U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 2049
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14() of the Securities Exchange
Act of 1934
(Amendment No. )
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/_/ Preliminary Proxy Statement
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/_/ Definitive Additional Materials
/_/ Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
BLUE FISH CLOTHING, INC.
______________________________________________________________________
(Name of Registrant as Specified in its Charter)
BLUE FISH CLOTHING, INC.
______________________________________________________________________
(Name of Person(s) Filing Proxy Statement)
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/_/ Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
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__________________________________________________________________
2) Aggregate number of securities to which transaction applies:
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BLUE FISH CLOTHING, INC.
No. 3 Sixth Street
Frenchtown, New Jersey 08825
(908) 996-3844
November 6, 1998
Dear Fellow Blue Fish Stockholder:
We cordially invite you to attend the 1998 Annual Meeting of
Stockholders of Blue Fish Clothing, Inc. (the "Company") to be held on
Monday, November 16, 1998 at 2:00 p.m. at the Prallsville Mill, Route
29, Stockton, New Jersey.
At the meeting, you are being asked to elect five directors to
serve until the next Annual Meeting of Stockholders, to approve the
appointment of Arthur Andersen LLP as the Company's independent public
accountants for the 1997 fiscal year, to approve the Company's 1998
Stock Option Plan, and to approve the Company's qualified performance-
based compensation plan. The Notice of Annual Meeting of Stockholders
and Proxy Statement that accompany this letter describe in detail the
matters that will be presented at the meeting.
Your vote is important regardless of the number of shares you
own. We urge you to complete, sign, date, and return the enclosed
proxy card promptly in the prepaid envelope provided, whether or not
you plan to attend the meeting in person. This will ensure your
proper representation at the meeting. If you decide to attend the
meeting in person, your proxy will be returned to you and you may vote
your shares in person.
We plan to have Blue Fish items available for sale before and
after the meeting, so we hope you can attend.
Thank you for giving these materials your careful consideration
and we hope to see you on November 16th.
Sincerely,
_________________________________
Jennifer Barclay, Chairman
_________________________________
Jeffrey L. Haims, President & CEO
BLUE FISH CLOTHING, INC.
No. 3 Sixth Street
Frenchtown, New Jersey 08825
(908) 996-3844
_____________________________
NOTICE OF ANNUAL MEETING
OF STOCKHOLDERS
To Be Held On November 16, 1998
Notice is hereby given that the 1998 Annual Meeting of
Stockholders of Blue Fish Clothing, Inc., a Pennsylvania corporation
(the "Company"), will be held on Monday, November 16, 1998 at 2:00
p.m. at the Prallsville Mill, Route 29, Stockton, New Jersey for the
following purposes:
1. To elect five directors to serve until the next Annual
Meeting of Stockholders and until their successors are
elected and qualified;
2. To approve the appointment of Arthur Andersen LLP as the
Company's independent public accountants for the fiscal year
ending December 31, 1997;
3. To approve the Company's 1998 Stock Option Plan;
4. To approve the Company's qualified performance-based
compensation plan; and
5. To consider and act upon such other business as may properly
come before the meeting.
Reference is hereby made to the accompanying Proxy Statement for
more complete information concerning the matters to be acted upon at
the meeting.
Only stockholders of record of the Company's Common Stock at the
close of business on October 16, 1998 will be entitled to vote at the
Annual Meeting and any adjournments thereof.
Stockholders are requested to complete, sign, date, and return
the enclosed proxy card in the enclosed envelope.
By Order of the Board of Directors
____________________________________
Tina Woolverton
November 6, 1998
BLUE FISH CLOTHING, INC.
No. 3 Sixth Street
Frenchtown, New Jersey
(908) 996-3844
________________________
PROXY STATEMENT
FOR 1998 ANNUAL MEETING OF STOCKHOLDERS
To Be Held November 16, 1998
This Proxy Statement, with the enclosed Proxy Card, is being
furnished to stockholders of Blue Fish Clothing, Inc. ("Blue Fish" or
the "Company"), a Pennsylvania corporation, in connection with the
solicitation by the Company's Board of Directors (the "Board") of
proxies to be voted at the Company's 1998 Annual Meeting of
Stockholders to be held on November 16, 1998 at 2:00 p.m. at the
Prallsville Mill, Route 29, Stockton, New Jersey, and at any
adjournments thereof (the "Meeting").
This Proxy Statement and the enclosed Proxy Card are first being
mailed or otherwise furnished to the Company's stockholders on or
about November 6, 1998. The Annual Report to Stockholders on Form 10-KSB,
as amended, for the fiscal year ended December 31, 1997 is being
mailed to the stockholders with this Proxy Statement, but does not
constitute a part of it.
Proxies may be solicited by directors, officers, and employees of
the Company by mail, telephone, in person, or otherwise. No such
person will receive additional compensation for solicitation of
proxies. In addition, the Company will request banks, brokers, and
other custodians, nominees, and fiduciaries to forward proxy materials
to the beneficial owners of the Company's stock and obtain voting
instructions from such beneficial owners. The Company will reimburse
those firms for their reasonable expenses in forwarding proxy
materials and obtaining voting instructions.
When the Proxy Card of a stockholder is duly executed and
returned, the shares represented by that Proxy Card will be voted in
accordance with the voting instructions given by the stockholder. If
no such voting instructions are given on a Proxy Card with respect to
one or more proposals, the shares represented by that Proxy Card will
be voted, in the election of directors, for the nominees named herein,
and with respect to the other proposals, in accordance with the
recommendations of the Board. Stockholders may revoke their proxies
at any time prior to the Meeting by written notice to the Secretary of
the Company at or before the Meeting, by submission of a duly executed
Proxy Card bearing a later date, or by voting in person by ballot at
the Meeting.
VOTING SECURITIES
Holders of Common Stock of record on the books of the Company at
the close of business on October 16, 1998 (the "Record Date") are
entitled to notice of and to vote at the Meeting. On the Record Date,
there were issued and outstanding 4,720,785 shares of Common Stock,
each of which entitles the holder to one vote on each matter submitted
to a vote of the stockholders, except that pursuant to Pennsylvania
law, stockholders may cumulate their votes in the election of
directors. The By-Laws of the Company provide that in each election
of directors, every stockholder entitled to vote shall have the right
to multiply the number of votes to which he or she is entitled by the
total number of directors to be elected in the same election. The
stockholder may cast the whole number of votes for one candidate, or
may distribute them among two or more candidates.
The Proxy Card provides space for a stockholder to withhold
voting for any or all nominees for the Board of Directors or to
abstain from voting for any proposal if the stockholder chooses to do
so. The holders of a majority of all shares of the Company's Common
Stock issued and outstanding and entitled to vote at the Meeting shall
constitute a quorum for the transaction of business. A plurality of
the votes cast in person or by proxy is required for election of
directors. The affirmative vote of a majority of the votes cast in
person or by proxy at the Meeting is required for all other matters.
Abstentions and broker non-votes are not counted in determining the
number of votes cast in connection with any voting matter.
PROPOSAL 1
ELECTION OF DIRECTORS
The By-Laws of the Company provide for a Board consisting of such
number of directors, not less than four nor more than eight, as may be
fixed from time to time by the Board. The Board has fixed the number
of directors to constitute the full Board for the ensuing year at
five, all of whom are to be elected at the Meeting to serve until the
next Annual Meeting of Stockholders and until their respective
successors are elected and qualified.
As noted above, stockholders may cumulate their votes for the
election of directors. By way of example, if a stockholder owns 100
shares, he or she will be entitled to 500 votes in this election
because there are five nominees for election as directors. The
stockholder may cast all 500 votes for a single candidate or may
distribute them among two or more candidates.
Nominees for Director
Jennifer Barclay, Ben Cohen, Jeffrey L. Haims, Gary Hirshberg,
and John A. May, all of whom are currently serving as directors, have
been nominated for election to the Board at the Meeting. Shares
represented by proxies will be voted for the election as directors of
these nominees unless otherwise specified in the proxy. If any of the
nominees for election to the Board should, for any reason not now
anticipated, be unavailable to serve as such, proxies will be voted
for such other candidate as may be designated by the Board (unless the
Board reduces the number of directors). The Board has no reason to
believe that any of the nominees will be unable to serve if elected.
Set forth below is information with respect to each nominee for
election to the Board of Directors at the Meeting.
Jennifer Barclay, 31, founded Blue Fish in 1985, and has been
Chairman of its Board since the Company's incorporation in March 1987.
She also served as the Company's Chief Executive Officer from March
1987 until September 1994, its President from March 1987 until
September 1996, and its Treasurer from August 1993 through August
1995.
Ben Cohen, 46, has served as a member of the Company's Board
since June 1995. Mr. Cohen is the Co-Founder and Chairman of the
Board of Ben and Jerry's Homemade, Inc., a public company, and served
as its Chief Executive Officer until February 1995. Mr. Cohen also
served as a member of the Board of Directors of Community Products,
Inc., a privately held buttercrunch candy manufacturer, which filed a
petition for federal bankruptcy protection in April 1997. In October
1997, the assets of Community Products, Inc. were sold at a bankruptcy
auction to the Rainforest Co., of Saint Louis, Missouri.
