As filed with the Securities and Exchange Commission on June 18, 2002
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
DESIGNS, INC.
(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)
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)
----------------
Dennis R. Hernreich
Chief Financial Officer
555 Turnpike Street
Canton, Massachusetts 02021
(781) 828-9300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------
Copy to:
Peter G. Smith, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
Approximate date of commencement of proposed sale to the public: At such
time or times as may be determined by the selling stockholders after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"), check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| _______
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _______
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed
Number of Maximum Maximum
Shares Offering Aggregate Amount of
Title of Shares to be Price Offering Registration
to be Registered Registered Per Share Price(1) Fee
- -------------------------------------------------------------------------------
Common stock, par value 19,395,500 $ 6.52 $ 126,361,683 $ 11,625
$0.01 per share (2)
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act, based on the average of
the high and low sales prices for the Registrant's common stock reported
on the Nasdaq National Market on June 12, 2002.
(2) Includes (i) 1,379,300 presently outstanding shares of the Registrant's
common stock issued to certain selling stockholders in private placement
transactions and (ii) 18,016,200 shares of the Registrant's common stock
issuable upon conversion of 180,162 presently outstanding shares of the
Registrant's Series B Convertible Preferred Stock issued to certain
selling stockholders in private placement transactions. The issuance of
common stock upon conversion of the Series B Preferred Stock is subject to
approval by the stockholders of the Registrant.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act or until this Registration Statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange 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.
Subject to completion, dated June 18, 2002
Preliminary Prospectus
-----------------------------
19,395,500 SHARES
DESIGNS, INC.
COMMON STOCK
-----------------------------
This prospectus relates to the offer and sale by the selling stockholders
listed beginning on page 9 of up to 19,395,500 shares of common stock, par value
$0.01 per share, of Designs, Inc., consisting of 1,379,300 shares of recently
issued common stock and 18,016,200 shares of common stock issuable upon
conversion of our series B convertible preferred stock, par value $0.01 per
share. We refer to the shares of common stock offered by this prospectus and
registered by the registration statement of which this prospectus forms a part
as the "Offered Common Stock."
We issued 1,379,300 shares of common stock and 180,162 shares of series B
preferred stock to the selling stockholders in private placement transactions in
May 2002. Each share of series B preferred stock will be automatically converted
into 100 shares of common stock upon approval of the issuance of such common
stock by our stockholders, which is intended to be submitted for a vote at the
next annual meeting of our stockholders scheduled for August 8, 2002. The
selling stockholders may sell all or some of their respective shares of Offered
Common Stock listed in this prospectus through public or private transactions,
at prevailing market prices, or at privately negotiated prices. We will not
receive any proceeds from the sale of any of the shares of Offered Common Stock
by the selling stockholders.
Our common stock is listed on the Nasdaq National Market under the symbol
"DESI." On June 17, 2002, the last reported sale price of our common stock was
$7.11 per share.
If stockholder approval is obtained to change our company's name to
"Casual Male Retail Group, Inc." at our next annual meeting of our stockholders,
then we intend to change the symbol under which our common stock is listed on
the Nasdaq National Market.
Investing in our common stock involves risks. See "Risk Factors" beginning
on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission 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 ___________, 2002.
TABLE OF CONTENTS
FORWARD-LOOKING STATEMENTS...................................................2
THE COMPANY..................................................................3
RECENT DEVELOPMENTS..........................................................3
risk factors.................................................................4
USE OF PROCEEDS..............................................................8
SELLING STOCKHOLDERS.........................................................9
PLAN OF DISTRIBUTION........................................................13
EXPERTS.....................................................................14
WHERE YOU CAN FIND MORE INFORMATION.........................................15
-------------------------------
You should rely only on the information or representations provided in
this prospectus or incorporated by reference into this prospectus. We have not
authorized anyone to provide you with any different information or to make any
different representations in connection with any offering made by this
prospectus. This prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, in any state where the offer or sale is
prohibited. Neither the delivery of this prospectus, nor any sale made under
this prospectus shall, under any circumstances, imply that the information in
this prospectus is correct as of any date after the date of this prospectus.
---------------------------------
FORWARD-LOOKING STATEMENTS
This prospectus contains forward looking statements, which include
statements based on our current expectations, assumptions, estimates and
projections about our business and our industry. The nature of forward-looking
information is that such information involves assumptions, risks and
uncertainties. Forward-looking information requires our management to make
assumptions, estimates, forecasts and projections regarding our future results
as well as the future effectiveness of our strategic plans and future
operational decisions. Forward-looking statements made by us or on our behalf
are subject to the risk that the forecasts, projections, and expectations of
management, or assumptions underlying such forecasts, projections and
expectations, may become inaccurate. Accordingly, our future financial
positions, the actual results of our operations and the implementation of our
plans and operations may differ materially from forward-looking statements made
by us or on our behalf.
We use words such as "believes," "anticipates," "expects," "intends,"
"plans" and similar expressions to identify forward-looking statements, but
these are not the exclusive means of identifying these statements. Actual
results could differ materially from those projected in any forward-looking
statements for the reasons detailed in "Risk Factors" or elsewhere in this
prospectus. Before you decide to invest in our common stock, you should be aware
that if any of the events described in the "Risk Factors" section and elsewhere
in this prospectus occur, they could have an adverse affect on our business. We
assume no obligation to update any forward-looking statement.
2
THE COMPANY
Designs, Inc. is a publicly traded, Massachusetts-based brand retail
operator which has historically specialized in selling quality branded apparel
and accessories in outlet malls throughout the eastern part of the United States
and Puerto Rico. All references in this prospectus to "Designs," "we," "us" and
"our" are to Designs, Inc. and its subsidiaries. For over 25 years, through a
license agreement with Levi Strauss & Co., we owned and operated retail outlet
stores selling exclusively Levi's(R) branded merchandise.
