As filed with the Securities and Exchange Commission on November 22, 2004
June 10, 2021
Registration Statement No. 333-118966
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333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
WASHINGTON, DC 20549
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AMENDMENT NO. 1 TO
___________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CASUAL MALE RETAIL
___________
DESTINATION XL GROUP, INC.
(Exact
(Exact name of registrant as specified in its charter)
Delaware 04-2623104
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Delaware (State or other jurisdiction of incorporation or organization) | 04‑2623104 (I.R.S. Employer Identification No.) |
555 Turnpike Street Canton, Massachusetts 02021 (781) 828-9300 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) | |
___________
Peter H. Stratton, Jr.
Chief Financial Officer
Destination XL Group, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
(781) 828-9300
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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Dennis Hernreich
Executive Vice President, Chief Operating Officer and
Chief Financial Officer
Casual Male Retail Group, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
(781) 828-9300
(Name,
(Name, address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
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Copyagent for service)
___________
Copies to:
Peter G. Smith,
Elizabeth W. Fraser, Esq.
Kramer Levin Naftalis & Frankel
Greenberg Traurig, LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
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One International Place
Boston, Massachusetts 02110
Telephone: (617) 310-6237
Facsimile: (617) 279-8427
Approximate Datedate of Commencementcommencement of Proposed Saleproposed sale to the Public: public: From time to time after the effective date of this Registration Statement.
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Statement becomes effective.
If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_|
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If any of the securities being registered on this formForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. |X|
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If this formForm 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 formForm 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. |_|
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If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434,
please462(e) under the Securities Act, check the following box. |_|
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If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐Accelerated filer ☐
Non-accelerated filer ☒ Smaller reporting company ☒
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Unit | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
Primary Offering by Registrant |
|
|
|
|
Common Stock, $0.01 par value per share | (2) | (3) | (3) | -- |
Preferred Stock, $0.01 par value per share | (2) | (3) | (3) | -- |
Warrants | (2) | (3) | (3) | -- |
Debt securities | (2) | (3) | (3) | -- |
Purchase Contracts | (2) | (3) | (3) | -- |
Depositary Shares (4) | (2) | (3) | (3) | -- |
Rights | (2) | (3) | (3) | -- |
Units (5) | (2) | (3) | (3) | -- |
Total Primary Offering |
|
| $75,000,000 | $8,182.50 (1) |
Secondary Offering by Selling Stockholders |
|
|
|
|
Common Stock, $0.01 par value per share | 7,500,000 (6) | $3.32 (7) | $24,900,000 | $2,716.59 |
Total |
|
| $99,900,000 | $10,899.09 |
(1) | Calculated pursuant to Rule 457(o) under the Securities Act. |
(2) | This registration statement also covers common stock or preferred stock that may be issued by the registrant upon exercise, conversion or exchange of any securities registered hereunder that provide for such issuance. An indeterminate number of the securities is being registered as may at various times be issued at indeterminate prices, with an aggregate offering price not to exceed $75,000,000. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends, or similar transactions. |
(3) | Pursuant to General Instruction II.D. of Form S-3, the table lists each of the classes of securities being registered and the aggregate proceeds to be raised, but does not specify by each class information as to the amount to be registered, proposed maximum offering price per unit, and proposed maximum aggregate offering price. |
(4) | Each depositary share will represent an interest in a fractional share of preferred stock and will be evidenced by a depositary receipt. |
(5) | Each unit will represent an interest in two or more other securities, which may or may not be separable from one another. |
(6) | Pursuant to Rule 416 of the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
(7) | Estimated solely to calculate the registration fee in accordance with Rule 457(c) of the Securities Act on the basis of the average of the high and low sales prices of the registrant’s common stock as quoted on the OTCQX Market on June 3, 2021. |
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The registrantRegistrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the registrantRegistrant shall file a further amendment which specifically states that this registration statementRegistration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statementRegistration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), mayshall determine.
Subject to Completion, dated November 22, 2004
1,818,504 Shares of Common Stock
This prospectus relates to the offer and sale by the selling stockholders
listed on pages 20-21 of up to 1,818,504 shares of common stock, par value $0.01
per share, of Casual Male Retail Group, Inc., which shares consist of (i)
1,182,400 shares of common stock issued or issuable upon the exercise of
warrants currently held by the selling securityholders, (ii) 430,000 shares of
common stock issuable upon the exercise of options currently held by the selling
securityholders and (iii) 206,104 additional shares of common stock currently
held by the selling securityholders.
We issued through private placements in 2003 $29.56 million principal
amount of 12% senior subordinated notes due 2010. Together with these notes,
which in most cases were issued net of any commission for an aggregate purchase
price equal to 98.4% of the aggregate principal amount, we also issued, through
such private placements, detachable warrants to purchase 1,182,400 million
shares of our common stock at exercise prices ranging from $4.76 to $7.32 per
share. The warrants are exercisable through July 2, 2010.
Our common stock is quoted on the Nasdaq National Market under the symbol
"CMRG." The last reported sale price of our common stock on November 19, 2004
was $4.77 per share.
Investing in our securities involves risks that are described in the "Risk
Factors" section beginning on page 4 of this prospectus.
We will not receive any cash proceeds from the sale of the shares of
common stock offered under this prospectus. We are responsible for the payment
of certain expenses incident to the registration of the securities.
Neither the Securities and Exchange Commission, any state securities
commission nor any other regulatory body has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is November 22, 2004.
The information in this prospectus is not complete and may be changed. TheNeither we nor the selling securityholdersstockholders may not sell these securities until the registration statement filed with the Securities and ExcchangeExchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Important Notice
Subject to completion, dated June 10, 2021
PROSPECTUS
Destination XL Group, Inc.
$75,000,000
Common Stock
Preferred Stock
Depositary Shares
Warrants
Debt Securities
Purchase Contracts
Rights
Units
Offered by the Company
and
7,500,000 Shares of Common Stock
Offered by Selling Stockholders
___________
We may offer and sell from time to time, in one or more transactions, common stock, preferred stock, depositary shares, warrants, debt securities, purchase contracts, rights and units that include any of these securities, up to a total public offering price of $75,000,000 on terms to be determined at the time of sale, and the selling stockholders to be named in a supplement to this prospectus may offer and sell up to an aggregate of 7,500,000 shares of our common stock, in each case from time to time in one or more offerings. We will not receive any of the proceeds from the sale of our common stock by the selling stockholders.
This prospectus describes some of the general terms that may apply to these securities and the general manner in which they may be offered. We will provide specific terms of these securities and the specific manner in which we or such selling stockholders may offer these securities in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest. This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement for those securities.
We may offer and sell these securities directly to investors, to or through one or more underwriters, dealers and agents, or through a combination of these methods, on a continuous or delayed basis. In addition, the selling stockholders may offer and sell shares of our common stock from time to time, together or separately. We or such selling stockholders may also describe the plan of distribution for any particular offering of these securities in a prospectus supplement. If any underwriters, dealers or agents are involved in the sale of any securities in respect of which this prospectus is delivered, their names and the nature of arrangements between or among them will be disclosed in a prospectus supplement. For more information, see “Plan of Distribution” in this prospectus. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities
Our common stock is quoted on the OTCQX Market under the symbol “DXLG.” On June 8, 2021, the closing price of our common stock on the OTCQX Market was $3.75 per share.
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 1 of this prospectus. We may include additional risk factors in an applicable prospectus supplement under the heading “Risk Factors.” You should review that section of the prospectus supplement for a discussion of matters that investors in our securities should consider.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2021.
TABLE OF CONTENTS
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $75,000,000. In addition, under this shelf process, the selling stockholders to be named in a supplement to this prospectus may, from time to time, sell up to 7,500,000 shares of common stock, as described in this prospectus, in one or more offerings. This prospectus provides you with a general description of the securities we may offer.
Each time we or the selling stockholders offer and sell securities, we or the selling stockholders will provide a prospectus supplement that will contain specific information about the Information Presentedsecurities being offered and the terms of that offering. The prospectus supplement may also add to, update or change information contained in this Prospectusprospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the prospectus supplement. You should rely only onread both this prospectus and any prospectus supplement together with the additional information described under the heading “Where You Can Find More Information” carefully before making an investment decision.
Neither we, nor any selling stockholder, agent, underwriter or dealer has authorized any person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus. Weprospectus, any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf of us or any selling stockholder or to which we or any selling stockholder have referred you. This prospectus, any applicable supplement to this prospectus or any related free writing prospectus do not authorizedconstitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to provide
you with different information. If anyone provides you with differentwhom it is unlawful to make such offer or inconsistent information, yousolicitation in such jurisdiction.
You should not rely on it. For furtherassume that the information see the section ofcontained in this prospectus, entitled "Whereany applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered, or securities are sold, on a later date.
This prospectus and the information incorporated herein by reference contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find More Information." We are not making an offer to sell these securities in any
jurisdiction where”
Unless the offer or sale is not permitted.
You should assume that the information appearing in this prospectus is
accurate as of the date on the front cover of this prospectus only. Our
business, financial condition, results of operations and prospects may have
changed since that date.
TABLE OF CONTENTS
PROSPECTUS SUMMARY...........................................................1
RISK FACTORS.................................................................4
FORWARD LOOKING INFORMATION.................................................11
USE OF PROCEEDS.............................................................12
DESCRIPTION OF CAPITAL STOCK................................................12
CERTAIN UNITED STATES FEDERAL TAX CONSIDERATIONS............................15
SELLING SECURITYHOLDERS.....................................................18
PLAN OF DISTRIBUTION........................................................24
LEGAL MATTERS...............................................................25
EXPERTS.....................................................................25
WHERE YOU CAN FIND MORE INFORMATION.........................................26
PROSPECTUS SUMMARY
The following summary may not contain all the information that may be
important to you and is qualified in its entirety by the more detailed
information appearing elsewhere or incorporated by reference in this prospectus.
You should read the entire prospectus, especially the risks set forth under the
heading "Risk Factors," as well as the information incorporated by reference,
before making an investment decision.
When used in this prospectus,context otherwise requires, the terms "Casual Male," "the Company,"
"we," "our" and "us" refer to Casual Male Retail“Destination XL Group, Inc. (formerly known as
Designs,,” “DXLG,” “the Company,” “our company,” “we,” “us,” “our” and similar names refer collectively to Destination XL Group, Inc.) and our consolidated subsidiaries, unless otherwise specified.
References in this prospectus to years are to our 52-week or 53-week fiscal
year, which ends on the Saturday nearest to January 31. For example, references
to "fiscal 2003" mean our fiscal year ended January 31, 2004.
Our Business
its subsidiaries.
ii
We are the largest specialty retailer of big and tall men's apparelmen’s clothing and shoes with retail locations in the
United States. We operate 489 Casual Male Big & Tall stores, the Casual Male
catalog business, the Casual Male e-commerce website and 48 Levi's(R)/Dockers(R)
Outlet by Designs outlet stores, all of which are located throughout the United States and Puerto Rico.
Background
Prior to May 2002, our business primarily consistedToronto, Canada. We operate under the trade names of owning and
operating Levi's(R)/Dockers(R) and Candies(R) branded apparel mall and outlet
stores. With limited opportunity to expand our mature Levi's(R)/Dockers(R)
business, we acquired substantially all of the assets ofDestination XL®, DXL®, DXL Men’s Apparel, DXL outlets, Casual Male Corp.XL® and
certain of its subsidiaries at a bankruptcy court-ordered auction in May 2002.
At the time of the acquisition, Casual Male Corp. was the largest retailerXL outlets. At January 30, 2021, we operated 226 DXL retail stores, 17 DXL outlet stores, 46 Casual Male XL retail stores, 22 Casual Male XL outlet stores and a digital business, including an e-commerce site at dxl.com and a mobile site m.destinationXL.com. In fiscal 2018, we launched a wholesale business unit focused on product development and distribution relationships with key retailers offering co-branded men’s big & tall apparel lines.
We are incorporated in the United Statesstate of men's clothing in the "big and tall" market. In April 2002,
we entered into a joint venture with Ecko Complex, LLC, a leading design-driven
lifestyle brand targeting young men and women, to open and operate Ecko
Unltd.(R) branded outlet stores.
Following our acquisition of Casual Male, we re-evaluated our strategic
initiatives. In light of the significant opportunity to grow the Casual Male
business and the continued significant deterioration in our Levi's(R)/Dockers(R)
business, we announced that we would downsize and eventually exit the
Levi's(R)/Dockers(R) business. We also announced that we would exit the
Candies(R) outlet business, which we did by the end of fiscal 2002. Then in the
second quarter of fiscal 2004, we sold our 50.5% interest in the Ecko joint
venture to Ecko Complex, LLC. These decisions enabled management to focus our
resources and energies primarily on growing our Casual Male business.
Completion of Acquisition of Rochester Big & Tall
On October 29, 2004, the Company completed its acquisition of
substantially all of the assets of Rochester Big & Tall Clothing, Inc., a
privately held company headquartered in San Francisco, California ("Rochester").
The purchase price was $15 million in cash plus the assumption of bank and
subordinated debt of approximately $5 million, in addition to the assumption of
identified operating liabilities such as accounts payable and accrued
liabilities. There is a potential payment of an additional $4 million, to be
paid over a three-year period subject to an earn-out provision. The Company
financed the transaction with a new $7.5 million term loan from its primary
lender and additional borrowings on its existing $90 million credit facility.
The acquisition did not have any impact on the Company's overall liquidity.
Since the Casual Male acquisition, we have operated in two segments: our
"Casual Male business" and our "Other Branded Apparel businesses."
Casual Male BusinessDelaware. Our Casual Male business is a multi-channel retailer that offers our
customers multiple ways to purchase men's big and tall apparel. The business
consists of:
o 420 Casual Male Big & Tall full-price retail stores,principal executive offices are located primarily in strip centers, power centers and stand-alone locations;
o 69 Casual Male Big & tall outlet stores, located in outlet shopping
centers;
o the "Casual Male Big & Tall" catalog, of which we issued 17 editions
in fiscal 2003; and
o our e-commerce business, which includes the www.casualmale.com
website and a Casual Male Big & Tall apparel shop on the Amazon.com
website.
Since our acquisition of the Casual Male business in May 2002, in order to
revitalize the Casual Male brand and increase our share of the $5.3 billion
men's big and tall apparel market, we have implemented several merchandising
strategies, including:
o changing our store format to merchandise our stores by lifestyle,
such as traditional, active and contemporary;
o targeting the fast-growing "under 30" big and tall customer segment;
o announcing an exclusive marketing agreement with George Foreman, as
well as launching an exclusive line of clothing with the George
Foreman brand which commenced in Spring 2004;
o launching a custom fit program, by which customers can purchase
certain styles of clothing that are custom made to specific fit
requirements;
o broadening our merchandise offerings by introducing selected branded
products, including professional sports apparel; and
o introducing new systems infrastructure to improve inventory
management, maintain in-stock positions in critical sizes for all
stores and tailor lifestyle merchandise assortments to the
demographic characteristics of each store.
Other Branded Apparel Businesses
Ecko Unltd.(R)
From March 2002 through July 30, 2004, we operated a joint venture with
Ecko Complex, LLC ("Ecko"), under which we owned and managed retail outlet
stores bearing the name Ecko Unltd.(R) and featuring Ecko(R) branded
merchandise. On July 30, 2004, the Company sold to Ecko its 50.5% interest in
the joint venture for a purchase price of $800,000 in cash and a secured
promissory note in the principal amount of $6.2 million. In addition, the
Company will also continue to receive fees based on a percentage of sales for
providing transitional services to the joint venture related to its operating
and accounting systems, as needed until June 30, 2005. The above transaction
resulted in a gain of approximately $3.1 million, which was included in our
results of operations for the three and six months ended July 31, 2004.
2
Furthermore, pursuant to a mark-down allowance agreement entered into on July
30, 2004, Ecko also executed and delivered an additional secured promissory note
for $1.0 million as a markdown allowance with respect to purchases of certain
goods made by the Company from Ecko.