Jeffrey L. Haims, 34, was named President and Chief Executive
Officer of the Company and appointed to the Company's Board on August
21, 1998. Prior to that, Mr. Haims served as the Company's Acting
Chief Executive Officer since the resignation of Marc Wallach, the
Company's former President and Chief Executive Officer, on March 27,
1998. Mr. Haims has been actively engaged in the retail and wholesale
apparel industry for twelve years. Prior to his appointment to the
Board, Mr. Haims served as a consultant to the Company from October
1997 until March 1998 and was responsible for the design of the
Company's men's line. From November 1995 until September 1997, Mr.
Haims was a principal of the Apparel Resource Group ("ARG") of New
York, which provided consulting services and strategic planning
support to businesses in the apparel industry. ARG provided services
to the Company from January 1996 until August 1997. Mr. Haims was
Corporate Director of Information Technology for Charming Shoppes,
Inc. from January 1995 until October 1995. From 1989 until January
1995, he held a variety of positions in production and information
systems at Liz Claiborne, Inc. and served as its Director of Design
Systems from 1993 until 1995. Prior to his employment by Liz
Claiborne, Inc., Mr. Haims was a Co-Designer for Donna Karan, DKNY
from 1988 to 1989 and was the Menswear Design Director for Salvatore
Ferragamo, Spa. in 1988. Mr. Haims attended Fashion Institute of
Technology in New York for both men's and women's design and the Art
Center School of Design in Los Angeles, where he was awarded the Ford
Scholarship for Industrial Design.
Gary Hirshberg, 42, has served as a member of the Board since
June 1995. Mr. Hirshberg has been the Chief Executive Officer of
Stonyfield Farm, Inc., a privately held yogurt and ice cream company,
since September 1983 and its President since June 1989. He is the
former Chairman of the Social Venture Network and a Trustee of
Leadership New Hampshire, Inc. Mr. Hirshberg has extensive experience
as an environmental activist, including terms as the founding
President of the Cape and Island Self Reliance Corporation, as
founding President of the Cape Cod Environmental Alliance, and as a
Director of the New Hampshire Audubon Society and the Association for
the Preservation of Cape Cod. Mr. Hirshberg holds a Bachelor of Arts
degree from Hampshire College, an honorary Doctor of Science degree
from New Hampshire College, and an honorary Doctor of Laws degree from
Notre Dame College (Manchester, New Hampshire).
John A. May, 51, has served as a member of the Board since
November of 1997. Mr. May has been the Chief Executive Officer of
Common Sense Management, Inc., a business advisory service, since
1981, Chief Executive Officer of Silby, Guffey & Co., Inc., a venture
fund manager, since 1989, and Managing Partner of New Vantage
Partners, LLC, since 1997. He currently serves as a Director of
Lipton Corporate Child Care, Inc., Common Sense Management, Inc.,
Tilden Press, Inc., and ReGain, Inc., all private companies. Mr. May
holds a Bachelor of Arts degree from Earlham College and a Masters of
Public Administration from Syracuse University's Maxwell School.
Meetings and Committees of the Board of Directors
During the fiscal year ended December 31, 1997, the Board
held six meetings and took action by consent in lieu of meetings on
three occasions. Each of the directors attended all of the full Board
meetings and meetings of Board committees of which he or she was a
member, except for Mr. Hirshberg, who did not attend one meeting of
the full Board.
The Company's Board of Directors has established various
committees. The Executive Committee is authorized to take any action
upon which the Board of Directors is authorized to act, except as
reserved by law or by the Company's By-Laws. Ms. Barclay is currently
the only member of the Executive Committee. The Executive Committee
did not convene any meetings or take any other action apart from the
full Board in 1997.
The Audit Committee consists of Messrs. Cohen, Hirshberg, and
May. The Audit Committee, which meets periodically with management
and the Company's independent public accountants, reviews the results
and scope of the audit and other services provided by the Company's
independent public accountants, the need for internal auditing
procedures, and the adequacy of Company's internal accounting
controls. The Audit Committee did not meet during 1997 apart from the
full Board.
The Compensation Committee, composed of Messrs. Cohen, Hirshberg,
and May, administers the Company's stock option and compensation plans
and recommends to the full Board the amount, character, and method of
payment of compensation of all executive officers and certain other
key employees and consultants of the Company. The Compensation
Committee met once apart from the full Board during fiscal 1997, and
took action by written consent in lieu of meetings on eight occasions.
Board Recommendation:
The Board of Directors recommends that the stockholders vote FOR
the election of the nominees to the Board of Directors. A plurality
of the votes cast in person or by proxy at the Meeting is required to
elect each nominee as Director.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth certain information known to the
Company regarding the beneficial ownership of the Company's Common
Stock as of October 16, 1998 for (i) each director and executive
officer of the Company; (ii) each stockholder known by the Company to
own beneficially 5% or more of the outstanding shares of its Common
Stock; and (iii) all directors and officers as a group. The Company
believes that the beneficial owners of the Common Stock listed below,
based on information furnished by such owners, have sole investment
and voting power with respect to such shares, subject to community
property laws where applicable.
DIRECTORS,
EXECUTIVE OFFICERS, SHARES PERCENTAGE OF COMMON
AND 5% SHAREHOLDERS BENEFICIALLY OWNED (1) SHARES OUTSTANDING
______________________________________________________________________________
Jennifer Barclay 3,486,000 73.8%
c/o Blue Fish Clothing, Inc.
No. 3 Sixth Street
Frenchtown, NJ 08825
Ben Cohen 9,540(2) *
Jeffrey Haims 82,654(3) 1.7%
Gary Hirshberg 9,540(2) *
John May 4,340(4) *
Marc Wallach 372,400(5) 7.9%
All directors and executive
officers as a group (five
persons) 3,964,474 80.2%
*Less than 1%
(1) Pursuant to the rules of the Securities and Exchange Commission,
shares of Common Stock which an individual or group has a right
to acquire within 60 days pursuant to the exercise of options or
warrants are deemed to be outstanding for the purpose of
computing the percentage ownership of such individual or group,
but are not deemed to be outstanding for the purpose of computing
the percentage ownership of any other person shown in the table.
(2) Consists of 9,540 shares of Common Stock issuable upon exercise
of non-qualified stock options issued under the Directors' Plan,
as described further herein.
(3) Consists of 4,000 shares of Common Stock issuable upon the
exercise of non-qualified stock options and 78,654 shares of
Common Stock issuable upon exercise of vested incentive stock
options, but does not include unvested options to purchase
121,346 shares of Common Stock.
(4) Consists of 4,340 shares of Common Stock issuable upon exercise
of non-qualified stock options issued under the Directors' Plan,
as described further herein.
(5) Consists of 304,000 shares of Common stock owned beneficially by
Mr. Wallach, and options to purchase 68,400 shares of Common
Stock issuable upon exercise of currently exercisable non-
qualified options.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities and Exchange Act of 1934 requires
the Company's directors and executive officers, and persons who own
more than 10% of the Company's Common Stock ("10% Stockholders"), to
file with the Securities and Exchange Commission (the "SEC") initial
reports of ownership of the Company's Common Stock and other equity
securities on the SEC's Form 3 and reports of changes in such
ownership on the SEC's Form 4 and Form 5. Executive officers, directors,
and 10% Stockholders are required by SEC regulations to furnish the
Company with copies of all Section 16(a) forms they file.
To the Company's knowledge, based solely on review of the copies
of such reports furnished to the Company during, and with respect to,
its most recent fiscal year and written representation that no other
reports were required, all Section 16(a) filing requirements
applicable to its officers, directors, and 10% Stockholders were met.
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table sets forth for the years ended December 31, 1995,
1996, and 1997 the annual compensation, including salary, bonuses, and
certain other compensation, paid by the Company to its President, Chief
Executive Officer, and executive officers whose annual compensation exceeded
$100,000 (the "Named Executive Officers").
[THIS SPACE INTENTIONALLY LEFT BLANK]
Long Term
Compensation
------------------
Annual Compensation Awards Payouts
------------------------ ------------------ -------
(a) (b) (c) (d) (e) (f) (g) (h) (i)
- --------- ------ ------ ----- ------- ---------- ------- ----- -------
Other
Annual Restricted LTIP Deferred
Name and Compen- Stock Options Pay- Compen-
Principal Fiscal Salary Bonus sation Award(s) /SARs out sation
Position Year ($) ($) ($) ($) (#) ($) ($)
- --------- ------ ------ ----- ---------- ---------- ------- ----- -------
Jennifer 12/31
Barclay /97 $100,000 $-0- $ 2,224(3) $ - - $ - $ -
Chairman(1) $ 5,014(4)
$ 2,000(5)
12/31
/96 $100,000 $-0- $ 2,178(3) $ - - $ - $ -
$ 4,905(4)
$ 1,985(5)
12/31
/95 $100,000 $ 1,923 $ 1,968(3) $ - - $ - $ -
$ 5,420(4)
$ 2,038(5)
Marc 12/31
Wallach /97 $108,000 $-0- $ 4,647(3) $ - - $ - $ -
President & $ 5,400(4)
Chief Executive $ 2,063(5)
Officer(2)
12/31
/96 $105,000 $-0- $ 4,581(3) $ - - $ - $ -
$ 900(4)
$ 2,355(5)
12/31
/95 $105,000 $21,576 $ 5,163(3) $480,320 114,000 $ - $ -
$ 900(4)
$ 2,532(5)
$392,989(6)
(1) Ms. Barclay served as Chairman of the Company's Board and its President
until September 1996, when she relinquished the title of President.
