UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): NOVEMBER 30, 2003
-------------------
HANOVER DIRECT, INC.
-------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
1-08056
----------------------------------
(COMMISSION FILE NUMBER)
DELAWARE 13-0853260
----------------------------------- -----------------------------
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NUMBER)
115 RIVER ROAD
EDGEWATER, NEW JERSEY 07020
----------------------------------- --------------
(ADDRESS OF PRINCIPAL (ZIP CODE)
EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (201) 863-7300
------------------
-------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
ITEM 1. CHANGES IN CONTROL OF REGISTRANT and
ITEM 5. OTHER EVENTS AND REQUIRED FD DISCLOSURE.
Transaction with Chelsey Direct, LLC
On November 30, 2003, Hanover Direct, Inc. (the "Company") consummated
the transactions contemplated by the Recapitalization Agreement, dated as of
November 18, 2003 (the "Recapitalization Agreement"), with Chelsey Direct, LLC
("Chelsey") and recapitalized the Company, completed the reconstitution of the
Board of Directors of the Company and settled outstanding litigation between the
Company and Chelsey (the "Recapitalization"). Immediately prior to the
consummation of the transactions contemplated by the Recapitalization Agreement,
Chelsey was the holder of 29,446,888 shares of the Company's common stock, par
value $.66 2/3 per share (the "Common Stock"), and 1,622,111 shares of the
Company's Series B Participating Preferred Stock (the "Series B Preferred
Stock") having 10 votes per share. A copy of the Recapitalization Agreement was
attached as Exhibit 99.1 to the Company's Current Report on Form 8-K filed with
the Securities and Exchange Commission on November 19, 2003.
In the transaction, the Company exchanged all of the 1,622,111
outstanding shares of the Series B Preferred Stock held by Chelsey for the
issuance to Chelsey of 564,819 shares of newly-created Series C Participating
Preferred Stock (the "Series C Preferred Stock") and 81,857,833 additional
shares of Common Stock of the Company. The shares of Series C Preferred Stock
are entitled to vote with the shares of Common Stock on all matters on which the
Common Stock votes and are entitled to one hundred votes per share plus that
number of votes as shall equal the dollar value of any accrued, unpaid and
compounded dividends with respect to such share. The Series C Preferred Stock is
also entitled to vote as a class on any matter that would adversely affect such
Series C Preferred Stock.
In connection with the closing of the transactions contemplated by the
Recapitalization Agreement, the Company filed with the Secretary of State of
Delaware a Certificate of Designations, Powers, Preferences and Rights setting
forth the terms and conditions of the Series C Preferred Stock and will file a
Stipulation of Discontinuance with the Supreme Court of the State of New York in
connection with pending litigation between the Company and Chelsey.
In connection with the closing of the transactions contemplated by the
Recapitalization Agreement, the Company also entered into a registration rights
agreement whereby the Company agreed to provide, at its sole expense, two (2)
demand and unlimited piggyback registration rights with respect to resales by
Chelsey and Stuart Feldman of all shares of Common Stock owned by Chelsey and
Mr. Feldman.
Pursuant to the Recapitalization Agreement, the Company, acting through
its Board of
Directors and in accordance with its charter and bylaws and applicable law,
agreed to recommend in the proxy statement for the first stockholders meeting
following the Recapitalization, amendments to its Certificate of Incorporation
(the "Charter Amendment") to effectuate the following: (i) a reduction in the
par value per share of Common Stock from $0.66 2/3 per share to $0.01 per share,
(ii) a reverse split of the Common Stock in a ratio of 10 for 1 and (iii) an
increase by 10 million shares of the number of authorized shares of preferred
stock of the Company, all of such shares to be issuable by the Board of
Directors in one or more series. The Company has no current plans for the
issuance of such shares.
Simultaneously with the closing of the transactions contemplated by the
Recapitalization Agreement, Chelsey, Stuart Feldman, Regan Partners, L.P.
("Regan Partners"), Basil P. Regan and Regan International Fund Limited
(together with Regan Partners and Basil Regan, the "Regan Group") entered into a
Voting Agreement providing that each of them will vote any shares of the Company
beneficially owned by them or any entity affiliated with them to effectuate the
Recapitalization and the Charter Amendment and to elect the nominees to the
Board of Directors of Chelsey and Regan Partners designated pursuant to the
Recapitalization Agreement. In accordance with the terms of the Voting
Agreement, so long as Regan Partners has a designee on the Board of Directors,
Regan Partners and certain of its affiliates agreed to (i) notify Chelsey at
least twenty-four (24) hours prior to any sale, transfer or other disposition
(or the execution of any agreement with respect thereto), other than fund
balancing transactions entered into among Regan Partners and/or any affiliates
of Regan Partners, of any shares of Common Stock of the Company owned by Regan
Partners and (ii) provide Chelsey an opportunity to purchase such shares prior
to such sale, transfer or other disposition on terms no less favorable to Regan
Partners than otherwise available to it from such third party.