Levi's(R)/Dockers(R) Outlets
We currently operate 48 Levi's(R)/Dockers(R) outlet stores, 17 of which we
expect to close by the end of fiscal 2004. We expect that the remaining
Levi's(R)/Dockers(R) stores will either be closed on or before the end of their
respective lease terms.
Corporate Information
We were originally incorporated in Delaware as Designs, Inc. in 1976. We
changed our name to Casual Male Retail Group, Inc. shortly following our
acquisition of substantially all of the assets of Casual Male Corp. and certain
of its subsidiaries in May 2002. The address of our principal corporate and
executive office isat 555 Turnpike Street, Canton, Massachusetts 02021. TheOur telephone number at our headquarters is (781) 828-9300. Our corporate websiteInternet address is located at http://www.cmrginc.com. The informationwww.dxl.com. Information contained on our website or that is accessible through our website should not be considered to be part of this prospectus.
3
Risk Factors
You should carefully consider
Offerings under this Prospectus
Under this prospectus, we may offer: shares of our common stock; preferred stock; depositary shares; warrants to purchase common stock, preferred stock, depositary shares or units; debt securities; purchase contracts; rights to purchase common stock, preferred stock, depositary shares or warrants; or units comprised of common stock, preferred stock, depositary shares, debt securities, warrants and purchase contracts in any combination, with a total value of up to $75,000,000, from time to time at prices and on terms to be determined by market conditions at the following risks, as well astime of the otheroffering. In addition to the securities we may offer, the selling stockholders to be named in a supplement to this prospectus may offer and sell from time to time up to 7,500,000 shares of our common stock.
The descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize the material terms and provisions of the various types of securities that we or the selling stockholders may offer. Each time we or the selling stockholders offer a type or series of securities under this prospectus, we or the selling stockholders will describe in the applicable prospectus supplement relating to any securities the particular terms of the securities offered by that prospectus supplement. If we so indicate in the applicable prospectus supplement, the terms of the securities may differ from the terms we have summarized below. We will also include in the prospectus supplement information, where applicable, about material United States federal income tax considerations relating to the securities, and the securities exchange, if any, on which the securities will be listed.
The prospectus supplement also may add, update or change information contained in this prospectus or in documents incorporated by reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We or the selling stockholders may sell the securities directly to investors or to or through agents, underwriters or dealers. We, the selling stockholders, and our respective agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we or the selling stockholders offer securities through agents or underwriters, we or the selling stockholders, as applicable, will include in the applicable prospectus supplement: the names of those agents or underwriters; applicable fees, discounts and commissions to be paid to them; details regarding over-allotment options, if any; and the net proceeds to us or the selling stockholders, as applicable.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
Investing in our securities involves significant risks. Please see the risk factors under the heading “Risk Factors” in our most recent Annual Report on Form 10-K, as revised or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report on Form 10-K, each of which are on file with the SEC and are incorporated by reference in this prospectus, before investing in shares of our common stock. If any of the
followingprospectus. Before making an investment decision, you should carefully consider these risks actually occurs, our business, financial condition, operating
results or prospects could be harmed. In that case, the trading price of our
common stock could decline, and you might lose all or part of your investment.
Risks Related to Our Company and Our Industry
Our ability to continue to expand our Casual Male stores may be limited.
A large part of our growth has resulted from the addition of new Casual
Male stores and the increased sales volume and profitability provided by these
stores. We will continue to depend on adding new stores to increase our sales
volume and profitability. We believe that our ability to increase the number of
Casual Male stores in the United States substantially in excess of the number of
our current stores will be limited due to capital constraints, market conditions
and other factors. When we enter new markets, we must:
o obtain suitable store locations in light of the local real estate
market conditions;
o hire and train personnel;
o establish distribution methods; and
o advertise our brand names and our distinguishing characteristics to
consumers who may not be familiar with us.
As a result of these and other factors, opening new stores is often costly
and entails significant risk. We cannot assure you that we will be able to open
and operate new stores on a timely and profitable basis. The costs associated
with opening new stores may negatively affect our results of operations.
We may be unable to successfully predict fashion trends and customer
preferences.
Customer tastes and fashion trends are volatile and tend to change
rapidly. Our success depends in large part upon our ability to effectively
predict and respond to changing fashion tastes and consumer demands and to
translate market trends to appropriate saleable product offerings. If we are
unable to successfully predict or respond to changing styles or trends and
misjudge the market for products or any new product lines, our sales will be
lower and we may be faced with a substantial amount of unsold inventory or
missed opportunities. In response, we may be forced to rely on additional
markdowns or promotional sales to dispose of excess, slow-moving inventory,
which would decrease our revenues and margins. In addition, the failure to
satisfy consumer demand could have serious longer-term consequences, such as an
adverse impact on our brand value and the loss of market share to our
competitors.
Our business is highly competitive, and competitive factors may reduce our
revenues and profit margins.
The United States men's big and tall apparel market is highly competitive
with many national and regional department stores, specialty apparel retailers
and discount stores offering a broad range of apparel products similar to the
products that we sell. Besides retail competitors, we consider any manufacturer
of big and tall merchandise operating in outlet malls throughout the United
States to be a competitor. It is also
4
possible that another competitor, either a mass merchant or a men's specialty
store or specialty apparel catalog, could gain market share in men's big and
tall apparel due to more favorable pricing, locations, brand and fashion
assortment and size availability. The presence in the marketplace of various
fashion trends and the limited availability of shelf space also can affect
competition. We may not be able to compete successfully with our competitors in
the future and could lose brand recognition and market share. A significant loss
of market share would adversely affect our revenues and results of operations.
Our sales will decline if we do not successfully advertise and market our
products.
Our business is directly affected by the success or failure of our
advertising and promotional efforts and those of our vendors. Future advertising
efforts by us, our vendors or our other licensors may be costly and may not
result in increased sales. If we were to undertake a major advertising campaign
without success, then our failure to realize any revenues from our advertising
and promotional expenditures, together with the possible adverse impact on our
brand value and loss of market share, would have a negative impact upon our
revenues. In either case, increased costs and decreased margins, accompanied by
static or decreased revenues, would cause a decline in our results of
operations.
Our success significantly depends on our key personnel and our ability to
attract and retain additional personnel.
Our future success is dependent on the personal efforts, performance and
abilities of our key management. For example, the loss of the services of David
Levin, our President and Chief Executive Officer, or Dennis Hernreich, our Chief
Operating Officer and Chief Financial Officer, each of whom is an integral part
of our daily operations and is a primary decision maker in all our important
operating matters, could significantly impact our business until adequate
replacements could be identified and put in place. The loss of any of our senior
management may result in:
o a loss of organizational focus;
o poor operating execution;
o an inability to identify and execute potential strategic initiatives
such as joint venture and licensing opportunities;
o an impairment in our ability to identify new store locations; and
o an inability to consummate possible acquisitions.
These adverse results could, among other things, reduce potential
revenues, prevent us from diversifying our product lines and geographic
concentrations, and expose us to downturns in our markets. The loss of members
of our senior management as well as our chairman, Seymour Holtzman, who also has
many years of experience in the capital markets, could negatively impact our
ability to obtain additional debtother information we include or equity financing for our operations or to
refinance existing indebtedness, or the terms that might be negotiated for such
financing or refinancing. Those circumstances in turn could ultimately result in
a significant decline in profitability and decline in our financial condition.
The competition is intense for the type of highly skilled individuals with
relevant industry experience that we require and we may not be able to attract
and retain new employees of the caliber needed to achieve our objectives.
5
We need to timely complete the implementation of our information systems and
control procedures.
We depend heavily upon technology and information systems to control
inventory, sales, markdowns, merchandise on hand and other critical information.
Any significant deficiencies in our management information systems resulting in
less than optimal systems performance could have a negative impact upon our
business. For example, since the information systems provide vital information
with respect to specific merchandise sales at the SKU level, replenishment
requirements to maintain optimum inventory levels, and sell through data from
which markdown requirements are identified to most productively sell through
poor selling SKUs, if that information is not consistently provided on a timely
and accurate basis our sales could be severely impacted, or our gross margins
could be adversely affected.
We periodically review, improve and, under certain circumstances, replace
our technology and management information systems to provide enhanced support to
all operating areas. If such upgrades and enhancements are not successfully
implemented, then the current systems may not be able to continue to support
adequately our management information requirements. Currently, we are undergoing
a significant effort to replace our existing antiquated legacy systems, as part
of the process of integrating the historical Designs, Inc. and Casual Male
operations. It is critically important to the successful operation of our
business that the implementation of our systems integration process, which
entails the replacement, enhancement, or upgrade of all Casual Male's vital
former information systems, be completed within budget and in a timely manner
without disruption to our daily operations. To implement these initiatives, we
spent approximately $4.1 million in fiscal 2002, $4.0 million in fiscal 2003 and
$1.5 million to date during fiscal 2004. We anticipate that the implementation
will require approximately 12 additional months to complete at a remaining cost
of approximately $10.5 million which includes upgrading our existing
point-of-sale and register systems and implementing a Customer Relationship
Management software system. If we are unable to complete these projects within
budget and on time, our operating results will suffer.
The loss of, or disruption in, our centralized distribution center could
negatively impact our business and operations.
All merchandise for our Casual Male stores is received into our
centralized distribution center in Canton, Massachusetts, where the inventory is
then processed, sorted and shipped to our stores. We depend in large part on the
orderly operation of this receiving and distribution process, which depends, in
turn, on adherence to shipping schedules and effective management of the
distribution center. Although we believe that our receiving and distribution
process is efficient and well positioned to support our expansion plans, we
cannot assure you that events beyond our control, such as disruptions in
operations due to fire or other catastrophic events, employee matters or
shipping problems, would not result in delays in the delivery of merchandise to
our stores.
Although we maintain business interruption and property insurance, we
cannot assure you that our insurance will be sufficient, or that insurance
proceeds will be timely paid to us, in the event our distribution center is shut
down for any reason or if we incur higher costs and longer lead times in
connection with a distribution at our distribution center.
We are dependent on third parties for the manufacture of the products we sell.
We do not own or operate any manufacturing facilities and are therefore
entirely dependent on third parties for the manufacture of the products we sell.
Without adequate supplies of merchandise to sell to our customers in the styles
and fashions demandedincorporate by our particular customer base, sales would decrease
materially and our business would suffer. Furthermore, approximately 70% of our
merchandise is branded product made specifically for Casual Male and our
customers. In the event that manufacturers are unable or unwilling to ship
products to us in a timely manner or continue to manufacture products for us, we
would
6
have to rely on other current manufacturing sources or identify and qualify new
manufacturers. We might not be able to identify or qualify such manufacturers
for existing or new products in a timely manner and such manufacturers might not
allocate sufficient capacity to us in order to meet our requirements. Our
inability to secure adequate and timely supplies of product would negatively
impact inventory levels, sales and gross margin rates, and ultimately our
results of operations.
In addition, even if our current manufacturers continue to manufacture our
products, they may not maintain adequate controls with respect to product
specifications and quality and may not continue to produce products that are
consistent with our standards. If we are forced to rely on products of inferior
quality, then our brand recognition and customer satisfaction would be likely to
suffer. These manufacturers may also increase the cost to us of the products we
purchase from them. If our suppliers increase our costs, our margins may be
adversely affected.
Should we experience significant unanticipated demand, we will be required
to significantly expand our access to manufacturing, both from current and new
manufacturing sources. If such additional manufacturing capacity is not
available on terms as favorable as those obtained from current sources, then our
revenues or margins, or both, will suffer.
In addition, a significant portion of our merchandise is directly imported
from other countries, and U.S. domestic suppliers who source their goods from
other countries supply most of our remaining merchandise. If imported goods
become difficult or impossible to bring into the United States, due to tariffs,
embargoes or other reasons and if we cannot obtain such merchandise from other
sources at similar costs, then our sales, gross margins and profit margins would
significantly decline. Furthermore, in the event that commercial transportation
is curtailed or substantially delayed, we may not be able to maintain adequate
inventory levels of important merchandise on a consistent basis, which would
negatively impact our sales and potentially erode the confidence of our customer
base, leading to further loss of sales and an adverse impact on our results of
operations.
In extreme circumstances, it may be necessary to close less productive
stores so as to consolidate important merchandise categories into our most
productive stores, which would severely impact our results of operations and
cash flow.
Exiting our Levi's(R)/Dockers(R) business may subject us to significant costs
and divert resources.
In light of the continued significant deterioration in our
Levi's(R)/Dockers(R) operations, we announced that we would downsize and
eventually exit this business. In connection with this restructuring, we have
incurred and will need to continue to incur significant exit costs associated
with the termination of leases, liquidation of inventory and various employee
matters. In addition, the restructuring of this business may divert managerial
and other resources from our core businesses and may subject us to litigation.
We have recorded restructuring charges totaling $41.3 million to date in
connection with the restructuring of our Levi's(R)/Dockers(R) business, and
expect to record additional restructuring charges as we complete this
initiative. These charges have reduced and will continue to reduce our net
income, and if future charges exceed our expectations, our stock price may be
adversely affected.
Our results of operations will be adversely affected if our George Foreman line
of apparel is unsuccessful.
We have entered into an exclusive endorsement and licensing arrangement
for a men's apparel line with George Foreman, the well-known boxing personality.
Under the terms of this arrangement, we are obligated to make significant
payments to Mr. Foreman regardless of the success of the product line, and we
intend to incur significant marketing costs in connection with the promotion of
this product line. As a result
7
of these expenditures, if sales from this product line do not meet our
expectations our results of operations will be adversely affected. Furthermore,
we are subject to risks associated with having our brand identified with a
celebrity personality. If our customers do not care for Mr. Foreman, or if this
product line is not successful, our brand value will suffer.
The loss of any of our key trademarks or licenses could adversely affect demand
for our products.
We own and use a number of trademarks and operate under several trademark
license agreements. We believe that these trademarks have significant value and
are instrumental in our ability to create and sustain demand for and to market
our products. We cannot assure you that these trademarks and licensing
agreements will remain in effect and enforceable or that any license agreements,
upon expiration, can be renewed on acceptable terms or at all. In addition, any
future disputes concerning these trademarks and licenses may cause us to incur
significant litigation costs or force us to suspend use of the disputed
trademarks.
Our business is seasonal and is affected by general economic conditions.
Like most other retail businesses, our business is seasonal. Historically,
over 30% of our net sales have been made and approximately 70% of our operating
income has been generated during November, December and January. Like other
retail businesses, our operations may be negatively affected by local, regional
or national economic conditions, such as levels of disposable consumer income,
consumer debt, interest rates and consumer confidence. Any economic downturn
might cause consumers to reduce their spending, which could negatively affect
our sales. A sustained economic downturn would likely have an adverse affect on
our results of operations.
Acts of terrorism could negatively impact our operating results and financial
condition.
The continued threat of terrorism and heightened security measures in
response to an act of terrorism may disrupt commerce and undermine consumer
confidence which could negatively impact our sales by causing consumer spending
to decline. Furthermore, an act of terrorism or war, or the threat thereof,
could negatively impact our business by interfering with our ability to obtain
merchandise from vendors or substitute suppliers at similar costs in a timely
manner.
Our cost savings and expense reductions resulting from the acquisition of Casual
Male may be less than anticipated.
We anticipate significant, continued cost savings following our May 2002
acquisition of substantially all the assets of Casual Male, primarily through
headcount reductions, renegotiations of contractual arrangements for supplies
and services associated with the operation for more favorable pricing terms,
elimination of inefficient and costly business processes and costs by
streamlining our management information systems, and economies of scale in
purchasing. It is possible that some of the contemplated headcount reductions
could fail to take place on the scale proposed due to unforeseen or
underestimated needs for the employees in question. It is also possible that the
cost savings associated with achieving purchasing economies fail to materialize
due to unsuccessful negotiations with key vendors. There is also a cost to
realizing the potential savings and these costs could potentially be higher than
originally contemplated in management's projections. In such an instance, the
amount of the cost savings would be offset by the higher costs of realizing the
savings, thereby reducing the overall benefit of the acquisition of Casual Male
and reducing our expected profitability. If there are substantial failures to
achieve these cost savings, cash flow and the servicing of debt related to that
acquisition could also be reduced.
