AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 15, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
ARIS INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
NEW YORK 22-1715274
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
475 FIFTH AVENUE, NEW YORK, NEW YORK 10017
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(Address of principal executive offices) (Zip Code)
THE ARIS INDUSTRIES, INC. 1993 STOCK INCENTIVE PLAN
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(Full title of the plan)
PAUL SPECTOR, SENIOR VICE PRESIDENT, ARIS INDUSTRIES, INC.,
475 FIFTH AVENUE, NEW YORK, NEW YORK 10017
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(Name and address of agent for service)
(212) 686-5050
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(Telephone number, including area code, of agent for service)
Copy to:
Lawrence M. Levinson, Esq.
Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
(212) 592-1412
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Proposed
maximum Proposed Amount of
Title of Amount to be offering price maximum aggregate registration
securities to be registered registered per share (1) offering price (1) fee
--------------------------- ------------ -------------- ----------------- ------------
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share.... 3,500,000 (2) $2.00 $7,000,000 $2,065
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(h)(1), calculated on the basis of the maximum price at
which options currently outstanding may be exercised. Some options
currently outstanding have a lower exercise price.
(2) Consists of 3,500,000 shares reserved for issuance pursuant to The Aris
Industries, Inc. 1993 Stock Incentive Plan. This registration statement
also relates to such indeterminate number of additional shares of Common
Stock, par value $0.01 per share, of Aris Industries, Inc. which may become
issuable pursuant to the anti-dilution and adjustment provisions of The
Aris Industries, Inc. 1993 Stock Incentive Plan.
Page 2
<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectus being delivered by Aris Industries, Inc., a
New York corporation (the "Company" or the "Registrant"), to participants in The
Aris Industries Inc. 1993 Stock Incentive Plan (the "Plan"), as required by Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), has
been prepared in accordance with the requirements of Form S-8 and relates to
shares of common stock of the Company, par value $0.01 per share (the "Common
Stock"), reserved for issuance pursuant to the Plan. The information concerning
the Plan required in the Section 10(a) prospectus is included in documents being
maintained and delivered by the Company as required by Rule 428 under the
Securities Act. The Company will provide to participants in the Plan a written
statement advising them of the availability without charge, upon written or oral
request, of documents incorporated by reference herein, as is required by Item 2
of Part I of Form S-8.
Page 3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference herein:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
2. The Company's Quarterly Report on Form 10-Q for the first quarter
ended June 30, 1998; and
3. The Company's Registration Statement on Form 8-A/A dated July 12,
1993, which was filed pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and which contains a description of
the Common Stock, including any amendment or report filed for the purpose of
updating such description.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such reports and documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Certificate of Incorporation provides that: No
director shall be personally liable to the Company or any of its shareholders
for monetary damages for breach of duty as a director, except for liability if a
judgment or other final adjudication adverse to him or her established that his
or her acts or omissions were in bad faith or involved intentional misconduct or
a knowing violation of law or that he or she personally gained in fact a
financial profit or another advantage to which he or she was not legally
entitled or that his or her acts violated Section 719 of the New York Business
Corporation Law. No amendment to or repeal of this provision shall apply to or
have any effect on the liability of any director of the Company for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal. If the New York Business Corporation Law is amended
hereafter to expand or limit the liability of a director, then the liability
Page 4
<PAGE>
of a director of the Company shall be expanded to the least extent required or
limited to the fullest extent permitted by the New York Business Corporation
Law, as so amended.
In addition to the foregoing, the Company's Restated Certificate of
Incorporation and the Company's Amended and Restated By-Laws provide that: The
Company shall indemnify any present or former officer or director of the Company
or the personal representatives thereof, made or threatened to be made a party
in any civil or criminal action or proceeding by reason of the fact that he or
she, his or her testator or intestate is or was a director or officer of the
Company, or served any other corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise in any capacity at the request of the
Company, against judgments, fines (including excise tax assessed on such a
person in connection with service to an employee benefit plan), amounts paid in
settlement and reasonable expenses, including without limitation, court costs,
attorneys' fees and disbursements and those of accountants and other experts and
consultants incurred as a result of such action or proceeding or any appeal
therein, all of which expenses as incurred shall be advanced by the Company
pending the final disposition of such action or proceeding. Such required
indemnification shall be subject only to the exception that indemnification may
not be made to or on behalf of any director or officer in the event and to the
extent that a judgment or other final adjudication adverse to the director or
officer establishes that his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he or she personally gained in fact a financial
profit or other advantage to which he or she was not legally entitled (provided,
however, that indemnification shall be made upon any successful appeal of any
such adverse judgment or final adjudication). For purposes of this
indemnification provision, the Company shall be deemed to have requested such
present or former officer or director to serve an employee benefit plan where
the performance by such person of his or her duties to the Company also imposes
duties on, or otherwise involves services by, such person to the plan or
participants or beneficiaries of the plan. The foregoing right of
indemnification shall not be deemed exclusive of any and other rights to which
any such person, or his or her testator or intestate, may be entitled apart from
this provision. If the New York Business Corporation Law is amended hereafter to
expand or limit the indemnification of a director or officer, then the
indemnification of a director or officer of the Company shall be expanded to the
fullest extent permitted or limited to the least extent required by the New York
Business Corporation Law, as so amended.