(2) Mr. Wallach served as the Company's Chief Executive Officer until
September 1996, when he assumed the additional title of President. He
resigned as President, Chief Executive Officer, and Director, effective
March 27, 1998.
(3) Company contribution for healthcare premiums.
(4) Allowance for automobile lease.
(5) 401(k) Company match accrued at December 31.
(6) Deferred grossed-up bonus to pay taxes due on the restricted stock
grant.
The following table sets forth the aggregated option/SAR
exercises and fiscal year end option/SAR values by the Company to each
executive officer of the Company who earned $100,000 or more for the
year ended December 31, 1997.
Number of
Unexercised Value of
Securities Unexercised
Underlying In-The-Money
Options/SARs At Options/SARs At
Shares FY-End (#) FY-End ($)
Acquired on Value Exercisable/ Exercisable/
Name Exercise (#) Realized Unexercisable Unexercisable
- ------------- ------------ -------- -------------- ---------------
(a) (b) (c) (d) (e)
- ------------- ------------ -------- -------------- ---------------
Marc Wallach(1) -0- $-0- 68,400/45,600 $-0-/-0-
President &
Chief Executive
Officer
(1) Mr. Wallach served as the Company's Chief Executive Officer until
September 1996, when he assumed the additional title of President. He
resigned as President, Chief Executive Officer, and Director, effective
March 27, 1998.
Employment and Non-Disclosure Agreements
On August 21, 1998, the Company entered into a five year,
renewable employment agreement with its current President and
Director, Jeffrey L. Haims (the "Haims Employment Agreement"). The
Haims Employment Agreement is terminable at will by either Mr. Haims
or the Company. During the initial five year term of the Haims
Employment Agreement, he will receive a base salary at an annualized
rate of $110,000, payable in accordance with the Company's payroll
policies. As of the execution of the Haims Employment Agreement, Mr.
Haims received a nine year incentive stock option to purchase 200,000
shares of the Company's Common Stock. On January 1, 1999 (or upon
shareholder approval of the 1998 Stock Option Plan), Mr. Haims will
also be entitled to receive a nine year incentive stock option to
purchase 35,960 shares of Common Stock. Both of these options have an
exercise price equal to the fair market value of the Company's stock
on the date of grant. The option to purchase 200,000 shares was
vested with respect to 78,654 shares upon grant, with the balance to
vest as provided below. The option to purchase 35,960 shares will be
unvested at grant. Both options shall vest in full (i) at least
thirty days prior to the merger of the Company with another
corporation or the sale of all or substantially all of the Company's
stock or assets, or (ii) on the eighth anniversary of the grant date
if necessary to comply with Section 422(d) of the Internal Revenue
Code, as determined by the Compensation Committee. Vesting of each
incentive stock option may be accelerated by the Compensation
Committee to the most rapid vesting schedule permissible under the
Internal Revenue Code upon achievement of certain financial and goals,
established by the Compensation Committee. Such goals were
established for the fiscal years ended December 31, 1998 and December
31, 1999 prior to execution of the Haims Employment Agreement. For
each succeeding year during the term of his employment, Mr. Haims
shall submit to the Compensation Committee, by November 15 of the
preceding year, a list of the Company's proposed goals for the
following year. The Compensation Committee shall review Mr. Haims's
recommendations, and formalize final goals by December 31 of the
preceding year. Except as noted above, each incentive stock option
grant shall be granted pursuant to the Company's then current form of
stock option grant which will contain, among other things,
confidentiality and non-competition provisions. Mr. Haims will be
entitled to earn additional incentive stock options with an exercise
price equal to a fair market value on the date of grant, (with the
most rapid vesting schedule allowable under Internal Revenue Code
Section 422(d)) if certain stock quotation goals are met. The size of
these bonus stock option grants will be determined by the amount of
increase in the Company's stock quote.
Furthermore, Mr. Haims will be entitled to an annual cash bonus
for the year ended December 31, 1999 and thereafter based upon the
Company's successful achievement of sales and profit goals in the
Board's approved budget for the applicable year. Mr. Haims will
receive a target bonus of 4% of the Company's earnings before interest
and taxes ("EBIT") calculated before profit sharing (the "Target
"Bonus") upon the successful achievement of sales and financial goals.
The Company entered into an employment agreement with Marc
Wallach (the "Wallach Employment Agreement") to serve as the Company's
General Manager and Chief Operating Officer, effective January 1,
1994, for a period of three years, subject to termination by the
Company for cause or, by either party, at any time upon ninety (90)
days prior written notice. On September 7, 1994, Mr. Wallach was
appointed Chief Executive Officer. Although the Wallach Employment
Agreement expired on December 31, 1996, Mr. Wallach continued to work
for the Company on the same terms as this agreement had provided until
his resignation as President, Chief Executive Officer, and Director on
March 27, 1998. Mr. Wallach's annual base compensation, paid through
August 28, 1998, was $111,000, and he received an annual bonus of 3%
of the Company's net after-tax profits for each year that the Wallach
Employment Agreement was in effect. Mr. Wallach also received an
additional bonus of 1% of the Company's net after-tax profits for each
of the four years commencing January 1, 1994 and for the quarter ended
March 31, 1998; this additional bonus will be paid by the Company in
five equal annual installments commencing on January 1, 1999. Mr.
Wallach is subject to certain non-disclosure covenants and agreed not
to compete with the Company during the term of Wallach Employment
Agreement and for a period of two years thereafter. As of March 27,
1998, Mr. Wallach's option had vested to purchase 68,400 shares of
Common Stock. The Compensation Committee amended the terms of
Mr. Wallach's stock option grant to allow him to exercise this option
through June 24, 2003, however, this option is now non-qualified. As
of that date, all unvested options held by Mr. Wallach were forfeited.
The Company has also executed stock option agreements containing
non-competition and non-disclosure provisions with each of its
officers and key employees who have been granted stock options under
the Company's 1995 Stock Option Plan.
401(k) Plan
In March 1995, the Company adopted an employee savings and
retirement plan (the "401(k) Plan") covering all of the Company's
employees who have attained the age of 21 and who normally work at
least twenty hours per week. The 401(k) Plan is intended to be a tax-
qualified plan under Section 401(a) of the Internal Revenue Code. The
401(k) plan enables employees to reduce their taxable compensation by
electing to defer current compensation into the 401(k) Plan, up to a
statutorily prescribed annual limit ($10,000 in 1998). The trustees
of the 401(k) Plan, at the direction of each participant, invest the
assets of the 401(k) Plan in various investment alternatives offered
under the 401(k) Plan. The Company may, but is not required to, make
matching contributions to the 401(k) Plan based on the amounts that
participants contribute to the 401(k) Plan, but in no event may the
Company's contribution exceed 10% of a participant's gross
compensation. The Company presently makes monthly matching
contributions of up to 2% of a participant's gross compensation. The
401(k) Plan is administered by Merrill Lynch.
1995 Stock Option Plan
The Company's 1995 stock option plan (the "1995 Plan") was
adopted by its Board of Directors and approved by the Company's
stockholders in September 1995. The 1995 Plan is intended to motivate
and reward employees and selected consultants by granting them stock
options to acquire shares of Common Stock.
Grants of stock options under the 1995 Plan may be made to the
Company's employees, officers (including officers who are directors),
and consultants. 570,000 shares of Common Stock have been reserved
for issuance under the 1995 Plan. The 1995 Plan is administered by
the Compensation Committee of the Board of Directors.
Both stock options intended to qualify as "incentive stock
options" under the Internal Revenue Code and non-qualified stock
options may be granted under the 1995 Plan. Under the 1995 Plan, no
employee may receive options in any given calendar year to purchase
more than 200,000 shares. The exercise price of incentive stock
options granted under the 1995 Plan will be at least equal to the fair
market value of the Company's Common Stock on the date of grant. The
exercise price of non-qualified stock options granted under the 1995
Plan will be not less than eighty-five percent (85%) of the fair
market value of the Company's Common Stock on the date of grant. In
addition, any option granted under the 1995 Plan will have an exercise
price of one hundred and ten percent (110%) of the fair market value
on the date of the grant in the case of any person who owns stock
possessing more than 10% of the total combined voting power of the
Company's equity. Options granted under the 1995 Plan will vest at
such times as are specified by the Compensation Committee. If an
individual with outstanding stock options terminates employment on
account of death, disability, or retirement approved by the Company,
all of such individual's stock options will become immediately
exercisable. Once exercisable, stock options granted under the 1995
Plan remain exercisable for nine years from the date of grant, unless
the individual terminates his or her relationship with the Company
other than described above. However, if an option holder wishes to
preserve the status of an option as an incentive stock option, such
optionholder must exercise his or her option within three months of
termination of employment or within one year from a termination of
employment on account of disability.
