AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 19, 1996
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
BLUE FISH CLOTHING, INC.
(Exact Name of Registrant as Specified in Its Charter)
--------------------------
PENNSYLVANIA 22-2781253
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
---------------------------
No. 3 Sixth Street, Frenchtown, NJ 08825
(908) 996-3844
(Address of Principal Executive Offices)
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1995 STOCK OPTION PLAN
1995 NON-EMPLOYEE
DIRECTORS' STOCK OPTION PLAN
(Full Title of the Plans)
----------------------------
Copies to:
MARC WALLACH, CHIEF EXECUTIVE OFFICER STEPHEN L. PALMER, ESQ.
BLUE FISH CLOTHING, INC. WARNER & STACKPOLE LLP
NO. 3 SIXTH STREET 75 STATE STREET
FRENCHTOWN, NJ 08825 BOSTON, MA 02109
(908) 996-3844 (617) 951-9211
(Name, Address and Telephone Number,
Including Area Code, of Agent For Service)
-----------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered (1) Share (2) Price (2) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 645,000 $7.50 $7.50 $1,668.10
par value $.001 per share shares
====================================================================================================================
</TABLE>
(1) Together with an indeterminate number of additional shares which may result
from any stock split, stock dividend, or other similar adjustment of the
outstanding shares of Common Stock.
(2) Estimated solely for the purpose of a calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933 on the basis of the bid
and asked prices of the Common Stock of the Registrant on July 16, 1996 as
reported by the Chicago Stock Exchange.
Blue Fish Clothing, Inc. (the "Company" or the "Registrant") is
registering 645,000 shares of its Common Stock, $.001 par value per share
("Common Stock"), 570,000 shares of which are reserved for issuance under the
Company's 1995 Stock Option Plan (the "1995 Plan"), and 75,000 shares of which
are reserved for issuance under the Company's 1995 Non-Employee Directors' Stock
Option Plan (the "1995 Directors' Plan").
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
Incorporated herein by reference are the following documents of the
Company previously filed with the Commission:
(a) Prospectus dated November 13, 1995 filed with the Securities
and Exchange Commission (the "Commission") pursuant to Rule 424(b)
under the Securities Act of 1933 (the "Act") which contains audited
financial statements for the Registrant's fiscal year ended December
31, 1994 and the six month period ended June 30, 1995;
(b) The description of the Company's Common Stock contained in
the Registration Statement of the Company on Form 8-A filed with the
Commission on November 13, 1995, which incorporates by reference
certain portions of the Company's Registration Statement on Form SB-2
(Registration No. 33-97418, as amended) filed with the Commission on
September 27, 1995 (the "Registration Statement on Form SB-2"); and
(c) Annual Report of the Company on Form 10-KSB for the fiscal
year ending December 31, 1995 and filed with the Commission on April
12, 1996.
(d) Quarterly Reports of the Company on Form 10-QSB for the
quarters ended September 30, 1995 and March 31, 1996 and filed with the
Commission on December 28, 1995 and May 20, 1996, respectively.
Any documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that the
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into the
registration statement and to be a part thereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
-------------------------
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Article IV, paragraph (c)(1) of the Company's By-laws provides that a
director shall not be personally liable, as such, for monetary damages
(including, without limitation, any judgment, amount paid in settlement,
penalty, punitive damages or expenses of any nature, including, without
limitation, attorneys' fees and disbursements), for any action taken, or any
failure to take any action, unless (i) the director has breached or failed to
perform the duties of his or her office under Subchapter 17B of the Pennsylvania
Business Corporation Law (or any successor provision); and (ii) the breach or
failure to perform constitutes self-dealing, willful misconduct or recklessness.
The provisions of this paragraph (c)(1) shall not apply to the responsibility or
liability of a director pursuant to any criminal statute, or the liability of a
director for the payment of taxes pursuant to local, state or federal law.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law of
1988, as amended (the "PBCL"), provide that a business corporation may indemnify
directors and officers against liabilities they may incur in such capacity
provided that the particular person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. In the case of actions against
a director or officer by or in the right of the corporation, the power to
indemnify extends only to expenses (not judgments and amounts paid in
settlement) and such power generally does not exist if the person otherwise
entitled to indemnification shall have been adjudicated to be liable to the
corporation unless it is judicially determined that, despite the adjudication of
liability but in view of all the circumstances of the case, the person is fairly
and reasonably entitled to indemnification for specified expenses. Under Section
1743 of the PBCL, the corporation is required to indemnify directors and
officers against expenses they may incur in defending actions against them in
such capacities if they are successful on the merits or otherwise in the defense
of such actions. Under Section 1745 of the PBCL, a corporation may pay the
expenses of a director or officer incurred in defending an action or proceeding
in advance of the final disposition thereof upon receipt of an undertaking from
such person to repay the amounts advanced unless it is ultimately determined
that such person is entitled to indemnification from the corporation. Article
VII of the Company's Bylaws provides indemnification of directors, officers and
other agents of the Company and advancement of expenses to the extent otherwise
permitted by Sections 1741, 1742 and 1745 of the PBCL.
