Exhibit 1
RULE 10b5-1 SALES PLAN AGREEMENT
This Sales Plan (the "Sales Plan") is entered into on this 14th day of
April, 2006 (the "Adoption Date") by and between Seymour and Xxxxxx
Xxxxxxxx (collectively the "Seller") and Deutsche Bank Securities Inc.
(hereinafter referred to as "DB Alex. Xxxxx" or alternatively, the
"Broker"), acting as agent for the Seller.
1. Preliminary Statements
1.1 Rule 10b5-1(c). This Sales Plan is adopted and entered into
by Seller for the purpose of establishing a trading plan that
complies with the requirements of Rule 10b5-1(c)(1) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and with Casual Male Retail Group, Inc.'s (the "Company") Xxxxxxx
Xxxxxxx Policy.
1.2 Securities. The Seller is establishing this Sales Plan
in order to permit the orderly disposition of a portion of the
Seller's holdings of the common stock (the "Stock") of the Company,
beneficially owned, either directly or indirectly, and held by the
Seller, and indicated on Schedule A hereto.
1.3 Status of Seller. Xxxxxxx Xxxxxxxx is a director or officer
of the Company.
1.4 Availability of Affirmative Defenses. Seller understands that
the effectiveness of this Sales Plan in providing an affirmative
defense under the Exchange Act depends upon the Seller's compliance
with the conditions of that rule, and that the defense will be
unavailable unless:
(a) As of the date on which Seller executes this Sales Plan,
Seller is not aware of any material nonpublic information concerning
the Issuer or its securities;
(b) Seller enters into this Sales Plan (and any modifications
of this Sales Plan) in good faith and not part of a plan or scheme
to evade compliance with the federal securities laws;
(c) Seller does not enter into or alter a corresponding or hedging
transaction with respect to the Stock; and,
(d) Seller does not alter or modify this Sales Plan at any time
that Seller is aware of any material nonpublic information about the
Company or its securities.
2. Implementation of the Sales Plan
2.1 Appointment; Total Sales Amount. Subject to the terms and
conditions hereof, the Seller hereby appoints Broker, and Broker
hereby accepts such appointment, to sell up to 300,000 shares of
Stock per month for four consecutive months beginning
December 1, 2006, with a total of 1,200,000 shares of Stock
(the "Total Sales Amount") to be sold.
2.2 Sales Period. Broker is authorized to sell Stock pursuant
to this Sales Plan on or after December 1, 2006 and shall cease
the sale of Stock pursuant to the termination of this Sales Plan
as set forth in Section 6. The sale of shares of Stock pursuant
to this Sales Plan shall be undertaken in the order set forth on
Schedule A hereto.
2.3 Monthly Sale Amount; Minimum Sale Price.
(a) During the Sales Period, Broker shall sell the number of
shares of the Stock held by the Seller for the account of the
Seller during each month as set forth on Schedule A (the "Sale
Amount").
(b) The Seller and Broker agree to make appropriate
arrangements with the Company's transfer agent to have underlying
shares delivered to Broker as necessary to effect sales under
this Sales Plan.
(c) If, consistent with ordinary principles of best execution
or for any other reason, Seller cannot sell the Sale Amount
during any given Sales Period, the amount of such shortfall may
be sold as soon as practicable during the immediately succeeding
Sales Period consistent with ordinary principles of best execution.
(d) The Sale Amount, the Total Sale Amount and the Minimum
Sale Price, if applicable, shall be adjusted automatically on a
proportionate basis to take into account any stock split, reverse
stock split, or stock dividend or any change in capitalization with
respect to the Company that occurs during the Sales Period.
(e) If any shares of Stock remain in the account of the
Seller after the end of the Sales Period, Broker shall return such
Stock promptly to the Company's transfer agent for re-legending
to the extent that such Stock would then be subject to transfer
restrictions in the hands of the Seller.
2.4 Plan Account. The Seller agrees to deliver the Stock
to be sold pursuant to this Sales Plan (the "Plan Shares") into
an account at DB Alex. Xxxxx in the name of and for the benefit
of the Seller (the "Plan Account") prior to the commencement of
sales under this Sales Plan. Broker shall withdraw Stock from
the Plan Account in order to effect sales of Stock under this
Sales Plan.
2.5 Sales; Market Maker. Broker may sell Stock on any national
securities exchange, in the over-the-counter market, on an automated
trading system or otherwise. Sales of Stock may be effected in whole
or in part, on an agency basis, or if Broker is a market maker in
the Stock at the time that any sale is to be made under this Sales
Plan, Broker may, at its sole discretion, effect one or more sales
on a principal basis commensurate with all regulatory requirements
regarding best execution practices.
2.6 Best Execution. Broker agrees to sell Stock under this
Sales Plan pursuant to ordinary principles of best execution.
Notwithstanding the foregoing, Seller acknowledges that Broker may
not be able to sell the entire amount that is instructed to
sell hereunder and that this Sales Plan does not constitute a
guarantee or other assurance of any kind that sales of Stock
will be made at any particular price on any particular day.