Expanding upon our core competency of operating retail stores for branded
apparel in the outlet channel of distribution, we recently entered into the
following arrangements with two well-known apparel manufacturers:
o In January 2002, we entered into a license agreement with Candie's,
Inc., a leading designer and marketer of young women's footwear,
apparel and accessories. Under this license agreement, we plan, over
the next five years, to open and operate 75 Candie's(R) branded
retail stores in outlet malls and value centers throughout the
United States. We plan to open 11 Candie's(R) branded stores in
outlet malls during the fiscal year ended February 1, 2003.
o In February 2002, we finalized an exclusive joint venture agreement
with EcKo Complex, LLC, a leading design-driven lifestyle brand
targeting young men and women. EcKo has worldwide annual sales
exceeding $200 million. Under the joint venture agreement, we will
open and operate 75 EcKo(R) branded outlet stores throughout the
United States over a six-year period. We plan to open five EcKo(R)
branded outlet stores during fiscal 2003.
We are continuing discussions with several other manufacturers as we
strive to become a premier operator of branded retail outlet stores. We believe
that manufacturers will find Designs as their logical solution for an outlet
channel of distribution of their branded merchandise.
Our principle executive offices are located at 555 Turnpike Street,
Canton, Massachusetts 02021, and our telephone number is (781) 828-9300.
RECENT DEVELOPMENTS
As of May 14, 2002, pursuant to an asset purchase agreement entered into
as of May 2, 2002, by Designs and Casual Male Corp. and certain of its
subsidiaries (which we refer to, collectively, as "Casual Male"), we completed
the acquisition of substantially all of the assets of Casual Male for a purchase
price of approximately $170 million, plus the assumption of certain operating
liabilities. We were selected as the highest and best bidder for the Casual Male
assets at a bankruptcy court ordered auction commencing on May 1, 2002 and
concluding on May 2, 2002, and our acquisition of Casual Male was approved by
the court on May 7, 2002.
Casual Male is a leading independent specialty retailer of fashion, casual
and dress apparel for big and tall men with annual sales that exceed $350
million. Casual Male sells its branded merchandise through various channels of
distribution including full price and outlet retail stores, direct mail and the
internet. Casual Male had been operating under the protection of the U.S.
Bankruptcy Court since May 2001.
The Casual Male acquisition, along with the payment of certain related
fees and expenses, was completed with funds provided by: (i) approximately $30.2
million in additional borrowings from our amended three-year $120.0 million
senior secured credit facility with our bank, Fleet Retail Finance, Inc., (ii)
$15.0 million in a three-year term loan with a subsidiary of Fleet Retail
Finance, (iii) proceeds from the private placement of $24.5 million principal
amount of 12% senior subordinated notes due 2007 together with detachable
warrants to acquire 1,715,000 shares of our common stock at an exercise price of
$0.01 per share and additional detachable warrants to acquire 1,176,471 shares
of our common stock at an exercise price of $8.50 per share, (iv) proceeds from
the private placement of $11.0 million principal amount of 5% senior
subordinated notes due 2007, (v) approximately $82.5 million of proceeds from
the private placement of approximately 1,379,300 shares of newly issued common
stock and 180,162 shares of series B preferred stock, and (vi) the assumption of
a mortgage note in a principal amount of approximately $12.2 million.
3
The issuance of common stock upon conversion of the series B preferred
stock and upon exercise of certain warrants is subject to stockholder approval.
We intend to submit for a vote of stockholders the proposal to issue the
additional common stock at the annual meeting of stockholders scheduled for
August 8, 2002. If stockholder approval is obtained for the issuance of common
stock, then each share of the series B preferred stock will automatically
convert into 100 shares of common stock.
RISK FACTORS
An investment in the shares of Offered Common Stock involves a high degree
of risk. Accordingly, prospective investors should consider carefully the
following risk factors, in addition to the other information contained in this
prospectus concerning Designs and our business.
Risks Related to the Market in Which We Operate
Changing Fashion Trends and Consumer Preferences
Our business is dependent upon our being able to predict fashion trends,
customer preferences and other fashion-related factors. Customer tastes and
fashion trends are volatile and tend to change rapidly. Our success depends in
part upon management's ability to effectively predict and respond to changing
fashion tastes and consumer demands and to translate market trends to
appropriate saleable product offerings far in advance. If we are unable to
successfully predict or respond to changing styles or trends and misjudge the
market for our 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 may have a
material adverse effect on our business, financial condition and results of
operation.
Macroeconomic Factors Adversely Affecting the Retail Industry
Our sales could be adversely affected by a weak retail environment.
Apparel retailers are subject to general economic conditions and purchases of
apparel may decline at any time, especially during recessionary periods. In
addition, our financial performance is also sensitive to changes in consumer
spending trends and shopping patterns.
We understand that the retail industry can be adversely affected by
certain economic factors outside of our control that would affect our costs as
well as consumer spending behavior. Some of these factors include rising
interest rates, negative consumer sentiment brought about by uncertainty over
economic recovery and national security, inflation, and rising unemployment.
Further, it is well known in the apparel industry that when economic conditions
worsen, men are more reluctant than women and children to shop for clothes for
themselves. We have no ability to predict or control these economic and
political variables.