Prior to October 23, 1995, the 1995 Plan provided that all
outstanding stock options granted under the 1995 Plan, whether or not
vested, would become immediately exercisable upon a "change of control
of the Company" (as defined in the 1995 Plan). In certain
circumstances, if an individual who has received an option grant under
the 1995 Plan terminates employment within eighteen months of a
"change of control of the Company," the Company is required to make a
cash payment to such individual in an amount equal to the difference
between the fair market value of the shares of Common Stock subject to
the option and the option's exercise price, unless the individual
elects otherwise. In addition, if the Company is not the surviving
corporation in a transaction such as a merger or sale of substantially
all the assets of the corporation, at least ten days before the
effective date of the transaction, each individual who has an
outstanding and currently exercisable stock option will be entitled to
exercise the option or to receive a cash payment equal to the
difference between the fair market value of the shares of Common Stock
subject to the option and the option's exercise price, if a cash
payment of the stock option would not impact the accounting treatment
of any such transaction in the judgment of the Compensation Committee.
The 1995 Plan was amended such that the provision relating to
individuals who terminate employment within eighteen months of a
change of control was deleted, and for options granted on or after
October 23, 1995, only vested options are subject to immediate
exercise or cash payment upon a change of control.
On September 11, 1995, the Compensation Committee authorized the
grant of nine-year incentive stock options with an effective date of
September 15, 1995 to purchase an aggregate of 60,000 shares of the
Company's Common Stock to its officers and key employees pursuant to
the 1995 Plan. Options to purchase an aggregate of only 55,000 shares
were actually granted. Twenty percent were immediately exercisable on
September 15, 1995 and an additional 20% will become exercisable on
each of the first four anniversaries of the grant date. The
Compensation Committee also granted a nine-year incentive stock option
under the 1995 Plan with an effective date of September 15, 1995 to
the Company's then current Chief Executive Officer, Marc Wallach, to
purchase 114,000 shares of the Company's Common Stock. Of these,
options to purchase 68,400 have vested and been converted to non-
qualified stock options, the remainder have been forfeited. On
December 15, 1995, the Compensation Committee authorized an additional
grant of nine-year incentive stock options to purchase 45,000 shares
to its officers and key employees pursuant to the 1995 Plan under the
same conditions as the September 15, 1995 grant, with an exercise
price of $5.00 per share. Options to purchase only 40,000 shares were
actually granted. During 1996, the Compensation Committee granted a
nine-year incentive stock option to purchase 14,300 shares of Common
Stock to an officer, with the same vesting schedule as the 1995 grants
(other than to Mr. Wallach), and at an exercise price of $7.00 per
share. The Compensation Committee also granted non-qualified five-
year stock options to purchase an aggregate of 12,000 shares to three
consultants, at an exercise price of $7.25 per share. One-half of
these options became exercisable on January 1, 1997 and the balance
become exercisable on January 1, 1998. On April 4, 1997, the
Compensation Committee granted an incentive option to purchase 10,000
shares of the Company's Common Stock to an officer of the Company with
the same vesting schedule as the 1995 grants with an exercise price of
$4.75 per share. On May 27, 1997, the Compensation Committee granted
incentive stock options to two managers of the Company each to
purchase 10,000 shares of the Company's Common Stock vest with the
same vesting schedule as the 1995 grants with an exercise price of
$4.50 per share. On July 1, 1997 and October 14, 1997, the
Compensation Committee granted incentive stock options to two managers
each to purchase 5,000 shares of the Company's Common Stock with the
same vesting schedule as the 1995 grants and with exercise prices of
$3.75 and $4.50 per share, respectively. Pursuant to the terms of the
Haims Employment Agreement, Mr. Haims received options to purchase up
to 200,000 shares of the Company's Common Stock, with an exercise
price of $1.00 per share upon his appointment on August 21, 1998. Of
these options to purchase 200,000 shares, 78,659 have vested, and the
remaining 121,346 will vest either upon the completion of certain
milestones set by the Compensation Committee or upon the occurrence of
certain extraordinary events. On September 1, 1998, the Compensation
Committee granted options under the 1995 Plan to purchase a total of
167,250 shares of the Company's Common Stock with an exercise price of
$1.50 per share to 90 of the Company's employees and consultants.
Under the terms of these options, each such grant will vest 50% on
September 1, 1999, 30% on September 1, 2000, and the remainder on
September 1, 2001. On October 8, 1998, the Compensation Committee
granted, pursuant to the terms of the 1995 Plan, options to purchase
up to 4,062 shares of Common Stock of the Company with an exercise
price of $2.00 per share to three employees. These options will vest
in the same manner as the September 1, 1998 grants.
No options were exercised by employees during 1997 or in 1998, as
of the Record Date. Options to purchase 129,600 shares as of the
Record Date (62,000 at December 31, 1997) have expired or have been
canceled, and options to purchase a total of 449,012 shares of Common
Stock granted pursuant to the 1995 Plan remain outstanding.
Performance Stock Escrow
In addition, Jennifer Barclay, the founder and Chairman of the
Board, has deposited into escrow 3,495,224 of the 3,486,000 shares of
the Company's Common Stock owned by her. Under the terms of the
Escrow Agreement, 25% of her shares shall become transferable on the
sixth, seventh, eighth, and ninth anniversary dates of November 13,
1995. No transfer of those shares may be made until November 13,
2001, except as follows: (A) Ms. Barclay may transfer a number of her
shares that, within any three-month period, would equal one percent of
the shares of the Company's Common Stock then outstanding; or (B) all
of the shares may earlier become transferable upon certification by
the Company's Chief Financial Officer that any of the following has
been achieved: (i) for two consecutive fiscal years after November
13, 1995, the Company has minimum annual earnings equal to $0.25 per
share; (ii) for five consecutive fiscal years after November 13, 1995,
the Company has average minimum annual earnings of $0.25 per share; or
(iii) after at least one year from November 13, 1995, the Company's
Shares have traded on a United States stock exchange at a price of at
least of $8.75 per share (adjusted for stock splits, stock dividends,
and recapitalizations) for at least 90 consecutive trading days.
1995 Non-Employee Directors' Stock Option Plan
In September 1995, the Board of Directors adopted and the
stockholders approved the Company's Non-Employee Directors' Stock
Option Plan (the "Directors' Plan"). The Directors' Plan provides for
an annual non-discretionary grant of stock options to each director
who is not an employee of the Company (collectively, the "Non-Employee
Directors"). The annual grant is in lieu of an annual retainer for
service as a member of the Board of Directors.
A total of 75,000 shares of Common Stock has been reserved for
issuance under the Directors' Plan. On January 1 of each year, each
Non-Employee Director will receive a non-discretionary grant of
options to purchase a total amount of shares of Common Stock equal in
value to $7,500, increased by $2,500 for each Board of Directors'
committee on which such Non-Employee Director serves, based on the
fair market value of the Common Stock on the date of grant. The
exercise price of options granted under the Directors' Plan will be
equal to the fair market value of the Common Stock on the date of
grant, except that the exercise price shall be one hundred and ten
percent (110%) of the fair market value in the case of any person who
owns stock possessing more than 10% of the total combined voting power
of the Company's equity. Options will remain exercisable for nine
years from the date of grant. As of the date hereof, options to
purchase a total of 19,080 shares of Common Stock have been granted
under the Directors' Plan.
PROPOSAL 2
APPROVAL OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors has appointed Arthur Andersen LLP as the
Company's independent public accountants for the fiscal year ending
December 31, 1998. Arthur Andersen LLP has served as the Company's
independent accountants since 1995. Representatives of Arthur
Andersen LLP will be present at the Meeting to respond to questions
and will be given the opportunity to make a statement should they
desire to do so.
Board Recommendation
The Board of Directors recommends that the stockholders vote FOR
approval of the appointment of Arthur Andersen LLP as the Company's
independent public accountants for the fiscal year ending December 31,
1998. A majority of the votes cast in person or by proxy at the
Meeting is required for such approval. If the appointment is not so
approved, the Board will select other independent accountants.
PROPOSAL 3
APPROVAL OF 1998 STOCK OPTION PLAN
The Board has adopted, subject to approval of the Company's
shareholders, the Company's 1998 Stock Option Plan (the "1998 Plan").
The following is a general summary of the plan, which is qualified in
its entirety by reference to the 1998 Plan, a copy of which is
attached as Appendix A.
Under the 1998 Plan, options to purchase stock may be granted
which are either (i) options intended to qualify as "incentive stock
options" ("ISOs") under Section 422(b) of the Internal Revenue Code,
or (ii) non-qualified stock options ("NQSOs"). A total of 1,200,000
shares of Common Stock are subject to the 1998 Plan, however, not more
than 750,000 shares subject to the 1998 Plan may be granted to any
single employee during any single calendar year. If there is a change
of the number or kind of shares of Common Stock issuable under the
1998 Plan as a result of declaration of stock dividend, stock split,
combination, or exchange of such shares, merger, consolidation,
reclassification, or any similar extraordinary event affecting the
Company's Common Stock as a whole, the shares available under the Plan
will be automatically adjusted accordingly.