8
We face greater challenges in managing several brands in multiple channels of
distribution.
Several retailers have had problems executing a corporate strategy aimed
at operating multiple brands in multiple channels. We have expertise in the
outlet channel of distribution, but our acquisition of Casual Male caused us to
conduct operations in the specialty store and internet channels of distribution.
We are now also responsible for all aspects of brand management with respect to
the Casual Male brand, including advertising and promotion, and the servicing
and merchandising of private label and brand merchandise. If the managing of
multiple brands within multiple channels is poorly executed, we will not achieve
our expected level of profitability, and could ultimately be compelled to
eliminate the multiple brand strategy so that the organization may focus on a
single brand strategy.
A reduction in the size of our target market and shifts in customer purchasing
habits will adversely affect our sales.
As more and more food retailers begin to compete on the basis of providing
more healthy menus, and American popular culture becomes more health conscious,
the size of our target demographic could decrease, resulting in lower sales. In
addition, recent statistics have shown that the overall levels of men's apparel
sales have been decreasing, in part due to a lesser percentage of men's apparel
being bought by women. If this trend continues and we are unable to adjust our
business model to reflect the trend, our results of operations and cash flow
will be impacted.
Risks Related to Our Corporate Structure and Stock
Our stock price has been and may continue to be extremely volatile due to many
factors.
The market price of our common stock has fluctuated in the past and may
increase or decrease rapidly in the future depending on news announcements and
changes in general market conditions. Between January 31, 2003 and November 1,
2004, the closing price of our common stock ranged from a low of $2.28 per share
to a high of $10.57 per share. The following factors, among others, may cause
significant fluctuations in our stock price:
o news announcements regarding quarterly or annual results of
operations;
o monthly comparable store sales;
o acquisitions;
o competitive developments;
o litigation affecting us; or
o market views as to the prospects of the retail industry generally.
Rights of our stockholders may be negatively affected if we issue any of the
shares of preferred stock which our Board of Directors has authorized for
issuance.
We have available for issuance 1,000,000 shares of preferred stock, par
value $.01 per share. Our board of directors is authorized to issue any or all
of this preferred stock, in one or more series, without any further action on
the part of shareholders. The rights of our shareholders may be negatively
affected if we issue a series of preferred stock in the future that has
preference over our common stock with respect to the payment of dividends or
distribution upon our liquidation, dissolution or winding up.
9
State laws and our certificate of incorporation may inhibit potential
acquisition bids that could be beneficial to our stockholders.
We are subject to certain provisions of Delaware law which could delay or
make more difficult a merger, tender offer or proxy contest involving us. In
particular, Section 203 of the Delaware General Corporation Law prohibits a
Delaware corporation from engaging in certain business combinations with any
interested stockholder for a period of three years unless specific conditions
are met. In addition, certain provisions of Delaware law could have the effect
of delaying, deferring or preventing a change in control of us, including,
without limitation, discouraging a proxy contest or making more difficult the
acquisition of a substantial block of our common stock. The provisions could
also limit the price that investors might be willing to pay in the future for
shares of our common stock. For additional information, see the section of this
prospectus entitled "Description of Capital Stock -- Antitakeover Effects of
Provisions of Our Certificate of Incorporation, Our By-Laws and Delaware Law."
Conversion of our 5% Senior Subordinated Notes could result in dilution to
holders of our common stock.
In the fourth quarter of fiscal 2003, we sold in a private transaction
$100 million principal amount of convertible senior subordinated notes due 2024
(the "Convertible Notes"). If the holders of the Convertible Notes convert such
notes, we would be required to issue to such holders approximately 9.39 million
additional shares of common stock, which would result in dilution to holders of
our common stock. Additionally, the 9.39 million additional shares of common
stock would not have an impact on historical earnings per share of the Company
because the conversion of such shares would have been antidilutive.
10
FORWARD LOOKING INFORMATION
Certain statements containedreference in this prospectus constitute
"forward-looking statements"and any prospectus supplement. The risks and uncertainties we have described are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations.
SPECIAL NOTE REGARDING FORWARD‑LOOKING INFORMATION
This prospectus includes and incorporates forward‑looking statements within the meaning of Section 27A of the United States Private
Securities Litigation Reform Act of 1995.1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). All statements, other than statements of historical facts, included or incorporated in this prospectus regarding our strategy, future operations, financial position, future revenues, projected costs, prospects, plans and objectives of management are forward‑looking statements. In some cases, forward-looking statements can be identified by the use of forward-looking terminology such as "may," "will," "estimate," "intend," "continue," "believe," "expect"“may,” “will,” “estimate,” “intend,” “plan,” “continue,” “believe,” “expect” or "anticipate"“anticipate” or the negatives thereof, variations thereon or similar terminology. Theterminology, although not all forward‑looking statements contain these identifying words. These forward-looking statements, contained in this prospectuswhich are generally located in the material set forth under the headings "Prospectus
Summary" and "Risk Factors," but may be found in other locations as well. These
forward-looking statementsnot exhaustive, generally relate to plans and objectives for future operations and are based upon management'smanagement’s reasonable estimates of future results or trends. AlthoughSuch statements include our financial outlook for fiscal 2021 with respect to sales, comparable sales, adjusted EBITDA and free cash flows, statements regarding our ability to withstand the impact of the COVID-19 pandemic on our business, our efforts to restructure and reduce costs and right size our lease structure, expected annualized savings from restructuring actions taken since fiscal 2020, expected additional borrowing capacity under our new FILO loan, and our expected liquidity for the next 12 months. We cannot guarantee that we believe thatactually will achieve the plans, intentions or expectations disclosed in our forward‑looking statements and objectives reflected
in or suggested by suchyou should not place undue reliance on our forward‑looking statements. These forward-looking statements are reasonable, such plans or
objectives may not be achieved. Actual results may differ from projected results
due, but not limited,subject to unforeseen developments,a number of known and unknown risks, uncertainties and assumptions, including developments
relating to the following:
o overall economic and business conditions;
o competitive factorsrisks described in the industriessection titled “Risk Factors” and elsewhere in which we conduct our
business;
o changes in governmental regulation;
o the demand for our goodsthis prospectus, and services;
o the fact that our customers may cancel orders they have placed with
us, in whole or in part, without advance notice;
o changes in tax requirements, including tax rate changes, new tax
laws and revised tax law interpretations;
o changes in generally accepted accounting principles or
interpretations of those principles by governmental agencies and
self-regulatory groups;
o developments in and results of litigation;
o interest rate fluctuations, foreign currency rate fluctuations and
other capital market conditions;
o economic and political conditions in international markets,
including governmental changes and restrictions on the ability to
transfer capital across borders;
o changes in the cost of raw materials used in our business;
o the timing, impact and other uncertainties of acquisitions thatdocuments we may consider or consummate;
o our ability to achieve anticipated synergies and other cost savings
in connection with such acquisitions; and
o the other factors discussed under "Risk Factors" or elsewhereincorporate by reference in this prospectus. You should read this prospectus completelythese factors and with the understanding that
actual future results may be materially different from what we expect. All
forward-lookingother cautionary statements containedmade in this prospectus and any accompanying prospectus supplement, and in the documents we incorporate by reference as being applicable to all subsequent
written and oralrelated forward-looking statements attributable to us or persons actingwherever they appear in the prospectus and any accompanying prospectus supplement, and in the documents incorporated by reference. These factors include, among other things:
the global impact of the COVID-19 pandemic on our behalf are expressly qualifiedbusiness, financial results, liquidity, supply chain and workforce;
our ability to operate and expand our business and to respond to changing business and economic conditions and availability of adequate capital;
our ability to successfully execute our strategy and grow our market share;
our ability to develop and execute marketing programs to drive traffic and convert that traffic into a loyal customer base;
our ability to grow our direct business and develop our e-commerce and internet infrastructure;
our ability to develop and implement our omni-channel initiatives;
our ability to grow our wholesale segment;
our ability to maintain our central distribution center;
potential disruptions in their entirety by the foregoingglobal supply chain that may impact our ability to import inventory in a timely manner;
our ability to manage our store portfolio;
our ability to be successful in a highly competitive market;
our ability to engage third parties to manufacture our merchandise;
our ability to protect the proprietary information of our customers and our security systems;
our ability to predict fashion trends and customer preferences successfully;
our ability to maintain our key trademarks and licenses;
potential impairment of long-lived assets;
changes in LIBOR that could impact our LIBOR-based contracts;
our ability to attract and maintain key personnel;
potential labor shortages or increases in labor costs due to new regulations;
fluctuations in the price, availability and quality of raw materials and finished goods that could increase costs;
our ability to comply with laws, rules and regulations; and
the ability of our stock price to withstand volatility due to many factors.
New risk factors emerge from time to time and it is not possible for us to predict all risk factors, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. These forward-looking statements speak only as of the date onof the document in which they are made. We disclaim any obligation or undertaking to provide any updates or revisions to any forward-looking statement to reflect any change in our expectations or any change in events, conditions or circumstances onin which the forward-looking statement is based.
11
USE OF PROCEEDS
The selling securityholders will receive all of
We currently intend to use the estimated net proceeds from the
sales of shares of common stock pursuant to this prospectus, and the Company
will receive none of the proceeds.
DESCRIPTION OF CAPITAL STOCK
We are authorized to issue a total of 76,000,000 shares, consisting of
75,000,000 shares of common stock and 1,000,000 shares of preferred stock. The
following is a summary of some of the rights and privileges pertaining to our
common stock. For a full description of our common stock and our preferred
stock, you should refer to our certificate of incorporation and by-laws.
Our Common Stock
As of July 31, 2004, there were 34,207,108 shares of our common stock
outstanding. The holders of our common stock are entitled to one vote per share
on all matters to be voted upon by the stockholders. None of our common
stockholders will be entitled to cumulate votes at any election of directors.
Subject to preferences that are applicable to any series of our preferred stock
that may come into existence in the future, the holders of our common stock are
entitled to receive such dividends, if any, as may be declared from time to time
by our board of directors out of legally available funds. In the event of our
liquidation, dissolution or winding up, the holders of our common stock are
entitled to share ratably in all assets remaining after payment of liabilities,
subject to prior rights of any series of our preferred stock that may come into
existence in the future. Holders of our common stock have no preemptive or
conversion rights or other subscription rights. There are no redemption or
sinking fund provisions available to the holders of our common stock.
Our Preferred Stock
Our board of directors has the authority, without action by the
stockholders, to designate and issue preferred stock in one or more series and
to designate the rights, preferences and privileges of each series, which may be
greater than the rights of the common stock. It is not possible to state the
actual effect of the issuance of any shares of preferred stock upon the rights
of holders of the common stock until the board of directors determines the
specific rights of the holders of such preferred stock. However the effects
might include, among other things:
o restricted dividends on the common stock;
o diluting the voting power of the common stock;
o impairing the liquidation rights of the common stock; or
o delaying or preventing a fundamental change in control of our
company without further action by our stockholders.
Warrants
As of July 31, 2004, there were outstanding warrants to purchase an
aggregate of up to 3,377,871 shares of our common stock at a weighted average
exercise price of $5.74 per share, including the warrants exercisable to
purchase the common stock offered by this prospectus. These warrants are
currently exercisable in full and expire between April 2007 and July 2010.
12
Options
As of July 31, 2004, there were an aggregate of 3,067,433 shares of our
common stock subject to outstanding options at a weighted average exercise price
of $5.56 per share under our 1992 Stock Incentive Plan, as amended. In addition,
as of July 31, 2004, there were an aggregate of 1,140,000 shares of our common
stock issued outside of our 1992 Stock Incentive Plan subject to outstanding
options at a weighted average exercise price of $3.40. As of July 31, 2004,
2,700,075 shares were reserved for future issuance upon exercise of options that
may be granted under the 1992 plan.
Registration Rights of Certain Holders
From time to time, we have issued and may continue to issue shares of
capital stock, warrants, convertible notes or other securities entitled to
registration rights. All previously issued securities entitled to such
registration rights, other than the shares of stock offered under this
prospectus, have been registered pursuant to registration statements on Form S-3
filed in September 2002 and February 2004. Accordingly, all such previously
granted registration rights have been satisfied.
Antitakeover Effects of Provisions of Our Certificate of Incorporation, Our
By-Laws and Delaware Law
Provisions of our certificate of incorporation and by-laws, as well as
provisions of Delaware law, could make it more difficult for a third party to
acquire us and to remove incumbent officers and directors. These provisions,
summarized below, are expected to discourage certain types of coercive takeover
practices and inadequate takeover bids and to encourage persons seeking to
acquire control of us to first negotiate with us. These provisions could
discourage potential acquisition proposals and could delay or prevent a change
in control. These provisions are also intended to enhance the likelihood of
continuity and stability in the composition of our board of directors and in the
policies formulated by our board of directors and to discourage certain types of
transactions that may involve an actual or threatened change of control. These
provisions are designed to reduce our vulnerability to an unsolicited
acquisition proposal and to discourage certain tactics that may be used in proxy
fights. These provisions could, however, have the effect of discouraging others
from making tender offers for our shares and, as a consequence, they also may
inhibit fluctuations in the market price of our shares that could result from
actual or rumored takeover attempts. These provisions also may have the effect
of preventing changes in our management. We believe that the benefits of
increased protection of our ability to negotiate with the proponent of an
unfriendly or unsolicited proposal to acquire or restructure us outweigh the
disadvantages of discouraging those proposals because, among other things,
negotiation of those proposals could result in an improvement of their terms.
Preferred Stock. Our board of directors, without stockholder approval, has
the authority under our certificate of incorporation to issue up to 1,000,000
shares of convertible preferred stock with rights superior to the rights of the
holders of our common stock. As a result, preferred stock could be issued
quickly and easily, could hurt the rights of holders of common stock and could
be issued with terms calculated to delay or prevent a change of control or make
removal of management more difficult.
Stockholder Meetings. Certain provisions of our by-laws may have the
effect of delaying, deferring or preventing a change of control through
limitations on the right of stockholders to call, or determine the agenda for,
special stockholder meetings, including a requirement for advance notification
of stockholder proposals.
Delaware Antitakeover Law. We are subject to Section 203 of the Delaware
General Corporation Law, which prohibits a publicly held Delaware corporation
from engaging in a business combination with an interested stockholder for a
period of three years after the date of the transaction in which the person
13
becomes an interested stockholder, unless, before that date: (i) the board of
directors of the corporation approves either the business combination or the
transaction that resulted in the stockholder becoming an interested stockholder;
(ii) upon consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder owns at least 85%
of the outstanding voting stock, excluding shares held by directors, officers
and employee stock plans; or (iii) on or after the consummation date, the
business combination is approved by the board of directors and by the
affirmative vote at an annual or special meeting of stockholders of at least
66?% of the outstanding voting stock that is not owned by the interested
stockholder. For purposes of Section 203, a business combination includes a
merger, asset sale or other transaction resulting in a financial benefit to the
interested stockholder. An interested stockholder is generally a person who,
together with affiliates and associates of that person, (a) owns 15% or more of
the corporation's voting stock or (b) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within the prior three years.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is American Stock
Transfer and Trust Company. Its address is 59 Maiden Lane, Plaza Level, New
York, NY 10038.
Listing
Our common stock is quoted on the Nasdaq National Market under the symbol
"CMRG."
14
CERTAIN UNITED STATES FEDERAL TAX CONSIDERATIONS
The following discusses the material U.S. federal income tax consequences
to holders, and U.S. estate tax consequences to non-U.S. holders (defined
below), relating to the ownership and disposition of common stock. This
discussion is for general information only and does not address all aspects of
U.S. federal income taxation that may be relevant to you in light of your
personal circumstances. This summary is based on the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), applicable existing and proposed
U.S. Treasury regulations, and judicial authority and current administrative
rulings and practice, all of which are subject to change, possibly on a
retroactive basis, or to differing interpretation. Except as otherwise noted,
this summary applies only to holders that hold our common stock as a capital
asset within the meaning of Section 1221 of the Code (generally, for
investment). It does not address tax consequences applicable to those U.S.
holders that may be subject to special tax rules, including financial
institutions, regulated investment companies, tax-exempt organizations,
expatriates, persons subject to the alternative minimum tax provisions of the
Code, pension funds, insurance companies, dealers in securities or foreign
currencies, persons that will hold common stock as a position in a hedging
transaction, straddle, conversion transaction or other risk reduction
transaction for tax purposes, persons deemed to sell common stock under the
constructive sale provisions of the Code, persons who hold common stock through
a partnership or other pass through entity, or persons whose functional currency
is not the U.S. dollar (except as disclosed below under "Non-U.S. Holders"). We
have not sought any ruling from the Internal Revenue Service (the "IRS") with
respect to the statements made and the conclusions reached in the following
summary, and there can be no assurance that the IRS or a court will agree with
our statements and conclusions. Moreover, this discussion does not address the
effect of the federal estate and gift tax laws on U.S. holders or the effect of
any applicable state, local or foreign tax laws.