On the June 30, 1993, the Company entered into separate Indemnification
Agreements with each member of its Board of Directors which provide such
directors with contractual indemnification to the fullest extent permitted by
law, and for the advancement of legal fees and other expenses, and require the
Company to use its best efforts to maintain designated director and officer
liability insurance coverage. The Company maintains a policy of liability
insurance to insure its officers and directors against losses resulting from
certain acts committed by them in their capacity as officers and directors of
the Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Page 5
<PAGE>
Item 8. EXHIBITS.
Exhibit No. Description of Exhibit
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4.1 Restated Certificate of Incorporation filed on June 30, 1993.
(Incorporated herein by reference to Exhibit 3.3. to the Company's
Report on Form 8-K dated June 30, 1993.)
4.2 Amended and Restated By-Laws effective June 30, 1993. (Incorporated
herein by reference to Exhibit 3.4 to the Company's Report on Form 8-K
dated June 30, 1993).
4.3 Specimen Certificate Evidencing Common Stock. (Incorporated herein by
reference to Exhibit 2.1 to the Company's Registration Statement on
Form 8-A/A dated July 12, 1993).
4.4 The Aris Industries, Inc. 1993 Stock Incentive Plan, as amended through
April 6, 1998.
5.1 Opinion of Herrick, Feinstein LLP as to the legality of the Common
Stock.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Herrick, Feinstein LLP (included in Exhibit 5.1).
Item 9. UNDERTAKINGS.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that are incorporated by reference in this registration statement.
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<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated
by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 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 Securities Act of 1933, as amended, 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 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, as amended, and will be
governed by the final adjudication of such issue.
Page 7
<PAGE>
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 New York, State of New York, on September 15, 1998.
ARIS INDUSTRIES, INC.
By: /s/ PAUL SPECTOR
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Paul Spector, Senior Vice President
and Chief Financial Officer
By: /s/ VINCENT F. CAPUTO
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Vincent F. Caputo, Vice President,
Assistant Secretary and Assistant
Treasurer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ JOHN HANNAN Director September 15, 1998
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John Hannan
/s/ EDWARD M. YORKE Director September 15, 1998
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Edward M. Yorke
/s/ ROBERT KATZ Director September 15, 1998
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Robert Katz
/s/ CHARLES S. RAMAT Chairman of the Board,
- -------------------------- President, Chief Executive September 15, 1998
Charles S. Ramat Officer and Assistant
Secretary; Director
/s/ DAVID N. SCHREIBER Director September 15, 1998
- --------------------------
David N. Schreiber
Page 8
<PAGE>
EXHIBITS INDEX
Exhibit No. Description of Exhibit
4.1 Restated Certificate of Incorporation filed on June 30, 1993.
(Incorporated herein by reference to Exhibit 3.3 to the Company's
Report on Form 8-K dated June 30, 1993.)
4.2 Amended and Restated By-Laws effective June 30, 1993. (Incorporated
herein by reference to Exhibit 3.4 to the Company's Report on Form 8-K
dated June 30, 1993.)
4.3 Specimen Certificate Evidencing Common Stock. (Incorporated herein by
reference to Exhibit 2.1 to the Company's Registration Statement on
Form 8-A/A dated July 12, 1993.)
4.4 The Aris Industries, Inc. 1993 Stock Incentive Plan, as amended through
April 6, 1998, filed herewith.
5.1 Opinion of Herrick, Feinstein LLP as to the legality of the Common
Stock, filed herewith.
23.1 Consent of Deloitte & Touche LLP, filed herewith.
23.2 Consent of Herrick, Feinstein LLP (included in Exhibit 5.1.)
Page 9
EXHIBIT 4.4
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ARIS INDUSTRIES, INC.