The Compensation Committee will oversee and administer the 1998
Plan, subject to the 1998 Plan's terms, select employees and
consultants eligible to receive options, and determine the number of
shares of the Company's stock subject to any such grant. The
Compensation Committee may grant ISOs or NQSOs or any combination of
such options, but the Company's consultants will only be entitled to
receive NQSOs.
The purchase price of Company Stock subject to these options will
be determined by the Compensation Committee, but will be not less than
85% of the fair market value of shares of the Common Stock of the
Company. The Purchase Price of ISOs will be at least equal to the
fair market value shares of Common Stock on the date the ISO is
granted. An option will not be granted to any individual who, at the
time of grant, owns Company stock possessing more than 10% of the
total combined voting power or value of all classes of stock of the
Company, unless such option's exercise price is not less than 110% of
fair market value of Common Stock on the date of grant. No grant will
be made if such grant would result in the disallowance of the
Company's deduction of the expense under Section 162(m) of the
Internal Revenue Code.
The Company will determine the exercise period for each option
grant, but the exercise period will not be more than nine years from
the date of grant. If the recipient of an option ceases to be an
employee or consultant to the Company for any reason other than his or
her death, disability or approved retirement, any option which is
otherwise exercisable by such former employee or consultant will
terminate unless it is exercised within 90 days of the date of his or
her termination. If a recipient of options dies while an employee or
consultant of the Company, granted options will be immediately
exercisable. If an option recipient becomes disabled, his or her
options will become exercisable according to their terms, but ISOs
which are exercisable more than one year after such recipient's
disability will be treated as NQSOs. If a recipient is terminated for
cause (i.e., for violation of the Company's personnel policies) and
unless the Compensation Committee determines otherwise, the terminated
recipient's options will immediately become unexercisable.
In the event of certain consolidations or acquisitions or a sale
of substantially all of the Company's assets, the Compensation
Committee may give notice of such event to the then current holders of
options. Upon receiving such a notice, holders of these options will
have the right to exercise all such options (and, in certain cases,
demand redemption of their options).
The Board may amend or terminate the 1998 Plan by written
resolution, but will not do so without shareholder approval if
required by Rule 16(b)-3 promulgated under the Securities Exchange Act
of 1934. The 1998 Plan will automatically terminate of the tenth
anniversary of its effective date.
The number of shares or options, if any, that will be granted to
executive officers and other employees under the 1998 Plan cannot
currently be determined, since any such grants are subject to the
discretion of the Committee.
On September 1, 1998, the Board issued stock option grants to 44
employees to purchase an aggregate of 35,500 shares of the Company's
Common Stock under the 1998 Plan, with an exercise price per share of
$1.50. Under the terms of the September 1, 1998 grants, 50% of each
grant will vest on September 1, 1999, 30% will vest on September 1,
2000, and the remaining 20% will vest on September 1, 2001.
On October 8, 1998, the Company issued options to purchase a
total of 937 shares of Common Stock under the 1998 Plan, with an
exercise price of $2.00 per share to one employee. These options will
vest as provided in the September 1, 1998 grants.
Federal Income Tax Consequences
The discussion of federal income tax consequences that follows is
based on an analysis of the Internal Revenue Code as currently in
effect, existing law, judicial decisions, and administrative
regulations and rulings, all of which are subject to change.
Incentive Stock Options (ISOs). The Internal Revenue Code
prevents the taxation of ISOs as income to the recipient employee or
contractor at the time an incentive stock option is granted and at the
time the employee or contractor exercises his or her option and
purchases stock. The Internal Revenue Code also prevents a deduction
to the Company at such times. Instead, the ISO is taxed at capital
gains rates when the employee sells the stock received upon exercise
of the option (for sales of stock eighteen months or more from the
date of exercise, this rate is currently 20%, unless the individual is
then currently in the 10% ordinary income tax bracket).
Non-Qualified Stock Options. No taxable income is realized by the
holder of options at the time an NQSO is granted. Generally, (a) at
exercise, ordinary income is realized by the holder of an NQSO in an
amount equal to the difference between the option price and the fair
market value of the Company's shares of Common Stock on the date of
exercise, and the Company receives a tax deduction for the same
amount, subject to applicable withholding requirements and subject to
certain limits on the deductibility of compensation set forth in
Section 162(m) of the Internal Revenue Code, and (b) at disposition,
appreciation or depreciation after the date of exercise is treated as
either capital gain or loss.
Board Recommendation:
The Board recommends that stockholders vote FOR approval of the
1998 Plan. A majority of votes cast in person or by proxy at the
Meeting is required for such approval. If the 1998 Plan is not
approved, the Board's adoption of the 1998 Plan will be rescinded, and
all stock option grants under the 1998 Plan, by their terms, shall be
void.
PROPOSAL 4
APPROVAL OF PERFORMANCE-BASED COMPENSATION
Internal Revenue Code Section 162(m) precludes a deduction by any
publicly-held corporation for compensation paid to any employee, to
the extent that such compensation for the taxable year exceeds $1
million to any single employee. This deduction limitation does not
apply to "qualified performance-based compensation." To qualify for
"performance-based" treatment of compensation in excess of $1 million,
the Company's shareholders must approve the terms of the Company's
performance-based compensation.
The Company's shareholders are being asked to approve the
compensation to be paid to Jeffrey L. Haims as provided in the Haims
Employment Agreement, as compensation under that agreement, under
certain circumstances, could exceed $1 million. During the initial
five-year term of the Haims Employment Agreement, he will receive a
base salary at an annualized rate of $110,000, payable in accordance
with the Company's payroll policies. As of the execution of the Haims
Employment Agreement, Mr. Haims received a nine-year incentive stock
option to purchase 200,000 shares of the Company's Common Stock. On
January 1, 1999 (or upon shareholder approval of the 1998 Stock Option
Plan), Mr. Haims will also be entitled to receive a nine-year
incentive stock option to purchase 35,960 shares of Common Stock.
Both of these options have an exercise price equal to the fair market
value of the Company's stock on the date of grant. The option to
purchase 200,000 shares was vested with respect to 78,654 shares upon
grant, with the balance to vest as provided below. The option to
purchase 35,960 shares will be unvested at grant. Both options shall
vest in full (i) at least thirty days prior to the merger of the
Company with another corporation or the sale of all or substantially
all of the Company's stock or assets, or (ii) on the eighth
anniversary of the grant date if necessary to comply with Section
422(d) of the Internal Revenue Code, as determined by the Compensation
Committee. Vesting of each incentive stock option may be accelerated
by the Compensation Committee to the most rapid vesting schedule
permissible under the Internal Revenue Code upon achievement of
certain financial and non-financial goals, established by the
Compensation Committee. Such goals were established for the fiscal
years ended December 31, 1998 and December 31, 1999 prior to execution
of the Haims Employment Agreement. For each succeeding year during
the term of his employment, Mr. Haims shall submit to the Compensation
Committee, by November 15 of the preceding year, a list of the
Company's proposed goals for the following year. The Compensation
Committee shall review Mr. Haims's recommendations, and formalize
final goals by December 31 of the preceding year. Except as noted
above, each incentive stock option grant shall be granted pursuant to
the Company's then current form of stock option grant which will
contain, among other things, confidentiality and non-competition
provisions. Mr. Haims will be entitled to earn additional incentive
stock options with an exercise price equal to a fair market value on
the date of grant and with the most rapid vesting schedule allowable
under Internal Revenue Code Section 422(d), if certain trading price
goals are met. The size of these bonus stock option grants will be
determined by the Company's trading price during the term of the Haims
Employment Agreement.
Furthermore, Mr. Haims will be entitled to an annual cash bonus
for the year ended December 31, 1999 and thereafter based upon the
Company's successful achievement of sales and profit goals in the
Board's approved budget for the applicable year. Mr. Haims will
receive a target bonus of 4% of the Company's earnings before interest
and taxes ("EBIT") calculated before profit sharing (the "Target
"Bonus") based upon the following tables:
Goals Achieved Percent of Target Bonus Payable
-------------- -------------------------------
Board established sales goal only
("Sales Goal") ................................ 0%
Board established EBIT goal, as
follows:
with <85% of Sales Goal...................... 70%
with >85% but <88% of Sales Goal............. 75%
with >88% but <91% of Sales Goal............. 80%
with >91% but <94% of Sales Goal............. 85%
with >94% but <97% of Sales Goal............. 90%
with >97% but <100% of Sales Goal............ 95%
Sales and EBIT Goals met........................ 100%
Goals Achieved Percent of Target Bonus Payable
-------------- -------------------------------
If both sales and EBIT goals are
met and either or both are exceeded:
For each by which the 1% Sales
Goal is exceeded................ add 3% to the Target Bonus
For each 1/2% by which the EBIT
goal is exceeded.............. add 1.5% to the Target Bonus
To illustrate:
If 105% of the Sales Goal and 102%
of EBIT Goal is met................ 15% for Sales (5x3%) plus 6%
for EBIT (4x1.5%) = 121%
If 105% of the Sales Goal but only
100% EBIT Goal is met.............. 15% for Sales (5x3%) plus 0%
for EBIT = 115%
If 100% of the Sales Goal and 102%
of EBIT Goal is met................ 0% for Sales plus 6%
for EBIT (4x1.5%) = 106%
Mr. Haims will also receive certain fringe benefits, including
vacation, sick leave, holiday pay, medical insurance, participation in
the Company's 401(k) plan, and a $100,000 life insurance policy with a
beneficiary designated of his selection.
