<PAGE>
As filed with the Securities and Exchange Commission on June 13, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------
CUTTER & BUCK INC.
(Exact name of issuer as specified in its charter)
Washington 91-1474587
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
Martin J. Marks
2701 First Avenue, Suite 500 2701 First Avenue, Suite 500
Seattle, Washington 98121 Seattle, Washington 98121
(206) 622-4191 (206) 622-4191
(Address, including zip code, (Name, address, including zip code,
and telephone number, including telephone number, including area code,
area code of registrant's of agent for service)
principal executive offices)
--------------------------
COPIES TO:
Michael E. Morgan
Gregory L. Anderson
Lane Powell Spears Lubersky LLP
1420 Fifth Avenue, Suite 4100
Seattle, Washington 98101
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
--------------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Price Per Unit(1) Aggregate Offering Price(1) Registration Fee(1)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, No par value 129,861 $ 15.19 $1,972,588.59 $ 597.76
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(c), based on the average of the high and low sales prices of
the Registrant's Common Stock as reported on the Nasdaq National Market on
June 10, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
<PAGE>
PROSPECTUS
129,861 Shares
CUTTER & BUCK INC.
COMMON STOCK
------------------------
This prospectus ("Prospectus") relates to the offering (the "Offering") from
time to time by a holder named in this Prospectus (the "Selling Shareholder") of
129,861 shares (the "Shares") of Common Stock, no par value per share, of
Cutter & Buck Inc. (the "Company"). The Company will not receive any proceeds
from the Offering.
The Selling Shareholder directly, or through agents, dealers, underwriters, or
market makers, may offer and sell from time to time all or any part of the
Shares in amounts and on terms to be determined at the time of sale. To the
extent required, the specific Shares to be sold, the respective purchase price
and public offering price, the names of any such agent, dealer or underwriter,
and any applicable commission or discount with respect to a particular offer
will be set forth in an accompanying supplement to the Prospectus (a "Prospectus
Supplement"). Offers or sales of the Shares have not been registered or
qualified under the laws of any country other than the United States. See "Plan
of Distribution."
See "Plan of Distribution" herein for a description of indemnification
arrangements for agents, dealers and underwriters, as well as a description of
the arrangements for payment of expenses related to the sale of the Shares.
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON
PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE PURCHASERS OF THE SHARES OFFERED HEREBY.
The closing price of the Company's Common Stock as reported on the Nasdaq
National Market on June 10, 1997 was $15.00 per share.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). This information can
be inspected and copies obtained (at prescribed rates) at the public
reference facilities of the Commission's office at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at certain of its Regional Offices at Seven World
Trade Center, New York, New York 10048 and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. The Commission maintains a Web
site that contains reports, proxy and other information of the Company at
http://www.sec.gov. This information may also be inspected at the offices of
the National Association of Securities Dealers, Inc., 9513 Key West Avenue,
Rockville, MD 20850.
The Company has filed a registration statement on Form S-3 (the "Registration
Statement") with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"), concerning the Shares covered by this Prospectus. This
Prospectus omits certain information and exhibits included in the Registration
Statement, copies of which may be obtained (at prescribed rates) or may be
examined free of charge at the Commission's Public Reference Section at 450
Fifth Street, N.W., Washington, D.C. 20549.
The Company's Common Stock is quoted on the Nasdaq National Market under the
symbol "CBUK". The Company furnishes its shareholders with annual reports
containing financial statements audited by its independent auditors and with
quarterly reports containing unaudited summary financial information for each of
the first three quarters of each fiscal year.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission and
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K, as amended by Forms 10-K/A-1
and 10-K/A-2, for the fiscal year ended April 30, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
July 31, 1996, October 31, 1996 and January 31, 1997;
(c) The Company's Current Report on Form 8-K dated March 25, 1997; and
(d) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on August 9, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Shares made hereby shall also be deemed
to be incorporated by reference into this Prospectus.
Any statement contained in a document all or a portion of which is incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of the Registration Statement and this Prospectus to
the extent that a statement contained in the Registration Statement, this
Prospectus, or any other subsequently filed document that is also incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered, upon written
or oral request of such person, a copy of any document incorporated herein by
reference (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference into the documents that this Prospectus
incorporates by reference). Such requests should be directed to Martin J.
Marks, Cutter & Buck Inc., 2701 First Avenue, Suite 500, Seattle,
Washington 98121.
2
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE COMMON STOCK BEING OFFERED HEREBY INVOLVES A HIGH DEGREE
OF RISK. CERTAIN STATEMENTS MADE IN THE FOLLOWING RISK FACTORS CONSTITUTE
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995. SUCH FORWARD-LOOKING STATEMENTS INVOLVE KNOWN
AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS WHICH MAY CAUSE THE ACTUAL
RESULTS, PERFORMANCE OR ACHIEVEMENTS OF THE COMPANY, OR INDUSTRY RESULTS, TO
BE MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR ACHIEVEMENTS
EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. SUCH FACTORS
INCLUDE, AMONG OTHERS, THE FOLLOWING: VOLATILITY OF THE APPAREL INDUSTRY;
UNEXPECTED CHANGES IN FASHION TRENDS; PRIOR SEASON INVENTORIES; COMPETITION;
DEPENDENCE ON KEY PERSONNEL; RELIANCE ON CONTRACTORS AND FOREIGN SOURCING;
IMPORT RESTRICTIONS; AND OTHER FACTORS. IN EVALUATING AN INVESTMENT IN THE
COMMON STOCK, INVESTORS SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS IN
ADDITION TO THE OTHER INFORMATION (INCLUDING THE INFORMATION INCORPORATED BY
REFERENCE) IN THIS PROSPECTUS.
