under the Plan
with respect to any leave of absence taken
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<PAGE>
by the recipient of any award. Without limiting the generality of the
foregoing, the Committee shall be entitled to determine whether or not any
such leave of absence shall constitute a termination of employment within the
meaning of the Plan.
17. WITHHOLDING TAXES. Whenever the Company proposes or is required
to issue or transfer shares of Common Stock under the Plan, the Company shall
have right to require the optionee to remit to the Company an amount
sufficient to satisfy any federal, state and/or local withholding tax
requirements prior to the delivery of any certificate or certificates for
such shares. Alternatively, the Company may issue or transfer such shares of
Common Stock net of the number of shares sufficient to satisfy the
withholding tax requirements. For withholding tax purposes, the shares of
Common Stock shall be valued on the date the withholding obligation is
incurred.
18. DEFINITION. In this Plan, "fair market value" as of any date and in
respect of any share of Common Stock means the closing price on such date or the
next business day, if such date is not a business day, of a share of Common
Stock reflected in the consolidate trading tables of the WALL STREET JOURNAL
(presently as listed on The NASDAQ National Market System).
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<PAGE>
FIRST AMENDMENT TO THE
BRAUN'S FASHIONS CORPORATION
1997 STOCK INCENTIVE PLAN
July 22, 1998
RECITALS:
A. The Braun's Fashions Corporation 1997 Stock Incentive Plan (the "Plan")
was adopted by the Board of Directors of Braun's Fashions Corporation
(the "Company") and was approved by the shareholders of the Company on
July 17, 1997. The Plan is now in full force and effect.
B. The Company desires to amend the Plan to increase the number of shares
of common stock available for issuance under the Plan.
AMENDMENT:
THEREFORE, the Plan is hereby amended as follows:
1. The first sentence of paragraph 4 of the Plan is hereby amended to read
as follows:
"4. STOCK SUBJECT TO THE PLAN. The aggregate number of
shares subject to the Plan shall be four hundred fifty thousand
(450,000) shares of the Common Stock of the Company, $.01 par value per
share.
2. The foregoing amendment shall be effective as of July 22, 1998, the
date the shareholders of approved this amendment at the Company's
Annual Meeting of Shareholders.
3. Except as modified hereby, the Plan shall continue in full force and
effect.
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<PAGE>
SECOND AMENDMENT TO THE
BRAUN'S FASHIONS CORPORATION
1997 STOCK INCENTIVE PLAN
July 28, 1999
RECITALS:
A. The Braun's Fashions Corporation 1997 Stock Incentive Plan (the "Plan")
was adopted by the Board of Directors of Braun's Fashions Corporation
(the "Company") and was approved by the shareholders of the Company on
July 17, 1997 and amended on July 22, 1998. The Plan is now in full
force and effect.
B. The Company desires to amend the Plan to increase the number of shares
of common stock available for issuance under the Plan.
AMENDMENT:
THEREFORE, the Plan is hereby amended as follows:
1. The first sentence of paragraph 4 of the Plan is hereby amended to read
as follows:
"4. STOCK SUBJECT TO THE PLAN. The aggregate number of
shares subject to the plan shall be six hundred seventy-fifty thousand
(675,000) shares of the common stock of the company, $.01 par value per
share."
2. The foregoing amendment shall be effective as of July 28, 1999, the
date the shareholders of the Company approved this amendment at the
Company's Annual Meeting of Shareholders.
3. Except as modified hereby, the Plan shall continue in full force and
effect.
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