Competition in the Retail Industry
The United States casual apparel market, men's big and tall market and
footwear industry are highly competitive with many national and regional
department stores, specialty apparel retailers and discount stores offering a
broad range of apparel products similar to those products that we sell. Besides
retail competitors, we consider any casual apparel manufacturer operating in
outlet parks throughout the United States to be a competitor in the casual
apparel market. Due to consolidation in the men's apparel industry, it is
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. Recently, sales of Levi's(R) brand jeans have
been impacted by the increased competition from private labels as well as
fashion jeans market entrants and by a decrease in national sales trends of
Levi's(R) brand products. Our future Candie's(R) Outlet stores face substantial
competition in each of our product lines from, among other brands, Skechers,
Steve Madden and Esprit. The presence in the marketplace of various fashion
trends and the limited availability of shelf space also can affect competition.
4
There can be no assurance that we will be able to compete successfully
with our competitors in the future. Any failure to successfully compete could
have a material adverse effect on our business, financial condition and results
of operations.
Risk Related to Currency Fluctuations
We may be exposed to foreign currency risk. In the past, some of our
contracts to have apparel manufactured in foreign countries were negotiated in
United States dollars. If the value of the United States dollar decreases, then
the price that we pay for our products could increase, and it is possible that
we would not be able to pass this increase on to our customers.
Advertising and Promotion
Our business is directly affected by the success or failure of the
advertising and promotional efforts of our vendors, there are no assurances that
our future advertising efforts of our company, our vendors or our other
licensors will result in increased sales.
Risks Related to Our Operations
Dependence on Key Personnel
Our success is significantly dependent on the personal efforts,
performance and abilities of our key management. The loss of the services of any
key members of the management team could have a material adverse effect on our
business, financial condition and results of operations. The inability to
attract and retain qualified personnel in the future could have a material
adverse effect on our business, financial condition and results of operations.
Information Systems and Control Procedures
We periodically review, improve and, under certain circumstances, replace
our technology and management information systems to provide enhanced support to
all operating areas of our company. While we expect to continue to review and
upgrade our technology and management information systems, there are no
assurances that we can successfully implement such enhancements or that such
enhancements will support our operating strategies, or, if such upgrades and
enhancements are not successfully implemented, that our current systems will
continue to support adequately our management information requirements.
Moreover, while we believe that our current management information systems
are generally adequate to support our business operations, any deficiencies in
these systems which could result in less than optimal systems performance could
adversely affect our business operations. There are no assurances that our
efforts to improve upon and enhance our present management information systems
will resolve or eliminate any existing or potential difficulties.
Dependence on Third Party Manufacturers
We do not own or operate any manufacturing facilities and are therefore
dependent on third parties for the manufacture of our products. 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 have to rely on
other current manufacturing sources or identify and qualify new manufacturers.
There can be no assurance that we would be able to qualify such manufacturers
for existing or new products in a timely manner or that such manufacturers would
allocate sufficient capacity to us in order to meet our requirements.
Although we believe that we maintain good controls with respect to product
specifications and quality, there can be no assurance that manufacturers will
continue to produce products that are consistent with our standards.
5
Should we experience significant unanticipated demand, we will be required
to significantly expand our access to manufacturing, both from current and new
manufacturing sources. There can be no assurance that such additional
manufacturing capacity will be available on terms as favorable as those obtained
from current sources.
Dependence on Trademarks and Copyrights
We own and use a number of trademarks and operate under certain trademark
license agreements. We believe that these trademarks have significant value and
are instrumental in our ability to create and sustain demand for and market our
products. We cannot assure that these trademarks and licensing agreements will
remain in effect or that they will be renewed. 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 trademarks. For additional
details about our license agreements, you should refer to our Annual Report on
Form 10-K for the fiscal year ended February 2, 2002 (which we refer to as the
"Form 10-K"), which is incorporated herein by reference.
Expansion and Its Anticipated Financial Effect
We plan to significantly expand our operations in fiscal 2003 by opening
several new stores and expect to have capital expenditures of approximately $4.0
million. Our expansion plans are discussed in detail in the Form 10-K. Our
growth strategy depends on our ability to open and operate new retail stores on
a profitable basis. Our operating complexity and management responsibilities
will increase as we continue to grow, and we may face challenges in managing our
future growth. This anticipated growth will require that we continue to expand
and improve our operations, including our distribution infrastructure, and
expand, train and manage our employee base. In addition, we may be unable to
hire a sufficient number of qualified personnel to work in our new stores or to
successfully integrate the stores into our business. Our expansion prospects
also depend on a number of other factors, many of which are beyond our control,
including, among other things: economic conditions, competition, and consumer
preferences. There can be no assurance that we will be able to achieve our store
expansion goals. Even if we succeed in opening new stores as planned, we cannot
assure you that our newly opened stores will achieve revenue or profitability
levels comparable to those of our existing stores in the time periods estimated
by us, or at all.
Acts of Terrorism or War
Additional actual or threatened acts of terrorism or war could negatively
impact availability of merchandise or consumer spending trends and may otherwise
adversely impact our business. A portion of our merchandise is imported from
other countries. If imported goods become difficult or impossible to bring into
the United States, and if we cannot obtain such merchandise from other sources
at similar costs, our sales and profit margins may be adversely affected. In the
event that commercial transportation is curtailed or substantially delayed, our
business may be adversely impacted, as we may have difficulty shipping
merchandise to our distribution centers and stores, as well as fulfilling
catalog and internet orders. In extreme circumstances, we may be required to
suspend operations in some or all of our stores, which could have a material
adverse impact on our business, financial condition and result of operations.
Dilution Through Additional Issuances of Common Stock
In private placement transactions in May 2002, we issued shares of common
stock, preferred stock convertible into common stock and warrants to purchase
common stock. The issuance of common stock upon conversion of the preferred
stock and exercise of the warrants and other issuances of additional common
stock by us, from time to time, subjects our common stock to the dilutive
effects of such issuances.