VOLATILITY OF APPAREL INDUSTRY. The apparel industry historically has been
subject to substantial cyclical variations. The Company and other apparel
manufacturers rely on the expenditure of discretionary income for most, if
not all, of their sales. Any downturn, whether real or perceived, in economic
conditions or prospects could adversely affect consumer spending habits and
the Company's sales and results of operations. During the past several years,
various retailers, including some of the Company's customers, have
experienced financial problems which increases credit risk of extending
credit to such retailers. The Company has historically assigned the credit
risk of its customer receivables to its factor. The Company has discontinued
its use of its factor for management of its accounts receivable credit and
collection function associated with its sales to the golf, corporate and
international distribution channels. The Company currently uses the factor's
accounts receivable management exclusively for its sales to the specialty
store channel. The Company has only limited experience in managing its
credit and collection operations and there can be no assurance that the
increased assumption of this credit risk will not have a material adverse
effect on the Company's financial condition and results of operations.
UNEXPECTED CHANGES IN FASHION TRENDS; PRIOR SEASON INVENTORIES. Fashion trends
can change rapidly, and the Company's business is particularly sensitive to
changes because the Company typically designs and arranges for the manufacture
of its apparel substantially in advance of sales of its products to consumers.
There can be no assurance that the Company will accurately anticipate shifts in
fashion trends and adjust its merchandise mix to appeal to changing consumer
tastes in a timely manner. If the Company misjudges the market for its products
or is unsuccessful in responding to changes in fashion trends or in market
demand, the Company could experience insufficient or excess inventory levels,
missed market opportunities or higher markdowns, any of which would have a
material adverse effect on the Company's financial condition and results of
operations. At the end of its fall and spring seasons, the Company has unsold
FASHION inventory (i.e., products incorporating the latest innovations in color,
fabric and styling and which tend to remain in line for only one season) as a
consequence of making inventory available to satisfy anticipated customer demand
across a broad range of styles. The Company historically has been able to sell
this inventory approximately at cost through sales to off-price retail or club
store accounts in subsequent seasons and recently, in response to consolidation
in the off-price channel, increased marketing of this inventory to regular
retail accounts. If the Company experiences increased amounts of excess
inventory, or if the Company's ability to dispose of its prior season FASHION
merchandise is impaired, due to abrupt changes in fashion trends or for other
reasons, the Company's financial condition and results of operations could be
materially adversely affected.
COMPETITION. The men's sportswear segment of the apparel industry is highly
competitive. The Company's future growth and financial success depend on the
Company's ability to further penetrate the golf distribution channel and
increase the size of its average annual net sales per account in that channel.
The Company encounters substantial competition in the golf distribution channel
from Ashworth, Izod Club and Polo/Ralph Lauren. Apparel companies recently
entering the golf distribution channel, such as Tommy Hilfiger, will further
increase the level of competition in that channel. For the nine months ended
January 31, 1997, the golf distribution channel represented approximately 53% of
the Company's net sales. Most of the Company's competitors are significantly
larger and more diversified than the Company and have substantially greater
resources available for developing and marketing their products. There can be no
assurance that the Company will be able to maintain its growth rate by
increasing its market share at the expense of existing competitors and other
established apparel manufacturers choosing to enter
3
<PAGE>
the market. In addition, there can be no assurance that the Company will be
able to achieve significant growth in its other distribution channels.
DEPENDENCE ON KEY PERSONNEL. The Company's success largely depends on the
personal efforts and abilities of its key executives, including Harvey N. Jones,
the Company's Chairman and Chief Executive Officer and Martin J. Marks, the
Company's President and Chief Operating Officer. The loss of the
services of either of Messrs. Jones or Marks could have a material adverse
effect on the Company. The Company maintains a "key man" life insurance policy
in the amount of $1.0 million on Mr. Jones. There can be no assurance that such
insurance will continue to be available at an acceptable cost, if at all, or
would adequately compensate the Company for its loss of his services. The
Company does not have an employment agreement with either Mr. Jones or
Mr. Marks.
RELIANCE ON CONTRACTORS AND FOREIGN SOURCING. The Company obtains all of its
garments from independent foreign and domestic suppliers, and does not have
formal long-term contracts with any of its suppliers or agents. Currently, the
Company's production is sourced through an agent in Thailand, two agents in Hong
Kong coordinating Chinese suppliers, an agent managing other Asian sources of
supply and direct factory relationships in Asia and California. Approximately
45% of the Company's knit shirt production is currently managed by its agent in
Thailand. Due to the concentration of production and production control with
these parties, the Company would experience difficulty satisfying its production
requirements if any of them had an interruption of business or were unable or
unwilling to meet the Company's production needs. Furthermore, the Company
could experience delays in shifting production to other manufacturers or agents
because of the complex fabrication, unique trims and extensive detailing of its
products. In addition, there can be no assurance that the Company will not
experience difficulties with third parties in the manufacture of its products.
Delays in shipments to the Company, inconsistent or inferior garment quality and
other factors beyond the Company's control would adversely affect the Company's
relationships with its customers, its reputation in the industry and its sales
and results of operations. The Company has experienced production delays in the
past, and there can be no assurance that production delays will not occur in the
future. Because a substantial portion of the Company's products are
manufactured in China and Thailand, the Company's operations may also be
affected by economic, political, governmental and labor conditions in those
countries. In addition, changes in economic policies and political conditions
in those countries could result in disruption of trade, new or additional
currency or exchange controls or the imposition of other restrictions. The
Company incurred increased expenses in its first quarter of fiscal 1997 to
expedite products from Chinese manufacturers due to threatened trade sanctions.
Furthermore, although the Company contracts to purchase its products in United
States dollars, changes in exchange rates could increase the prices the Company
pays for its products. Currently, the Company does not engage in any hedging
activities with respect to such exchange rate risk.
IMPORT RESTRICTIONS. The Company's import operations are subject to constraints
imposed by bilateral textile agreements between the United States and each of
Hong Kong, Thailand and China. These agreements, which have been negotiated
under the framework established by the Arrangement Regarding International Trade
in Textiles, known as the Multifiber Agreement, impose quotas on the amount and
type of goods that can be imported into the United States from these countries.
