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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT TO REGISTRATION STATEMENT
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DESIGNS, INC.
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(Exact Name of registrant as specified in charter)
Delaware 0-15898 04-2623104
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
66 B Street, Needham, Massachusetts 02194
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of each Class on which each Class is
to be so registered to be registered
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None None
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
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(Title of Class)
AMENDMENT NO 1
The undersigned registrant hereby amends its Registration
Statement on Form 8-A dated as of May 1, 1995 by replacing Item 1 of
such Statement in its entirety with the Item 1 set forth below.
"Item 1. Description of Registrant's Securities to be Registered
On October 6, 1997, the Board of Directors of Designs, Inc. (the
"Company") approved an amendment (the "First Amendment") to the
Company's Shareholder Rights Agreement dated May 1, 1995 (the "1995
Agreement"). The 1995 Agreement, as amended by the First Amendment,
is hereinafter referred to as the "Rights Agreement." The following
description of the terms of the First Amendment and the Rights
Agreement does not purport to be complete and is qualified in it
entirety by reference to the First Amendment (which accompanies this
Amendment to Registration Statement as an exhibit hereto) and the 1995
Agreement (which was previously filed with the Securities and Exchange
Commission as Exhibit 1 to the Company's Registration Statement on
Form 8-A dated as of May 1, 1995).
The purpose of the First Amendment is to amend the definition of
an "Acquiring Person." The definition of such term now allows a
person who is and continues to be permitted to file a Schedule 13G, in
lieu of Schedule 13D, pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder, to be the beneficial owner of less than 20% of
the shares of the Company's Common Stock, $0.01 par value ("Common
Stock"), then outstanding without becoming an "Acquiring Person."
A person who is so permitted to file a Schedule 13G, in lieu of a
Schedule 13D, is hereinafter referred to as a "Schedule 13G Filer."
Pursuant to the terms of the Rights Agreement, the Company
distributed one Preferred Stock Purchase Right (a "Right") for each
outstanding share of Common Stock to stockholders of record as of the
close of business on May 15, 1995 (the "Record Date"). Such Rights
were registered by the Company under the Exchange Act by the filing of
a registration statement dated as of May 1, 1995 with the Securities
and Exchange Commission on May 19, 1995 (the "1995 Registration
Statement"). Each Right entitles the registered holder to purchase
from the Company a unit consisting of on one-thousandth of a share (a
"Unit") of Series A Junior Participating Cumulative Preferred Stock,
par value $0.01 per share (the "Preferred Stock"), at a cash
exercise price of $56.00 per Unit (the "Exercise Price"), subject to
adjustment.
The Company previously disclosed that the Rights, initially, are
not exercisable and are attached to all shares of Common Stock
outstanding as of, and issued subsequent to, the Record Date. The
Rights will separate from shares of Common Stock and will become
exercisable upon the earliest of: (i) the close of business on the
tenth business day following the first public announcement that a
person or group of affiliated or associated persons has acquired
beneficial ownership of 15% (or, in the case of a person who is a
Schedule 13G Filer, 20%) or more of the outstanding shares of Common
Stock (the date of said announcement being referred to as the "Stock
Acquisition Date"), (ii) the close of business on the tenth business
day (or such other business day as the Board of Directors may
determine) following the commencement of a tender offer or exchange
offer that would result upon its consummation in a person or group
becoming the beneficial owner of 15% or more of the outstanding shares
of Common Stock, or (iii) the determination by the Board of Directors
that any person is an "Adverse Person" (the earliest of such dates
being herein referred to as the "Distribution Date").