THE FOLLOWING DISCUSSION OF U.S. FEDERAL TAX CONSIDERATIONS IS FOR GENERAL
INFORMATION ONLY. IT IS NOT TAX ADVICE. HOLDERS SHOULD CONSULT THEIR OWN TAX
ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX AND
ESTATE TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES
ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING JURISDICTION OR
UNDER ANY APPLICABLE TAX TREATY.
For purposes of this discussion, the term U.S. holder means a beneficial
owner of common stock that is for U.S. federal income tax purposes:
o a citizen or resident of the U.S.;
o a corporation created or organized under the laws of the U.S. or any
state;
o an estate, the income of which is subject to U.S. federal income
taxation regardless of its source; or
o a trust if (a) its administration is subject to the primary
supervision of a court within the U.S. and one or more U.S. persons
have authority to control all of its substantial decisions, or (b)
it has a valid election in effect under applicable Treasury
regulations to be treated as a U.S. person.
A non-U.S. holder means a holder of common stock (other than a partnership
or entity treated as such for U.S. federal income tax purposes) that is not a
U.S. holder for U.S. federal income tax purposes. Income earned through a
foreign or domestic partnership or entity treated as such is generally
attributed to its owners. A beneficial owner of common stock that is a
partnership for U.S. federal income tax purposes,
15
and the partners in such a partnership, should consult their tax advisors about
the U.S. federal income tax consequences of holding and disposing of the common
stock.
U.S. Holders
Dividends
Distributions received on our common stock will be treated as a dividend,
subject to tax as ordinary income, to the extent of our current and accumulated
earnings and profits as of the end of the year of distribution. For taxable
years beginning after December 31, 2002 and before January 1, 2009, subject to
certain exceptions, dividends received by individual shareholders generally
would be taxed at the same preferential rates that apply to long-term capital
gains. Any excess will be treated as a tax-free return of capital to the extent
of the U.S. holder's adjusted tax basis in the common stock and thereafter as
gain from the sale or exchange of that stock. Subject to applicable rules, U.S.
holders that are corporations may be eligible to claim a deduction equal to a
portion of any distributions received that are treated as dividends. Special
rules may apply to corporate U.S. holders upon the receipt of any "extraordinary
dividends" with respect to the common stock.
Sale
Upon the sale, exchange or other taxable disposition of our common stock,
a U.S. holder will recognize capital gain or loss equal to the difference
between (i) the amount of cash and the fair market value of any property
received upon the disposition and (ii) the U.S. holder's adjusted tax basis in
the common stock. Such capital gain or loss will be long-term if the U.S.
holder's holding period is more than one year.
Non-U.S. Holders
Dividends
If we make distributions on our common stock, those distributions
generally will be treated as a dividend to the extent of our current and
accumulated earnings and profits as of the end of the year of distribution.
Subject to the discussion below of backup withholding, any such distribution
treated as dividends to a non-U.S. holder generally will be subject to a 30%
U.S. federal withholding tax, unless (i) the dividend is effectively connected
with the conduct of a U.S. trade or business of the non-U.S. holder or a lower
treaty rate applies and (ii) the non-U.S. holder provides us with proper
certification as to the non-U.S. holder's exemption from, or as to the reduced
rate of, withholding on Form W-8ECI or W-8BEN (or appropriate substitute form),
respectively. If the dividend is effectively connected with the conduct of a
U.S. trade or business, it will be subject to the U.S. federal income tax on net
income that applies to U.S. persons generally and, under certain circumstances
with respect to corporate holders, to the branch profits tax, which is generally
imposed at a 30% rate, subject in each case to income tax treaty exceptions.
Sale
A non-U.S. holder will not be subject to U.S. federal income tax or
withholding tax on gain realized on the sale, exchange, redemption or other
disposition of common stock, unless:
o in the case of an individual non-U.S. holder, that holder is present
in the U.S. for 183 days or more in the year of the disposition and
certain other requirements are met; or
16
o the gain is effectively connected with the conduct of a U.S. trade
or business of the non-U.S. holder.
If the gain is effectively connected to the conduct of a U.S. trade or
business, it will be subject to the U.S. federal income tax on net income that
applies to U.S. persons generally and, under certain circumstances with respect
to corporate holders, to the branch profits tax, which is generally imposed at a
30% rate, subject in each case to income tax treaty exceptions.
Notwithstanding the above, if we are or become a U.S. real property
holding corporation (a "USRPHC"), a non-U.S. holder could be subject to federal
income tax with respect to gain realized on the disposition of shares of common
stock. Amounts withheld, if any, with respect to such gain pursuant to the rules
applicable to dispositions of U.S. real property interests would be creditable
against that non-U.S. holder's U.S. federal income tax liability and could
entitle that non-U.S. holder to a refund upon furnishing required information to
the IRS. In general, we would be a USRPHC if interests in U.S. real estate
comprised most of our assets. We do not believe that we are a USRPHC or will
become a USRPHC in the future.
United States Federal Estate Tax
Common stock actually or beneficially held by an individual who is not a
citizen or resident of the U.S., as specifically defined for U.S. federal estate
tax purposes, at the time of death (or who previously transferred such stock
subject to certain retained rights or powers) will be subject to U.S. federal
estate tax unless otherwise provided by an applicable estate tax treaty.
Backup Withholding and Information Reporting
Non-exempt U.S. holders will be subject to information reporting with
respect to payments of dividends on, and possibly proceeds from the disposition
of, common stock. Non-exempt U.S. holders who are subject to information
reporting and who do not provide appropriate information when requested may be
subject to backup withholding. U.S. holders should consult their tax advisors.
Payments of dividends on common stock to non-U.S. holders will be subject
to information reporting on Form 1042-S. If the common stock is held by a
non-U.S. holder through a non-U.S., and non-U.S. related, broker or financial
institution, backup withholding generally would not be required. Backup
withholding may apply if the common stock is held by a non-U.S. holder through a
U.S., or U.S. related, broker or financial institution and the non-U.S. holder
fails to provide appropriate information. Non-U.S. holders should consult their
tax advisors.
Any amounts withheld from a payment under the backup withholding rules
will be allowed as a refund or credit against a holder's federal income tax
liability, provided that the required information is furnished to the IRS. Some
holders (including, among others, U.S. corporations) are generally not subject
to information reporting and backup withholding.
17
SELLING SECURITYHOLDERS
The selling securityholders, including their transferees, pledgees or
donees or their successors, may from time to time offer and sell a total of
1,818,504 shares of common stock under this prospectus, which amount consists of
(i) 1,182,400 shares of common stock issued or issuable upon exercise of
detachable warrants issued by us in private placements in 2003, (ii) 430,000
shares of common stock issuable upon exercise of options and (iii) 206,104
additional shares of common stock currently held.
The following table sets forth certain information, as of June 22, 2004,
about the selling securityholders for which we are registering common stock for
resale to the public. To the best of our knowledge, none of the selling
securityholders has any plan, arrangement, understanding, agreement or
commitment to sell its securities. Within the past three years, the following
persons have held the following positions or offices within Casual Male, or have
had the following material relationship with the Company during such time: (a)
Stephen Duff, who was a director of the Company from May 14, 2002 to February
26, 2004, is the Treasurer of Ninth Floor Corporation, the general partner of
Clark Partners I, L.P., and is also the Chief Investment Officer of The Clark
Estates, Inc., the beneficial holder of approximately 7.1% of the outstanding
common stock of the Company; (b) Seymour Holtzman, the Chairman of the Company's
Board of Directors and the beneficial holder of approximately 14.3% of the
Company's outstanding common stock (principally held by Jewelcor Management,
Inc.), is also the President and Chief Executive Officer, and indirectly, with
his wife, the primary shareholder of Jewelcor Management, Inc., which is also
party to a consulting agreement with the Company; (c) Baron Small Cap Fund is a
series of Baron Asset Fund, which is an affiliate of Baron Capital Group, Inc.,
the beneficial holder of approximately 6.3% of the outstanding common stock of
the Company; (d) Marc Holtzman is the son of Seymour Holtzman, the Chairman of
the Company's Board of Directors; (e) Robert L. Patron, who was a director of
the Company from October 1999 to May 2002, is the president of Business Ventures
International Inc.; (f) Rose Gerszberg, Efrem Gerszberg, Seth Gerszberg, Marc
Ecko, Marci Tapper, Donniel Zinkin, Ephraim and Devora Zinkin and Alberto Verdi
are members of the family that owns the equity interests in, and Seth Gerszberg
is the Chief Executive Officer of, Ecko Complex, LLC, with which the Company
operated a joint venture from March 2002 through July 31, 2004; (g) Frank J.
Husic, a director of the Company since June 30, 2003, is the controlling person
with respect to the Frank J. Husic Rollover IRA and is also the sole shareholder
and general partner of Husic Capital Management, the beneficial holder of
approximately 6.5% of the outstanding common stock of the Company; (h) Alan S.
Bernikow has been a director of the Company since June 30, 2003; (i) each of
Raymond Perlman, Wayne T. Green and Efrem Gerszberg is an employee of an
affiliate of Jewelcor Management, Inc., the beneficial holder of approximately
12.1% of the outstanding common stock of the Company and a party to a consulting
agreement with the Company; (j) George Foreman, who was a director of the
Company from March to April 2004, is the Company's spokesperson; and (k) Diane
and Hugh Unger, the trustees of the Diane E. Unger Inter Vivos Trust are the
parents of Jeff Unger, the Company's Vice President of Investor Relations .
The information regarding the selling securityholders' beneficial
ownership after the sales made pursuant to this prospectus assumes that all of
the shares of common stock subject to sale pursuant to this prospectus shall
have been sold. Each of the selling securityholders has provided the information
set forth below relating to the number of shares such securityholder currently
beneficially owns. The shares subject to sale pursuant to this prospectus may be
offered from time to time, in whole or in part, by the selling securityholders
or their transferees. Information about the selling securityholders may change
over time. Any changed information given to us by the selling securityholders
will be set forth in prospectus supplements if and when necessary.
18
Number of Shares of Common Stock Beneficially
Common Stock Number of Shares Owned After the Sales
Beneficially Owned of Common Stock ---------------------------
Selling Securityholders Before Any Sale (1) Subject to Sale Number** Percent***
- --------------------------------------------- ------------------- ---------------- --------- -----------
Clark Partners I, L.P. (2) 2,446,324 100,000 2,346,324 6.8%
- -------------------------------------------------------------------------------------------------------------------------
Jewelcor Management, Inc. (3) 4,123,973 286,104 3,837,869 11.1%
- -------------------------------------------------------------------------------------------------------------------------
Baron Small Cap Fund (4) 2,257,353 100,000 2,157,353 6.0%
- -------------------------------------------------------------------------------------------------------------------------
Paul R. Mancia DDS P.C. Profit Sharing
Plan (5) 84,066 10,000 74,066 *
- -------------------------------------------------------------------------------------------------------------------------
Marc L. Holtzman (6) 306,300 20,000 286,300 *
- -------------------------------------------------------------------------------------------------------------------------
Benchmark Partners, L.P. (7) 176,000 26,000 150,000 *
- -------------------------------------------------------------------------------------------------------------------------
Family Trust created under the duly
probated Last Will and Testament of
Samuel L. Lane, Deceased (8) 4,000 4,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Prism Partners I, L.P. (9) 20,000 20,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Prism Partners II Offshore Fund (10) 20,000 20,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Allen Brill (11) 44,000 4,000 40,000 0
- -------------------------------------------------------------------------------------------------------------------------
Diane E. Unger Inter Vivos Trust (12) 2,000 2,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Business Ventures International Inc. (13) 110,000 10,000 100,000 *
- -------------------------------------------------------------------------------------------------------------------------
Rose Gerszberg (14) 20,000 20,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Efrem Gerszberg (15) 10,000 10,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Seth Gerszberg (16) 20,000 20,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Marc Ecko (17) 20,000 20,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Marci Tapper (18) 20,000 20,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Lawrence Seidman Retirement Plan and
Trust (19) 4,000 4,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Frank J. Husic Rollover IRA (20) 20,000 20,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Alan S. Bernikow (21) 26,802 4,000 22,802 *
- -------------------------------------------------------------------------------------------------------------------------
WEC Partners, L.P. (22) 46,600 10,000 36,600 *
- -------------------------------------------------------------------------------------------------------------------------
Far West Capital Partners, L.P. (23) 527,639 80,000 447,639
- -------------------------------------------------------------------------------------------------------------------------
Robert G. Schiro 2001 Trust (24) 97,000 16,000 81,000 *
- -------------------------------------------------------------------------------------------------------------------------
Alberto Verdi (25) 6,000 6,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Harbour Holdings Ltd. (26) 164,000 164,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Strong Special Investment, L.P. (27) 116,000 116,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Ephraim Zinkin and Devora Zinkin (28) 2,000 2,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Donniel Zinkin (29) 2,000 2,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Raymond Perlman (30) 11,000 4,000 7,000 *
- -------------------------------------------------------------------------------------------------------------------------
Wayne T. Green (31) 12,000 2,000 10,000 *
- -------------------------------------------------------------------------------------------------------------------------
FPA Crescent Fund (32) 60,000 60,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
Zeke LP (33) 230,000 80,000 150,000 *
- -------------------------------------------------------------------------------------------------------------------------
Hourglass Master Fund, Ltd. (34) 120,000 120,000 0 0
- -------------------------------------------------------------------------------------------------------------------------
George Foreman (35) 215,000 100,000 115,000 *
- -------------------------------------------------------------------------------------------------------------------------
Seymour Holtzman (36) 4,933,405 330,000 4,603,405 13.3%
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------
*Less than 1%.
19
**Assumes that the selling securityholders will sell all of their shares of
common stock subject to sale pursuant to this prospectus. We cannot assure you
that the selling securityholders will sell all or any of their shares of common
stock.
***Percentage ownership is based on 34,199,109 shares of common stock
outstanding as of June 22, 2004, plus securities deemed to be outstanding with
respect to individual stockholders pursuant to Rule 13d-3(d)(1) under the
Exchange Act.
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and includes generally voting and/or
investment power with respect to securities. Shares of common stock
subject to warrants, options or convertible stock currently exercisable or
convertible, or exercisable or convertible within 60 days of June 22, 2004
are deemed outstanding for the purpose of computing the percentage
beneficially owned by the person holding such warrants, options or
convertible stock but are not deemed outstanding for the purpose of
computing the percentage beneficially owned by any other person.
(2) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 100,000 shares of common
stock issuable upon exercise of a warrant. The Board of Directors of Ninth
Floor Corporation, the general partner of Clark Partners I., L.P.,
exercises sole voting and dispositive power with respect to the shares
subject to sale underlying the warrant owned by Clark Partners I., L.P.,
which warrant was acquired in the ordinary course of business.
(3) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 80,000 shares of common stock
issuable upon exercise of a warrant and 206,104 shares of common stock
currently held by Jewelcor Management, Inc. as compensation under a
consulting agreement with the Company. Seymour Holtzman is the Chairman,
President and Chief Executive Officer of, and indirectly with his wife the
primary shareholder of, Jewelcor Management, Inc., and, in such
capacities, exercises sole voting and dispositive power with respect to
the shares subject to sale currently held by Jewelcor Management, Inc. and
underlying the warrant owned by Jewelcor Management, Inc., which warrant
was acquired in the ordinary course of business.