Such agreements also allow the United States to impose at any time restraints on
the importation of categories of merchandise that, under the terms of the
agreements, are not subject to specified limits. The Company's imported products
also are subject to U.S. customs duties, which are a material portion of the
Company's cost of goods, and customs inspections, which could result in delays
in delivery of the Company's products. Partly as a result of changes to customs
laws enacted in December 1994, importers such as the Company may face increasing
scrutiny for the acts of their manufacturers, suppliers and agents. While to
date the Company has experienced no material disruption of its business due to
quota or customs restrictions, there can be no assurance that it will not face
such disruptions in the future. A substantial increase in customs duties or
decrease in quotas could have an adverse effect on the Company's results of
operations. Furthermore, the United States and the countries in which the
Company's products are manufactured may, from time to time, impose new quotas,
duties, tariffs or other restrictions, or adversely adjust presently prevailing
quota, duty or tariff levels. While the Company is not aware that any current
impositions, adjustments or increased scrutiny would adversely affect the
Company or its ability to continue to import products at current levels, it
cannot predict the likelihood or frequency of any such events occurring.
4
<PAGE>
DEPENDENCE ON INDEPENDENT SALES REPRESENTATIVES. The Company sells its products
through a network of Company-employed and independent sales representatives. The
Company's independent sales representative agreements are generally terminable
for any reason by either party on 30 days' notice. The Company's independent
sales representatives typically also sell other non-competing products that may
nonetheless divert the representatives' or the customers' attention from the
Company's line. The Company intends to increase the number of sales
representatives in the future, but anticipates that an increasing proportion of
its sales representatives will be Company employees selling Cutter & Buck
merchandise exclusively. There can be no assurance, however, that the Company
will be successful in retaining existing or recruiting additional sales
representatives, or that the addition of sales representatives will be an
effective means to increase the Company's net sales.
RISKS OF NEW INTERNATIONAL OPERATIONS. The Company has recently commenced the
direct distribution of its products in the United Kingdom and Continental Europe
through newly established subsidiaries. The Company's sales outside of the
United States totaled approximately $1.3 million for the nine month period ended
January 31, 1997, and the Company expects the amount of its international sales
to increase. International sales are subject to the inherent risks of doing
business in a foreign country, including fluctuations in local economies,
fluctuating exchange rates, difficulties in staffing and managing foreign
operations, increased difficulty of inventory management, greater difficulty in
accounts receivable collection, unexpected changes in regulatory requirements,
tariffs and other trade barriers, and the burdens of complying with a variety of
foreign laws. In addition, the Company relies on international distributors to
distribute its products in some foreign countries. There can be no assurance
that these distributors will be able to provide a sufficient level of support
for the Company's products. The Company's inability to achieve a sufficient
level of sales from its foreign operations or the loss or insolvency of any of
its international distributors could have a material adverse effect on the
Company's financial condition and results of operations.
LIMITED HISTORY OF PROFITABILITY. The Company has a limited history of
profitable operations. There can be no assurance that the Company will be
profitable on either a quarterly or annual basis. In addition, the Company's
expense levels are based in part on anticipated future revenue levels. If
revenues fall below anticipated levels, operating results would be adversely
affected.
SEASONALITY. The Company's business has been and will continue to be highly
seasonal, and its quarterly operating results have fluctuated primarily due to
the seasonality of its sales of sportswear. The Company's sales tend to be
highest during the Company's second and fourth quarters, ending October 31 and
April 30, respectively.
FUTURE STATUS OF HONG KONG. On July 1, 1997, China will resume sovereignty over
Hong Kong in accordance with the 1984 Sino-British Joint Declaration (the "Joint
Declaration"), and Hong Kong will become a Special Administrative Region of
China. Although the Joint Declaration provides for the continuation of existing
economic and social systems in Hong Kong through 2047, there can be no assurance
that Hong Kong will not experience political, economic or social disruption as a
result of the resumption of Chinese sovereignty. In addition, there have been a
number of recent trade disputes between China and the United States during which
the United States threatened to impose tariffs and duties on some products
imported from China and to withdraw China's "most favored nation" trade status.
Any significant disruption in the Company's operations or its relationships with
its manufacturing sources located in Hong Kong or the loss of most favored
nation trade status for China could have a material adverse effect on the
Company.
ANTITAKEOVER CONSIDERATIONS. The Company's Board of Directors has the
authority, without action by the shareholders, to issue up to 25,000,000 shares
of Common Stock and 6,000,000 shares of Preferred Stock and to fix the rights
and preferences of the Preferred Stock. Preferred Stock may be issued with
rights senior to those of the Common Stock. This authority may have the effect
of making it more difficult for a third party to acquire, or discouraging a
third party from attempting to acquire, control of the Company. In addition,
Washington law contains certain provisions that may have the effect of delaying,
deterring or preventing a hostile takeover of the Company.
5
<PAGE>
SELLING SHAREHOLDER
The Selling Shareholder is Joey Rodolfo. Mr. Rodolfo, a co-founder of the
Company, was a director of the Company from its inception until April 4, 1997.
Mr. Rodolfo was Senior Vice President and Secretary of the Company from its
inception until May 1995, and was an independent design consultant from that
date until April 4, 1997. Mr. Rodolfo and the Company are currently parties to
a Transition Agreement (the "Agreement"), which generally provides for the
transition of Mr. Rodolfo out of the role as a design consultant to the Company
by July 1, 1997. In connection with the Agreement, the Company agreed to file a
registration statement with the Commission covering the Shares and to indemnify
the Selling Shareholder against claims made against him arising out of, among
other things, statements made in the Registration Statement. The Company has
agreed to cause the Registration Statement to remain effective until
December 19, 1997, or until all the Shares are sold, whichever is earlier.
As of May 27, 1997, the Selling Shareholder beneficially owned 164,550 shares
of Common Stock of the Company, 129,861 of which are covered by this Prospectus
and 46,253 of which are represented by options exercisable within 60 days.