Section 1746 of the PBCL grants a corporation broad authority to
indemnify its directors, officers and other agents for liabilities and expenses
incurred in such capacity, except in circumstances where the act or failure to
act giving rise to the claim for indemnification is determined by a court to
have constituted willful misconduct or recklessness.
II-2
As authorized by Section 1747 of the PBCL and Article VII of the
Company's By-Laws, the Company maintains, on behalf of its directors and
officers, insurance protection against certain liabilities arising out of the
discharge of their duties, as well as insurance coverage for the Company for
indemnification payments made to its directors and officers for certain
liabilities. The premiums for such insurance are paid by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not Applicable.
ITEM 8. EXHIBITS
--------
See list of Exhibits in the Exhibit Index.
ITEM 9. UNDERTAKINGS
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or
II-3
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Frenchtown in the State of New Jersey, on the 19th
day of July, 1996.
BLUE FISH CLOTHING, INC.
By: /s/ Jennifer Barclay
-------------------------------------
Jennifer Barclay
Chairman and President
(Principal Executive Officer)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below on this Registration Statement hereby constitutes and appoints
Jennifer Barclay, Marc Wallach and Richard Swarttz, and each of them, (with full
power of each of them to act alone) as the undersigned's true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, to sign this Registration Statement and
any and all amendments to this Registration Statement and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and generally to do anything else necessary
and proper in connection therewith.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Jennifer Barclay Chairman of the Board and President July 19, 1996
- -------------------------------------------- (Principal Executive Officer)
JENNIFER BARCLAY
/s/ Marc Wallach Chief Executive Officer and Director July 19, 1996
- --------------------------------------------
MARC WALLACH
/s/ Richard Swarttz
- -------------------------------------------- Chief Financial Officer July 19, 1996
RICHARD SWARTTZ (Principal Financial and Accounting Officer)
/s/ Ben Cohen Director July 19, 1996
- --------------------------------------------
BEN COHEN
/s/ Gary Hirshberg Director July 19, 1996
- --------------------------------------------
GARY HIRSHBERG
</TABLE>
II-5
FORM S-8 REGISTRATION STATEMENT
BLUE FISH CLOTHING, INC.
EXHIBIT INDEX
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<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit
--- ----------------------
<S> <C>
4.1* Restated Articles of Organization
4.2* Bylaws, as amended
4.3* Registrant's 1995 Stock Option Plan
4.4* Registrant's 1995 Non-Employee Directors'
Stock Option Plan
5 Opinion of Warner & Stackpole LLP (filed
herewith)
23.1 Consent of Arthur Andersen LLP (filed
herewith)
23.2 Consent of Warner & Stackpole LLP (included
in Exhibit 5)
24 Power of Attorney of officers and directors
of the Registrant (included in the signature
page hereto)
</TABLE>
- ---------------------
* Filed as an exhibit to the Registrant's Registration Statement on Form SB-2
(Registration No. 33-97418) or amendments thereto and incorporated herein by
reference.
II-6
WARNER & STACKPOLE LLP
COUNSELLORS AT LAW
75 State Street Telephone: (617) 951-9000
Boston, Massachusetts 02109 Fax: (617) 951-9151
July 19, 1996
Blue Fish Clothing, Inc.
No. 3 Sixth Street
Frenchtown, NJ 08825
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation and
filing with the Securities and Exchange Commission of a Registration Statement
on Form S-8 (the "Registration Statement") registering for issuance by Blue Fish
Clothing, Inc., a Pennsylvania Corporation (the "Company"), upon exercise of
options awarded under the Company's 1995 Stock Option Plan and the Company's
1995 Non-Employee Directors' Stock Option Plan (together the "Plans") 645,000
shares of the Company's Common Stock, $.001 par value per share (the "Shares").
We have examined (i) the Registration Statement, (ii) the Articles of
Incorporation of the Company and (iii) such other documents and records of the
Company as we have deemed necessary for the purpose of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such latter documents.
In rendering this opinion we assume that all issuances of shares will
be made in compliance with all applicable state securities or "blue sky" laws.
Based upon the foregoing, we are of the opinion that the Shares are
duly authorized and reserved for issuance and, upon (i) the effectiveness of the
Registration Statement, (ii) payment for the Shares in accordance with the terms
of the Plans, and (iii) the issuance of certificates therefore by the Company,
the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Warner & Stackpole LLP
WS/slp
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 1, 1996
included in Blue Fish Clothing, Inc.'s Form 10-KSB for the year ended December
31, 1995 and to all references to our Firm included in this registration
statement.
Philadelphia, Pa.
July 18, 1996