(4) The amount shown as beneficially owned before any sale includes 1,507,353
shares of common stock issuable upon exercise of warrants, and the amount
shown as subject to sale consists of 100,000 shares of common stock
issuable upon exercise of a warrant. Clifford Greenberg is the Portfolio
Manager of Bamco Inc., the investment adviser to Baron Small Cap Fund,
and, in such capacity, exercises sole voting and dispositive power with
respect to the shares subject to sale underlying the warrant owned by
Baron Small Cap Fund, which warrant was acquired in the ordinary course of
business.
(5) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 10,000 shares of common stock
issuable upon exercise of a warrant. Paul R. Mancia, the President,
Secretary and Treasurer of the Paul R. Mancia DDS P.C. Profit Sharing
Plan, exercises sole voting and dispositive power with respect to the
shares subject to sale underlying the warrant owned by the Paul R. Mancia
DDS P.C. Profit Sharing Plan, which warrant was acquired in the ordinary
course of business.
(6) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 20,000 shares of common stock
issuable upon exercise of a warrant.
(7) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 26,000 shares of common stock
issuable upon exercise of a warrant. Richard Whitman and Lorraine DiPaolo,
the general partners of Benchmark Partners, L.P., exercise shared voting
and dispositive power with respect to the shares subject to sale
underlying the warrant owned by Benchmark Partners, L.P., which warrant
was acquired in the ordinary course of business.
(8) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 4,000 shares of common stock
issuable upon exercise of a warrant.
20
(9) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 20,000 shares of common stock issuable upon
exercise of a warrant. Jerald Weintraub is the manager of Weintraub
Capital Management LLC, the general partner of Prism Partners I, L.P.,
and, in such capacity, exercises sole voting and dispositive power with
respect to the shares subject to sale underlying the warrant owned by
Prism Partners I, L.P., which warrant was acquired in the ordinary course
of business.
(10) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 20,000 shares of common stock issuable upon
exercise of a warrant. Jerald Weintraub is the manager of Weintraub
Capital Management LLC, the investment advisor of Prism Partners II
Offshore Fund, and, in such capacity, exercises sole voting and
dispositive power with respect to the shares subject to sale underlying
the warrant owned by Prism Partners II Offshore Fund, which warrant was
acquired in the ordinary course of business.
(11) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 4,000 shares of common stock
issuable upon exercise of a warrant.
(12) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 2,000 shares of common stock
issuable upon exercise of a warrant. Diane E. Unger and Hugh Unger are the
trustees of the Diane E. Unger Inter Vivos Trust and, in such capacity,
exercise shared voting and dispositive power with respect to the shares
subject to sale underlying the warrant owned by the Diane E. Unger Inter
Vivos Trust, which warrant was acquired in the ordinary course of
business.
(13) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 10,000 shares of common stock
issuable upon exercise of a warrant. Robert L. Patron, the President of
Business Ventures International Inc., exercises sole voting and
dispositive power with respect to the shares subject to sale underlying
the warrant owned by Business Ventures International Inc., which warrant
was acquired in the ordinary course of business.
(14) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 20,000 shares of common stock issuable upon
exercise of a warrant.
(15) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 10,000 shares of common stock issuable upon
exercise of a warrant.
(16) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 20,000 shares of common stock issuable upon
exercise of a warrant.
(17) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 20,000 shares of common stock issuable upon
exercise of a warrant.
(18) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 20,000 shares of common stock issuable upon
exercise of a warrant.
(19) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 4,000 shares of common stock
issuable upon exercise of a warrant. Lawrence Seidman, the Trustee for
Lawrence Seidman Retirement Plan and Trust, exercises sole voting and
dispositive power with respect to the shares subject to sale underlying
the warrant owned by Lawrence Seidman Retirement Plan and Trust, which
warrant was acquired in the ordinary course of business.
(20) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 20,000 shares of common stock
issuable upon exercise of a warrant. Frank Husic, the managing partner of
the Frank J. Husic Rollover IRA, exercises sole voting and dispositive
power with respect to the shares subject to sale underlying the warrant
owned by the Frank J. Husic Rollover IRA, which warrant was acquired in
the ordinary course of business.
(21) The amount shown as beneficially owned before any sale includes 4,000
shares of common stock issuable upon exercise of a warrant and 20,000
shares of common stock issuable upon exercise of options. The
21
amount shown as subject to sale consists of, 4,000 shares of common stock
issuable upon exercise of a warrant.
(22) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 10,000 shares of common stock
issuable upon exercise of a warrant. Warren E. Clifford, the general
partner of WEC Partners, LP, exercises sole voting and dispositive power
with respect to the shares subject to sale underlying the warrant owned by
WEC Partners, LP, which warrant was acquired in the ordinary course of
business.
(23) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 40,000 shares of common stock
issuable upon exercise of a warrant. Robert G. Schiro is the General
Partner of Far West Capital Management, LP, the General Partner of Far
West Capital Partners, L.P., and, in such capacity, exercises sole voting
and dispositive power with respect to the shares subject to sale
underlying the warrant owned by Far West Capital Partners, L.P., which
warrant was acquired in the ordinary course of business.
(24) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 16,000 shares of common stock
issuable upon exercise of a warrant. Robert G. Schiro, the Trustee for
Robert G. Schiro 2001 Trust, exercises sole voting and dispositive power
with respect to the shares subject to sale underlying the warrant owned by
Robert G. Schiro 2001 Trust, which warrant was acquired in the ordinary
course of business.
(25) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 6,000 shares of common stock issuable upon
exercise of a warrant.
(26) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 164,000 shares of common stock issuable upon
exercise of a warrant. Charles A. Parquelet is the Portfolio Manager of
Skylands Capital, LLC, the Investment Advisor to Harbour Holdings Ltd.,
and, in such capacity, exercises sole voting and dispositive power with
respect to the shares subject to sale underlying the warrant owned by
Harbour Holdings Ltd., which warrant was acquired in the ordinary course
of business.
(27) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 116,000 shares of common stock issuable upon
exercise of a warrant. Charles A. Parquelet is the Portfolio Manager of
Skylands Capital, LLC, the Investment Advisor to Strong Special
Investment, L.P., and, in such capacity, exercises sole voting and
dispositive power with respect to the shares subject to sale underlying
the warrant owned by Strong Special Investment, L.P., which warrant was
acquired in the ordinary course of business.
(28) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 2,000 shares of common stock issuable upon
exercise of a warrant. Ephraim and Devora Zinkin exercise joint voting and
dispositive power with respect to the shares subject to sale underlying
the warrant jointly owned by them.
(29) The amounts shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 2,000 shares of common stock
issuable upon exercise of a warrant.
(30) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 4,000 shares of common stock
issuable upon exercise of a warrant.
(31) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 2,000 shares of common stock
issuable upon exercise of a warrant.
(32) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 60,000 shares of common stock issuable upon
exercise of a warrant. Steve Romick, the President of FPA Crescent Fund
and the Senior Vice President of First Pacific Advisors, Inc., the
investment adviser to FPA Crescent Fund, exercises sole voting and
dispositive power with respect to the shares subject to sale underlying
the warrant owned by FPA Crescent Fund, which warrant was acquired in the
ordinary course of business.
22
(33) The amount shown as beneficially owned before any sale includes, and the
amount shown as subject to sale consists of, 80,000 shares of common stock
issuable upon exercise of a warrant. Ed Antoian, the general partner of
Zeke LP, exercises sole voting and dispositive power with respect to the
shares subject to sale underlying the warrant owned by Zeke LP, which
warrant was acquired in the ordinary course of business.
(34) The amounts shown as beneficially owned before any sale and shown as
subject to sale consist of 120,000 shares of common stock issuable upon
exercise of a warrant. John Barton is the Managing Member of Tablerock
Fund Management, LLC, the Advisor to Hourglass Master Fund, Ltd., and, in
such capacity, exercises sole voting and dispositive power with respect to
the shares subject to sale underlying the warrant owned by Hourglass
Master Fund, Ltd., which warrant was acquired in the ordinary course of
business.
(35) The amount shown as beneficially owned before any sale consists of 215,000
shares of common stock issuable upon exercise of stock options, and the
amount shown as subject to sale consists of 100,000 shares of common stock
issuable upon exercise of stock options.
(36) The amount shown as beneficially owned before any sale includes 4,123,973
shares owned of record by Jewelcor Management, Inc., of which Mr. Holtzman
is the Chairman, President and Chief Executive Officer and, indirectly
with his wife, the primary shareholder. The amount shown as beneficially
owned before any sale includes, and the amount shown as subject to sale
consists of, 330,000 shares of common stock issuable upon exercise of
stock options. The amount shown as beneficially owned before any sale does
not include 66,667 shares currently exercisable pursuant to stock options
granted to Mr. Holtzman on July 15, 2004.
23
PLAN OF DISTRIBUTION
The selling securityholders and their successors, which include their
pledgees, donees, partnership distributees and other transferees receiving the
warrants or the common stock from the selling securityholders in non-sale
transfers, may sell the common stock directly to purchasers or through
underwriters, broker-dealers or agents. Underwriters, broker-dealers or agents
may receive compensation in the form of discounts, concessions or commissions
from the selling securityholders or the purchasers. These discounts, concessions
or commissions may be in excess of those customary in the types of transactions
involved.
The common stock may be sold in one or more transactions at:
o fixed prices that may be changed;
o prevailing market prices at the time of sale;
o prices related to the prevailing market prices;
o varying prices determined at the time of sale; or
o negotiated prices.
These sales may be effected in transactions, which may involve cross or
block transactions, in the following manner:
o on any national securities exchange or quotation service on which
the common stock may be listed or quoted at the time of sale;
o in the over-the-counter-market;
o in transactions otherwise than on these exchanges or services or in
the over-the-counter market (privately negotiated transactions);
o through the writing and exercise of options, whether these options
are listed on an options exchange or otherwise; or
o through any combination of the foregoing.
Selling securityholders may enter into hedging transactions with
broker-dealers or other financial institutions which may in turn engage in short
sales of the common stock and deliver these securities to close out short
positions. In addition, the selling securityholders may sell the common stock
short and deliver the common stock to close out short positions or loan or
pledge the common stock to broker-dealers that in turn may sell such securities.
Selling securityholders may sell or transfer their shares of common stock
other than by means of this prospectus. In particular, any securities covered by
this prospectus that qualify for sale pursuant to Rule 144 under the Securities
Act may be sold thereunder, rather than pursuant to this prospectus.
The aggregate proceeds to the selling securityholders from the sale of the common stock will besecurities as set forth in the purchase price of the common stock less any discounts
and commissions. A selling securityholder reserves the right to accept and,
together with its agents, to reject any proposed purchase of common stock to be
made directly or through agents.applicable prospectus supplement. We will not receive any of the proceeds from this offering.
In orderthe sale of common stock being offered by the selling stockholders.
For a description of our common stock, please see the Description of Securities of the Company filed as Exhibit 4.1 to complyour Annual Report on Form 10-K for the fiscal year ended February 1, 2020 filed with the securities lawsSEC on March 19, 2020, and any future description of some jurisdictions, if
applicable,capital stock filed thereafter for the purpose of updating such description.
DESCRIPTION OF PREFERRED STOCK
Under our certificate of incorporation, we have authority to issue 1,000,000 shares of preferred stock, par value $.01 per share. Of these shares, 50,000 shares have been designated as “Series A Junior Participating Preferred Stock,” none of which are outstanding, and 200,000 shares have been designated as “Series B Convertible Preferred Stock,” none of which are outstanding.
Shares of preferred stock may be issued from time to time, in one or more series, as authorized by our board of directors. Prior to the issuance of shares of each series, the board of directors is required by the Delaware General Corporation Law and our certificate of incorporation to fix, for each series, the designations, powers and preferences and the relative, participating, optional or other special rights of the shares of each series and any qualifications, limitations and restrictions thereof, as are permitted by Delaware law. Our board of directors could authorize the issuance of shares of preferred stock with terms and conditions that could have the effect of discouraging a takeover or other transactions that holders of common stock may sellmight believe to be in some jurisdictions through
registeredtheir best interests or licensed broker-dealers. In addition, under certain circumstances
in some jurisdictions, thewhich holders of the common stock may be required to
24
registersome, or qualify the securities for sale or comply with an available
exemption from the registration and qualification requirements.
Our common stock is quoted on the Nasdaq National Market.
The selling securityholders and any underwriters, broker-dealers or agents
that participate in the sale of the common stock may be deemed to be
"underwriters" within the meaning of the Securities Act. In this case, any
discounts, commissions, concessions or profit they earn on any resalea majority, of the shares of common stock might receive a premium for their shares over the then market price of such shares of common stock. When issued, the preferred stock will be fully paid and nonassessable and will have no preemptive rights.
If we decide to issue any preferred stock pursuant to this prospectus, we will describe in a prospectus supplement the terms of the preferred stock, including, if applicable, the following:
the title of the series and stated value;
the number of shares of the series of preferred stock offered, the liquidation preference per share, if applicable, and the offering price;
the applicable dividend rate(s) or amount(s), period(s) and payment date(s) or method(s) of calculation thereof;
the date from which dividends on the preferred stock will accumulate, if applicable;
any procedures for auction and remarketing;
any provisions for a sinking fund;
any applicable provision for redemption and the price or prices, terms and conditions on which preferred stock may be underwriting discountsredeemed;
any securities exchange listing;
any voting rights and commissions underpowers;
whether interests in the Securities Act. In addition, selling securityholders who are deemedpreferred stock will be represented by depositary shares;
the terms and conditions, if applicable, of conversion into shares of our common stock, including the conversion price or rate or manner of calculation thereof;
a discussion of any material U.S. federal income tax considerations;
the relative ranking and preference as to be
"underwriters" withindividend rights and rights upon our liquidation, dissolution or the meaningwinding up of our affairs;
any limitations on issuance of any series of preferred stock ranking senior to or on a parity with such series of preferred stock as to dividend rights and rights upon our liquidation, dissolution or the winding up of our affairs; and
any other specific terms, preferences, rights, limitations or restrictions of such series of preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
We may issue receipts for depositary shares representing fractional shares of preferred stock. The fractional share of the Securities Actapplicable series of preferred stock represented by each depositary share will be set forth in the applicable prospectus supplement.
The shares of any series of preferred stock underlying any depositary shares that we may sell under this prospectus will be deposited under a deposit agreement between us and a depositary selected by us. Subject to the terms of the deposit agreement, each holder of a depositary share will be entitled, in proportion to the applicable fraction of a share of the preferred stock underlying the depositary share, to all of the rights, preferences, and privileges, and will be subject to the prospectus delivery requirementsqualifications and restrictions, of the Securities Act and maypreferred stock underlying that depositary share.
The depositary shares will be subjectevidenced by depositary receipts issued under the deposit agreement. Depositary receipts will be distributed to statutory liabilities, including, but not limited to, liabilities under Sections
11, 12 and 17the holders of the Securities Act.
The selling securityholders and any other persons participatingdepositary shares that are sold in the distributionapplicable offering. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any deposit agreement, including a form of depositary receipt, that describes the terms of any depositary shares we are offering before the issuance of the common stock will be subject to applicablerelated depositary shares. The following summaries of material provisions of the Exchange Actdeposit agreement, the depositary shares, and the rulesdepositary receipts are subject to, and regulations thereunder. Regulation Mqualified in their entirety by reference to, all of the Exchange Act may limit the timing of purchases and salesprovisions of the common stock bydeposit agreement applicable to a particular offering of depositary shares. We urge you to read the selling securityholdersprospectus supplements relating to any depositary shares that are sold under this prospectus, as well as the complete deposit agreement and any suchdepositary receipt.
Form
Pending the preparation of definitive depositary receipts, the depositary may, upon our written order, issue temporary depositary receipts substantially identical to the definitive depositary receipts but not in definitive form. These temporary depositary receipts will entitle their holders to all of the rights of definitive depositary receipts. Temporary depositary receipts will then be exchangeable for definitive depositary receipts at our expense.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other person. In addition, Regulation M
may restrict the ability of any person participating in the distribution to
engage in market-making activitiescash distributions received with respect to the particular securities
beingunderlying preferred stock to the record holders of depositary shares in proportion to the number of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary shares in proportion to the number of depositary shares owned by those holders, unless the depositary determines that it is not feasible to do so. If this occurs, the depositary may, with our approval, sell the property and distribute the net proceeds from the sale to those holders in proportion to the number of depositary shares owned by them.