1993 STOCK INCENTIVE PLAN
As Amended Through April 6, 1998
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I. GENERAL .................................................... 1
1.1 Purpose .................................................... 1
1.2 Administration ............................................. 1
1.3 Persons Eligible for Awards ................................ 2
1.4 Types of Awards Under Plan ................................. 2
1.5 Shares Available for Awards ................................ 2
1.6 Definitions of Certain Terms ............................... 3
ARTICLE II. AWARDS UNDER THE PLAN ...................................... 4
2.1 Agreements Evidencing Awards ............................... 4
2.2 Grant of Stock Options, Stock Appreciation Rights
and Dividend Equivalent Rights ............................. 4
2.3 Exercise of Options and Stock Appreciation Rights .......... 6
2.4 Termination of Employment; Death ........................... 8
2.5 Grant of Restricted Stock .................................. 8
2.6 Grant of Performance Shares ................................ 9
ARTICLE III. MISCELLANEOUS .............................................. 10
3.1 Amendment of the Plan; Modification of Awards .............. 10
3.2 Restrictions ............................................... 10
3.3 Nonassignability ........................................... 11
3.4 Requirement of Notification of Election Under
Section 83(b) of the Code .................................. 11
3.5 Requirement of Notification Upon Disqualifying
Disposition Under Section 421(b) of the Code ............... 11
3.6 Withholding Taxes .......................................... 11
3.7 Change in Control .......................................... 12
3.8 Right of Discharge Reserved ................................ 13
3.9 Nature of Payments ......................................... 13
3.10 Non-Uniform Determinations ................................. 13
3.11 Other Payments or Awards ................................... 14
3.12 Section Headings ........................................... 14
3.13 Effective Date and Term of Plan ............................ 14
3.14 Governing Law .............................................. 14
<PAGE>
ARTICLE I.
GENERAL
1.1 Purpose
The purpose of Aris Industries, Inc. 1993 Stock Incentive Plan (the "Plan")
is to provide for employees and directors of, and consultants to, Aris
Industries, Inc. (the "Company") and its subsidiaries (the Company and its
subsidiaries being referred to herein as the "Employers") an incentive (a) to
enter into and remain in the service of the Employers, (b) to enhance the
long-term performance of the Employers, and (c) to acquire a proprietary
interest in the success of the Employers.
1.2 Administration
1.2.1 Subject to Section 1.2.6, the Plan shall be administered by the
Compensation and Stock Option Committee (the "Committee") of the board of
directors of the Company (the "Board"), which shall consist of not less than
three directors and to which the Board shall grant power to authorize the
issuance of the Company's capital stock pursuant to awards granted under the
Plan. The members of the Committee shall be appointed by, and serve at the
pleasure of, the Board. To the extent required for transactions under the Plan
to qualify for the exemptions available under Rule 16b-3 ("Rule 16b-3")
promulgated under the Securities Exchange Act of 1934 (the "1934 Act"), no
person may serve on the Committee if, during the year preceding such service,
such person was granted or awarded equity securities of the Company (including
options to acquire such securities) under the Plan or any other plan of the
Company or any affiliate thereof.
1.2.2 The Committee shall have the authority (a) to exercise all of the
powers granted to it under the Plan, (b) to construe, interpret and implement
the Plan and any Plan Agreements executed pursuant to Section 2. 1, (c) to
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules governing its own operations, (d) to make all determinations
necessary or advisable in administering the Plan, (e) to correct any defect,
supply any omission and reconcile any inconsistency in the Plan, and (f) to
amend the Plan to reflect changes in applicable law.
1.2.3 Actions of the Committee shall be taken by the vote of a majority of
its members. Any action may be taken by a written instrument signed by a
majority of the Committee members, and action so taken shall be fully as
effective as if it had been taken by a vote at a meeting.
1.2.4 No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any award
thereunder.
1.2.5 Notwithstanding anything to the contrary contained herein: (a) until
the Board shall appoint the members of the Committee, the Plan shall be
administered by the Board; and (b) the Board may, in its sole discretion, at any
time and from time to time, resolve to administer the Plan. In either of the
foregoing events, the term "Committee" as used herein shall be deemed to mean
the Board.
1.3 Persons Eligible for Awards
1.3.1 Awards under the Plan may be made to such employees and directors of
the Employers and to such consultants to the Employers (collectively, "key
persons") as the Committee shall in its sole discretion select.
Page 1
<PAGE>
1.3.2 The Committee may grant awards under the Plan in substitution for
stock based awards held by employees of another corporation who become employees
of an Employer as the result of a merger or consolidation of such other
corporation with such Employer, or of the acquisition by such Employer of
property or stock of such other corporation. Such substitute awards shall be
granted on such terms and conditions as the Committee deems appropriate.