Effective upon the closing of the transactions contemplated by the
Recapitalization Agreement, the size of the Board of Directors was increased to
nine (9) members, and Mr. Donald Hecht was elected to the Company's Board of
Directors and the Audit Committee thereof. For a period of two (2) years from
the closing of the Recapitalization, five (5) of the nine (9) directors of the
Company will at all times be directors of the Company designated by Chelsey (who
initially are Martin Edelman, William Wachtel, Stuart Feldman, Wayne Garten and
Donald Hecht) and one (1) of the nine (9) directors of the Company will at all
times be a director of the Company designated by Regan Partners (who initially
is Basil Regan). The right of Regan Partners to designate a nominee to the
Board of Directors shall terminate if the Regan Group ceases to own at least
75% of the outstanding shares of Common Stock (as adjusted for stock splits,
reverse stock splits and the like) owned by the Regan Group as of November 10,
2003. All shares for which the Company's management or Board of Directors hold
proxies (including undesignated proxies) will be voted in favor of the election
of such designees of Chelsey and Regan Partners, except as may otherwise be
provided by stockholders submitting such proxies. In the event that any Chelsey
or Regan Partners designee shall cease to serve as a director of the Company
for any reason, the Company will cause the vacancy resulting thereby to be
filled by a designee of Chelsey or Regan Partners, as the case may be,
reasonably acceptable to the Board of Directors as promptly as practicable.
Chelsey may nominate or propose for nomination or elect any persons to the
Board of Directors, without regard to the foregoing limitations, after the
Series C Preferred Stock is redeemed in full.
The shares of Series B Preferred Stock that were exchanged with Chelsey
for shares of Series C Preferred Stock and additional shares of Common Stock of
the Company represent all of the outstanding shares of Series B Preferred Stock.
The Company has filed a certificate in Delaware eliminating such series from its
certificate of incorporation.
Immediately prior to the consummation of the transaction, Chelsey was
the holder of 29,446,888 shares of Common Stock and 1,622,111 shares of Series B
Preferred Stock having 10 votes per share. Thus, based on 138,315,800 shares of
Common Stock outstanding immediately prior to the consummation of the
transaction, Chelsey was the beneficial owner of approximately 21.2% of the
Company's outstanding Common Stock and 29.5% of the Company's outstanding voting
securities. Immediately after the consummation of the transaction, Chelsey was
the holder of 111,304,721 shares of Common Stock (representing approximately
50.5% of the outstanding common shares) and 564,819 shares of the 100 votes per
share Series C Preferred Stock. Thus, based on 220,173,633 shares of Common
Stock and 564,819 shares of Series C Preferred Stock outstanding immediately
after the consummation of the transaction, Chelsey was entitled to cast
167,786,621 votes on all matters on which the stockholders vote, or
approximately 60.6% of the total number of votes entitled to be cast.
The transaction with Chelsey, including the issuance of the Series C
Preferred Stock and the New Common Shares to Chelsey, was unanimously approved
by the members of the Board of Directors of the Company and the members of the
Transactions Committee of the Board of Directors. In addition, Congress
Financial Corporation, which provides a revolving line of credit to the Company,
executed an amendment to its Loan and Security Agreement with the Company and
its subsidiaries in which it consented to the transactions between the Company
and Chelsey, modified certain financial covenants for fiscal 2003 and added
certain financial covenants for fiscal 2004 and received a fee of $150,000.
On December 1, 2003, the Company issued a press release announcing the
closing of the transactions contemplated by the Recapitalization Agreement and
the addition of Donald Hecht to the Company's Board of Directors and the Audit
Committee thereof. A copy of the Press Release is attached as Exhibit 99.8 to
this Current Report on Form 8-K.
Terms of the Series C Preferred Stock
The holders of the Series C Preferred Stock are entitled to one hundred
votes per share on any matter on which the Common Stock votes and are entitled
to one hundred votes per share plus that number of votes as shall equal the
dollar value of any accrued, unpaid and compounded dividends with respect to
such share. The holders of the Series C Preferred Stock are also entitled to
vote as a class on any matter that would adversely affect such Series C
Preferred Stock. In addition, in the event that the Company defaults in its
obligations under the Certificate of Designations or under the Loan and Security
Agreement with Congress Financial Corporation, then the holders of the Series C
Preferred Stock, voting as a class, shall be entitled to elect twice the number
of directors as comprised the Board of Directors on the default date, and such
additional directors shall be elected by the holders of record of Series C
Preferred Stock as set forth in the Certificate of Designations.
In the event of the liquidation, dissolution or winding up of the
Company, the holders of
the Series C Preferred Stock are entitled to a liquidation preference of $100
per share (the "Liquidation Preference") or an aggregate amount of $56,481,900.
The Series B Preferred Stock owned by Chelsey and exchanged in the
Recapitalization had at the time of the Recapitalization an aggregate accrued
liquidation preference of $112,963,800.