Because the Selling Shareholder may sell all or part of his Shares pursuant to
this Prospectus, and this Offering is not being underwritten on a firm
commitment basis, no estimate can be given as to the number and percentage of
shares of Common Stock that will be held by the Selling Shareholder upon
termination of this Offering.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Shareholder or by
donees or transferees, directly or through underwriters, dealers or agents,
who may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Shareholder or the purchasers of
Shares for whom they may act as agent. The Shares or any part of the Shares
may be sold in amounts and on terms to be determined at the time of sale,
including, without limitation, block trades, in the over-the-counter market
through Nasdaq, through the writing of options on the Shares, or through a
combination of such methods of sale, at negotiated prices or at or relating
to quoted market prices then prevailing. The Selling Shareholder reserves
the sole right to accept and, together with any agent of the Selling
Shareholder, to reject in whole or in part any proposed purchase of the
Shares. All proceeds of any sale transactions will go to the Selling
Shareholder.
To the extent required, the amount of the Shares to be sold, purchase prices,
public offering prices, the names of any agents, dealers or underwriters, and
any applicable commissions or discounts with respect to a particular offer will
be set forth by the Company in a Prospectus Supplement accompanying this
Prospectus or, if appropriate, a post-effective amendment to the Registration
Statement. The Selling Shareholder and agents who execute orders on his behalf
may be deemed to be underwriters as that term is defined in Section 2(11) of the
Securities Act and a portion of any proceeds of sales and discounts, commissions
or other seller's compensation may be deemed to be underwriting compensation for
purposes of the Securities Act. Offers or sales of the Shares have not been
registered or qualified under the laws of any country other than the United
States.
6
<PAGE>
Pursuant to the Agreement, all expenses incurred in connection with registration
of the Shares, including, without limitation, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expense of any special audits incident to or required by the filing of the
Registration Statement (but excluding the compensation of regular employees of
the Company which shall be paid by the Company) are called Registration
Expenses, and all registration, qualification and filing fees and all
underwriting discounts and selling commissions applicable to any sales of the
Shares are called Selling Expenses. The Selling Shareholder has agreed to pay
all Selling Expenses. In addition, the Selling Shareholder has agreed to pay
the first $15,000 of all Registration Expenses in connection with the filing of
the Registration Statement; provided, however, that if the average price per
Share for all Shares actually sold pursuant to the Prospectus (inclusive of the
Selling Expenses) is less than $15.50 per share, the Registration Expenses
incurred by the Selling Shareholder shall be paid by the Company or promptly
reimbursed to the Selling Shareholder by the Company if they have been
previously paid by the Selling Shareholder. Pursuant to the Agreement, the
Company has agreed to indemnify the Selling Shareholder against certain civil
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Shares offered by this Prospectus will be passed upon by
Lane Powell Spears Lubersky LLP, Seattle, Washington. As of the date of this
Prospectus, members of that firm beneficially owned approximately 3,100 shares
of Common Stock of the Company.
EXPERTS
The financial statements of Cutter & Buck Inc. incorporated by reference in
its Annual Report (Form 10-K) for the year ended April 30, 1996, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
financial statements have been incorporated herein by reference in reliance
upon such report given upon the authority of such firm as experts in
accounting and auditing.
7
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No person has been authorized to give any information or make any
representations other than those contained in this Prospectus in connection
with the offering herein contained and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or the Selling Shareholder or any underwriter or agent. This
Prospectus does not constitute an offer to sell, or a solicitation of an
offer to buy, the securities offered hereby in any jurisdiction to any person
to whom it is unlawful to make an offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has not been any change in
the facts set forth in this Prospectus or in the affairs of the Company since
the date hereof.
------------------
TABLE OF CONTENTS
Page
Available Information. . . . . . . . . . . . . . . . . . . . . . . .. . . . 2
Incorporation of Certain Documents by
Reference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Selling Shareholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
129,861 SHARES
CUTTER & BUCK INC.
COMMON STOCK
-------------------------------
PROSPECTUS
-------------------------------
, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
8
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an itemized statement of the amounts of all expenses in
connection with the sale and distribution of the Shares. Except for the
registration fee, all such amounts are estimates.
Amount
------
SEC Registration fee . . . . . . . . . . . . . . . . .. . $ 597.76
Legal fees and expenses. . . . . . . . . . . . . . . . . . . . 15,000
Accountants' fees and expenses . . . . . . . . . . . . . . . . 6,000
Blue Sky fees and expenses . . . . . . . . . . . . . . . . . . . 500
Miscellaneous expenses . . . . . . . . . . . . . . . . . $ 2,902.24
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 25,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business Corporation
Act authorize a court to award, or a corporation's board of directors to grant,
indemnification to directors and officers on terms sufficiently broad to permit
indemnification under certain circumstances for liabilities arising under the
Securities Act. Article 11 of the registrant's Restated Articles of
Incorporation provides for indemnification of the registrant's directors,
officers, employees and agents to the fullest extent permitted by Washington
law. In addition, the registrant has obtained directors' and officers'
liability insurance.
Section 23B.08.320 of the Washington Business Corporation Act authorizes a
corporation to limit a director's liability to the corporation or its
shareholders for monetary damages for acts or omissions as a director, except in
certain circumstances involving intentional misconduct, self-dealing or illegal
corporate loans or distributions, or any transaction from which the director
personally receives a benefit in money, property or services to which the
director is not legally entitled. Article 10 of the registrant's Restated
Articles of Incorporation contains provisions implementing, to the fullest
extent permitted by Washington law, such limitations on a director's liability
to the registrant and its shareholders.