1.4 Types of Awards Under Plan
Awards may be made under the Plan in the form of (a) incentive stock
options, (b) nonqualified stock options, (c) stock appreciation rights, (d)
dividend equivalent rights, (e) restricted stock, and (f) performance shares,
all as more fully set forth in Article II. The term "award" means any of the
foregoing. No incentive stock option may be granted to a person who is not an
employee of an Employer on the date of grant.
1.5 Shares Available for Awards
1.5.1 The total number of shares of common stock of the Company, par value
$0.01 per share ("Common Stock"), with respect to which awards may be granted
pursuant to the Plan shall be 3,500,000 shares. Such shares may be authorized
but unissued Common Stock or authorized and issued Common Stock held in the
Company's treasury or acquired by the Company for the purposes of the Plan. The
Committee may direct that any stock certificate evidencing shares issued
pursuant to the Plan shall bear a legend setting forth such restrictions on
transferability as may apply to such shares pursuant to the Plan.
1.5.2 If there is any change in the outstanding shares of Common Stock by
reason of a stock dividend or distribution, stock split-up, recapitalization,
combination or exchange of shares, then (a) the number of shares available for
issuance both in the aggregate and under each outstanding award shall be
increased or decreased, as the case may be, in direct proportion to the increase
or decrease in the total number of shares of Common Stock outstanding, and (b)
the purchase price per share under outstanding awards shall be proportionately
reduced in the case of an increase in the number of shares and shall be
proportionately increased in the case of a reduction in the number of shares. If
the Company pays an extraordinary dividend in cash or property, or there occurs
any merger, consolidation or other event affecting the Common Stock, the number
of shares of Common Stock available for issuance both in the aggregate and under
each outstanding award, and the purchase price per share under outstanding
awards, shall be equitably adjusted by the Committee. After any adjustment made
pursuant to this Section 1.5.2, the number of shares subject to each outstanding
award shall be rounded to the nearest whole number.
1.5.3 The following shares of Common Stock shall again become available for
awards under the Plan: any shares subject to an award under the Plan that remain
unissued upon the cancellation or termination of such award for any reason
whatsoever; any shares of restricted stock forfeited pursuant to Section 2.5.7,
provided that any dividends paid on such shares are also forfeited pursuant to
Section 2.5.7; and any shares in respect of which a stock appreciation right is
settled for cash. Except as provided in this Section 1.5 and in Section 2.2.8,
there shall be no limit on the number or the value of the shares of Common Stock
issuable to any individual under the Plan.
1.6 Definitions of Certain Terms
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1.6.1 The termination of a grantee's employment shall be deemed to be a
dismissal for "Cause" if the Committee determines that it is based on any of the
following occurrences that is directly harmful to the business or reputation of
the Company: the grantee's conviction of a felony or failure to contest the
prosecution of a felony, or the grantee's proven fraud or defalcation; provided,
however, that in making any such determination, the Committee shall afford the
grantee an opportunity to be heard by the Committee.
1.6.2 The "Fair Market Value" of a share of Common Stock on any day shall
be determined as follows:
(a) If the principal market for the Common Stock (the "Market") is a
national securities exchange or the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") National Market, the last
sale price or, if no reported sales take place on the applicable date, the
average of the high bid and low asked price of Common Stock as reported for
such Market on such date or, if no such quotation is made on such date, on
the next preceding day on which there were quotations, provided that such
quotations shall have been made within the ten (10) business days preceding
the applicable date;
(b) If the Market is the NASDAQ National List, the NASDAQ Supplemental
List or another market, the average of the high bid and low asked price for
Common Stock on the applicable date, or, if no such quotations shall have
been made on such date, on the next preceding day on which there were
quotations, provided that such quotations shall have been made within the
ten (10) business days preceding the applicable date; or
(c) In the event that neither paragraph (a) nor (b) shall apply, the
Fair Market Value of a share of Common Stock on any day shall be reasonably
determined by the Committee.
1.6.3 The term "incentive stock option" means an option that is intended to
qualify for special federal income tax treatment pursuant to sections 421 and
422 of the Internal Revenue Code of 1986 (the "Code"), as now constituted or
subsequently amended, or pursuant to a successor provision of the Code, and
which is so designated in the applicable Plan Agreement. Any option that is not
specifically designated as an incentive stock option shall under no
circumstances be considered an incentive stock option. Any option that is not an
incentive stock option is referred to herein as a "nonqualified stock option."
1.6.4 The term "employment" means, in the case of a grantee of an award
under the Plan who is not an employee of an Employer, the grantee's association
with an Employer as a director, consultant or otherwise.