The Board of Directors may declare a person to be an Adverse
Person after a determination that such person, alone or together with
its affiliates and associates, has become the beneficial owner of 10%
or more of the outstanding shares of Common Stock and a determination
by the Board of Directors, after reasonable inquiry and investigation,
including such consultation, if any, with such persons as the
directors shall deem appropriate, that (a) such beneficial ownership
by such person is intended to cause, is reasonably likely to cause or
will cause the Company to repurchase the Common Stock beneficially
owned by such person or to cause pressure on the Company to take
action or enter into a transaction or series of transactions which
would provide such person with short-term financial gain under
circumstances where the Board of Directors determines that the best
long-term interests of the Company and its stockholders, but for the
actions and possible actions of such person, would not be served by
taking such action or entering into such transaction or series of
transactions at that time or (b) such beneficial ownership is causing,
or is reasonably likely to cause, a material adverse impact
(including, but not limited to, impairment of relationships with
customers or impairment of the Company's ability to maintain its
competitive position) on the business or prospects of the Company.
However, the Board of Directors may not declare a person to be an
Adverse Person if, prior to the time that the person acquired 10% or
more of the outstanding shares of Common Stock, such person provided
to the Board of Directors in writing a statement of the person's
purpose and intentions in connection with the proposed acquisition of
Common Stock, together with any other information reasonably requested
of the person by the Board of Directors, and the Board of Directors,
based on such statement and such reasonable inquiry and investigation,
including such consultation, if any, with such person as the Board of
Directors shall deem appropriate, determines to notify and notifies
such person in writing that it will not declare the person to be an
Adverse Person; provided, however, that the Board of Directors may
expressly condition in any manner a determination not to declare a
person an Adverse Person on such conditions as the Board of Directors
may select, including, without limitation, such person's not acquiring
more than a specified amount of stock and/or on such person's not
taking actions inconsistent with the purposes and intentions disclosed
by such person in the statement provided to the Board of Directors.
No delay or failure by the Board of Directors to declare a Person to
be an Adverse Person shall in any way waive or otherwise affect the
power of the Board of Directors subsequently to declare a person an
Adverse Person. In the event that the Board of Directors should at
any time determine, upon reasonable inquiry and investigation,
including consultation with such persons as the Board of Directors
shall deem appropriate, that such person has not met or complied with
any condition specified by the Board of Directors, the Board of
Directors may at any time thereafter declare the person to be an
Adverse Person.
Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), (a) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with
such Common Stock certificates, (b) new Common Stock certificates
issued after the Record Date will contain a notation incorporating the
Shareholder Rights Agreement by reference, and (c) the surrender for
transfer of any certificates for Common Stock will also constitute the
transfer of the Rights associated with the Common Stock represented by
such certificate.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on May 1, 2005, unless previously
redeemed or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Right
Certificates will be mailed to holders of record of Common Stock as of
the close of business on the Distribution Date and, thereafter, the
separate Right Certificates alone will represent the Rights. Except
as otherwise determined by the Board of Directors, only shares of
Common Stock issued prior to the Distribution Date will be issued with
Rights.
In the event that a Stock Acquisition Date occurs or the Board of
Directors determines that a person is an Adverse Person, proper
provision will be made so that each holder of a Right (other than an
Acquiring Person, an Adverse Person or their affiliates or associates,
whose Rights shall become null and void) will thereafter have the
right to receive upon exercise that number of Units of Preferred Stock
of the Company having a market value of two times the exercise price
of the Right (such right being referred to as the "Subscription
Right"). In the event that, at any time following the Stock
Acquisition Date, (i) the Company consolidates with, or merges with
and into, any other person, and the Company is not the continuing or
surviving corporation, (ii) any person consolidates with the Company,
or merges with and into the Company and the Company is the continuing
or surviving corporation of such merger and, in connection with such
merger, all or part of the shares of Common Stock are changed into or
exchanged for stock or other securities of any other person or cash or
any other property, or (iii) 50% or more of the Company's assets or
earning power is sold, mortgaged or otherwise transferred, each holder
of a Right shall thereafter have the right to receive, upon exercise,
common stock of the acquiring company having a market value equal to
two times the exercise price of the Right (such right being referred
to as the "Merger Right"). The holder of a Right will continue to
have the Merger Right whether or not such holder has exercised the
Subscription Right. Rights that are or were beneficially owned by an
Acquiring Person or an Adverse Person may (under certain circumstances
specified in the Rights Agreement) become null and void.