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- -------------------------------------
3.1 Restated Articles of Incorporation (3.1)(1)
3.2 Bylaws
4.1 Specimen Common Stock Certificate (4.1)(1)
5.1 Opinion of Lane Powell Spears Lubersky LLP regarding legality
10.1 Lease dated May 22, 1994 between First and Cedar Associates and
Jones/Rodolfo Corporation d/b/a Cutter & Buck (10.3)(1)
10.2 Indenture of Lease dated August 10, 1993 between Lakeplace Associates
and Jones/Rodolfo Corporation (10.4)(1)
10.3 Factoring Agreement dated March 1, 1995 between Republic Factors Corp.
and Jones/Rodolfo Corporation (10.5)(1)
10.4 Form of Registration Rights Agreement between Cutter & Buck Inc. and
Roanoke Investors' Limited Partnership, Needham Capital SBIC, L.P. and
Needham Emerging Growth Partners, L.P. (10.6)(1)
10.5 1991 Stock Option Plan (10.9)(1)
10.6 1995 Nonemployee Director Stock Incentive Plan (10.10)(1)
9
<PAGE>
10.7 1995 Employee Stock Option Plan (10.11)(1)
10.8 1995 Employee Stock Purchase Plan (incorporated by reference to the
registrant's Form S-8, Commission File No. 33-80783)
10.9 Form of Representatives' Warrant (10.13)(1)
10.10 Loan Agreement dated February 20, 1997 between Cutter & Buck Inc. and
Washington Mutual Bank d/b/a Enterprise Bank, and supporting documents
(incorporated by reference to Exhibit 10.15 to the registrant's Form
10-Q for the quarter ended January 31, 1997)
10.11 Transition Agreement dated as of March 25, 1997 between Cutter & Buck
Inc. and Joey Rodolfo (incorporated by reference to Exhibit 10 to the
registrant's Form 8-K dated March 25, 1997)
23.1 Consent of Lane Powell Spears Lubersky LLP (contained in the opinion
filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
24.1 Power of Attorney (contained on signature page)
- ----------------------
(1) Incorporated by reference to the exhibit shown in the preceding parentheses
and filed with the registrant's Registration Statement on Form SB-2,
Commission File No. 33-94548-LA.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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) 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 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the Registration
Statement shall be
10
<PAGE>
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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities 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
of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
11
<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on June 10, 1997.
CUTTER & BUCK INC.
By /s/ Harvey N. Jones
--------------------------------------
Harvey N. Jones
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Cutter & Buck Inc. and each
of us, do hereby constitute and appoint Harvey N. Jones and Martin J. Marks, our
true and lawful attorneys and agents, with power of substitution, to do any and
all acts and things in our name and behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the
capacities indicated above, which said attorney and agent may deem necessary or
advisable to enable said corporation to comply with the Securities Act of 1933,
and any rules, regulations, and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or any
of us in our names in the capacities indicated below, and any and all amendments
(including post-effective amendments) hereto, and all documents relating hereto
or thereto, including one or more registration statements that may be filed to
register additional securities for an offering pursuant to Rule 462(b) under the
Securities Act of 1933 and to file the same, with all exhibits thereto; and we
do hereby ratify and confirm all that the said attorney and agent, or his
substitute or substitutes 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.
/s/ Harvey N. Jones Chairman, Chief Executive June 10, 1997
- -------------------------- Officer and Director (Principal
Harvey N. Jones Executive Officer)
/s/ Martin J. Marks President, Chief Operating
- -------------------------- Officer, Treasurer, Secretary June 10, 1997
Martin J. Marks and Director (Principal
Financial and Accounting Officer)
/s/ Michael S. Brownfield
- -------------------------- June 10, 1997
Michael S. Brownfield Director
/s/ Frances M. Conley
- -------------------------- June 10, 1997
Frances M. Conley Director
/s/ Larry C. Mounger
- -------------------------- June 10, 1997
Larry C. Mounger Director
/s/ James B. Slayden
- -------------------------- June 10, 1997
James B. Slayden Director
/s/James C. Towne
- -------------------------- June 10, 1997
James C. Towne Director
12
<PAGE>
BYLAWS
OF
CUTTER & BUCK INC.
(As amended and restated on April 25, 1997)
ARTICLE I
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the corporation shall be located in the state of
Washington at such place as may be fixed from time to time by the board of
directors upon filing of such notices as may be required by law, and the
registered agent shall have a business office identical with such registered
office. Any change in the registered agent or registered office shall be
effective upon filing such change with the office of the Secretary of State of
the state of Washington.
ARTICLE II
SHAREHOLDERS' MEETINGS
Section 1. ANNUAL MEETINGS. The annual meeting of the shareholders of
the corporation shall be held at the registered office of the corporation, or
such other place as may be designated by the notice of the meeting, during
the month of September each year, for the purpose of election of directors
and for such other business as may properly come before the meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the shareholders of the
corporation may be called at any time by the president, or by a majority of the
board of directors, or by the holders of at least twenty-five percent (25%) of
all the votes entitled to be cast on any issue proposed to be considered at a
proposed special meeting; provided that upon qualification of the corporation as
a "public company" under the Washington Business Corporation Act, the percentage
of votes required to call a special meeting shall be thirty percent (30%). No
business shall be transacted at any special meeting of shareholders except as is
specified in the notice calling for said meeting. The board of directors may
designate any place as the place of any special meeting called by the president
or the board of directors, and special meetings called at the request of
shareholders shall be held at such place as may be determined by the board of
directors and placed in the notice of such meetings.
Section 3. NOTICE OF MEETINGS. Written notice of annual or special
meetings of shareholders stating the place, day, and hour of the meeting,
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given by the secretary or persons authorized to
call the meeting to each shareholder of record entitled to vote at the
meeting. Such notice shall be given not less than ten (10) nor more than
sixty (60) days prior to the date of the meeting, except that notice of a
meeting to act on (i) an amendment to the Articles of Incorporation, (ii) a
plan of merger or share exchange, (iii) a proposed sale, lease, exchange or
other disposition of substantially all of the assets of the corporation other
than in
<PAGE>
the usual or regular course of business, or (iv) the dissolution of the
corporation shall be given no fewer than twenty (20) days nor more than sixty
(60) days before the meeting date. Notice may be transmitted by mail, private
carrier or personal delivery; telegraph or teletype; or telephone, wire or
wireless equipment which transmits a facsimile of the notice. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at the shareholder's address as it appears on the
stock transfer books of the corporation.
Section 4. WAIVER OF NOTICE. Notice of the time, place, and purpose of
any meeting may be waived in writing (either before or after such meeting) and
will be waived by any shareholder by the shareholder's attendance at the meeting
in person or by proxy, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting. Any
shareholder so waiving shall be bound by the proceedings of any such meeting in
all respects as if due notice thereof had been given.