1.6.5 A grantee who is an employee shall be deemed to have a "termination
of employment" upon ceasing to be employed by all Employers or by a corporation
assuming awards in a transaction to which section 425(a) of the Code applies.
The Committee may in its discretion determine (a) whether any leave of absence
constitutes a termination of employment for purposes of the Plan, (b) the
impact, if any, of any such leave of absence on awards theretofore made under
the Plan, and (c) when a change in a non-employee's association with an Employer
constitutes a termination of employment for purposes of the Plan. In the event
that the termination of a grantee's employment is a dismissal for Cause, the
Committee may deem the date of termination to be the date of the action that
constitutes Cause.
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<PAGE>
1.6.6 The terms "parent corporation" and "subsidiary corporation" have the
meanings given them in section 425(e) and (f) of the Code, respectively.
ARTICLE II.
AWARDS UNDER THE PLAN
2.1 Agreements Evidencing Awards
Each award granted under the Plan shall be evidenced by a written agreement
("Plan Agreement") which shall contain such provisions as the Committee may in
its sole discretion deem necessary or desirable. By accepting an award pursuant
to the Plan, a grantee thereby agrees that the award shall be subject to all of
the terms and provisions of the Plan and the applicable Plan Agreement.
2.2 Grant of Stock Options, Stock Appreciation Rights and Dividend Equivalent
Rights
2.2.1 The Committee may grant incentive stock options and nonqualified
stock options (collectively, "options") to purchase shares of Common Stock from
the Company, to such key persons, and in such amounts and subject to such terms
and conditions, as the Committee shall determine in its sole discretion, subject
to the provisions of the Plan.
2.2.2 The Committee may grant stock appreciation rights to such key
persons, and in such amounts and subject to such terms and conditions, as the
Committee shall determine in its sole discretion, subject to the provisions of
the Plan. The terms of a stock appreciation right may provide that it shall be
automatically exercised for a cash payment upon the happening of a specified
event that is outside the control of the grantee, and that it shall not be
exercisable otherwise. Stock appreciation rights may be granted in connection
with all or any part of, or independently of, any option granted under the Plan.
A stock appreciation right granted in connection with a nonqualified stock
option may be granted at or after the time of grant of such option. A stock
appreciation right granted in connection with an incentive stock option may be
granted only at the time of grant of such option.
2.2.3 The grantee of a stock appreciation right shall have the right,
subject to the terms of the Plan and the applicable Plan Agreement, to receive
from the Company an amount equal to (a) the excess of the Fair Market Value of a
share of Common Stock on the date of exercise of the stock appreciation right
over (b) the Fair Market Value of a share of Common Stock on the date of grant
(or over the option exercise price if the stock appreciation right is granted in
connection with an option), multiplied by (c) the number of shares with respect
to which the stock appreciation right is exercised. Payment upon exercise of a
stock appreciation right shall be in cash or in shares of Common Stock (valued
at their Fair Market Value on the date of exercise of the stock appreciation
right) or both, all as the Committee shall determine in its sole discretion.
Upon the exercise of a stock appreciation right granted in connection with an
option, the number of shares subject to the option shall be reduced by the
number of shares with respect to which the stock appreciation right is
exercised. Upon the exercise of an option in connection with which a stock
appreciation right has been granted, the number of shares subject to the stock
appreciation right shall be reduced by the number of shares with respect to
which the option is exercised.
2.2.4 Each Plan Agreement with respect to an option shall set forth the
amount (the "option exercise price") payable by the grantee to the Company upon
exercise of the option evidenced thereby.
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<PAGE>
The option exercise price per share shall be determined by the Committee in its
sole discretion; provided, however, that the option exercise price of an
incentive stock option shall be at least 100% of the Fair Market Value of a
share of Common Stock on the date the option is granted, and provided further
that in no event shall the option exercise price be less than the par value of a
share of Common Stock.
2.2.5 Each Plan Agreement with respect to an option or stock appreciation
right shall set forth the periods during which the award evidenced thereby shall
be exercisable, whether in whole or in part. Such periods shall be determined by
the Committee in its sole discretion; provided, however, that no incentive stock
option (or a stock appreciation right granted in connection with an incentive
stock option) shall be exercisable more than 10 years after the date of grant,
and provided further that except as and to the extent that the Committee may
otherwise provide pursuant to Section 3.1.3 or 3.7, no option or stock
appreciation right shall be exercisable prior to the first anniversary of the
date of grant.