Certain Corporate Governance Matters
It is possible that certain provisions of the Delaware General Corporation
Law or, if the proposal to change our state of incorporation from Delaware to
Nevada is approved at our annual meeting of stockholders scheduled for August 8,
2002, the Nevada corporate law may make it more difficult to accomplish
transactions which stockholders may otherwise deem to be in their best
interests. Such provisions may be deemed to have an anti-takeover effect
6
and may delay, defer or prevent a tender offer or takeover attempt that might
result in the receipt of a premium over the market price for the securities held
by stockholders.
Risks Relating to Our Acquisition of Casual Male
Potential Failure to Realize Cost Savings
We anticipate significant cost savings following our May 2002 acquisition
of Casual Male, primarily through headcount reductions and economies of scale in
purchasing. It is possible that the contemplated reductions 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.
Execution Risks Related to Acquisition
Following the Casual Male acquisition, we face execution risk on two
fronts: (i) successful post-acquisition integration of Casual Male and (ii)
on-schedule store openings as outlined in our licensing and joint venture
agreements with Candie's, Inc. and EcKo Complex, LLC, respectively. It is
possible that unforeseen pitfalls during the post-acquisition integration effort
could adversely affect our core operation of operating branded outlet stores. In
such an event, both sales and profit margins would be adversely impacted.
Difficulty in Managing Multiple Brands in Different 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 the Casual Male acquisition introduces
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 merchandise, which currently represent
approximately 75% of Casual Male's merchandise inventory. Under the current
operating model, this function is mostly the responsibility of the branded
manufacturer. We have entered into a strategic partnership with a well-known
branded apparel manufacturer to help mitigate these risks.
Possible Shifts in Target Demographic
Research provided to Casual Male by The NPD Group suggests that big and
tall men account for approximately 10% of the male population. Casual Male
currently targets big and tall men in the 25-54 age group. However, as more and
more food retailers begin to compete on the basis of providing more healthy
menus, and American pop-culture becomes more health conscious, the size of this
target demographic could decrease, resulting in lower sales.
Restrictions Imposed by Covenants
The Third Amended and Restated Loan and Security Agreement that we entered
into with Fleet Retail Finance and other lenders on May 14, 2002 contains
numerous operating covenants that will limit the discretion of management with
respect to certain business matters, and which will place restrictions on, among
other things, our ability to incur additional indebtedness, to create liens or
other encumbrances, and to make certain payments or investments, loans and
guarantees. This could have a material adverse effect on our business, financial
condition and results of operation.
7
Impact of Increased Leverage on Relationship with Suppliers
As a result of the additional debt we incurred to finance the Casual Male
acquisition, we have become a highly leveraged company. This will have several
important effects on our future operations including, but not limited to, (i) a
substantial portion of our cash flow from operations must be dedicated to the
payment of interest on our indebtedness and will not be available for other
purposes, (ii) certain restrictions related to our borrowing may limit our
ability to borrow additional funds or dispose of assets and may affect our
flexibility in planning for, and reacting to, changes in it business, including
other possible acquisition activities, and (iii) our ability to obtain
additional financing in the future for working capital, capital expenditures,
acquisitions, general corporate or other purposes may be impaired.
Based on the foregoing, our credit risk profile has changed from that of a
historically unleveraged company to that of a highly leveraged company. As such,
certain suppliers may change the terms under which they are willing to extend
trade credit to us. In the event that suppliers reduce credit terms or place us
on a cash-on-delivery (C.O.D.) basis, our working capital liquidity could be
substantially reduced.
We hope to mitigate this risk by purchasing approximately 60% of our
inventory from two suppliers, both of whom we have long-term relationships with,
and who require payment on 30 to 60 day terms. Also, we intend to source
merchandise on an increasing basis from a potential strategic partner, which is
both an investor in and vendor to Designs and, as such, is likely to be
incentivized to act in our best interest by extending attractive payment terms.
Dividends
We presently intend to retain earnings for working capital and to fund
capital expenditures. Accordingly, there is no present intention to pay
dividends on any shares of our common stock. In addition, the Third Amended and
Restated Loan and Security Agreement further restricts the payment of dividends.
USE OF PROCEEDS
We will not receive any proceeds from any sales of the shares of the
Offered Common Stock.
8
SELLING STOCKHOLDERS
In May 2002, we issued to certain investors in private placement
transactions a total of 180,162 shares of series B preferred stock and 1,379,300
shares of common stock. Each share of series B preferred stock will be
automatically converted into 100 shares of common stock upon approval by our
stockholders of the proposal to approve the issuance of common stock upon
conversion of the series B preferred stock. We intend to submit this proposal
for a vote of stockholders at the next annual meeting of our stockholders
scheduled for August 8, 2002. These transactions and the proposal are described
more fully in our Current Report on Form 8-K filed on May 23, 2002, as amended
on May 23, 2002 and June 14, 2002, and our definitive Proxy Statement filed on
[________], 2002, all of which are incorporated herein by reference.
The following table sets forth information as of June 3, 2002, regarding
the beneficial ownership of shares of common stock by the selling stockholders.