In the event that the shareholders do not approve Mr. Haims's
compensation, the Company will be unable to deduct from its income
tax, as an ordinary and necessary business expense, Mr. Haims's
compensation, to the extent that it exceeds $1 million.
Board Recommendation:
The Board recommends that stockholders vote FOR approval of the
Jeffrey L. Haims's compensation. A majority of votes cast in person
or by proxy at the Meeting is required for such approval.
STOCKHOLDER PROPOSALS FOR THE 1998 ANNUAL MEETING
In order to be considered for inclusion in the Proxy Statement
for the Company's 1998 Annual Meeting of Stockholders, stockholder
proposals must be received by the Company no later than June 25, 1999.
Proposals should be sent to the attention of the Secretary at the
Company's offices at Post Office Box 36, No. 3 Sixth Street,
Frenchtown, New Jersey 08825.
OTHER MATTERS
The Meeting is called for the purposes set forth in the notice.
The Board of Directors does not know of any matter for action by the
stockholders at the Meeting other than the matters described in the
notice. However, the enclosed proxy confers discretionary authority
on the persons named therein with respect to matters which are not
known to the directors at the date of printing hereof and which may
properly come before the Meeting. It is the intention of the persons
named in the proxy to vote in accordance with their best judgment on
any such matter.
By order of the Board of Directors
__________________________________
Tina Woolverton, Secretary
November 6, 1998
EXHIBIT A
BLUE FISH CLOTHING, INC.
1998 STOCK OPTION PLAN
The purpose of the Blue Fish Clothing, Inc. 1998 Stock Option Plan
(the "Plan") is to provide designated employees (including employees
who are also officers and directors) and consultants of Blue
Fish Clothing, Inc. and its subsidiaries and affiliates (hereinafter
collectively referred to as the "Company") with the opportunity to
receive grants of stock options. The Company desires to reward its
employees and consultants equitably for their service, value and
commitment to the continuing prosperity of the Company. The Company
recognizes that these individuals form the arcs of a revolving circle
that produces the magic of Blue Fish quality and creativity and
believes that the Plan will cause the participants to contribute
materially to the growth of the Company, thereby benefitting the
Company's shareholders and will align the economic interests of the
participants with those of the shareholders.
1. ADMINISTRATION
The Plan shall be administered and interpreted by the
Compensation Committee (the "Committee") consisting of not less than
two persons appointed by the Board of Directors of the Company (the
"Board"). Each member of the Committee shall be a "disinterested
person" as defined under Rule 16b-3 under the Securities Exchange Act
of 1934 (the "Exchange Act") and an "outside director" as defined
under Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code") and related Treasury regulations.
Subject to the provisions of Section 5, the Committee shall have
the sole authority to (i) determine the employees and consultants to
whom options shall be granted under the Plan, (ii) determine the type,
size and terms of the options to be granted to each such individual,
(iii) determine the time when the options will be granted and the
duration of the exercise period, including the criteria for vesting
and the acceleration of vesting and (iv) deal with any other matters
arising under the Plan.
The Committee shall have full power and authority to administer
and interpret the Plan, to make factual determinations and to adopt or
amend such rules, regulations, agreements and instruments for
implementing the Plan and for conduct of its business as it deems
necessary or advisable in its sole discretion. The Committee's
interpretations of the Plan and all determinations made by the
Committee pursuant to the powers vested in it hereunder shall be
conclusive and binding on all persons having any interests in the Plan
or in any awards granted hereunder. All powers of the Committee shall
be executed in the best interest of the Company and in keeping with
the objectives of the Plan.
2. GRANTS
Incentives under the Plan shall consist of incentive stock
options and nonqualified stock options (hereinafter collectively
referred to as "Stock Options"). All Stock Options shall be subject
to the terms and conditions set forth herein and to those other terms
and conditions consistent with this Plan as the Committee deems
appropriate and as are specified in writing by the Committee to the
employee or consultant (the "Grant Letter"). The Committee shall
approve the form and provisions of each Grant Letter to an employee or
consultant. Grants under a particular Section of the Plan need not be
uniform as among the employees or consultants.
3. SHARES SUBJECT TO THE PLAN
(a) Subject to the adjustment specified below, the aggregate
number of shares of common stock of the Company (the "Company Stock")
that have been or may be issued or transferred under the Plan is
1,200,000 shares. Notwithstanding anything in the Plan to the
contrary, during the term of the Plan, the maximum aggregate number of
shares of Company Stock that shall be subject to options granted under
the Plan to any single employee during any calendar year shall be
750,000 shares. The shares may be authorized but unissued shares of
Company Stock or reacquired shares of Company Stock, including shares
purchased by the Company for purposes of the Plan. If and to the
extent options granted under the Plan terminate, expire, cancel, are
forfeited, or are exchanged or surrendered without having been
exercised, the shares subject to such options shall again be available
for purposes of the Plan.
(b) If there is any change in the number or kind of shares of
Company Stock issuable under the Plan through the declaration of stock
dividends or through a recapitalization, stock splits, or combinations
or exchanges of such shares, or merger, reorganization or
consolidation of the Company, reclassification or change in par value
or by reason of any other extraordinary or unusual events affecting
the outstanding Company Stock as a class without the Company's receipt
of consideration, the maximum number of shares of Company Stock
available for Stock Options the maximum number of shares of Company
Stock for which any one employee participating in the Plan may be
granted over the term of the Plan, the number of shares covered by
outstanding Stock Options, and the price per share or the applicable
market value of such Stock Options, and the other terms and conditions
of the Stock Options, as the Committee may deem necessary or
desirable, shall be proportionately adjusted by the Committee to
reflect any increase or decrease in the number or kind of issued
shares of Company Stock to preclude the enlargement or dilution of
rights and benefits under such Stock Options; provided, however, that
any fractional shares resulting from such adjustment shall be
eliminated. The adjustments determined by the Committee shall be
final, binding and conclusive. Notwithstanding the foregoing, no
adjustment shall be authorized or made pursuant to this Section to the
extent that such authority or adjustment would cause the Plan or any
Incentive Stock Option to fail to comply with Section 422 of the Code.
4. ELIGIBILITY FOR PARTICIPATION
All employees and consultants of the Company or a subsidiary
(including employees who are officers or members of the Board) shall
be eligible to participate in the Plan. The Committee shall select
the employees and consultants to receive Stock Options (the
"Optionees") and determine the number of shares of Company Stock
subject to a particular Stock Option in such manner as the Committee
determines.
Nothing contained in this Plan shall be construed to limit the
right of the Company to grant options otherwise in connection with the
acquisition, by purchase, lease, merger, consolidation or otherwise,
of the business or assets of any corporation, firm or association,
including options granted to employees thereof who become employees of
the Company, or for other proper corporate purpose.
5. GRANTING OF OPTIONS
(a) Number of Shares. The Committee, in its sole discretion,
shall determine the number of shares of Company Stock that will be
subject to each Stock Option grant.
(b) Type of Option and Price. The Committee may grant
options intended to qualify as incentive stock options ("Incentive
Stock Options") within the meaning of Section 422 of the Code or
options which are not intended to so qualify ("Nonqualified Stock
Options") or any combination of Incentive Stock Options and
Nonqualified Stock Options, all in accordance with the terms and
conditions set forth herein; provided, however, that consultants shall
only be eligible to receive grants of Nonqualified Stock Options.
The purchase price of Company Stock subject to a
Stock Options shall be determined by the Committee but shall be no
less than 85% of the fair market value of a share of such Stock on the
date such Stock Option is granted; provided, however, that (I) the
purchase price of Company Stock subject to an Incentive Stock Option
shall be equal to, or greater than, the fair market value of a share
of such Stock on the date such Stock Option is granted, (ii) a Stock
Option shall not be granted to any individual who, at the time of
grant, owns stock possessing more than 10% of the total combined
voting power or value of all classes of stock of the Company or parent
of the Company, unless the option price per share is not less than
110% of the fair market value of Company Stock on the date of grant,
and (iii) in no event, based upon the facts known at the time of the
grant, may a purchase price be established hereunder that would result
in the disallowance of the Company's expense deduction pursuant to
Section 162(m) of the Code.
During such time that the Company Stock is listed
upon an established stock exchange or other market source, as
determined by the committee, "fair market value" on any date of
reference shall be the closing price of a share of Company Stock (on a
consolidated basis) on the principal exchange or other recognized
market source, as determined by the Committee on such date, or if
there is no sale on such date, then the closing price of a share of
Company Stock on the last previous day on which a sale is reported.
If the Company Stock is not listed on an established stock exchange or
traded in the over-the-counter-market, the "fair market value" of
Company Stock shall be determined by an independent firm, i.e., a firm
not otherwise engaged in consulting work for the Company, unless
determined otherwise by the Committee, with expertise in the valuation
of business entities and the securities thereof, selected by the
Committee (the "Valuation Expert"). Such determination of "fair
market value" by the Valuation Expert shall be made after taking into
account such factors as it shall deem appropriate.