2.2.6 The Committee may in its sole discretion include in any Plan
Agreement with respect to an option (the "original option") a provision that an
additional option (the "additional option") shall be granted to any grantee who,
pursuant to Section 2.3.5(b), delivers shares of Common Stock in partial or full
payment of the exercise price of the original option. The additional option
shall be for a number of shares of Common Stock equal to the number thus
delivered, shall have an exercise price equal to the Fair Market Value of a
share of Common Stock on the date of exercise of the original option, and shall
have an expiration date no later than the expiration date of the original
option. In the event that a Plan Agreement provides for the grant of an
additional option, such Agreement shall also provide that the exercise price of
the original option be no less than the Fair Market Value of a share of Common
Stock on its date of grant, and that any shares that are delivered pursuant to
Section 2.3.5(b) in payment of such exercise price shall have been held for at
least six months.
2.2.7 The Committee may in its sole discretion include in any Plan
Agreement with respect to an option, stock appreciation right or performance
shares a dividend equivalent right entitling the grantee to receive amounts
equal to the ordinary dividends that would be paid, during the time such award
is outstanding and unexercised, on the shares of Common Stock covered by such
award if such shares were then outstanding. In the event such a provision is
included in a Plan Agreement, the Committee shall determine whether such
payments shall be made in cash or in shares of Common Stock, whether they shall
be conditioned upon the exercise of the award to which they relate, the time or
times at which they shall be made, and such other terms and conditions as the
Committee shall deem appropriate.
2.2.8 To the extent that the aggregate Fair Market Value (determined as of
the time the option is granted) of the stock with respect to which incentive
stock options are first exercisable by any employee during any calendar year
shall exceed $100,000, or such higher amount as may be permitted from time to
time under section 422 of the Code, such options shall be treated as
nonqualified stock options. In applying this provision, there shall be taken
into account solely incentive stock options granted after December 31, 1986 to
the employee under this Plan and under all other plans of the Company and any
subsidiary thereof.
2.2.9 Notwithstanding the provisions of Sections 2.2.4 and 2.2.5, an
incentive stock option may not be granted under the Plan to an individual who,
at the time the option is granted, owns stock possessing more than 10% of the
total combined voting power of all classes of stock of his employer corporation
or of its parent or subsidiary corporations (as such ownership may be determined
for
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purposes of section 422(b)(6) of the Code) unless (a) at the time such incentive
stock option is granted the option exercise price is at least 110% of the Fair
Market Value of the shares subject thereto and (b) the incentive stock option by
its terms is not exercisable after the expiration of 5 years from the date it is
granted.
2.3 Exercise of Options and Stock Appreciation Rights
Subject to the provisions of this Article II, each option or stock
appreciation right granted under the Plan shall be exercisable as follows:
2.3.1 Unless the Committee in its discretion provides otherwise in the
applicable Plan Agreement, an option or stock appreciation right shall become
exercisable in three substantially equal installments, the first of which shall
become exercisable on the first anniversary of the date of grant and the
remaining two of which shall become exercisable, respectively, on the second and
third anniversaries of the date of grant.
2.3.2 Unless the Committee in its discretion provides otherwise in the
applicable Plan Agreement, once an installment becomes exercisable, it shall
remain exercisable until expiration, cancellation or termination of the award.
2.3.3 Unless the Committee in its discretion provides otherwise in the
applicable Plan Agreement, an option or stock appreciation right may be
exercised from time to time as to all or part of the shares as to which such
award is then exercisable. A stock appreciation right granted in connection with
an option may be exercised at any time when, and to the same extent that, the
related option may be exercised.
2.3.4 An option or stock appreciation right shall be exercised by the
filing of a written notice with the Company, on such form and in such manner as
the Committee shall in its sole discretion prescribe. In the case of a grantee
of a stock appreciation right whose transactions in Common Stock are subject to
Section 16(b) of the 1934 Act, an election to exercise the stock appreciation
right in whole or in part shall, to the extent required to conform to applicable
interpretations of Rule 16b-3, occur no sooner than six months after the grant
thereof, and shall be made irrevocably at least six months prior to such
exercise unless both the election and the exercise are made in a single "window
period" of 10 business days beginning on the third day following release of the
Company's quarterly or annual summary statement of sales and earnings.
2.3.5 Any written notice of exercise of an option shall be accompanied by
payment for the shares being purchased. Such payment shall be made: (a) by
certified or official bank check (or the equivalent thereof acceptable to the
Company) for the full option exercise price; or (b) with the consent of the
Committee, by delivery of shares of Common Stock having a Fair Market Value
(determined as of the exercise date) equal to all or part of the option exercise
price and a certified or official bank check (or the equivalent thereof
acceptable to the Company) for any remaining portion of the full option exercise
price; or (c) at the discretion of the Committee and to the extent permitted by
law, by such other provision as the Committee may from time to time prescribe,
including, without limitation, by a loan from the Company on such terms as the
Committee shall determine.