The table presents the total number of shares of common stock owned by the
selling stockholders prior to the offering contemplated by this prospectus, the
total number of shares of Offered Common Stock included in the offering and,
assuming the selling stockholders will offer all of the shares of Offered Common
Stock pursuant to the offering contemplated by this prospectus, the total number
of shares of common stock owned by the selling stockholders after completion of
the offering. This prospectus offers, and the registration statement of which
this prospectus forms a part registers, only the shares of Offered Common Stock,
which are listed in the table below in the column titled "Number of shares of
Offered Common Stock." Selling stockholders may sell only shares of Offered
Common Stock pursuant to the offering. The presentation is based on the
15,989,343 shares of our common stock that were outstanding on June 3, 2002 and
34,005,543 shares of our common stock that we expect to be outstanding following
the offering, which includes all the shares of common stock anticipated to be
issued after stockholder approval of the issuance of common stock upon
conversion of the series B preferred stock.
The following table and notes following the table were prepared based on
information provided to us by the listed selling stockholders. Other than as set
forth in the footnotes to the following table, the selling stockholders have not
had any material relationship with Designs within the past three years.
Percentage
Number of of
shares Number of outstanding
owned shares shares
prior to Number of owned owned
the shares of subsequent subsequent
offering Offered to the to the
Selling Stockholder (1) Common Stock offering offering
------------------- -------- ------------ ---------- ----------
300 Plaza Drive Associates 25,000 25,000 -- *
Almarc Trading Corp. Defined 25,000 25,000 -- *
Benefit Plan
AMT Asset Management, LP 50,000 50,000 -- *
Barclays Global Investors Ltd. 33,000 33,000 -- *
Baron Asset Fund on behalf of 2,353,000 2,353,000 -- *
the Small Cap Fund Series
Benchmark Partners, LP 235,300 235,300 -- *
Brahman Bull Fund, L.P. 148,200 148,200 -- *
Brahman C.P.F. Partners, L.P. 66,800 66,800 -- *
Brahman Institutional Partners, 52,200 52,200 -- *
L.P.
Brahman Partners II Offshore, Ltd. 94,200 94,200 -- *
Brahman Partners II, L.P. 46,100 46,100 -- *
Brahman Partners III, L.P. 8,600 8,600 -- *
The Branagh Revocable Trust, 6,500 6,500 -- *
Peter W. Branagh and Ramona Y
Branagh, Trustees
Bric Retail, L.P. 15,700 10,600 5,100 *
Bric6, LP 225,200 218,400 6,800 *
Bricoleur Enhanced, L.P. 219,400 219,300 100 *
Bricoleur Managed Trust 48,900 48,900 -- *
9
Percentage
Number of of
shares Number of outstanding
owned shares shares
prior to Number of owned owned
the shares of subsequent subsequent
offering Offered to the to the
Selling Stockholder (1) Common Stock offering offering
------------------- -------- ------------ ---------- ----------
Bricoleur Offshore, Ltd. 361,900 361,000 900 *
Bricoleur Partners II, L.P. 305,500 304,700 800 *
Bricoleur Partners, L.P. 250,900 238,500 12,400 *
Bricoleur-Plus Fund, Ltd. 13,400 10,600 2,800 *
Allen Brill 47,500 40,000 7,500 *
Brook Road Nominee Trust 50,000 50,000 -- *
Buckingham RAF Int'l Partners, 110,600 110,600 -- *
L.P.
Buckingham RAF Partners II, L.P. 55,600 51,800 3,800 *
Buckingham RAF Partners, L.P. 720,900 661,200 59,700 *
BY Partners, L.P. 289,800 289,800 -- *
Carafe Investment Co. Ltd. 397,000 100,000 297,000 *
Clark Partners I, L.P. (2) 1,411,800 1,411,800 -- *
Stewart L. Cohen 23,500 23,500 -- *
Cragswood, Ltd. 18,900 18,900 -- *
Kenneth C. Cummins (3) 69,100 10,000 59,100 *
Walter Fischer 60,000 50,000 10,000 *
Glenhill Capital, LP 1,129,500 1,129,500 -- *
Glenhill Capital Overseas 282,400 282,400 -- *
Partners Ltd.
Howard Gonchar 31,500 23,500 8,000 *
Richard W. Greene IRA 25,000 25,000 -- *
Jon D. Gruber & Linda W. Gruber 61,900 58,900 3,000 *
Gruber & McBaine International 125,800 121,800 4,000 *
Patrick M. Guarini 23,500 23,500 -- *
Guerrilla IRA Partners 14,000 14,000 -- *
Guerrilla Partners 33,100 33,100 -- *
Dennis R. Hernreich (4) 109,268 25,000 84,268 *
Hocky Capital, LP 227,100 227,100 -- *
Hocky Capital QP LP 224,800 224,800 -- *
Allison Holtzman IRA, Bear 7,800 7,800 -- *
Stearns Securities Corp. Custodian
Marc L. Holtzman 23,500 23,500 -- *
Marc L. Holtzman, Trustee for 3,500 3,500 -- *
Allison Holtzman
Marc L. Holtzman, Trustee for 7,600 7,600 -- *
Olivia Garcia
Marc L. Holtzman, Trustee for 2,000 2,000 -- *
Percy Holtzman
Marc L. Holtzman, Trustee for 1,100 1,100 -- *
Rivers Holtzman
Marc L. Holtzman, Trustee for 7,200 7,200 -- *
Sterling Garcia
Marc L. Holtzman, Trustee for 1,100 1,100 -- *
Temple Holtzman
Steven Holtzman 23,500 23,500 -- *