The amount distributed to holders of depositary shares will be reduced by any amounts required to be withheld by us or the depositary on account of taxes or other governmental charges.
Liquidation Preference
If a series of preferred stock underlying the depositary shares has a liquidation preference, in the event of our voluntary or involuntary liquidation, dissolution, or winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Withdrawal of Underlying Preferred Stock
Except as otherwise provided in a prospectus supplement, holders may surrender depositary receipts at the principal office of the depositary and, upon payment of any unpaid amount due to the depositary, be entitled to receive the number of whole shares of underlying preferred stock and all money and other property represented by the related depositary shares. We will not issue any partial shares of preferred stock. If the holder delivers depositary receipts evidencing a number of depositary shares that represent more than a whole number of shares of preferred stock, the depositary will issue a new depositary receipt evidencing the excess number of depositary shares to the holder.
Redemption of Depositary Shares
If the preferred stock underlying any depositary shares we may sell under this prospectus is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from any such redemption, in whole or in part, of that underlying preferred stock. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share payable with respect to the underlying preferred stock. Whenever we redeem shares of underlying preferred stock that are held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing the shares of underlying preferred stock so redeemed. If fewer than all of the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or proportionately, as may be determined by the depositary.
After the date fixed for redemption, the depositary shares called for redemption will no longer be deemed to be outstanding, and all rights of the holders of the depositary shares will cease, except the right to receive the monies payable and any other property to which the holders were entitled upon the redemption upon surrender to the depositary of the depositary receipts evidencing the depositary shares. Any funds deposited by us with the depositary for any depositary shares that the holders fail to redeem will be returned to us after a period of uptwo years from the date the funds are deposited.
Voting
Upon receipt of notice of any meeting at which holders of the preferred stock underlying any depositary shares that we may sell under this prospectus are entitled to five business days priorvote, the depositary will mail the information contained in the notice to the commencementrecord holders of the distribution. This may affect the marketabilitydepositary shares. Each record holder of the common stock.
If required,depositary shares on the specific commonrecord date, which will be the same date as the record date for the underlying preferred stock, will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of the underlying preferred stock represented by the holder’s depositary shares. The depositary will then try, as far as practicable, to vote the number of shares of preferred stock underlying those depositary shares in accordance with those instructions, and we will agree to take all reasonable actions which may be deemed necessary by the depositary to enable the depositary to do so. The depositary will not vote the underlying preferred stock to be sold, the names of the
selling securityholders, the respective purchase prices and public offering
prices, the names of any agent, dealer or underwriter and any applicable
commissions or discountsextent it does not receive specific instructions with respect to the depositary shares representing such preferred stock.
Conversion of Preferred Stock
If the prospectus supplement relating to any depositary shares that we may sell under this prospectus states that the underlying preferred stock is convertible into our common stock or other securities, the following will apply. The depositary shares, as such, will not be convertible into any of our securities. Rather, any holder of the depositary shares may surrender the related depositary receipts to the depositary with written instructions that direct us to cause conversion of the preferred stock represented by the depositary shares into or for whole shares of our common stock or other securities, as applicable. Upon receipt of those instructions and any amounts payable by the holder in connection with the conversion, we will cause the conversion using the same procedures as those provided for conversion of the underlying preferred stock. If only some of a particular offerholder’s depositary shares are converted, a new depositary receipt or receipts will be issued to the holder for any depositary shares not converted.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may at any time be amended by agreement between us and the depositary. However, any amendment which materially and adversely alters the rights of the holders of depositary shares will not be effective until 90 days after notice of that amendment has been given to the holders. Each holder of depositary shares at the time any amendment becomes effective shall be deemed to consent and agree to that amendment and to be bound by the deposit agreement as so amended. The deposit agreement may be terminated by us or by the depositary only if all outstanding depositary shares have been redeemed or converted into any other securities into which the underlying preferred stock is convertible or there has been a final distribution, including to holders of depositary receipts, of the underlying preferred stock in connection with our liquidation, dissolution, or winding up.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangement. We will also pay charges of the depositary in connection with the initial deposit of the preferred stock, the initial issuance of the depositary shares, any redemption of the preferred stock, and all withdrawals of preferred stock by owners of depositary shares. Holders of depositary receipts will pay transfer, income, and other taxes and governmental charges and other specified charges as provided in the deposit arrangement for their accounts. If these charges have not been paid, the depositary may refuse to transfer depositary shares, withhold dividends and distributions, and sell the depositary shares evidenced by the depositary receipt.
Limitation on Liability
Neither we nor the depositary will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in performing our respective obligations under the deposit agreement. Our obligations and those of the depositary will be limited to performance of our respective duties under the deposit agreement without, in our case, negligence or bad faith or, in the case of the depositary, negligence or willful misconduct. We and the depositary may rely upon advice of counsel or accountants, or upon information provided by persons presenting the underlying preferred stock for deposit, holders of depositary receipts, or other persons believed by us in good faith to be competent and on documents believed to be genuine.
Corporate Trust Office of Depositary
The depositary’s corporate trust office will be set forth in the applicable prospectus supplement relating to a series of depositary shares. The depositary will act as transfer agent and registrar for depositary receipts, and, if shares of a series of preferred stock are redeemable, the depositary will act as redemption agent for the corresponding depositary receipts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its intent to do so, and we may at any time remove the depositary, any such resignation or removal to take effect upon the appointment of a successor depositary meeting the requirements specified in the deposit agreement and its acceptance of such appointment.
Reports to Holders
We will deliver all required reports and communications to holders of the preferred stock to the depositary, and it will forward those reports and communications to the holders of depositary shares. Upon request, the depositary will provide for inspection to the holders of depositary shares the transfer books of the depositary and the list of holders of receipts; provided that any requesting holder certifies to the depositary that such inspection is for a proper purpose reasonably related to such person’s interest as an accompanyingowner of depositary shares evidenced by the receipts.
We may issue the warrants in one or more series under one or more warrant agreements, each to be entered into between us and a bank, trust company, or other financial institution as warrant agent. We may add, replace, or terminate warrant agents from time to time. We may also choose to act as our own warrant agent, or may choose one of our subsidiaries to do so.
The warrant agent under a warrant agreement will act solely as our agent in connection with the warrants issued under that agreement. The warrant agent will not assume any obligation or relationship of agency or trust for or with any holders of those warrants. Any holder of warrants may, without the consent of any other person, enforce by appropriate legal action, on its own behalf, its right to exercise those warrants in accordance with their terms. Until the warrant is properly exercised, no holder of any warrant will be entitled to any rights of a holder of the warrant property purchasable upon exercise of the warrant.
Terms
The applicable prospectus supplement will describe the terms of any warrants in respect of which this prospectus is being delivered, including:
the title of such warrants;
the aggregate number of such warrants;
the price or prices at which such warrants will be issued;
the currency or currencies, in which the price of such warrants will be payable;
the securities purchasable upon exercise of such warrants;
the price at which and the currency or currencies in which the securities or other rights purchasable upon exercise of such warrants may be purchased;
the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
if applicable, the date on and after which such warrants and the related securities will be separately transferable;
information with respect to book-entry procedures, if any;
if applicable, a discussion of any material United States federal income tax considerations; and
any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
Form, Exchange, and Transfer
We may issue the warrants in registered form or bearer form. Warrants issued in registered form, i.e., book-entry form, will be represented by a global security registered in the name of a depository, which will be the holder of all the warrants represented by the global security. Those investors who own beneficial interests in a global warrant will do so through participants in the depository’s system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depository and its participants. In addition, we may issue warrants in non-global form, i.e., bearer form. If any warrants are issued in non-global form, warrant certificates may be exchanged for new warrant certificates of different denominations, and holders may exchange, transfer, or exercise their warrants at the warrant agent’s office or any other office indicated in the applicable prospectus supplement, information incorporated by reference or free writing prospectus.
Prior to the exercise of their warrants, holders of warrants exercisable for debt securities will not have any of the rights of holders of the debt securities purchasable upon such exercise and will not be entitled to payments of principal (or premium, if any) or interest, if any, on the debt securities purchasable upon such exercise. Prior to the exercise of their warrants, holders of warrants exercisable for shares of preferred stock or common stock will not have any rights of holders of the preferred stock or common stock purchasable upon such exercise and will not be entitled to dividend payments, if any, or voting rights of the preferred stock or common stock purchasable upon such exercise.
Exercise of Warrants
A warrant will entitle the holder to purchase an amount of securities at an exercise price that will be stated in, or that will be determinable as described in, the applicable prospectus supplement or if appropriate,information incorporated by reference therein. Holders of warrants may exercise the warrants at any time up to the specified time on the expiration date set forth in the applicable prospectus supplement or information incorporated by reference therein. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be redeemed as set forth in the applicable prospectus supplement or information incorporated by reference therein.
Warrants may be exercised as set forth in the applicable prospectus supplement or information incorporated by reference therein. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement or information incorporated by reference therein, we will forward, as soon as practicable, the securities purchasable upon such exercise. If less than all of the warrants represented by such warrant certificate are exercised, a post-effective
amendmentnew warrant certificate will be issued for the remaining warrants.
DESCRIPTION OF DEBT SECURITIES
Our debt securities may be issued from time to time in one or more series and may include senior debt securities, subordinated debt securities, convertible debt securities and exchangeable debt securities. The particular terms of any series of debt securities and the extent to which the general provisions may apply to a particular series of debt securities will be described in the prospectus supplement relating to that series. When describing any debt securities, references to “we,” “us” and “our” refer to the issuer of those debt securities and not to any of its subsidiaries.
The debt securities we offer will be issued under an indenture between us and the trustee named in the indenture. You should also read the indenture under which the debt securities are to be issued. We have filed a form of indenture governing different types of debt securities with the SEC as an exhibit to the registration statement of which this prospectus is a part. LEGAL MATTERS
The validityfollowing summary of the indenture does not purport to be complete and is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture, including definitions therein of certain terms. A form of each debt security, reflecting the specific terms and provisions of that series of debt securities, will be filed with the SEC in connection with each offering and will be incorporated by reference in the registration statement of which this prospectus forms a part. You may obtain a copy of the indenture and any form of debt security that has been filed in the manner described under “Where You Can Find More Information.”
For a comprehensive description of any series of debt securities being offered to you pursuant to this prospectus, you should read this prospectus and the applicable prospectus supplement, indenture (including any amendments or supplements we may enter into from time to time that are permitted under the debt securities or indenture) and form of debt security.
General Terms of the Indenture
The indenture does not limit the amount of debt securities that we may issue. The indenture does provide that we may issue debt securities up to the principal amount that we may authorize, which may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us. For each series of debt securities, any restrictive covenants for those debt securities will be described in the applicable prospectus supplement for those debt securities.
We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may, for United States federal income tax purposes, be treated as if they were issued with “original issue discount,” or OID, because of interest payment and other characteristics. Special United States federal income tax considerations applicable to debt securities issued with original issue discount will be described in more detail in any applicable prospectus supplement.
The prospectus supplement relating to a particular series of debt securities will describe the terms of the debt securities offered by that prospectus supplement and by this prospectus, including the following:
any limit on the aggregate principal amount of that series of debt securities;
• | the date or dates on which principal and premium, if any, of the debt securities of that series is payable; |
interest rates, and the dates from which interest, if any, on the debt securities of that series will accrue, and the dates when interest is payable and the maturity;
the right, if any, to extend the interest payment periods and the duration of the extensions;
the guarantors, if any, of our obligations under the debt securities;
if the amount of payments of principal or interest is to be determined by reference to an index or formula, or based on a coin or currency other than that in which the debt securities are stated to be payable, the manner in which these amounts are determined and the calculation agent, if any, with respect thereto;
the place or places where and the manner in which principal of, premium, if any, and interest, if any, on the debt securities of that series will be payable and the place or places where those debt securities may be presented for transfer and, if applicable, conversion or exchange;
the period or periods within which, the price or prices at which, the currency or currencies in which, and other terms and conditions upon which those debt securities may be redeemed, in whole or in part, at our option or the option of a holder of those securities, if we or a holder is to have that option;
our obligation or right, if any, to redeem, repay or purchase those debt securities pursuant to any sinking fund or analogous provision or at the option of a holder of those securities, and the terms and conditions upon which the debt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation;
the terms, if any, on which the debt securities of that series and any guarantees thereof will be subordinate in right and priority of payment to our other debt;
the denominations in which those debt securities will be issuable;
if other than the entire principal amount of the debt securities when issued, the portion of the principal amount payable upon acceleration of maturity as a result of a default on our obligations;
whether those debt securities will be issued in fully registered form without coupons or in a form registered as to principal only with coupons or in bearer form with coupons;
whether any securities of that series are to be issued in whole or in part in the form of one or more global securities and the depositary for those global securities;
if other than United States dollars, the currency or currencies in which payment of principal of or any premium or interest on those debt securities will be payable;
if the principal of or any premium or interest on the debt securities of that series is to be payable, or is to be payable at our election or the election of a holder of those securities, in securities or other property, the type and amount of those securities or other property, or the manner of determining that amount, and the period or periods within which, and the terms and conditions upon which, any such election may be made;
the covenants relating to the debt securities that are in addition to, modify or delete those described in this prospectus, including the merger, consolidation and sale covenant;
the events of default relating to the debt securities that are in addition to, modify or delete those described in this prospectus;
conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto;
whether and upon what terms the debt securities may be defeased, if different from the provisions set forth in the indenture;
the nature and terms of any security for any secured debt securities;
the terms applicable to any debt securities issued at a discount from their stated principal amount; and
any other specific terms of any debt securities.
The applicable prospectus supplement will present material United States federal income tax considerations for holders of any debt securities and the securities exchange or quotation system on which any debt securities are to be listed or quoted.
Registration and Transfer
Unless otherwise indicated in the applicable prospectus supplement, each series of debt securities will be issued in registered form only, without coupons, and such registered securities will be issued in denominations of $1,000 or any integral multiple thereof.
Unless otherwise indicated in the applicable prospectus supplement, we will pay interest on the debt securities to the persons who are their registered holders at the close of business on a certain date preceding the respective interest payment date. We will not be required to register the transfer or exchange of debt securities of any series during a period beginning 15 days before the mailing of a notice of redemption of or an offer to repurchase debt securities of that series or 15 days before an interest payment date.
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for shares of our common stock issuableor other securities. The terms and conditions of conversion or exchange will be stated in the applicable prospectus supplement. The terms will include, among others, the following:
the conversion or exchange price;
the conversion or exchange period;
provisions regarding our ability or the ability of any holder to convert or exchange the debt securities;
events requiring adjustment to the conversion or exchange price; and
provisions affecting conversion or exchange in the event of our redemption of the debt securities.
Consolidation, Merger or Sale
The indenture generally permits a consolidation or merger between us and another entity, and another corporation, if the surviving corporation meets certain limitations and conditions. Subject to these conditions, the indenture also permits the sale or transfer by us of all or substantially all of our property and assets. If this happens, the remaining or acquiring corporation shall assume all of our responsibilities and liabilities under the indenture including the payment of all amounts due on the debt securities and performance of the covenants in the indenture.
We are only permitted to consolidate or merge with or into any other corporation or sell all or substantially all of our assets according to the terms and conditions of the indenture, as indicated in the applicable prospectus supplement. The remaining or acquiring corporation will be substituted for us in the indenture with the same effect as if it had been an original party to the indenture. Thereafter, the successor corporation may exercise our rights and powers under any indenture, in our name or in its own name.
Redemption and Repurchase
The debt securities may be redeemable at our option, may be subject to mandatory redemption pursuant to a sinking fund or otherwise, or may be subject to repurchase by us at the option of the holders, in each case upon the terms, at the times and at the prices set forth in the applicable prospectus supplement.