2.3.6 Promptly after receiving payment of the full option exercise price,
or after receiving notice of the exercise of a stock appreciation right for
which payment will be made partly or entirely in shares, the Company shall,
subject to the provisions of Section 3.2, deliver to the grantee or to such
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other person as may then have the right to exercise the award, a certificate or
certificates for the shares of Common Stock for which the award has been
exercised. If the method of payment employed upon option exercise so requires,
and if applicable law permits, an optionee may direct the Company to deliver the
certificate(s) to the optionee's stockbroker.
2.3.7 No grantee of an option or stock appreciation right (or other person
having the right to exercise such award) shall have any of the rights of a
stockholder of the Company with respect to shares subject to such award until
the issuance of a stock certificate to such person for such shares. Except as
otherwise provided in Section 1.5.2, no adjustment shall be made for dividends,
distributions or other rights (whether ordinary or extraordinary, and whether in
cash, securities or other property) for which the record date is prior to the
date such stock certificate is issued.
2.4 Termination of Employment; Death
2.4.1 Except to the extent otherwise provided in Section 2.4.2 or 2.4.3 or
in the applicable Plan Agreement, all options and stock appreciation rights not
theretofore exercised shall terminate upon termination of the grantee's
employment for any reason (including death).
2.4.2 If a grantee's employment terminates for any reason other than death
or dismissal for Cause, the grantee may exercise any outstanding option or stock
appreciation right only on the following terms and conditions: (a) exercise may
be made only to the extent that the grantee was entitled to exercise the award
on the date of employment termination; and (b) exercise must occur within three
months after employment terminates but in no event after the expiration date of
the award as set forth in the Plan Agreement.
2.4.3 If a grantee dies while employed by an Employer, or after employment
termination but during the period in which the grantee's awards are exercisable
pursuant to Section 2.4.2, any outstanding option or stock appreciation right
shall be exercisable on the following terms and conditions: (a) exercise may be
made only to the extent that the grantee was entitled to exercise the award on
the date of death (taking into account any acceleration of exercisability by the
Committee acting pursuant to its authority under Section 3.1.3); and (b)
exercise must occur by the earlier of the first anniversary of the grantee's
death or the expiration date of the award. Any such exercise of an award
following a grantee's death shall be made only by the grantee's executor or
administrator, unless the grantee's will specifically disposes of such award, in
which case such exercise shall be made only by the recipient of such specific
disposition. If a grantee's personal representative or the recipient of a
specific disposition under the grantee's will shall be entitled to exercise any
award pursuant to the preceding sentence, such representative or recipient shall
be bound by all the terms and conditions of the Plan and the applicable Plan
Agreement which would have applied to the grantee including, without limitation,
the provisions of Sections 3.2 and 3.7 hereof.
2.5 Grant of Restricted Stock
2.5.1 The Committee may grant restricted shares of Common Stock to such key
persons, in such amounts, and subject to such terms and conditions as the
Committee shall determine in its sole discretion, subject to the provisions of
the Plan. Restricted stock awards may be made independently of or in connection
with any other award under the Plan. A grantee of a restricted stock award shall
have no rights with respect to such award unless such grantee accepts the award
within such period as the Committee shall specify by executing a Plan Agreement
in such form as the Committee shall determine and, if the Committee shall so
require, makes payment to the Company by certified or
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official bank check (or the equivalent thereof acceptable to the Company) in
such amount as the Committee may determine.
2.5.2 Promptly after a grantee accepts a restricted stock award, the
Company shall issue to the grantee a certificate or certificates for the shares
of Common Stock covered by the award. Upon the issuance of such certificate(s),
the grantee shall have the rights of a stockholder with respect to the
restricted stock, subject also to the nontransferability restrictions and
Company repurchase rights described in Sections 2.5.4 and 2.5.5, subject also in
the Committee's discretion to a requirement that any dividends paid on such
shares shall be held in escrow until all restrictions on such shares have
lapsed, and subject also to any other restrictions and conditions contained in
the applicable Plan Agreement.
2.5.3 Unless the Committee shall otherwise determine, any certificate
issued evidencing shares of restricted stock shall remain in the possession of
the Company until such shares are free of any restrictions specified in the
applicable Plan Agreement.
2.5.4 Shares of restricted stock may not be sold, assigned, transferred,
pledged or otherwise encumbered or disposed of except as specifically provided
in this Plan or the applicable Plan Agreement. The Committee at the time of
grant shall specify the date or dates (which may depend upon or be related to
the attainment of performance goals and other conditions) on which the
nontransferability of the restricted stock shall lapse.