Interstate Properties 235,300 235,300 -- *
JLF Offshore Fund, Ltd. 795,000 795,000 -- *
JLF Partners I, LP 616,800 616,800 -- *
Warren B. Kanders 235,300 235,300 -- *
Burton I. Koffman 50,000 50,000 -- *
Milton Koffman 50,000 50,000 -- *
Ruthanne Koffman 10,000 10,000 -- *
Lagunitas Partners LP 422,700 407,700 15,000 *
10
Percentage
Number of of
shares Number of outstanding
owned shares shares
prior to Number of owned owned
the shares of subsequent subsequent
offering Offered to the to the
Selling Stockholder (1) Common Stock offering offering
------------------- -------- ------------ ---------- ----------
David A. Levin (5) 497,667 40,500 457,167 1.33%
Carl M. Lieberman 50,000 5,000 45,000 *
Lynch Childrens Trust FBO Anne 16,800 4,800 12,000 *
Lynch
Lynch Childrens Trust FBO 16,800 4,800 12,000 *
Elizabeth Lynch
Lynch Childrens Trust FBO Mary 16,800 4,800 12,000 *
Lynch
Peter and Carolyn Lynch JWROS 132,700 37,700 95,000 *
The Lynch Foundation 54,500 29,500 25,000 *
Peter S. Lynch Charitable Lead 7,900 5,900 2,000 *
Annuity Trust
Peter S. Lynch Charitable 60,100 47,100 13,000 *
Remainder Trust
Peter S. Lynch Charitable Unitrust 9,100 7,100 2,000 *
Allan R. Lyons 25,000 25,000 -- *
Paul R. Mancia 365,000 25,000 340,000 1.00%
Peter R. McMullin 40,000 40,000 -- *
Metrowest Ent. 401(K) Profit 16,500 1,500 15,000 *
Sharing Plan FBO Carl M. Lieberman
Jeremiah P. Murphy, Jr. (6) 94,326 25,000 69,326 *
New Valu, Inc. 40,000 40,000 -- *
Joseph Pennacchio (7) 121,212 50,000 71,212 *
Permal U.S. Opportunities Fund, 565,000 565,000 -- *
Ltd.
Pollack Investment Partnership, LP 16,500 16,500 -- *
Pollat, Evans & Co. Inc. 7,500 7,500 -- *
George T. Porter, Jr. (8) 92,906 25,000 67,906 *
Prism Partners I, L.P. 250,000 250,000 -- *
Prism Partners II Offshore Fund 250,000 250,000 -- *
Putnam Investment Funds- Putnam 989,600 989,600 -- *
Small Cap Value Fund
Putnam Variable Trust- Putnam VT 377,000 377,000 -- *
Small Cap Value Fund
Putnam World Trust II: Putnam 12,700 12,700 -- *
U.S. Small Cap Value Equity Fund
(Dublin)
Reservoir Capital Master Fund, 67,600 67,600 -- *
L.P.
Reservoir Capital Partners, L.P. 403,100 403,100 -- *
Eugene Roth 111,500 50,000 61,500 *
Estate of Marvin Roth 50,000 50,000 -- *
Phillip W. Roth 140,000 80,000 60,000 *
Sonia Seidman 16,500 16,500 -- *
Seidman & Associates, LLC 34,000 34,000 -- *
Seidman Investment Partnership 16,500 16,500 -- *
II, LP
Seidman Investment Partnership, LP 16,500 16,500 -- *
John J. Sweeney (9) 20,668 3,500 17,168 *
Hugh Sheldon Unger, Lincoln Trust 18,600 12,500 6,100 *
TTEE IRA
Jeffrey and Sheryl Unger (10) 43,650 10,000 33,650 *
Michael H. Weiss 55,800 50,000 5,800 *
Weiss, Peck & Greer, L.L.C 1,529,500 1,529,500 -- *
Whiffletree Partners LP 235,300 235,300 -- *
Willow Creek Capital Partners, LP 235,300 235,300 -- *
11
Percentage
Number of of
shares Number of outstanding
owned shares shares
prior to Number of owned owned
the shares of subsequent subsequent
offering Offered to the to the
Selling Stockholder (1) Common Stock offering offering
------------------- -------- ------------ ---------- ----------
Willow Creek Offshore Fund 235,300 235,300 -- *
WPG Tudor Fund 235,300 235,300 -- *
Wynnefield Partners Small Cap 126,300 126,300 -- *
Value, LP
Wynnefield Partners Small Cap 181,800 181,800 -- *
Value, LP I
Wynnefield Small Cap Value 92,000 92,000 -- *
Offshore Fund, Ltd.
Zaxis Equity Neutral, L.P. 78,500 78,500 -- *
Zaxis Offshore Limited 571,500 571,500 -- *
Zaxis Partners, L.P. 138,000 138,000 -- *
- ------------------------
* Less than 1%.
(1) Includes shares of common stock which are not outstanding as of June 3,
2002, but which will be issued and outstanding upon conversion of the
series B preferred stock, subject to stockholder approval, which is
proposed for consideration at the next annual meeting of our stockholders
scheduled for August 8, 2002. Does not include shares of common stock
underlying certain warrants which are not presently exercisable.
(2) Stephen M. Duff is Treasurer of Ninth Floor Corporation, the general
partner of Clark Partners I, L.P., and Senior Investment Manager at The
Clark Estates, Inc., and has been a member of the Board of Directors of
Designs since May 14, 2002.
(3) Kenneth C. Cummins has been a legal consultant to Designs since November
12, 1996. Includes 20,000 shares of common stock issuable upon exercise of
stock options exercisable within 60 days.
(4) Dennis R. Hernreich has been Senior Vice President, Chief Financial
Officer and Treasurer of Designs since September 5, 2000. Includes 61,668
shares of common stock issuable upon exercise of options exercisable
within 60 days.
(5) David A. Levin has been President and Chief Executive Officer of Designs
since April 10, 2000 and a director of Designs since April 11, 2000.