At any time after a Stock Acquisition Date occurs or the Board of
Directors determines that a person is an Adverse Person, the Board of
Directors may, at its option, exchange all or any part of the then
outstanding and exercisable Rights for shares of Common Stock or Units
of Preferred Stock at an exchange ratio of one share of Common Stock
or one Unit of Preferred Stock per Right. Notwithstanding the
foregoing, the Board of Directors generally will not be empowered to
effect such exchange at any time after any person becomes the
beneficial owner of 50% or more of the Common Stock of the Company.
The Exercise Price payable, and the number of Units of Preferred
Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of, the Preferred Stock, (ii) if holders of the
Preferred Stock are granted certain rights or warrants to subscribe
for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the distribution to
holders of the Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Exercise Price will
be required until cumulative adjustments amount to at least 1% of the
Exercise Price. The Company is not obligated to issue fractional
Units. If the Company elects not to issue fractional Units, in lieu
thereof an adjustment in cash will be made based on the fair market
value of the Preferred Stock on the last trading date prior to the
date of exercise. Any of the provisions of the Rights Agreement may
be amended by the Board of Directors of the Company at any time prior
to the Distribution Date.
The Rights may be redeemed in whole, but not in part, at a price
of $0.01 per Right (payable in cash, Common Stock or other
consideration deemed appropriate by the Board of Directors) by the
Board of Directors only until the earliest of (i) the date on which a
person is declared to be an Adverse Person, (ii) the close of business
on the tenth business day after the Stock Acquisition Date, or (iii)
the expiration date of the Rights Agreement. Immediately upon the
action of the Board of Directors ordering redemption of the Rights,
the Rights will terminate and thereafter the only right of the holders
of Rights will be to receive the redemption price.
The Rights Agreement may be amended by the Board of Directors in
its sole discretion until the Distribution Date. After the
Distribution Date, the Board of Directors may, subject to certain
limitations set forth in the Rights Agreement, amend the Rights
Agreement only to cure any ambiguity, defect or inconsistency, to
shorten or lengthen any time period, or to make changes that do not
adversely affect the interests of Rights holders (excluding the
interests of an Acquiring Person, an Adverse Person or their
associates or affiliates). In addition, the Board of Directors may at
any time prior to such time as any person becomes an Acquiring Person
amend the Rights Agreement to lower the threshold at which a person
becomes an Acquiring Person to not less than the greater of (i) the
sum of .001% and the largest percentage of the outstanding Common
Stock then owned by any person and (ii) 10%.
Until a Right is exercised, the holder will have no rights as a
stockholder of the Company (beyond those as an existing stockholder),
including the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to stockholders or to
the Company, stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Units, other securities of the Company, other
consideration or for common stock of an acquiring company.
The certificate of vote of directors establishing the Preferred
Stock and the form of Right Certificate are attached as Exhibits A and
B, respectively, to the 1995 Agreement (which is included as Exhibit 1
to the 1995 Registration Statement). The foregoing description of the
Rights does not purport to be complete and is qualified in its
entirety by reference to the 1995 Agreement, as amended by the First
Amendment. "
Item 2. Exhibits
Exhibit 4.1 First Amendment, dated as of October 6, 1997, to
Shareholder Rights Agreement dated as of May 1, 1995,
between Designs, Inc. and BankBoston, N.A., as Rights
Agent, successor to The First National Bank of Boston,
N.A.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to
be signed on its behalf by the undersigned, thereto duly authorized.
DESIGNS, INC.
Date: October 9, 1997 By: /s/ Joel H. Reichman
____________________________
Joel H. Reichman, President
and Chief Executive Officer
FIRST AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT
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This First Amendment (this "Amendment") is made as of October 6, 1997 to
the Shareholder Rights Agreement, dated as of May 1, 1995 (the "Rights
Agreement"), between Designs, Inc., a Delaware corporation (the "Company"),
and BankBoston, a national banking association organized under the laws of
the United States (the "Rights Agent"), successor to The First National Bank
of Boston, N.A.