Section 5. QUORUM AND ADJOURNED MEETINGS. A majority of the outstanding
shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of shareholders. A majority of the
shares represented at a meeting, even if less than a quorum, may adjourn the
meeting from time to time without further notice. At such reconvened meeting at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. The
shareholders present at a duly organized meeting may continue to transact
business at such meeting and at any adjournment of such meeting (unless a new
record date is or must be set for the adjourned meeting), notwithstanding the
withdrawal of enough shareholders from either meeting to leave less than a
quorum.
Section 6. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by the shareholder's
duly authorized attorney in fact. Such proxy shall be filed with the secretary
of the corporation before or at the time of the meeting. No proxy shall be
valid after eleven (11) months from the date of its execution, unless otherwise
provided in the proxy.
Section 7. VOTING RECORD. After fixing a record date for a shareholders'
meeting, the corporation shall prepare an alphabetical list of the names of all
shareholders on the record date who are entitled to notice of the shareholders'
meeting. The list shall be arranged by voting group, and within each voting
group by class or series of shares, and show the address of and number of shares
held by each shareholder. A shareholder, shareholder's agent, or a
shareholder's attorney may inspect the shareholder's list, beginning ten days
prior to the shareholders' meeting and continuing through the meeting, at the
corporation's principal office or at a place identified in the meeting notice in
the city where the meeting will be held during regular business hours and at the
shareholder's expense. The shareholders' list shall be kept open for inspection
during such meeting or any adjournment.
Section 8. VOTING OF SHARES. Except as otherwise provided in the Articles
of Incorporation or in these Bylaws, every shareholder of record shall have the
right at every
2
<PAGE>
shareholders' meeting to one vote for every share standing in the shareholder's
name on the books of the corporation. If a quorum exists, action on a matter,
other than election of directors, is approved by a voting group of shareholders
if the votes cast within the voting group favoring the action exceed the votes
cast within the voting group opposing the action, unless the Articles of
Incorporation or the Washington Business Corporation Act require a greater
number of affirmative votes.
Section 9. RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders, or any
adjournment thereof, or entitled to receive payment of any dividend, the
board of directors may fix in advance a record date for any such
determination of shareholders, such date to be not more than seventy (70)
days prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed for
the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the day before the date on which notice of the meeting is mailed or
the date on which the resolution of the board of directors declaring such
dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled
to vote at any meeting of shareholders has been made as provided in this
section, such determination shall apply to any adjournment thereof, unless
the board of directors fixes a new record date, which it must do if the
meeting is adjourned more than one hundred twenty (120) days after the date
fixed for the original meeting.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed under the direction of, the board of directors except as otherwise
provided by the laws of the state of Washington or in the Articles of
Incorporation.
Section 2. NUMBER. The number of directors of the corporation shall be
seven (7). The number of directors can be increased or decreased from time to
time by the vote of the directors or shareholders to amend this Section 2,
provided that the number of directors shall be not less than one, and provided
further than no decrease shall shorten the term of any incumbent director.
Section 3. TENURE AND QUALIFICATIONS. At the first annual meeting of
shareholders and at each annual meeting thereafter, the shareholders of the
corporation shall elect directors. Each director shall hold office until the
next succeeding annual meeting and until his or her successor shall have been
elected and qualified. Directors need not be residents of the state of
Washington or shareholders of the corporation.
Section 4. ELECTION. The directors shall be elected by the shareholders
at their annual meeting each year; and if, for any cause, the directors shall
not have been elected at an annual
3
<PAGE>
meeting, they may be elected at a special meeting of shareholders called for
that purpose in the manner provided by these Bylaws.
Section 5. VACANCIES. Vacancies in the board of directors, including
vacancies resulting from an increase in the number of directors, may be filled
by the shareholders, the board of directors, or a majority of the remaining
directors if they do not constitute a quorum.
Section 6. RESIGNATION. Any director may resign at any time by delivering
written notice to the board of directors, its chairperson, the president or the
secretary of the corporation. A resignation shall be effective when the notice
is delivered unless the notice specifies a later effective date.
Section 7. REMOVAL OF DIRECTORS. At a meeting of shareholders called
expressly for that purpose, the entire board of directors, or any member
thereof, may be removed, with or without cause, by a vote of the holders of a
majority of shares then entitled to vote at an election of such directors.
Section 8. MEETINGS.
(a) The annual meeting of the board of directors shall be held
immediately after the annual shareholders' meeting at the same place as the
annual shareholders' meeting or at such other place and at such time as may be
determined by the directors. No notice of the annual meeting of the board of
directors shall be necessary.
(b) Special meetings may be called at any time and place upon
the call of the president, secretary, or any director. Notice of the time and
place of each special meeting shall be given by the secretary or the persons
calling the meeting, by mail, private carrier, radio, telegraph, telegram,
facsimile transmission, personal communication by telephone or otherwise at
least two (2) days in advance of the time of the meeting. The purpose of the
meeting need not be given in the notice. Notice of any special meeting may be
waived in writing or by telegram (either before or after such meeting) and will
be waived by any director by attendance thereat.
(c) Regular meetings of the board of directors shall be held at
such place and on such day and hour as shall from time to time be fixed by
resolution of the board of directors. No notice of regular meetings of the
board of directors shall be necessary.
(d) At any meeting of the board of directors, any business may
be transacted, and the board may exercise all of its powers.
Section 9. QUORUM AND VOTING.
(a) A majority of the directors shall constitute a quorum, but a
lesser number may adjourn any meeting from time to time until a quorum is
obtained, and no further notice thereof need be given.
4
<PAGE>
(b) If a quorum is present when a vote is taken, the affirmative
vote of a majority of the directors present at the meeting is the act of the
board of directors.
Section 10. COMPENSATION. By resolution of the board of directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 11. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless:
(a) The director objects at the beginning of the meeting, or
promptly upon the director's arrival, to holding it or transacting business at
the meeting;
(b) The director's dissent or abstention from the action taken
is entered in the minutes of the meeting; or
(c) The director delivers written notice of the director's
dissent or abstention to the presiding officer of the meeting, before its
adjournment or to the corporation within a reasonable time after adjournment of
the meeting.