2.7 Indemnification. Seller agrees to indemnify and hold harmless
Broker from and against all claims, losses, damages and liability
arising out of inquiries and/or proceedings resulting from assertions
that: (i) this Sales Plan or sales made under this Sales Plan do
not comply with Rule 10b5-1 or with state securities laws or
regulations prohibiting trading while in possession of material
nonpublic information; provided that such non-compliance is not
the result of Broker's negligence or willful act or omission,
and (ii) Broker has not executed any sales pursuant to the
provisions of the Sales Plan; provided that any failure to perform
or delay in performance results from a cause or circumstance
that is beyond the reasonable control of Broker, including but
not limited to failure of electronic or mechanical equipment,
strikes, failure of common carrier or utility systems, severe
weather, market disruptions or other causes commonly known as
"acts of God." This indemnification obligation shall survive
termination of this Sales Plan.
3. Forms 144 and 4
3.1 SEC Rule 144. The Seller represents and warrants that
the shares of Stock to be sold pursuant to this Sales Plan are
currently eligible for sale under Rule 144 under the Securities
Act and agrees as follows:
(a) Seller is an affiliate of the Company and is therefore
subject to the limitations in Rule 144, promulgated pursuant
to the Securities Act, including Rule 144(e) regulating the
number of shares that may be sold in any three month period.
As a result, Broker is instructed to comply with Rule 144
when selling shares of Stock. Broker hereby acknowledges that
it is familiar with Rule 144 and agrees to sell shares in
accordance with the rule. Seller agrees not to take, and
agrees not to cause any person or entity with which Seller
would be required to aggregate sales of Stock pursuant to
paragraph (a)(2) or (e) of Rule 144 to take, any action that
would cause the sales hereunder not to meet all applicable
requirements of Rule 144.
(b) Seller will execute and deliver to Broker Forms 144
in blank for the sales to be effected under this Sales Plan
at such times and in such numbers as Broker shall request,
and Broker agrees to complete and file such Forms 144 on
behalf of Seller as required by applicable regulation.
Seller understands and agrees that Broker shall make one
Form 144 filing at the beginning of each three-month period
commencing on the first trading day of the Sales Period.
(c) The Forms 144 will include in the Remarks section
substantially the following: "The shares covered by this
Form 144 are being sold pursuant to a Rule 10b5-1 Sales
Plan dated April 14, 2006, which is intended to comply with
Rule 10b5-1."
(d) During the term of the Sales plan, Seller agrees to
promptly notify Broker in writing if he is no longer subject
to Rule 144.
3.2 Section 16.
(a) If Seller is subject to the reporting requirements
of Section 16 of the Exchange Act, Broker will inform the
Seller and the Company of any sales made under this Sales
Plan by the end of the day on which the trade is made,
together with such information as shall be required by
Seller and/or the Company to complete the Form 4 for such
sale. The Seller and/or the Company shall remain solely
responsible for preparing and filing such forms (to the
extent applicable to the Seller). Broker acknowledges
that its obligation to provide notice of sales is integral
to Seller's and/or the Company's ability to file such forms.
(b) The Forms 4 will include in the Remarks section
substantially the following: "The shares covered by this
Form 4 have been sold pursuant to a Rule 10b5-1 Sales Plan
dated April 14, 2006, which is intended to comply with
Rule 10b5-1."
4. Additional Covenants of the Seller
4.1 No Hedging Transactions. While this Sales Plan is
in effect, the Seller agrees not to enter into or alter
any corresponding or hedging transaction or position with
respect to the securities covered by this Sales Plan
(including, without limitation, with respect to any
securities convertible or exchangeable into the Stock)
and agrees not to alter or deviate from the terms of this
Sales Plan.
4.2 Exchange Act Filings. The Seller shall be
responsible for arranging all filings, if any, required
under Sections 13(d), 13(g) and 16 of the Exchange Act as
a result of the transactions contemplated hereunder, to
the extent such filings are applicable to the Seller.
4.3 No Influence. The Seller acknowledges and agrees
that Seller does not have, and shall not attempt to
exercise, any influence over how, when or whether to effect
sales of Stock pursuant to this Agreement.
4.4 No Encumbrances. The securities to be sold under
this Sales Plan are owned free and clear by the Seller
and are not subject to any agreement granting any pledge,
lien, mortgage, hypothecation, security interest, charge,
option or encumbrance or any other limitation on
disposition, other than those which may have been entered
into between the Seller and Broker or imposed by Rules
144 or 145 under the Securities Act of 1933, as amended
(the "Securities Act").
4.5 Advisors. The Seller has consulted with the
Seller's own advisors as to the legal, tax, business,
financial and related aspects of, and has not relied upon
Broker or any person affiliated with Broker in connection
with Seller's adoption and implementation of this Sales Plan.
4.6 Submission to the Company. Seller has delivered
a copy of this Sales Plan to the Company. Seller hereby
consents to any filings made by the Company setting forth or
otherwise making publicly available the provisions of this
Sales Plan. The Company consents to any public disclosure
by Seller of the provisions of this Sales Plan.