Includes 241,667 shares of common stock issuable upon exercise of options
exercisable within 60 days.
(6) Jeremiah P. Murphy, Jr. has been a director of Designs since October 8,
1999. Includes 35,000 shares of common stock issuable upon exercise of
options exercisable within 60 days.
(7) Joseph Pennacchio has been a director of Designs since October 8, 1999.
Includes 35,000 shares of common stock issuable upon exercise of options
exercisable within 60 days.
(8) George T. Porter, Jr. has been a director of Designs since October 28,
1999. Includes 65,000 shares of common stock issuable upon exercise of
options exercisable within 60 days.
(9) John J. Sweeney has been an employee of Designs since April 7, 1997.
Includes 5,334 shares of common stock issuable upon exercise of options
exercisable within 60 days.
(10) Jeffrey Unger was an employee of Designs from October 1999 through July
2000. Mr. Unger has been a investor relations consultant to Designs since
July 2000. Includes 20,000 shares of common stock issuable upon exercise
of options exercisable within 60 days.
The aggregate proceeds to the selling stockholders from the sale of the
Offered Common Stock offered by them pursuant to this prospectus will be the
sale price of the shares less discounts and commissions, if any.
12
PLAN OF DISTRIBUTION
The selling stockholders, which term includes their successors,
transferees, pledgees or donees or their successors, may sell the Offered Common
Stock directly to purchasers or through underwriters, broker-dealers or agents,
who may receive compensation in the form of discounts, concessions or
commissions from the selling stockholders or the purchasers, which discounts,
concessions or commissions as to any particular underwriter, broker-dealer or
agent may be in excess of those customary in the types of transactions involved.
The Offered Common Stock may be sold by any selling stockholder in one or
more transactions at fixed prices, at prevailing market prices at the time of
sale, at prices related to such prevailing market prices, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions, which may involve crosses or block transactions (1) on
any national securities exchange or quotation service on which our common stock
may be listed or quoted at the time of sale, (2) in the over-the-counter market,
(3) in transactions otherwise than on such exchanges or services or in the
over-the-counter market, (4) through the writing of options, whether such
options are listed on an options exchange or otherwise, or (5) through the
settlement of short sales. In connection with the sale of the Offered Common
Stock or otherwise, any selling stockholder 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 such
short positions, or loan or pledge the common stock to broker-dealers that in
turn may sell these securities.
Each selling stockholder reserves the right to accept and, together with
its agents from time to time, to reject, in whole or in part, any proposed
purchase of common stock to be made directly or through agents.
Any underwriters, broker-dealers or agents that participate in the sale of
the Offered Common Stock may be "underwriters" within the meaning of Section
2(11) of the Securities Act of 1933, as amended. Any discounts, commissions,
concessions or profit they earn on any resale of the shares may be underwriting
discounts and commissions under the Securities Act.
To the extent required, the common stock to be sold, the name of each
selling stockholder, the respective purchase prices and the public offering
prices, the name of any agent, dealer or underwriter, and any applicable
commissions or discounts with respect to a particular offer will be set forth in
an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this prospectus forms a part.
13
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedules as of February 2, 2002 and February 3, 2001
and the years then ended included in our Annual Report on Form 10-K for the year
ended February 2, 2002, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
fiscal 2002 and fiscal 2001 financial statements and schedules are incorporated
by reference in reliance on Ernst & Young LLP's report, given on their authority
as experts in accounting and auditing.
The consolidated statements of operations, stockholders' equity, and
cash flows for the year ended January 29, 2000 and the related financial
statement schedule for the year ended January 29, 2000, incorporated in this
prospectus by reference from Designs, Inc.'s Annual Report on Form 10-K for the
year ended February 2, 2002, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and has been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Casual Male Corp.,
debtor-in-possession, as of February 2, 2002 and February 3, 2001, and for each
of the years in the three-years ended February 2, 2002, February 3, 2001 and
January 29, 2000, have been incorporated by reference herein in reliance upon
the report of KPMG LLP, independent accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
The audit report covering the February 2, 2002 financial statements
contains an explanatory paragraph that states that most of the assets of Casual
Male Corp. have been sold. Casual Male Corp. will continue operations primarily
to liquidate any remaining assets and settle Casual Male Corp.'s remaining
liabilities, including liabilities subject to compromise, to the extent
possible. After the settlements have occurred, it is expected that Casual Male
Corp. will cease operations. The consolidated financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
14
WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes a part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission under the Securities
Act, including amendments thereto relating to the Offered Common Stock. This
prospectus does not contain all of the information set forth in the registration
statement. You should rely only on the information contained in this prospectus
or incorporated herein by reference. We have not authorized anyone else to
provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front page of this prospectus, regardless of the time of
delivery of this prospectus or any sale of common stock.
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith, file reports,
proxy statements and other information with the Commission. Such reports, proxy
statements and other information filed by us may be inspected and copied at the
Commission's Public Reference Section located at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Copies of such material also can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W, Washington,
D.C. 20549, at prescribed rates. Please call the Commission at 1-800-SEC-0330
for more information about the operation of the public reference rooms. The
Commission also makes electronic filings publicly available on the Internet. The
Commission's Internet address is http://www.sec.gov. The Commission's web site
also contains reports, proxy statements and other information regarding us that
has been filed with the Commission. Our common stock is quoted under the symbol
"DESI" on the Nasdaq National Market. Reports, proxy statements and other
information concerning us may be inspected at the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
The Commission allows us to "incorporate by reference" information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the Commission will automatically update and supersede this information.
Further, all filings we make under the Exchange Act after the date of the
initial registration statement and prior to effectiveness of the registration
statement shall be deemed to be incorporated by reference into this prospectus.