(c) Exercise Period. The Committee shall determine the option
exercise period of each Stock Option. The exercise period shall not
exceed nine years from the date of grant.
(d) Exercisability of Options. Stock Options shall become
exercisable in accordance with the terms and conditions determined by
the Committee, in its sole discretion, and specified in the Grant
Letter. Notwithstanding any determinations by the Committee, all
outstanding Stock Options shall become immediately exercisable upon a
Change in Control (as defined herein).
(e) Manner of Exercise. An Optionee may exercise a Stock
Option which has become exercisable by delivering a notice of exercise
to the Committee with accompanying payment of the option price in
accordance with (g) below. Such notice may instruct the Company to
deliver shares of Company Stock due upon the exercise of the Stock
Option to any registered broker or dealer designated by the Company
("Designated Broker") in lieu of delivery to the Optionee. Such
instructions must designate the account into which the shares are to
be deposited. The Optionee may tender this notice of exercise, which
has been properly executed by the Optionee, and the aforementioned
delivery instructions to any Designated Broker.
(f) Termination of Employment, Disability or Death.
(1) In the event the Optionee during the Optionee's lifetime
ceases to be an employee of or consultant to the Company for any reason other
than death, disability, approved retirement or termination for cause, as
defined below, by the Company, any Stock Option which is otherwise exercisable
by the Optionee shall terminate unless exercised within 90 days of the date
on which the Optionee ceases to be an employee (or within such other period
of time as may be specified in the Grant Letter), but in any event no later
than the date of expiration of th Option Exercise Period (except as the
Committee may otherwise provide in the Grant Letter).
(2) In the event the Optionee ceases to be an employee of or
consultant to the Company on account of a termination for cause by the
Company, as determined in accordance with the personnel policies of the
Company in effect before any Change of Control of the Company, any Stock
Option held by the Optionee shall terminate as of the date the Optionee
ceases to be an employee or consultant (except as the committee may otherwise
provide).
(3) In the event the Optionee ceases to be an employee of or
consultant to the Company on account of becoming disabled (as defined under
section 22(e)(3) of the Code), all of the Optionee's outstanding Stock
Options shall become immediately exercisable upon the date on which the
Optionee ceases to be an employee or consultant and shall remain exercisable
until the date of expiration of the option exercise period (except as the
Committee may otherwise provide in the Grant Letter); provided, however,
that any Incentive Stock Option that is exercised more than one year after
the date the Optionee terminates employment shall be treated as a
Nonqualified Stock Option pursuant to Section 422(c)(6) of the Code.
(4) In the event of the death of the Optionee while he or she is
an employee of or consultant to the Company or within not more than 30 days
of the date on which he or she ceases to be an employee or consultant for
any reason other than a termination for cause by the Company (or within such
other period of time as may be specified in the Grant Lette), all of the
Optionee's outstanding Stock Options shall become immediately exercisable
upon the date of death and may be exercised by the Optionee's personal
representative at any time prior to the date of expiration of the option
exercise period.
(5) In the event the Optionee ceases to be an employee of the
Company on account of retirement approved by the Company, all of the
Optionee's outstanding Stock Options shall become immediately exercisable
upon the date on which the Optionee ceases to be an employee and shall
remain exercisable until the date of expiration of the option exercise
period (except as the Committee may otherwise provide in the Grant Letter);
provided, however, that any Incentive Stock Option that is exercised more
than 90 days after the date the Optionee terminates employment shall be
treated as a Nonqualified Stock Option pursuant to Section 422(a)(2) of
the Code.
(g) Satisfaction of Option Price. The Optionee shall pay the option
price specified in the Grant Letter in (i) cash, (ii) with the approval of
the Committee, by delivering shares of Company Stock owned by the Optionee
including Company Stock acquired in connection with the exercise of a
particular Stock Option and having a fair market value on the date of
exercise equal to the option price and the amount of withholding tax due,
if any, at the time of exercise. Shares of Company Stock shall not be
issued or transferred upon exercise of a Stock Option until the option price
is fully paid.
(h) Rule 16b-3 Restrictions. Unless an Optionee could otherwise
transfer Company Stock issued pursuant to a Stock Option granted
hereunder without incurring liability under Section 16(b) of the
Exchange Act, at least six months must elapse from the date of
acquisition of a Stock Option to the date of disposition of the
Company Stock issued upon exercise of such option.
(i) Limits on Incentive Stock Options. Each Incentive Stock
Option shall provide that to extent that the aggregate fair market
value of the Company Stock on the date of the grant with respect to
which Incentive Stock Options are exercisable for the first time by an
Optionee during any calendar year under the Plan or any other stock
option plan of the Company exceeds $100,000, then such option as to
the excess shall be treated as a Nonqualified Stock Option. An
Incentive Stock Option shall not be granted to any employee who, at
the time of the grant, owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or
parent of the Company, unless the option price per share is not less
than 110% of the fair market value of Company Stock on the date of
grant and the option exercise period is not more than five years from
the date of grant.
(j) Optional Purchase by the Company. In the sole discretion of
the Committee, in lieu of the exercise of a Stock Option, the Optionee
may be permitted to transfer the Stock Option to the Company in
exchange for a cash payment equal to the excess over the purchase
price of the then fair market value of the shares of Company Stock
subject to the Optionee's outstanding Stock Options.
6. TRANSFERABILITY OF OPTIONS
Only an Optionee or his or her authorized legal representative
may exercise rights under a Stock Option. Such persons may not
transfer those rights except by will or by the laws of descent and
distribution or, if permitted under Rule 16b-3 of the Exchange Act and
if permitted in any specific case by the Committee in its sole
discretion, pursuant to a qualified domestic relations order as
defined under the Code or Title 1 of ERISA or the regulations
thereunder. When an Optionee dies, the personal representative or
other person entitled to succeed to the rights of the Optionee
("Successor Optionee") may exercise such rights. A Successor Optionee
must furnish proof satisfactory to the Company of his or her right to
receive the Stock Option under the Optionee's will or under the
applicable laws of descent and distribution.
Notwithstanding the foregoing, the Committee may permit an
employee to transfer rights under a Nonqualified Stock Option to the
employee's spouse or a lineal descendant or to one or more trusts for
the benefit of such family members or to partnerships in which said
family members are the only partners (a "Family Transfer") provided
that the employee receives no consideration for a Family Transfer and
the Grant Letter relating to the Stock Options transferred in a Family
Transfer continue to be subject to the same terms and conditions that
were applicable to such Stock Options immediately prior to the Family
Transfer.
7. CHANGE IN CONTROL OF THE COMPANY
As used herein, a "Change in Control" shall be deemed to have
occurred if:
(a) As a result of a tender offer, stock purchase, other stock
acquisition, merger, consolidation, recapitalization, reverse split,
or sale or transfer of assets, any person or group (as such terms are
used in and under Section 13(d) of the Exchange Act) other than an
existing shareholder, becomes the beneficial owner (as defined in
Rule 13-d) under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 30% of the combined
voting power of the Company's then outstanding securities; or
(b) During any period of two consecutive years, individuals who
at the beginning of such period constitute the board of directors
cease for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by shareholders, of each
new director was approved by a vote of at least 2/3 of the directors
then still in office who were directors at the beginning of the
period.
8. CERTAIN CORPORATE CHANGES
(a) Sale or Exchange of Assets, Dissolution or Liquidation, or
Merger or Consolidation Where the Company Does Not Survive. If all or
substantially all of the assets of the Company are to be sold or
exchanged, the Company is to be dissolved or liquidated, or the
Company is a party to a merger or consolidation with another
corporation in which the Company will not be the surviving
corporation, then, at least 10 days prior to the effective date of
such event, the Company shall give each Optionee with any outstanding
Stock Options written notice of such event. Each such Optionee shall
thereupon have the right to exercise in full any installments of such
Stock Options not previously exercised (whether or not the right to
exercise such installments has accrued pursuant to such Stock
Options),within 10 days after such written notice is sent by the
Company or to require that the Company purchase such Stock Options for
a cash payment equal to the excess over the purchase price of the then
fair market value of the shares of Company Stock subject to the
Optionee's outstanding Stock Options.
(b) Merger or Consolidation Where the Company Survives. If the
Company is a party to a merger or consolidation in which the Company
will be the surviving corporation, then the Committee may, in its sole
discretion, elect to give each Optionee with any outstanding Stock
Options written notice of such event. If such notice is given, each
such Optionee shall thereupon have the right to exercise some or all
of any installments of such Stock Options not previously exercised
(whether or not the right to exercise such installments has accrued
pursuant to such Stock Options), within ten days after such written
notice is sent by the Company or to require that the Company purchase
such Stock Options for a cash payment equal to the excess over the
purchase price of the then fair market value of the shares of Company
Stock subject to the Optionee's outstanding Stock Options.
9. AMENDMENT AND TERMINATION OF THE PLAN
(a) Amendment. The Board, by written resolution, may amend or
terminate the Plan at any time; provided, however, that any amendment
that increases the aggregate number (or individual limit for any
single Optionee) of shares of Company Stock that may be issued or
transferred under the Plan (other than by operation of Section 3(b)),
or modifies the requirements as to eligibility for participation in
the Plan, shall be subject to approval by the shareholders of the
Company, and provided, further, that the Board shall not amend the
Plan without shareholder approval if such amendment would cause the
Plan or any Stock Option, or the exercise of any right under the Plan
to fail to comply with the requirement of Rule 16b-3 under the
Exchange Act.