5. Amendments or Modifications
5.1 Seller may amend or modify the provisions of this
Sales Plan provided that:
(a) any such amendment or modification is made at a
time that Seller is not aware of material nonpublic
information;
(b) any amendment or modification to this Sales Plan
must be in writing and signed by Seller, Broker and the
Company; and,
(c) any amendment or modification to this Sales Plan shall
contain a representation by Seller that Seller is not
then aware of any material nonpublic information concerning
the Company and its securities.
6. Termination and Suspension
6.1 Termination. This Sales Plan shall terminate on the
earliest to occur of:
(a) May 1, 2007,
(b) the date that the aggregate number of shares of
Stock sold pursuant to this Sales Plan reaches the Total
Sales Amount,
(c) the date on which Broker receives written notice
of the incapacity or death of the Seller,
(d) the date on which Broker receives written notice of
the termination of Xxxxxxx Xxxxxxxx'x resignation/removal
from the Board of the Company,
(e) the date on which Broker receives notice of the
commencement or impending commencement of any proceedings
in respect of or triggered by the Seller's bankruptcy or
insolvency, and
(f) the date Broker receives written instruction from
the Company to cease sales hereunder.
(g) The date on which broker receives written notice
from Seller, advising Broker to terminate the Plan.
Until this Sales Plan is terminated, Seller agrees not
to enter into a binding contract with respect to the
purchase or sale of Stock with another broker, dealer or
financial institution; instruct any broker, dealer or
financial institution to purchase or sell Stock or
adopt a trading plan with respect to Stock other than
this Sales Plan.
6.2 Suspension. If, at any time during the term of
this Sales Plan, a legal, contractual or regulatory
restriction applicable to the Seller or the Seller's
affiliates, including without limitation, a stock
offering requiring an affiliate lock-up, would prohibit
any sale pursuant to the Sales Plan (other than any such
restriction relating to the Seller's possession or
alleged possession of material nonpublic information
about the Company or its securities), the Company agrees
to give Broker notice of such restriction by telephone as
soon as practicable. It shall indicate the nature and
anticipated duration of the trading restriction (the
"Suspension Period"), but shall not include any other
information or otherwise communicate any material
nonpublic information about the Company or its securities
to Broker. This Sales Plan shall be suspended for the
term of the Suspension Period and until Broker receives
written notice from the Company that sales may recommence
under the Sales Plan.
7. Notice
7.1 To Broker. All notices to Broker under this
Sales Plan shall be given to Broker in the manner specified
by this Sales Plan by telephone at 000.000.0000, by
facsimile at 212.454.0337, by email at xxx.xxxx@xx.xxx, or
by certified mail to the address below:
Deutsche Bank Alex. Xxxxx
Attention: Xx. Xxx Xxxx
000 Xxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
7.2 To Company. All notices to Company under this
Sales Plan shall be given to Company in the manner
specified by this Sales Plan by telephone at (000)000-0000,
by facsimile at (000) 000-0000, or by certified mail to
the address below:
Casual Male Retail Group
Attn: Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
7.3 To Seller. All notices to Seller under this Sales
Plan shall be given to Seller in the manner specified by
this Sales Plan by telephone at (000)000-0000,by facsimile
at (000) 000-0000, or by certified mail to the address
below:
Seymour and Xxxxxx Xxxxxxxx
C/O Jewelcor Companies
000 X. Xxxxxx-Xxxxx Xxxx
0xx Xxxxx
Xxxxxx-Xxxxx, XX 00000
Jewelcor Companies
Att: Xxxxxxx Xxxxxxxxx
000 X. Xxxxxx-Xxxxx Xxxx
0xx Xxxxx
Xxxxxx-Xxxxx, XX 00000
8. Miscellaneous
8.1 Settlement. The net proceeds from each sale of
Stock hereunder will be delivered to the Seller's account
with DB Alex. Xxxxx on a normal three-day settlement
basis less any commissions agreed upon by Broker and Seller.
8.2 Assignment. This Sales Plan may not be assigned
by either party without this prior consent of the other
party.
8.3 Governing Law; Jurisdiction. This Sales Plan,
and all transactions contemplated hereunder, shall be
governed and construed in accordance with the laws of
the State of New York.
8.4 Entire Agreement. This Sales Plan, together with
the schedules, sets forth the entire agreement and
understanding between the parties as to the subject
matter hereof and merges all prior discussions and
negotiations between them, and none of the parties
shall be bound by any conditions, definitions,
warranties, understandings or representations with
respect to such subject matter other than as expressly
provided in this Sales Plan.
8.5 Descriptive Headings. The descriptive headings
of this Sales Plan are for convenience only, and
shall be of no force or effect in construing or
interpreting any of the provisions of this Sales Plan.
8.6 Counterparts. This Sales Plan may be executed
in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument, and
each of such counterparts shall, for all purposes,
constitute one agreement binding on all parties.
This Instruction shall not be effective until DB
Alex. Xxxxx confirms its acceptance in
writing by signing below.
Adopted by Seller: Acknowledged by the Company:
(company name)
/s/ By: /s/
Xxxxxxx Xxxxxxxx (authorized signatory)
(title)
/s/________________________
Xxxxxx Xxxxxxxx
Accepted by DB Alex. Xxxxx:
/s/
(branch manager)
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