The right of dissent or abstention is not available to a director who votes
in favor of the action taken.
Section 12. COMMITTEES. The board of directors, by resolution adopted
by a majority of the full board of directors, may designate one or more
committees from among its members, each of which must have two or more
members and, to the extent provided in such resolution, shall have and may
exercise all the authority of the board of directors, except that no such
committee shall have the authority to: authorize or approve a distribution
except according to a general formula or method prescribed by the board of
directors; approve or propose to shareholders action that the Washington
Business Corporation Act requires to be approved by shareholders; fill
vacancies on the board of directors or on any of its committees; amend any
Articles of Incorporation requiring shareholder approval; adopt, amend or
repeal Bylaws; approve a plan of merger requiring shareholder approval; or
authorize or approve the issuance or sale or contract for sale of shares, or
determine the designation and relative rights, preferences and limitations of
a class or series of shares, except that the board of directors may authorize
a committee, or a senior executive officer of the corporation, to do so
within limits specifically prescribed by the board of directors.
5
<PAGE>
ARTICLE IV
SPECIAL MEASURES FOR CORPORATE ACTION
Section 1. ACTIONS BY WRITTEN CONSENT. Any corporate action required or
permitted by the Articles of Incorporation, Bylaws, or the laws under which
the corporation is formed, to be voted upon or approved at a duly called
meeting of the directors, committee of directors, or shareholders may be
accomplished without a meeting if one or more unanimous written consents of
the respective directors or shareholders, setting forth the actions so taken,
shall be signed, either before or after the action taken, by all the
directors, committee members, or shareholders, as the case may be. Action
taken by unanimous written consent is effective when the last director or
committee member signs the consent, unless the consent specifies a later
effective date. Action taken by unanimous written consent of the
shareholders is effective when all consents are in possession of the
corporation, unless the consent specifies a later effective date.
Section 2. MEETINGS BY CONFERENCE TELEPHONE. Members of the board of
directors, members of a committee of directors, or shareholders may participate
in their respective meetings by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time; participation in a meeting by such
means shall constitute presence in person at such meeting.
ARTICLE V
OFFICERS
Section 1. OFFICERS DESIGNATED. The officers of the corporation shall be
a chairman, a president, one or more vice presidents, a secretary and a
treasurer, each of whom shall be elected by the board of directors. Such other
officers and assistant officers as may be deemed necessary may be elected or
appointed by the board of directors. Any two or more offices may be held by the
same person.
The board of directors may, in its discretion, elect a chairperson and one
or more vice-chairpersons of the board of directors; and, if a chairperson has
been elected, the chairperson shall, when present, preside at all meetings of
the board of directors and the shareholders and shall have such other powers as
the board may prescribe.
Section 2. ELECTION, QUALIFICATION AND TERM OF OFFICE. Each of the
officers shall be elected by the board of directors. None of said officers need
be a director. The officers shall be elected by the board of directors at each
annual meeting of the board of directors. Except as hereinafter provided, each
of said officers shall hold office from the date of his or her election until
the next annual meeting of the board of directors and until his or her successor
shall have been duly elected and qualified.
6
<PAGE>
Section 3. POWERS AND DUTIES.
(a) CHAIRMAN. The chairman shall be the chief executive officer
of the corporation and, subject to the direction and control of the board of
directors, shall have general supervision and control over its property,
business, and affairs. The chairman may sign any and all documents, deeds,
mortgages, bonds, contracts, or other instruments which the board of directors
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
bylaws to some other officer or agent of the corporation or shall be required by
law to be otherwise signed or executed; and in general shall perform all duties
incident to such office and such other duties as may be prescribed by the board
of directors from time to time.
(b) PRESIDENT. In the absence of the chairman or in the event
of the chairman's death, inability or refusal to act, the president shall
perform the duties of the chairman and when so acting shall have all the
powers of and be subject to all the restrictions upon the chairman. The
president shall perform such other duties as from time to time may be
assigned by the chairman or by the board of directors.
(c) VICE PRESIDENT. In the absence of the chairman and the
president, or in the event of their death, inability or refusal to act, the
vice president, or the vice presidents in the order designated at the time of
their election or in the absence of any designation, then in the order of
their election, shall perform the duties of the chairman and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
chairman. Any vice president shall perform such other duties as from time to
time may be assigned by the chairman, the president, or by the board of
directors.
(d) SECRETARY. The secretary shall: (1) keep the minutes of
the shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; (2) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (3) be custodian of
the corporate records and of the seal of the corporation and affix the seal of
the corporation to all documents as may be required; (4) keep a register of the
post office address of each shareholder which shall be furnished to the
secretary by such shareholder; (5) sign with the chairman, the president, or a
vice president, certificates for shares of the corporation, the issuance of
which shall have been authorized by resolution of the board of directors; (6)
have general charge of the stock transfer books of the corporation; and (7) in
general perform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him or her by the chairman, the
president or by the board of directors.
(e) TREASURER. Subject to the direction and control of the
board of directors, the treasurer shall have the custody, control, and
disposition of the funds and securities of the corporation and shall account for
the same; and, at the expiration of his or her term of office, he or she shall
turn over to his or her successor all property of the corporation in his or her
possession.
7
<PAGE>
Section 4. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries, when authorized by the board of directors, may sign
with the chairman, the president, or a vice president, certificates for
shares of the corporation, the issuance of which shall have been authorized
by resolution of the board of directors. The assistant treasurers shall,
respectively, if required by the board of directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
board of directors shall determine. The assistant secretaries and assistant
treasurers, in general, shall perform such duties as shall be assigned to
them by the secretary or the treasurer, respectively, or by the chairman, the
president or the board of directors.
Section 5. REMOVAL. The board of directors shall have the right to remove
any officer whenever in its judgment the best interests of the corporation will
be served thereby.
