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SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the Registrant [ ]
Filed by a party other than the Registrant [X]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[X] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
[ ] Confidential, For Use of the Commission Only
(as permitted by Rule 14a-6(e) (2))
CATALINA LIGHTING, INC.
(Name of Registrant as Specified in Its Charter)
DMM INVESTMENTS, LTD.
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on the table below per Exchange Act Rule 14a-6(i)(1) and
0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials:
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the form or schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
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AGREEMENT
This AGREEMENT (this "Agreement") is entered into as of this 30th day of
April, 1999 by and among Catalina Lighting, Inc. (the "Company"), on the one
hand, and David M. Moss ("Moss") and DMM Investments Ltd., a Florida limited
partnership ("DMM"), on the other hand.
WHEREAS, the Company has distributed definitive proxy materials (the
"Company Proxy Materials") in respect of its 1999 Annual Meeting of Stockholders
(the "Annual Meeting") currently scheduled to be held on May 10, 1999;
WHEREAS, DMM has filed preliminary proxy materials (the "Moss Proxy
Materials") with respect to his proposal to nominate two individuals to stand
for election at the Annual Meeting in opposition to the management slate; and
WHEREAS, the Company and Moss wish to enter into a settlement on the terms
and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the Company and Moss agree as follows:
1. Before the opening of the stock markets on Monday, May 3, 1999, the
Company shall issue a press release in the form attached hereto as
Exhibit A and Moss shall issue a press release in the form attached
hereto as Exhibit B.
2. Moss and DMM each agree that they (a) shall not, directly or
indirectly, and shall use their best efforts to cause each
"participant" (as such term is used in Rule 14a-11 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) not
to, solicit any proxies or participate in any "solicitation" of any
"proxy" (as such terms are defined in Rule 14a-1 under the Exchange
Act, and including without limitation any revocations of proxies
granted to the Company) with respect to matters to be presented at the
Annual Meeting, and shall not become a "participant" in any election
contest relating to the Annual Meeting, (b) shall promptly terminate
all agreements and understandings relating to the solicitation by Moss
and DMM described in the Moss Proxy Statement, and (c) shall not take
any other actions inconsistent with the matters contemplated hereby.
As soon as possible on Monday, May 3, 1999, Moss will take such steps
as are necessary and appropriate to withdraw the Moss Proxy Materials.
3. Immediately following the Annual Meeting, the Company will expand the
size of its Board of Directors and cause Roy D. Oppenheim to be named
as a director of the Company.
4. Within two (2) business days after the execution and delivery of this
Agreement, the Company shall wire transfer to an account designated by
Milbank, Tweed, Hadley & McCloy LLP the amount of $100,000 in full
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reimbursement of Moss' expenses incurred in connection with the
preparation of the Moss Proxy Materials and related matters.
5. DMM and Moss each hereby releases, discharges and acquits the Company,
and its officers, directors, agents, representatives and each
participant named in the Company Proxy Statement from any and all
claims, grievances, demands, charges, liabilities, obligations,
actions, causes of action, damages, costs, losses of services,
expenses and compensation of any nature whatsoever existing on the
date hereof, whether based on tort, contract or other theory of
recovery, on account of or in any way growing out of or related to the
Annual Meeting or the Company Proxy Statement, provided that this
release shall not prevent Moss and/or DMM from challenging the use of
the proxy referenced in a letter dated April 29, 1999 from Lawrence
Lederman to Ronald O. Mueller, with respect to any meeting of
stockholders occurring after the Company's 1999 Annual Meeting.
6. The Company hereby releases, discharges and acquits Moss and DMM and
each participant named in the Moss Proxy Statement from any and all
claims, grievances, demands, charges, liabilities, obligations,
actions, causes of action, damages, costs, losses of services,
expenses and compensation of any nature whatsoever existing on the
date hereof, whether based on tort, contract or other theory of
recovery, on account of or in any way growing out of or related to the
Annual Meeting or the Moss Proxy Statement.
7. During the period commencing on the date hereof and ending on December
31, 1999 (the "Standstill Period"), DMM and Moss each:
A. shall cause all shares of capital stock of the Company which they have
the right to vote generally in the election of directors, including,
without limitation, shares of Common Stock (collectively, the "Voting
Stock"), that are beneficially owned (within the meaning of Regulation
13D and Rules 13d-3 and 13d-5 under the Exchange Act) by such Party to
be present, in person or by proxy, at all meetings of the shareholders
of the Company so that all such shares may be counted for the purpose
of determining if a quorum is present at such meetings and (ii) to be
voted in favor of persons nominated and recommended by the Board of
Directors of the Company in the election of directors for the Annual
Meeting.