Events of Default
The indenture provides that the following will be “events of default” with respect to any series of debt securities:
failure to pay interest for 90 days after the date payment is due and payable;
failure to pay principal or premium, if any, on any debt security when due, either at maturity, upon any redemption, by declaration or otherwise;
failure to make sinking fund payments when due and continuance of such default for a period of 30 days;
failure to perform other covenants for 90 days after notice of such default or breach and request for it to be remedied;
events in bankruptcy, insolvency or reorganization relating to us; or
any other event of default provided in the applicable officer’s certificate, resolution of our board of directors or the supplemental indenture under which we issue a series of debt securities.
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture. For each series of debt securities, any modifications to the above events of default will be described in the applicable prospectus supplement for those debt securities.
The indenture provides that if an event of default specified in the first, second, third, fourth or sixth bullets above occurs and is continuing, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare the principal amount of all those debt securities (or, in the case of discount securities or indexed securities, that portion of the principal amount as may be specified in the terms of that series) to be due and payable immediately. If an event of default specified in the fifth bullet above occurs and is continuing, then the principal amount of all those debt securities (or, in the case of discount securities or indexed securities, that portion of the principal amount as may be specified in the terms of that series) will be due and payable immediately, without any declaration or other act on the part of the trustee or any holder. In certain cases, the holders of a majority in principal amount of the outstanding debt securities of any series may, on behalf of holders of all those debt securities, waive any past default and consequences of such default.
The indenture imposes limitations on suits brought by holders of debt securities against us. Except for actions for payment of overdue principal or interest, no holder of debt securities of any series may institute any action against us under the indenture unless:
the holder has previously given to the trustee written notice of a continuing default;
the holders of at least 25% in principal amount of the outstanding debt securities of the affected series have requested that the trustee institute the action;
the requesting holders have offered the trustee indemnity for the costs, expenses and liabilities that may be incurred by bringing the action;
the trustee has not instituted the action within 90 days of the request and offer of indemnity; and
the trustee has not received inconsistent direction by the holders of a majority in principal amount of the outstanding debt securities of the affected series.
We will be required to file annually with the trustee a certificate, signed by one of our officers, stating whether or not the officer knows of any default by us in the performance, observance or fulfillment of any condition or covenant of the indenture.
Discharge, Defeasance and Covenant Defeasance
We can discharge or decrease our obligations under the indenture as stated below.
We may discharge obligations to holders of any series of debt securities that have not already been delivered to the trustee for cancellation and that have either become due and payable or are by their terms to become due and payable, or are scheduled for redemption, within one year. We may effect a discharge by irrevocably depositing with the trustee cash or government obligations denominated in the currency of the debt securities, as trust funds, in an amount certified to be enough to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and any premium and interest on, the debt securities and any mandatory sinking fund payments.
Unless otherwise provided in the applicable prospectus supplement, we may also discharge certain of our obligations to holders of any series of debt securities at any time, which we refer to as defeasance. We may also be
released from the obligations imposed by certain covenants of outstanding series of debt securities and provisions of the indenture, and we may omit to comply with those covenants without creating an event of default under the indenture, which we refer to as covenant defeasance. We may effect defeasance and covenant defeasance only if, among other things, we irrevocably deposit with the trustee cash or government obligations denominated in the currency of the debt securities, as trust funds, in an amount certified by a nationally recognized firm of independent certified accountants to be enough to pay at maturity, or upon redemption, the principal (including any mandatory sinking fund payments) of, and any premium and interest on, all outstanding debt securities of the series.
Although we may discharge or decrease our obligations under the indenture as described in the preceding paragraphs, we may not discharge certain enumerated obligations, including but not limited to, our duty to register the transfer or exchange of any series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen series of debt securities or to maintain an office or agency in respect of any series of debt securities.
Modification of the Indenture and Waivers
The indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt securities to, among other things:
cure any ambiguity, defect, or inconsistency in the indenture or in the debt securities of any series;
evidence the assumption by a successor entity of our obligations;
provide for uncertificated debt securities in addition to or in place of certificated securities;
add to the covenants, restrictions, conditions or provisions relating to us for the benefit of the holders of all or any series of debt securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of debt securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default, or to surrender any right or power in the indenture conferred upon us;
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of debt securities, as set forth in the indenture;
make any change that does not adversely affect the rights of any holder of any debt securities in any material respect;
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided in the indenture, to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
evidence and provide for the acceptance of appointment under the indenture by a successor trustee; and
• | comply with any requirements of the SEC in connection with the qualification of the indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). |
Any provision of the indenture shall automatically be deemed to have been modified, eliminated or added to the extent required to be made as a result of an amendment to the Trust Indenture Act.
The indenture also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of debt securities of each series of debt securities affected by such supplemental indenture then outstanding, add any provisions to, or change in any manner, eliminate or modify in any way the provisions of, the indenture or any supplemental indenture or modify in any manner the rights of the holders of the debt securities. We and the trustee may not, however, without the consent of the holder of each outstanding debt security affected thereby:
extend the fixed maturity of any debt security;
reduce the principal amount of any debt security;
reduce the rate or extend the time of payment of interest on any debt security;
reduce any premium payable upon redemption of any debt security; or
reduce the percentage of holders of debt securities of any series whose consent is required for any modification of the indenture or for waivers of compliance with or defaults under the indenture with respect to debt securities of that series.
The indenture provides that the holders of not less than a majority in aggregate principal amount of the then outstanding debt securities of any series, by notice to the trustee, may on behalf of the holders of the debt securities of that series waive any default and its consequences under the indenture except:
a default in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each outstanding debt security of each series affected.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary or nominee for a depositary identified in the applicable prospectus supplement. Global debt securities may be issued in either registered or bearer form and in either temporary or permanent form. Unless and until it is exchanged in whole or in part for individual certificates evidencing debt securities, a global debt security may not be transferred except as a whole:
by the depository to a nominee of such depository;
by a nominee of such depository to such depository or another nominee of such depository; or
by such depository, or any such nominee to a successor of such depository, or a nominee of such successor.
The specific terms of the depository arrangement with respect to a series of global debt securities and certain limitations and restrictions relating to a series of global bearer securities will be described in the applicable prospectus supplement.
Concerning the Trustee
The indenture provides that in the event that the trustee resigns or is removed with respect to less than all series of debt securities outstanding under the indenture, there may be more than one trustee under the indenture. If there are different trustees for different series of debt securities under the indenture, each such trustee will be a trustee of a trust under the indenture separate and apart from the trust administered by any other trustee under the indenture. Except as otherwise indicated in this prospectus or any prospectus supplement, any action permitted to be taken by a trustee may be taken by such trustee only on the one or more series of debt securities for which it is the trustee under the indenture. Any trustee under the indenture may resign or be removed from one or more series of debt securities.
The indenture provides that, except during the continuance of an event of default, the trustee will perform only such duties as are specifically set forth in the indenture. During the existence of an event of default, the trustee will exercise those rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
The trustee may engage in other transactions with us. If the trustee acquires any conflicting interest relating to any duties concerning the debt securities, however, the trustee must eliminate the conflict or resign as trustee.
No Individual Liability of Incorporators, Stockholders, Officers or Directors
The indenture provides that no past, present or future director, officer, stockholder or employee of ours, any of our affiliates, or any successor corporation, in their capacity as such, shall have any individual liability for any of our obligations, covenants or agreements under the debt securities or the indenture.
Governing Law
The indenture is, and any debt securities will be, governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or varying number of shares of common stock or preferred stock, depositary shares, warrants, or any combination of the above, at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or varying number of shares of common stock or preferred stock, depositary shares, warrants, or any combination of the above. The price of the securities subject to the purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula described in the purchase contracts. We may issue purchase contracts separately or as a part of units, each consisting of a purchase contract and one or more of the other securities described in this prospectus or securities of third parties, including U.S. Treasury securities, securing the holder’s obligations under the purchase contract. If we issue a purchase contract as part of a unit, the applicable prospectus supplement will state whether the purchase contract will be separable from the other securities in the unit before the purchase contract settlement date. The purchase contracts may require us to make periodic payments to holders or vice versa and the payments may be unsecured or pre-funded on some basis. The purchase contracts may require holders to secure the holder’s obligations in a manner specified in the applicable prospectus supplement, and in certain circumstances, we may deliver newly issued prepaid purchase contracts, often known as prepaid securities, upon release to a holder of any collateral securing such holder’s obligations under the original purchase contract.
The applicable prospectus supplement will describe the terms of any purchase contracts in respect of which this prospectus is being delivered, including, to the extent applicable, the following:
whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts;
whether the purchase contracts are to be prepaid or not;
whether the purchase contracts will be issued as part of a unit and, if so, the other securities comprising the unit;
whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance, or level of the securities subject to purchase under the purchase contract;
any acceleration, cancellation, termination, or other provisions relating to the settlement of the purchase contracts; and
whether the purchase contracts will be issued in fully registered or global form.
Material U.S. federal income tax consideration applicable to the purchase contracts will also be discussed in the applicable prospectus supplement.
We may issue rights to purchase common stock, preferred stock, depositary shares, debt securities or warrants that we may offer to our security holders. The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. Each series of
rights will be issued under a separate rights agent agreement to be entered into between us and a bank or trust company, as rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the rights and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The prospectus supplement relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
the date of determining the security holders entitled to the rights distribution;
the aggregate number of rights issued and the aggregate number of shares of common stock, preferred stock, depositary shares, debt securities or warrants purchasable upon exercise of the rights;
the exercise price;
the conditions to completion of the rights offering;
the date on which the right to exercise the rights will commence and the date on which the rights will expire; and
any applicable federal income tax considerations.
Each right would entitle the holder of the rights to purchase for cash the amount of shares of common stock, preferred stock, depositary shares or warrants issuedat the exercise price set forth in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will become void.
If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than our security holders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that we may offer under this prospectus. Units may be offered independently or together with common stock, preferred stock, depositary shares, debt securities, purchase contracts, and/or warrants offered by any prospectus supplement, and may be attached to or separate from those securities.
While the terms we have summarized below will generally apply to any future units that we may offer under this prospectus, we will describe the particular terms of any series of units that we may offer in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference into the registration statement of which this prospectus is a part the form of unit agreement, including a form of unit certificate, if any, that describes the terms of the series of units we are offering before the issuance of the related series of units. The following summaries of material provisions of the units and the unit agreements are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units.
General
We may issue units consisting of common stock, preferred stock, depositary shares, debt securities, warrants, purchase contracts or any combination thereof. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of
a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time, or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including the following:
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
any provisions of the governing unit agreement that differ from those described below; and
any provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Common Stock,” “Description of Preferred Stock,” “Description of Depositary Shares,” “Description of Debt Securities,” “Description of Warrants,” “Description of Purchase Contracts” and “Description of Units” will apply to each unit and to any common stock, preferred stock, depositary share or warrant included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit, without the consent of the related unit agent or the holder of any other unit, may enforce by appropriate legal action its rights as holder under any security included in the unit.
Title
We, the unit agent, and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purposes and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
This prospectus also relates to the possible resale by certain of our stockholders, who we refer to in this prospectus as the “selling stockholders,” of up to 7,500,000 shares of our common stock that were issued and outstanding prior to the original date of filing of the registration statement of which this prospectus forms a part. The selling securityholders isstockholders originally acquired the shares of our common stock included in this prospectus in open market purchases or as compensatory stock awards or compensation for services.
Information about the selling stockholders, where applicable, including their identities, the amount of shares of common stock owned by each selling stockholder prior to the offering, the number of shares of our common stock to be offered by each selling stockholder and the amount of common stock to be owned by each selling stockholder after completion of the offering, will be set forth in an applicable prospectus supplement, documents incorporated by reference or in a free writing prospectus we file with the SEC. The applicable prospectus supplement will also disclose whether any of the selling stockholders has held any position or office with, has been employed by or otherwise has had a material relationship with us during the three years prior to the date of the prospectus supplement.
The selling stockholders will not sell any shares of our common stock pursuant to this prospectus until we have identified such selling stockholders and the shares being passed uponoffered for resale by such selling stockholders in a subsequent prospectus supplement. However, the selling stockholders may sell or transfer all or a portion of their
shares of our common stock pursuant to any available exemption from the registration requirements of the Securities Act.
We or the selling stockholders may sell the securities being offered hereby in one or more of the following ways from time to time:
through agents to the public or to investors;
to one or more underwriters or dealers for resale to the public or to investors;
in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, to or through a market maker or into an existing trading market, or an exchange or otherwise;
directly to investors in privately negotiated transactions; or
through a combination of these methods of sale.
The securities that we or the selling stockholders distribute by any of these methods may be sold, in one or more transactions, at:
a fixed price or prices, which may be changed;
market prices prevailing at the time of sale;
prices related to prevailing market prices; or
negotiated prices.
We will set forth in a prospectus supplement the terms of the offering of securities by us or the selling stockholders, including:
the name or names of any agents or underwriters;
the purchase price of the securities being offered;
the proceeds we will receive from the sale of securities offered by us;
any over-allotment options under which underwriters may purchase additional securities from us or the selling stockholders;
any agency fees or underwriting discounts and commissions and other items constituting agents’ or underwriters’ compensation;
the public offering price;
any discounts or concessions allowed or reallowed or paid to dealers; and
any securities exchanges on which such common stock may be listed.
Underwriters
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act and any discounts or commissions they receive from us or the selling stockholders and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We or the selling stockholders may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or perform services for us or our subsidiaries and/or the selling stockholders in the ordinary course of their businesses.
If we or the selling stockholders use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. The underwriters will be obligated to purchase all the securities offered if they purchase any of the securities offered. We or the selling stockholders may change from time to time any initial public offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers. We or the selling stockholders may use underwriters with whom we and/or the selling stockholders have a material relationship. We will describe in the prospectus supplement naming the underwriters the nature of any such relationship.
If indicated in the applicable prospectus supplement, we and/or the selling stockholders will authorize underwriters or other persons acting as our and/or the selling stockholders agents to solicit offers by Kramer
Levin Naftalis & Frankel LLP, New York, New York.
particular institutions to purchase securities from us and/or the selling stockholders at the public offering price set forth in such prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in such prospectus supplement. Each delayed delivery contract will be for an amount no less than, and the aggregate principal amounts of securities sold under delayed delivery contracts shall be not less nor more than, the respective amounts stated in the applicable prospectus supplement. Institutions with which such contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but will in all cases be subject to our and/or the selling stockholders approval. The obligations of any purchaser under any such contract will be subject to the conditions that (a) the purchase of the securities shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which the purchaser is subject, and (b) if the securities are being sold to underwriters, we or the selling stockholders shall have sold to the underwriters the total principal amount of the securities less the principal amount thereof covered by the contracts. The underwriters and such other agents will not have any responsibility in respect of the validity or performance of such contracts.
Agents
We or the selling stockholders may designate agents who agree to use their reasonable efforts to solicit purchases for the period of their appointment or to sell securities on a continuing basis.
Direct Sales
We or the selling stockholders may also sell securities directly to one or more purchasers without using underwriters or agents.
Trading Markets and Listing of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities offered by us will be a new issue with no established trading market, other than our common stock, which is traded on the OTCQX Market. We may elect to list any other class or series of securities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
Stabilization Activities
In connection with an offering, an underwriter may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Shorts sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater than the underwriters’ option to purchase additional securities from us or the selling stockholders, if any, in the offering. If the underwriters have an over-allotment option to purchase additional securities from us or the selling stockholders, the underwriters may close out any covered short position by either exercising their over-allotment option or purchasing securities in the open market. In determining the source of securities to close out the covered short position, the underwriters may consider, among other things, the price of securities available for purchase in the open market as compared to the
price at which they may purchase securities through the over-allotment option. “Naked” short sales are any sales in excess of such option or where the underwriters do not have an over-allotment option. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the securities in the open market after pricing that could adversely affect investors who purchase in the offering.
Accordingly, to cover these short sales positions or to otherwise stabilize or maintain the price of the securities, the underwriters may bid for or purchase securities in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate members or other broker-dealers participating in the offering are reclaimed if securities previously distributed in the offering are repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. The impositions of a penalty bid may also effect the price of the securities to the extent that it discourages resale of the securities. The magnitude or effect of any stabilization or other transactions is uncertain. These transactions may be effected on the OTCQX Market or otherwise and, if commenced, may be discontinued at any time.