WITNESSETH
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WHEREAS, in accordance with the terms of the Rights Agreement, the Company
deems it desirable to make certain amendments to the Rights Agreement; and
WHEREAS, Section 27 of the Rights Agreement provides that, prior to the
Distribution Date, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of the Rights Agreement as the
Company may deem necessary or desirable without the approval of any holders of
certificates representing shares of Common Stock; and
WHEREAS, the Company desires to amend certain provisions of the Rights
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree that the Rights Agreement is hereby
amended as follows:
Section 1. Subsection (a) of Section 1 of the Rights Agreement is
amended by deleting such subsection in its entirety and substituting therefor
the following:
" (a) "Acquiring Person" shall mean any Person (as hereinafter
defined) who or which, together with all Affiliates (as such term is
hereinafter defined) and Associates (as such term is hereinafter defined) of
such Person, shall be the Beneficial Owner (as such term is hereinafter
defined) of 15% or more of the shares of Common Stock then outstanding, but
shall not include (i) the Company, (ii) any Subsidiary (as such term is
hereinafter defined) of the Company, (iii) any employee benefit plan or
compensation arrangement of the Company or any Subsidiary of the Company or
(iv) any Person holding shares of Common Stock organized, appointed or
established by the Company or any Subsidiary of the Company for or pursuant
to the terms of any such employee benefit plan or compensation arrangement
(the Persons described in clauses (i) through (iv) above are referred to
herein as "Exempt Persons").
Notwithstanding the foregoing:
(A) a Person shall not be an "Acquiring Person" if (x) such
Person, together with all Affiliates and Associates of such Person,
shall not be the Beneficial Owner of 20% or more of the shares of
Common Stock then outstanding and (y) such Person is and continues
to be permitted to file a Schedule 13G, in lieu of a Schedule 13D,
pursuant to the Exchange Act (as defined) and the rules and
regulations promulgated thereunder (a Person who is so permitted
being herein referred to as a "Schedule 13G Filer");
(B) no Person shall become an "Acquiring Person" as the result
of an acquisition of Common Stock by the Company which, by reducing
the number of shares outstanding, increases the proportionate number
of shares beneficially owned by such Person to 15% or more (or, in
the case of such a Person who is a Schedule 13G Filer, to 20% or
more) of the shares of Common Stock then outstanding; provided,
however that, if a Person shall become the Beneficial Owner of 15%
or more (or, in the case of a Person who is a Schedule 13G Filer,
20% or more) of the shares of Common Stock of the Company then
outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial
Owner of any additional shares (other than pursuant to a stock split,
stock dividend or similar transaction) of Common Stock of the Company
and immediately thereafter be the Beneficial Owner of 15% or more
(or, in the case of a Person who is a Schedule 13G Filer, 20% or
more) of the shares of Common Stock then outstanding, then such
Person shall be deemed to be an "Acquiring Person;" and
(C) a Person shall not be an "Acquiring Person" if the Board
of Directors of the Company determines that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this Section l(a), has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of shares of Common Stock so that such Person would
no longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this Section l(a). "
Section 2. As amended hereby, the Rights Agreement shall continue in
full force and effect in accordance with its terms.
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Section 3. All capitalized terms used but not defined in this
Amendment shall have the respective meanings ascribed to such terms in the
Rights Agreement. This Amendment shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written. This
Amendment may be executed in one or more counterparts all of which shall be
considered one and the same Amendment and each of which shall be deemed to be
an original.
ATTEST: DESIGNS, INC.
By: /s/ Anthony E. Hubbard By: /s/ Joel H. Reichman
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Anthony E. Hubbard Name: Joel H. Reichman
An Assistant Secretary Title: President and Chief
Executive Officer
ATTEST: BANKBOSTON, N.A.,
as Rights Agent
By: /s/ Terrance J. Dugan By: /s/ Margaret M. Prentice
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Terrance J. Dugan Name: Margaret M. Prentice
An Account Manager Title: Director, Client
Services
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