(b) Termination of Plan. The Plan shall terminate on the tenth
anniversary of its effective date unless terminated earlier by the
Board or unless extended by the Board with the approval of the
shareholders.
(c) Termination and Amendment of Outstanding Stock Options. A
termination or amendment of the Plan that occurs after a Stock Option
is made shall not materially impair the rights of an Optionee unless
the Optionee consents or unless the Committee acts under Section 17(b)
hereof. The termination of the Plan shall not impair the power and
authority of the Committee with respect to an outstanding Stock
Option. Whether or not the Plan has terminated, an outstanding Stock
Option may be terminated or amended under Section 17(b) hereof or may
be amended by agreement of the Company and the Optionee consistent
with the Plan.
(d) Governing Document. The Plan shall be the controlling
document. No other statements, representations, explanatory
materials, or examples, oral or written, may amend the Plan in any
manner. The Plan shall be binding upon and enforceable against the
Company, its successors and assigns.
10. FUNDING OF THE PLAN
This Plan shall be unfunded. The Company shall not be required
to establish any special or separate fund or to make any other
segregation of assets to assure the payment of any Stock Option under
this Plan. In no event shall interest be paid or accrued on any Stock
Option, including unpaid installments of Stock Options.
11. RIGHTS OF OPTIONEES
Nothing in this Plan shall entitle any employee, consultant or
other person to any claim or right to be granted a Stock Option under
this Plan. Neither this Plan nor any action taken hereunder shall be
construed as giving any individual any rights to be retained by or in
the employ of the Company or any other governmental rights.
12. NO FRACTIONAL SHARES
No fractional shares of Company Stock shall be issued or
delivered pursuant to the Plan or any Stock Option. The Committee
shall determine whether cash, other awards or other property shall be
issued or paid in lieu of such fractional shares or whether such
fractional shares or any rights thereto shall be forfeited or
otherwise eliminated.
13. WITHHOLDING OF TAXES
The Optionee or other person receiving shares of Company Stock
upon the exercise of a Stock Option shall be required to pay to the
Company the amount of any federal, state or local taxes which the
Company is required to withhold with respect to the exercise of such
Stock Options or the Company shall have the right to deduct from other
wages paid to the employee by the Company (including through the
withholding of Company Stock purchased upon the exercise of a Stock
Option, if then authorized by the Committee and applicable law) the
amount of any withholding due with respect to such Stock Options.
14. REQUIREMENTS FOR ISSUANCE OF SHARES
No Company Stock shall be issued or transferred upon the exercise
of any Stock Option hereunder unless and until all legal requirements
applicable to the issuance or transfer of such Company Stock have been
complied with to the satisfaction of the Committee. The Committee
shall have the right to condition any Stock Option made to any
employee hereunder on such employee's undertaking in writing to comply
with such restrictions on his or her subsequent disposition of such
shares of Company Stock as the Committee shall deem necessary or
advisable as a result of any applicable law, regulation or official
interpretation thereof, and certificates representing such shares
shall be legended to reflect any such restrictions. Certificates
representing shares of Company Stock issued under the Plan will be
subject to such stop-transfer orders and other restrictions as may be
applicable under such laws, regulations and other obligations of the
Company, including any requirement that a legend or legends be placed
thereon.
15. HEADINGS
Section headings are for reference only. In the event of a
conflict between a title and the content of a Section, the content of
the Section shall control.
16. EFFECTIVE DATE
Subject to the approval of the Company's shareholders, this Plan
shall be effective as of September 1, 1998.
17. MISCELLANEOUS
(a) Substitute Grants. The Committee may make a Grant to an
employee of another corporation who becomes an employee by reason of a
corporate merger, consolidation, acquisition of stock or property,
reorganization or liquidation involving the Company or any of its
subsidiaries in substitution for a stock option or restricted stock
option granted by such corporation ("Substituted Stock Incentives").
The terms and conditions of the substitute Grant may vary from the
terms and conditions required by the Plan and from those of the
Substituted Stock Incentives. The Committee shall prescribe the
provisions of the substitute Grants.
(b) Compliance with Law. The Plan, the exercise of Stock
Options and the obligations of the Company to issue or transfer shares
of Company Stock under Stock Options shall be subject to all
applicable laws and to approvals by any governmental or regulatory
agency as may be required. With respect to persons subject to
Section 16 of the Exchange Act, it is the intent of the Company that
the Plan and all transactions under the Plan comply with all
applicable provisions of Rule 16b-3 or its successors under the
Exchange Act. The Committee may revoke any Stock Option if it is
contrary to law or modify a Stock Option to bring it into compliance
with any valid and mandatory government regulation. The Committee may
also adopt rules regarding the withholding of taxes on payments to
Optionees. The Committee may, in its sole discretion, agree to limit
its authority under this Section.
(c) Ownership of Stock. An Optionee or Successor Optionee shall
have no rights as a shareholder with respect to any shares of Company
Stock covered by a Stock Option until the shares are issued or
transferred to the Optionee or Successor Optionee on the stock
transfer records of the Company.
(d) Governing Law. The validity, construction, interpretation
and effect of the Plan and Grant Letters issued under the Plan shall
exclusively be governed by and determined in accordance with the law
of the Commonwealth of Pennsylvania.
(e) Indemnification of Committee. In addition to such other
rights of indemnification as they may have as directors or as members
of the Committee, the members of the Committee shall be indemnified by
the Company against the reasonable expenses, including attorneys' fees
actually and necessarily incurred in connection with any appeal
therein, to which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with the Plan or
any Grant thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding
except in relation to matters as to which it shall be adjudged in such
action, suit or proceeding that such Committee member is liable for
negligence or misconduct in the performance of his or her duties;
provided that within 60 days after institution of any such action,
suit or proceeding the Committee member shall in writing offer the
Company the opportunity, at its own expense, to handle and defend the
same.
ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON NOVEMBER 16, 1998
Revoking all prior proxies, the undersigned, a stockholder of BLUE
FISH CLOTHING, INC. (the "Company"), hereby appoints Jennifer Barclay
and Jeffrey L. Haims, and each of them, attorneys and agents of the
undersigned, with full power of substitution, to vote all of the
shares of the Company's Common Stock, par value $.001 per share
("Common Stock"), owned by the undersigned at the Annual Meeting of
the Stockholders of the Company to be held at Prallsville Mill, Route
29, Stockton, New Jersey, at 2:00 p.m. local time, and at any
adjournment thereof, as fully and effectively as the undersigned could
do if personally present and voting, hereby approving, ratifying, and
confirming all that said attorneys and agents or their substitutes may
lawfully do in place of the undersigned as indicated on the reverse.
IMPORTANT: SIGNATURE REQUIRED ON THE REVERSE SIDE
-
A |x| Please mark your votes as in this example.
-
FOR ALL WITHHOLD
NOMINEES AUTHORITY
LISTED FOR ALL
BELOW NOMINEES
- -
1. Election | | | | Cumulative votes for one
of - - or more nominees as follows:
Directors (see proxy statement):
To vote for the election of Nominees:
Jennifer Barclay, Ben Cohen, --------
Jeffrey L. Haims, Gary Hirshberg, Jennifer Barclay _____
and John A. May as directors. Ben Cohen _____
Jeffrey L. Haims _____
Gary Hirshberg _____
John A. May _____
FOR, except votes withheld from
the following nominee(s):
_______________________________
(Total must not exceed
five times the number of
shares held)
2. Proposal to approve the appointment of Arthur Andersen LLP as
the Company's independent public accountants for the fiscal
year ending December 31, 1997.
FOR AGAINST ABSTAIN
- - -
| | | | | |
- - -
3. Proposal to approve the Company's 1998 Stock Option Plan.
FOR AGAINST ABSTAIN
- - -
| | | | | |
- - -
4. Proposal to approve the Company's performance-based compensation.
FOR AGAINST ABSTAIN
- - -
| | | | | |
- - -
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED.
IF NO DIRECTION IS MADE, THE PROXY SHALL BE VOTED FOR THE
ELECTION OF THE LISTED NOMINEES AS DIRECTORS AND FOR PROPOSALS 2,
3, AND 4, AND, IN THE CASE OF OTHER MATTERS THAT LEGALLY COME
BEFORE THE MEETING, AS SAID ATTORNEY(S) MAY DEEM ADVISABLE.
PLEASE CHECK HERE IF YOU PLAN TO ATTEND THE ANNUAL MEETING OF
STOCKHOLDERS ON MONDAY NOVEMBER 16, 1998, AT 2:00 P.M. AT THE
PRALLSVILLE MILL, ROUTE 29, STOCKTON, NEW JERSEY.
Signature: _______________________________________ Date:________
Signature: _______________________________________ Date:________
Additional signature if owned jointly.
NOTE: Please sign exactly as name appears hereon. Joint owners
should each sign. If signing as attorney, executor,
administrator, trustee, guardian, or other fiduciary,
please indicate title or capacity in which signed.