The consolidated financial statements of Casual Male RetailDestination XL Group, Inc. appearingas of January 30, 2021 and February 1, 2020 and for each of the years in Casual Male's Annual Report (Form 10-K) for the year endedthree-year period ending January 31, 2004 (fiscal 2003),30, 2021, have been auditedincorporated by Ernst & Youngreference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements have been incorporated herein by reference in relianceherein, and upon such
report given on the authority of suchsaid firm as experts in accounting and auditing.
25
The audit report refers to a change in the method of accounting for leases due to the adoption of a new standard as of February 3, 2019.
Certain legal matters, including the legality of the securities offered, will be passed upon for us by our counsel, Greenberg Traurig, LLP, Boston, Massachusetts. If the securities are distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by counsel identified in the applicable prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy materials that we have filed
with the SEC at the SEC's public reference room located at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the public reference room. Our SEC filings also are available to the public onover the SEC's web siteInternet at the SEC’s website at http://www.sec.gov which. The SEC’s website contains reports, proxiesproxy and information statements and other information regarding issuers, such as us, that file electronically. Access to this information as well aselectronically with the SEC. The reports and other information onfiled by us with the Company isSEC are also available at our website, https://investor.dxl.com/investor-relations. Information contained on the Company's corporateour website at http://www.cmrginc.comor that can be accessed through our website is not incorporated by reference into this prospectus or any prospectus supplement and clicking on "Investor Relations."
should not be considered to be part of this prospectus or any prospectus supplement.
This prospectus "incorporates by reference"is part of a registration statement that we filed with the SEC. The registration statement contains more information than this prospectus regarding us and our common stock, including certain exhibits and schedules. You can obtain a copy of the registration statement from the SEC’s Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate” into this prospectus information that we have filedfile with or furnished to the SEC under the Exchange Act, whichin other documents. This means that we are
disclosingcan disclose important information to you by referring you to those documents.other documents that contain that information. Any statement contained ininformation that we incorporate by reference is considered part of this prospectus or in any document incorporated or deemed
to beprospectus. The documents and reports that we list below are incorporated by reference into this prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus will be deemed to be
modified automatically update and supersede information contained in this prospectus, including information in previously filed documents
or superseded for purposes ofreports that have been incorporated by reference in this prospectus, to the extent that a
statement contained in this prospectus or any subsequently filed document which
also is,the new information differs from or is deemed to be,inconsistent with the old information.
We have filed the following documents with the SEC. These documents are incorporated herein by reference into this prospectus
modifies or supersedes that statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Wetheir respective dates of filing:
(1) | Our Annual Report on Form 10-K for the fiscal year ended January 30, 2021, as amended by the Form 10-K/A filed on June 1, 2021; |
(3) | Our Current Reports on Form 8-K filed with the SEC on February 5, 2021, March 10, 2021, March 18, 2021, April 15, 2021, and two Form 8-K/As filed with the SEC on February 5, 2021 and February 5, 2021, respectively; and |
(4) | The description of our common stock contained in Exhibit 4.1 to our Annual Report on Form |
In addition, we also incorporate by reference into this prospectus the followingall documents thatand reports which we have previously filed with the SEC and any future filings that
we make with the SEC under Sectionsfile pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial registration statement and prior to the effectiveness of the registration statement and (ii) after the date of this prospectus until alland prior to the termination of the offering of the securities covered byunder this prospectus are sold by the selling securityholders:
o Our Annual Report on Form 10-KRegistration Statement (except in each case for the fiscal year ended January 31,
2004;
o Our Quarterly Reports on Form 10-Q for the fiscal quarters ended May
1, 2004information contained in such documents that is deemed to be “furnished” and July 31, 2004;
o Our Current Reports on Form 8-K filed on March 25, 2004, April 9,
2004, April 14, 2004, May 11, 2004, May 20, 2004, June 4, 2004, July
8, 2004, August 4, 2004, August 11, 2004, August 19, 2004, September
2, 2004, October 7, 2004, November 4, 2004 and November 18, 2004
(excluding information deemed "furnished" as opposed to "filed"
under the rules of the SEC); and
o All other reports filed by us pursuant to Section 13(a)not “filed”).
You may request, orally or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
annual report referred to above.
You mayupon written request, a copy of these filingsdocuments, which will be provided to you at no cost, by writing or
telephoning us at the following address:
Casual Male Retailcontacting:
Destination XL Group, Inc.
555 Turnpike Street
Canton, MassachusettsMA 02021
Attn: Dennis R. Hernreich
Corporate Secretary
(781) 828-9300
26
You should rely only on the information contained in this prospectus, including information incorporated by reference as described above, or any prospectus supplement that we have specifically referred you to. We have not authorized anyone else to provide you with different information. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents or that any document incorporated by reference is accurate as of any date other than its filing date. You should not consider this prospectus to be an offer or solicitation relating to the securities in any jurisdiction in which such an offer or solicitation relating to the securities is not authorized. Furthermore, you should not consider this prospectus to be an offer or solicitation relating to the securities if the person making the offer or solicitation is not qualified to do so, or if it is unlawful for you to receive such an offer or solicitation.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14.Other Expenses Ofof Issuance And Distribution
and Distribution.
The registrant is paying certain of the expenses related to this offering.
The following table sets forth the approximate amount of fees and expenses
payable by the registrant in connection with this Registration Statementthe issuance and the
distribution of the shares of the securities being registered hereby. The
selling securityholders will bear all underwriting discounts, commissions or
fees attributable toare set forth in the sale offollowing table (all amounts except the registrable securities.
SEC registration fee $1,366.30
Legal fees and expenses $10,000.00
Accounting fees and expenses $10,000.00
Printing and engraving expenses $5,000.00
Miscellaneous $537.99
----------
Total $27,500.00
are estimated):
SEC registration fee | $10,899.09 |
Legal fees and expenses | * |
Accounting fees and expenses | * |
Printing fees and expenses | * |
Transfer agent fees and expenses | * |
Miscellaneous expenses | * |
Total Expenses | * |
* | Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of securities under this Registration Statement. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement. |
Item 15.Indemnification of Directors and Officers
The General Corporation Law of the State of Delaware, as currently in
effect, permits charter provisions eliminating the liability of directors for
breach of fiduciary duty, except that directors remain liable for (i) any breach
of the directors' duty of loyalty to a company or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) any payment of a dividend or approval of a stock
repurchase that is illegal under Section 174 of the Delaware General Corporation
Law, or (iv) any transaction from which the directors derived an improper
personal benefit. The registrant's Restated Certificate of Incorporation, as
amended (the "Certificate"), provides that no director of the registrant shall
be personally liable to the registrant or to any of its stockholders for
monetary damages arising out of such director's breach of fiduciary duty, except
to the extent that the elimination or limitation of liability is not permitted
by the Delaware General Corporation Law. The effect of this provision of the
Certificate is that directors cannot be held liable for monetary damages arising
from breaches of their duty of care, unless the breach involves one of the four
exceptions described in the first sentence of this Item 15. The provision does
not prevent stockholders from obtaining injunctive or other equitable relief
against directors, nor does it shield directors from liability under federal or
state securities laws. The Certificate and the registrant's By-Laws further
provide for indemnification of the registrant's directors and officers to the
fullest extent permitted by Officers.
Section 145 of the Delaware General Corporation Law including circumstances(“DGCL”) empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in whichthe right of such corporation), by reason of the fact that such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, provided that such officer or director acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, and, for criminal proceedings, had no reasonable cause to believe his or her conduct was illegal. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation in the performance of his or her duty. Where an officer or director is successful on the merits or otherwise discretionary.
Insofarin the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director actually and reasonably incurred.
Our certificate of incorporation and bylaws provide that we will indemnify, to the fullest extent permitted by the DGCL, each director or officer of our company, whom we refer to as an “Indemnitee.” Such indemnification includes payment by us, in advance of the final disposition of a civil or criminal action, suit, or proceeding, of expenses incurred by a director or officer in defending such action, suit, or proceeding upon receipt of any undertaking by or on behalf of such director or officer to repay such payment if it is ultimately determined that he or she is not entitled to be indemnified by us.
Under Delaware law, to the extent that an Indemnitee is successful on the merits in defense of a suit or proceeding brought against him or her by reason of the fact that he or she is or was a director, officer, or agent of our company, or serves or served any other enterprise or organization at the request of our company, we shall indemnify him or her against expenses (including attorneys’ fees) actually and reasonably incurred in connection with such action.
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If unsuccessful in defense of a third-party civil suit or a criminal suit, or if such a suit is settled, an Indemnitee may be indemnified under Delaware law against both (i) expenses, including attorney’s fees, and (ii) judgments, fines, and amounts paid in settlement if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of our company, and, with respect to any criminal action, had no reasonable cause to believe his or her conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of our company, where the suit is settled, an Indemnitee may be indemnified under Delaware law only against expenses (including attorneys’ fees) actually and reasonably incurred in the defense or settlement of the suit if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of our company except that if the Indemnitee is adjudged to be liable for negligence or misconduct in the performance of his or her duty to our company, he or she cannot be made whole even for expenses unless a court determines that he or she is fully and reasonably entitled to indemnification for such expenses.
Also under Delaware law, expenses incurred by an officer or director in defending a civil or criminal action, suit, or proceeding may be paid by our company in advance of the final disposition of the suit, action, or proceeding upon receipt of an undertaking by or on behalf of the officer or director to repay such amount if it is ultimately determined that he or she is not entitled to be indemnified by our company. We may also advance expenses incurred by other employees and agents of our company upon such terms and conditions, if any, that our board of directors of the registrant deems appropriate.
Reference is made to “Undertakings,” below, for the registrant’s undertakings in this Registration Statement with respect to indemnification of 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 thatas amended.
Item 16.Exhibits.
The exhibits listed in the opinionExhibit Index below are filed as part of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
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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.
Item 16. Exhibits
Exhibit No. Description
----------- ----------------------------------------------------------------
3.1 Restated Certificate of Incorporation of the Company, as amended
(included as Exhibit 3.1 to Amendment No. 3 of the Company'sthis Registration Statement on Form S-1 (No. 33-13402), and
incorporated herein by reference).*
3.2 Certificate of Amendment to Restated Certificate of
Incorporation, as amended, dated June 22, 1993 (included as
Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q filed
on June 18, 1996, and incorporated herein by reference).*
3.3 Certificate of Amendment to Restated Certificate of
Incorporation, as amended, dated August 8, 2002 (included as
Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q filed
on September 17, 2002, and incorporated herein by reference).*
4.1 Form of Warrant to Purchase Common Stock.*
4.2 Form of Non-Qualified Stock Option Grant Agreement.*
5.1 Opinion of Kramer Levin Naftalis & Frankel LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Kramer Levin Naftalis & Frankel LLP (included in
Exhibit 5.1).
24.1 Power of Attorney.*
* Previously filed.
Statement.
Item 17. Undertakings
(a) Undertakings.
The undersigned registrantRegistrant 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 this 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 this
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 aggregate
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
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(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”); |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in the 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 prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 this Registration Statement or any material change to such information in this Registration Statement; |
provided, however, that paragraphs (a)(1)(i), (1)(ii) and (a)(1)(ii)(iii) do not apply 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
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Commission by the registrantRegistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this registration statement.
Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
(2)That, for the purposepurposes 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 the 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 the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
(5)That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of such undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii)The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv)Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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.
(3) To remove from registration
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 indemnification provisions described herein, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by meansthe Registrant of expenses incurred or paid by a post-effective amendmentdirector, officer or controlling person of the Registrant in the successful defense of any ofaction, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, which remain unsold at the terminationRegistrant will, unless in the opinion of its counsel the offering.
(b) matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(6)The undersigned registrant hereby undertakes that,to file an application for purposesthe purpose of determining any liability under the Securities Act of 1933, each filingeligibility of the registrant's annual report pursuanttrustee to Section 13(a) or 15(d)act under subsection (a) of section 310 of the Securities
ExchangeTrust Indenture Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d)(“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Securities 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.
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EXHIBIT INDEX
EXHIBIT NUMBER | DESCRIPTION | |
**1.1 | Form of Underwriting Agreement. | |
3.1 | ||
3.2 | ||
*4.1 | ||
**4.2 | Form of Debt Security. | |
**4.3 | Form of Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock. | |
**4.4 | Form of Warrant Agreement and Form of Warrant Certificate. | |
**4.5 | Form of Deposit Agreement for Depositary Shares and Form of Depositary Receipt for Depositary Shares. | |
**4.6 | Form of Purchase Contract. | |
**4.7 | Form of Unit Agreement and Unit Certificate. | |
**4.8 | Form of Rights Agreement and Form of Rights Certificate. | |
*5.1 | Opinion of Greenberg Traurig LLP, counsel to the Registrant. | |
*23.1 | ||
*23.2 | ||
*24.1 | ||
+25.1 | Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of Trustee. + |
_______
*Filed herewith.
** | To be subsequently filed by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference to this registration statement, including a Current Report on Form 8-K. |
+ | To be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, if applicable. |
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Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Amendment No. 1 to 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 Canton, Commonwealth of Massachusetts, on this 10th day of June, 2021.
DESTINATION XL GROUP, INC. | ||||
By: | /s/ Harvey S. Kanter | |||
Harvey S. Kanter President and Chief Executive Officer | ||||
We, the undersigned officers and directors of Destination XL Group, Inc., hereby severally constitute and appoint Harvey S. Kanter and Peter H. Stratton, Jr. and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-3 filed herewith and any and all pre-effective and post-effective amendments to said Registration Statement and generally to do all such things in our name and behalf in our capacities as officers and directors to enable Destination XL Group, Inc. to comply with the provisions of the 22nd daySecurities Act of November, 2004.
CASUAL MALE RETAIL GROUP, INC.
By: /s/ Dennis R. Hernreich
-----------------------------------------
Name: Dennis R. Hernreich
Title: Executive Vice President, Chief
Operating Officer, Chief Financial
Officer1933, as amended, and Treasurer (Principal
Financial Officerall requirements of the Securities and Principal
Accounting Officer)
Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment
No. 1 to the Registration Statement has been signed by the following persons as
of November 22, 2004 in the capacities indicated below.
Signatures
*_________________________ Director, President and Chief Executive
David A. Levin Officer (Principal Executive Officer)
/s/ Dennis R. Hernreich Executive Vice President, Chief Operating
- -------------------------- Officer, Chief Financial Officer and
Dennis R. Hernreich Treasurer (Principal Financial Officer
and Principal Accounting Officer)
*_________________________ Chairman ofon the Board of Directors
Seymour Holtzman
*_________________________ Director
James Frain
*_________________________ Director
George T. Porter, Jr.
*_________________________ Director
Joseph Pennacchio
*_________________________ Director
Alan S. Bernikow
*_________________________ Director
Jesse H. Choper
*_________________________ Director
Frank J. Husic
*_________________________ Director
Robert L. Sockolov
/s/ Dennis R. Hernreich
- --------------------------------------------
* By Dennis R. Hernreich, attorney-in-fact
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
3.1 Restated Certificate of Incorporation of the Company, as amended
(included as Exhibit 3.1 to Amendment No. 3 of the Company's
Registration Statement on Form S-1 (No. 33-13402), and
incorporated herein by reference).*
3.2 Certificate of Amendment to Restated Certificate of
Incorporation, as amended, dated June 22, 1993 (included as
Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q filed
on June 18, 1996, and incorporated herein by reference).*
3.3 Certificate of Amendment to Restated Certificate of
Incorporation, as amended, dated August 8, 2002 (included as
Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q filed
on September 17, 2002, and incorporated herein by reference).*
4.1 Form of Warrant to Purchase Common Stock.*
4.2 Form of Non-Qualified Stock Option Grant Agreement.*
5.1 Opinion of Kramer Levin Naftalis & Frankel LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Kramer Levin Naftalis & Frankel LLP (included in
Exhibit 5.1).
* Previously filed.