Section 6. VACANCIES. The board of directors shall fill any office which
becomes vacant with a successor who shall hold office for the unexpired term and
until his or her successor shall have been duly elected and qualified.
Section 7. SALARIES. The salaries of all officers of the corporation shall
be fixed by the board of directors.
ARTICLE VI
SHARE CERTIFICATES
Section 1. ISSUANCE, FORM AND EXECUTION OF CERTIFICATES. No shares of the
corporation shall be issued unless authorized by the board. Such authorization
shall include the maximum number of shares to be issued, the consideration to be
received for each share, the value of noncash consideration, and a statement
that the board has determined that such consideration is adequate. Certificates
for shares of the corporation shall be in such form as is consistent with the
provisions of the Washington Business Corporation Act and shall state:
(a) The name of the corporation and that the corporation is
organized under the laws of this state;
(b) The name of the person to whom issued; and
(c) The number and class of shares and the designation of the
series, if any, which such certificate represents. They shall be signed by
two officers of the corporation, and the seal of the corporation may be
affixed thereto. Certificates may be issued for fractional shares. No
certificate shall be issued for any share until the consideration established
for its issuance has been paid.
Section 2. TRANSFERS. Shares may be transferred by delivery of the
certificate therefor, accompanied either by an assignment in writing on the back
of the certificate, written assignment separate from certificate, or written
power of attorney to assign and transfer the same, signed
8
<PAGE>
by the record holder of the certificate. The board of directors may, by
resolution, provide that beneficial owners of shares shall be deemed holders of
record for certain specified purposes. Except as otherwise specifically
provided in these Bylaws, no shares shall be transferred on the books of the
corporation until the outstanding certificate therefor has been surrendered to
the corporation.
Section 3. LOSS OR DESTRUCTION OF CERTIFICATES. In case of loss or
destruction of any certificate of shares, another may be issued in its place
upon proof of such loss or destruction and upon the giving of a satisfactory
indemnity bond to the corporation. A new certificate may be issued without
requiring any bond when in the judgment of the board of directors it is proper
to do so.
ARTICLE VII
BOOKS AND RECORDS
Section 1. BOOKS OF ACCOUNT, MINUTES AND SHARE REGISTER. The
corporation shall keep as permanent records minutes of all meetings of its
shareholders and board of directors, a record of all actions taken by the
shareholders or board of directors without a meeting, and a record of all
actions taken by a committee of the board of directors exercising the
authority of the board of directors on behalf of the corporation. The
corporation shall maintain appropriate accounting records. The corporation
or its agent shall maintain a record of its shareholders, in a form that
permits preparation of a list of the names and addresses of all shareholders,
in alphabetical order by class of shares showing the number and class of
shares held by each. The corporation shall keep a copy of the following
records at its principal office: the Articles or Restated Articles of
Incorporation and all amendments to them currently in effect; the Bylaws or
Restated Bylaws and all amendments to them currently in effect; the minutes
of all shareholders' meetings, and records of all actions taken by
shareholders without a meeting, for the past three years; its financial
statements for the past three years, including balance sheets showing in
reasonable detail the financial condition of the corporation as of the close
of each fiscal year, and an income statement showing the results of its
operations during each fiscal year prepared on the basis of generally
accepted accounting principles or, if not, prepared on a basis explained
therein; all written communications to shareholders generally within the past
three years; a list of the names and business addresses of its current
directors and officers; and its most recent annual report delivered to the
Secretary of State of the state of Washington.
Section 2. COPIES OF RESOLUTIONS. Any person dealing with the
corporation may rely upon a copy of any of the records of the proceedings,
resolutions, or votes of the board of directors or shareholders, when
certified by the president or secretary.
ARTICLE VIII
AMENDMENT OF BYLAWS
9
<PAGE>
The board of directors shall have the power to adopt, amend or repeal the
bylaws or adopt new bylaws. Nothing herein shall deny the concurrent power of
the shareholders to adopt, alter, amend or repeal the bylaws.
10
<PAGE>
[LETTERHEAD]
EXHIBIT 5.1
June 12, 1997
CUTTER & BUCK INC.
2701 First Avenue, Suite 500
Seattle, WA 98121
Re: REGISTRATION STATEMENT ON FORM S-3
Sir/Madam:
We have acted as counsel for Cutter & Buck Inc. (the "Company") in connection
with the preparation and filing with the Securities and Exchange Commission
of the Registration Statement on Form S-3 (the "Registration Statement"),
relating to 129,861 shares of common stock, no par value per share, of the
Company (the "Common Stock") being offered by a shareholder of the Company
(the "Selling Shareholder").
In rendering this opinion letter, we have relied as to matters of material
fact upon the representations of members of the Company's management,
however, we have no reason to believe that any such representations are
incorrect or imcomplete. We have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
photostatic or certified copies and the authenticity of the originals of such
copies. In connection with this letter, we have concerned ourselves solely
with the application of the laws of the state of Washington and the laws of
the United States, and no opinion is expressed herein concerning the possible
effects of the laws of any other jurisdiction.
Subject to the foregoing, we are of the opinion that the Common Stock has
been validly issued, fully paid and nonassessable.
The opinions contained in this letter are given as of the date hereof, and
we render no opinion as to any matter brought to our attention subsequent to
the date hereof. We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement,
<PAGE>
Cutter & Buck Inc.
June 12, 1997
Page 2
including the prospectus filed with or constituting a part thereof, and any
amendments or supplements thereto.
Very truly yours,
/s/ Lane Powell Spears Lubersky LLP
LANE POWELL SPEARS LUBERSKY LLP
13
<PAGE>
EXHIBIT 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Cutter & Buck
Inc. for the registration of 129,861 shares of its common stock and to the
incorporation by reference therein of our report dated June 17, 1996 (except
for the third paragraph of Note 7, as to which the date is July 8, 1996),
with respect to the financial statements of Cutter & Buck Inc. included in
its Annual Report (Form 10-K) for the year ended April 30, 1996, filed with
the Securities and Exchange Commission.
ERNEST & YOUNG LLP
Seattle, Washington
June 11, 1997
14