We incorporate by reference the documents listed below and any future filings we
will make with the Commission under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act:
o our definitive Proxy Statement, filed on [________], 2002;
o our Annual Report on Form 10-K for the fiscal year ended February 2,
2002;
o our Quarterly Report on Form 10-Q for the fiscal quarter ended May
4, 2002;
o our Current Report on Form 8-K filed on May 23, 2002, as amended on
May 23, 2002 and June 14, 2002;
o the description of our capital stock set forth in our registration
statement under the Exchange Act;
o all other reports filed by us pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
annual report referred to above; and
o all documents and reports subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
termination of the offering.
We will furnish to any person to whom this prospectus is delivered,
without charge, a copy of these documents upon written or oral request to
Secretary, Designs, Inc., 555 Turnpike Street, Canton, Massachusetts 02021. Our
telephone number is (781) 828-9300. A copy of any exhibits to these documents
will be furnished at no cost to any stockholder upon written or oral request.
15
Disclosure of Commission Position on Indemnification for Securities Act
Liabilities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of Designs
pursuant to the provisions of Item 510 of Regulation S-K, or otherwise, we have
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Designs of expenses incurred or paid by a
director, officer or controlling person of Designs 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, we will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
16
No dealer, salesman or other person has been authorized to give any information
or to make representations other than those contained in this prospectus, and if
given or made, such information or representations must not be relied upon as
having been authorized by us or the selling stockholders. Neither the delivery
of this prospectus nor any sale hereunder will, under any circumstances, create
an implication that the information herein is correct as of any time subsequent
to its date. This prospectus does not constitute an offer to or solicitation of
offers by anyone in any jurisdiction in which such an offer or solicitation is
not authorized or in which the person making such an offer is not qualified to
do so or to anyone to whom it is unlawful to make such an offer or solicitation.
19,395,500 SHARES
DESIGNS, INC.
COMMON STOCK
__________________________
PROSPECTUS
__________________________
_________, 2002
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The Registrant estimates that expenses payable by the Registrant in
connection with the offering described in this Registration Statement will be as
follows:
Total
-----
SEC registration fee (actual) ........................................$ 11,625
Accounting fees and expenses .........................................$ 40,000
Legal fees and expenses...............................................$ 50,000
Printing and engraving expenses.......................................$ 2,500
Miscellaneous expenses................................................$ 5,000
Total...............................................................$109,125
Item 15. Indemnification of Directors and Officers
The Registrant's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), 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 Delaware General Corporation Law,
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 effect of this provision of
the Certificate of Incorporation is that directors cannot be held liable for
monetary damages arising from breaches of their duty of care, unless the breach
involves one of the four exceptions described in the preceding sentence. The
provision does not prevent stockholders from obtaining injunctive or other
equitable relief against directors, nor does it shield directors from liability
under federal or state securities laws.
The Certificate of Incorporation and the Registrant's By-Laws further
provide for indemnification of the Registrant's directors and officers to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law,
including circumstances in which indemnification is otherwise discretionary.
Item 16. Exhibits
Exhibit No. Description
- ----------- ------------
5.1** Opinion of Kramer Levin Naftalis & Frankel LLP.
23.1* Consent of Independent Auditors - Ernst & Young LLP.
23.2* Independent Auditors' Consent - Deloitte & Touche LLP.
23.3* Independent Auditors' Consent - KPMG LLP.
23.4** Consent of Kramer Levin Naftalis & Frankel LLP.
24.1* Power of Attorney (contained on the signature page of this
Registration Statement).
- -------------
* Filed herewith
** To be filed by amendment.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
i. To include any prospectus required by Section 10(a)(3) of the
Securities Act;
ii. To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
iii. To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that clauses (i) and (ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by such
clauses is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(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.
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 Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Canton, Massachusetts, on June 18, 2002.
By: /s/ David A. Levin
------------------------------------
David A. Levin
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David A. Levin and Dennis R. Hernreich, and each
of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully for all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ David A. Levin President, Chief Executive June 18, 2002
- -------------------------- Officer and Director
David A. Levin (Principal Executive Officer)
/s/ Dennis R. Hernreich Senior Vice President, Chief June 18, 2002
- -------------------------- Financial Officer and Treasurer
Dennis R. Hernreich (Principal Financial Officer)
/s/ Seymour Holtzman Chairman of the June 18, 2002
- -------------------------- Board of Directors
Seymour Holtzman
/s/ Jesse H. Choper Director June 18, 2002
- -------------------------
Jesse H. Choper
Director
- -------------------------
Alan Cohen
Director
- -------------------------
Stephen M. Duff
/s/ Jeremiah P. Murphy, Jr. Director June 18, 2002
- -------------------------
Jeremiah P. Murphy, Jr.
/s/ Joseph Pennacchio Director June 18, 2002
- -------------------------
Joseph Pennacchio
/s/ George T. Porter, Jr. Director June 18, 2002
- -------------------------
George T. Porter, Jr.
II-3
EXHIBIT INDEX
Exhibit No. Description
- ----------- ------------
5.1* Opinion of Kramer Levin Naftalis & Frankel LLP.
23.1* Consent of Independent Auditors - Ernst & Young LLP.
23.2* Independent Auditors' Consent - Deloitte & Touche LLP.
23.3* Independent Auditors' Consent - KPMG LLP.
23.4* Consent of Kramer Levin Naftalis & Frankel LLP (contained in the
opinion filed as Exhibit 5.1 hereto).
24.1* Power of Attorney (contained on the signature page of this
Registration Statement).
- ---------------
* Filed herewith
II-3