B. shall not, directly or indirectly, solicit any proxies or consents
with respect to Voting Stock or in any way participate in any
"solicitation" of any "proxy" with respect to shares of Voting Stock
(as such terms are defined in Rule 14a-1 under the Exchange Act) or
become a "participant" in any election contest with respect to the
Company (as such term is used in Rule 14a-11 under the Exchange Act)
or request or induce or attempt to induce any other person to take any
such actions or attempt to advise, counsel or otherwise influence in
any way any person with respect to the voting of voting Stock;
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C. shall not make any proposal (including any proposal pursuant to Rule
14a-8 under the Exchange Act) or bring any business before any meeting
of the shareholders of the Company; and
D. shall not (i) seek election to, nor seek to place a representative on
the Board of Directors of the Company, or (ii) seek the removal of any
member of the Board of Directors.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, without giving effect to the
principles of conflict of laws thereof.
9. This Agreement may be executed in one or more counterparts by each of
the parties hereto (or by his or her attorney-in-fact), each of which
shall be deemed to be an original, but all of which shall be
considered one and the same instrument.
10. This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
11. This Agreement supersedes all prior discussions and agreements between
the parties with respect to the subject matter hereof and contains the
sole and entire agreement between the parties hereto with respect to
the subject matter hereof.
12. The terms and provisions of this Agreement are intended solely for the
benefit of each party hereto and their respective successors or
assigns, and it is not the intention of the parties to confer third
party beneficiary rights upon any other person.
13. Each of the parties hereto agrees that money damages would not be a
sufficient remedy for any breach of this Agreement by any party hereto
and that any party hereto shall be entitled to specific performance
and injunctive or other equitable relief as a remedy for any such
breach.
CATALINA LIGHTING, INC. DAVID M. MOSS
By: /s/ Robert Hersh By: /s/ David M. Moss
---------------------------- -------------------------
Name: Robert Hersh
Title: Chairman, Chief Executive Officer
and President
DMM INVESTMENTS LTD.
By DMM INVESTMENTS, INC.
Its General Partner
By: /s/ David M. Moss
-------------------------
Name: David M. Moss
Title: President
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EXHIBIT A
CONTACT:
Stanley J. Kay
MacKenzie Partners, Inc.
(212) 929-5940
FOR IMMEDIATE RELEASE:
CATALINA LIGHTING ANNOUNCES AGREEMENT
TO RESOLVE POTENTIAL PROXY CONTEST
MIAMI, FL, May 3, 1999 - Catalina Lighting, Inc. (NYSE: LTG) announced today
that it has entered into a definitive agreement to resolve a potential proxy
contest with David Moss, who had been seeking to elect two of the seven
directors up for election at the Catalina's May 10, 1999 Annual Meeting.
Catalina's seven nominees for election at this year's annual meeting consist of
four continuing directors, Robert Hersh, Ryan Burrow, Henry Latimer and Leonard
Sokolow and three new independent nominees, Jesse Luxton, Howard Steinberg and
Brion Wise.
Under the terms of the agreement, Mr. Roy Oppenheim, 39, an attorney with the
law firm of Oppenheim & Pilelsky, P.A. and one of the Moss nominees, will join
Catalina's seven nominees as an eighth director immediately following the
company's annual meeting on May 10, 1999.
Mr. Robert Hersh, Catalina's chairman, president and chief executive officer,
commenting on the settlement, said, "We are pleased to reach an agreement that
allows the company to move forward in the best interests of all stockholders and
we trust that Mr. Oppenheim will constructively contribute to the board. With
this proxy contest behind us we can now focus all our energies on our programs
that have returned the company to profitability and positioned Catalina for
future growth."
Catalina Lighting, Inc. is a leading international manufacturer and distributor
of products for the residential and office lighting industry employing
approximately 3,200 people throughout the U.S., Canada and Southeast Asia.
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EXHIBIT B
CONTACT:
FOR IMMEDIATE RELEASE
DAVID M. MOSS ANNOUNCES AGREEMENT
TO RESOLVE POTENTIAL PROXY CONTEST
MIAMI, FL, May 3, 1999 - David M. Moss announced today that he has entered into
a definitive agreement to resolve a potential proxy contest with Catalina
Lighting, Inc. (NYSE: LTG). Mr. Moss, in an effort to improve shareholder value,
sought to elect two of the seven directors up for election at the company's 1999
Annual Meeting.
Under the terms of the agreement, Mr. Roy D. Oppenheim, 39, a South Florida
attorney and a partner with the firm of Oppenheim & Pilelsky, P.A. will join the
Catalina seven nominees as an eighth director immediately following the
company's Annual Meeting on May 10, 1999. Mr. Oppenheim is one of the two
nominees who had been proposed by Mr. Moss.
Mr. Moss stated: "I am very pleased the Company has decided to reduce the number
of inside directors and that they will add Roy Oppenheim to the Board. In
addition, I am pleased that the Board's compensation is now more tied to share
performance. I believe that the platform on which I proposed my nominees - that
the Board should explore all alternatives for maximizing shareholder value,
including a possible sale of the Company - is in the best interests of the
Company and its shareholders."