Commencing January 1, 2006, dividends will be payable quarterly on the
Series C Preferred Stock at the rate of 6% per annum, with the preferred
dividend rate increasing by 1 1/2% per annum on each anniversary of the dividend
commencement date until redeemed. At the Company's option, in lieu of cash
dividends, the Company may instead elect to cause accrued and unpaid dividends
to compound at a rate equal to 1% higher than the applicable cash dividend rate.
The Series C Preferred Stock is entitled to participate ratably with the Common
Stock on a share for share basis in any dividends or distributions paid to or
with respect to the Common Stock. The right to participate has anti-dilution
protection. The Company's credit agreement with Congress Financial Corporation
currently prohibits the payment of dividends.
The Series C Preferred Stock may be redeemed in whole and not in part,
except as set forth below, at the option of the Company at any time for the
liquidation preference and any accrued and unpaid dividends (the "Redemption
Price"). The Series C Preferred Stock will be redeemed by the Company on
January 1, 2009 (the "Mandatory Redemption Date") for the Redemption Price. If
the Series C Preferred Stock is not redeemed on or before the Mandatory
Redemption Date, or if other mandatory redemptions are not made, the Series C
Preferred Stock will be entitled to elect one-half (1/2) of the Company's Board
of Directors. Notwithstanding the foregoing, the Company will redeem the maximum
number of shares of Series C Preferred Stock as possible with the net proceeds
of certain asset and equity sales not required to be used to repay Congress
Financial Corporation, subject to a $10 million excess availability requirement,
pursuant to the terms of the 19th Amendment to the Loan and Security Agreement
with Congress Financial Corporation (as modified by the 29th Amendment to the
Loan and Security Agreement), and Chelsey will be required to accept such
redemptions.
Pursuant to the terms of the Certificate of Designations of the Series
C Preferred Stock, the Company's obligation to pay dividends on or redeem the
Series C Preferred Stock is subject to its compliance with its agreements with
Congress Financial Corporation.
Miscellaneous
The foregoing description of the Recapitalization Agreement and the
other agreements and documents described herein does not purport to be complete
and is qualified in its entirety by reference to the copies thereof attached
hereto as exhibits, which are incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
Exhibit 3.1 - Certificate of the Designations, Powers, Preferences and
Rights of Series C Participating Preferred Stock of Hanover
Direct, Inc.
Exhibit 3.2 - Certificate of Elimination of the Series B Participating
Preferred Stock of Hanover Direct, Inc.
Exhibit 3.3 - Certificate of Correction filed to Correct a Certain Error in
the Amended and Restated Certificate of Incorporation of
Hanover Direct, Inc. filed in the Office of the Secretary of
State of Delaware on October 31, 1996.
Exhibit 3.4 - Amendments to By-laws of the Company.
Exhibit 99.1 - Registration Rights Agreement, dated as of November 30, 2003,
between Hanover Direct, Inc., Chelsey Direct, LLC and Stuart
Feldman.
Exhibit 99.2 - Corporate Governance Agreement, dated as of November 30, 2003,
among Hanover Direct, Inc., Chelsey Direct, LLC, Stuart
Feldman, Regan Partners, L.P., Regan International Fund
Limited and Basil P. Regan.
Exhibit 99.3 - Voting Agreement, dated as of November 30, 2003, between
Chelsey Direct, LLC, Stuart Feldman, Regan Partners, L.P.,
Regan International Fund Limited and Basil P. Regan.
Exhibit 99.4 - General Release, dated November 30, 2003, given by Hanover
Direct, Inc. and its parents, affiliates, subsidiaries,
predecessor firms, shareholders, officers, directors, members,
managers, employees, agents and others to Chelsey Direct, LLC
and its parents, affiliates, subsidiaries, predecessor firms,
shareholders, officers, directors, members, managers,
employees, attorneys, agents and others.
Exhibit 99.5 - General Release, dated November 30, 2003, given by Chelsey
Direct, LLC and its parents, affiliates, subsidiaries,
predecessor firms, shareholders, officers, directors, members,
managers, employees, agents and others to Hanover Direct, Inc.
and its parents, affiliates, subsidiaries, predecessor firms,
shareholders, officers, directors, members, managers,
employees, attorneys, agents and others.
Exhibit 99.6 - Stipulation of Discontinuance of the action entitled Hanover
Direct, Inc. v. Richemont Finance S.A. and Chelsey Direct, LLC
in the Supreme Court of the State of New York County of New
York (Index No. 03/602269), dated November 30, 2003.
Exhibit 99.7 - Twenty-Ninth Amendment to Loan and Security Agreement, dated
as of November 25, 2003, by and among Congress Financial
Corporation and Hanover Direct, Inc. and certain of its
subsidiaries.
Exhibit 99.8 - Press Release, dated December 1, 2003, of the Company.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
HANOVER DIRECT, INC.
----------------------------------
(Registrant)
December 1, 2003 By: /s/ Brian C. Harriss
----------------------------------
Name: Brian C. Harriss
Title: Executive Vice President,
Finance and Administration