2.5.5 During the 120 days following termination of the grantee's employment
for any reason, the Company shall have the right to require the return of any
shares to which restrictions on transferability apply, in exchange for which the
Company shall repay to the grantee (or the grantee's estate) any amount paid by
the grantee for such shares. In the event that the Company requires such a
return of shares, it shall also have the right to require the return of all
dividends paid on such shares, whether by termination of any escrow arrangement
under which such dividends are held, or otherwise.
2.6 Grant of Performance Shares
2.6.1 The Committee may grant performance share awards to such key persons,
and in such amounts and subject to such terms and conditions, as the Committee
shall in its sole discretion determine, subject to the provisions of the Plan.
Such an award shall entitle the grantee to acquire shares of Common Stock, or to
be paid the value thereof in cash, as the Committee shall determine, if
specified performance goals are met. Performance shares may be awarded
independently of or in connection with any other award under the Plan. A grantee
shall have no rights with respect to a performance share award unless such
grantee accepts the award by executing a Plan Agreement at such time and in such
form as the Committee shall determine.
2.6.2 The grantee of a performance share award will have the rights of a
shareholder only as to shares for which a certificate has been issued pursuant
to the award and not with respect to any other shares subject to the award.
2.6.3 Except as may otherwise be provided by the Committee at anytime prior
to termination of employment, the rights of a grantee of a performance share
award shall automatically terminate upon the grantee's termination of employment
for any reason.
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2.6.4 At the discretion of the Committee, the applicable Plan Agreement may
set out the procedures to be followed in exercising a performance share award or
it may provide that such exercise shall be made automatically after satisfaction
of the applicable performance goals.
2.6.5 Except as otherwise specified by the Committee, (a) a performance
share award granted in tandem with an option may be exercised only while the
option is exercisable, (b) the exercise of a performance share award granted in
tandem with any other award shall reduce the number of shares subject to such
other award in the manner specified in the applicable Plan Agreement, and (c)
the exercise of any award granted in tandem with a performance share award shall
reduce the number of shares subject to the latter in the manner specified in the
applicable Plan Agreement.
ARTICLE III.
MISCELLANEOUS
3.1 Amendment of the Plan; Modification of Awards
3.1.1 The Board may from time to time suspend, discontinue, revise or amend
the Plan in any respect whatsoever, except that no such amendment shall
materially impair any rights or materially increase any obligations under any
award theretofore made under the Plan without the consent of the grantee (or,
upon the grantee's death, the person having the right to exercise the award).
3.1.2 Shareholder approval shall be required with respect to any amendment
which: (a) increases the aggregate number of shares which may be issued pursuant
to incentive stock options or changes the class of employees eligible to receive
such options; or (b) materially increases the benefits under the Plan to persons
whose transactions in Common Stock are subject to Section 16(b) of the 1934 Act,
materially increases the number of shares which may be issued to such persons,
or materially modifies the eligibility requirements affecting such persons.
3.1.3 The Committee may amend any outstanding Plan Agreement, including,
without limitation, by amendment which would (a) accelerate the time or times at
which the award becomes unrestricted or may be exercised, or (b) waive or amend
any goals, restrictions or conditions set forth in the Agreement, or (c) extend
the scheduled expiration date of the award. However, any such amendment (other
than an amendment pursuant to Section 3.7.2) that materially impairs the rights
or materially increases the obligations of a grantee under an outstanding award
shall be made only with the consent of the grantee or the grantee's legal
representative (or, upon the grantee's death, the person having the right to
exercise the award).
3.2 Restrictions
3.2.1 If the Committee shall at anytime determine that any Consent (as
hereinafter defined) is necessary or desirable as a condition of, or in
connection with, the granting of any award under the Plan, the issuance or
purchase of shares or other rights thereunder, or the taking of any other action
thereunder (each such action being hereinafter referred to as a "Plan Action"),
then such Plan Action shall not be taken, in whole or in part, unless and until
such Consent shall have been effected or obtained to the full satisfaction of
the Committee.
3.2.2 The term "Consent" as used herein with respect to any Plan Action
means (a) any and all listings, registrations or qualifications in respect
thereof upon any securities exchange or under any
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federal, state or local law, rule or regulation, (b) any and all written
agreements and representations by the grantee with respect to the disposition of
shares, or with respect to any other matter, which the Committee shall deem
necessary or desirable to comply with the terms of any such listing,
registration or qualification or to obtain an exemption from the requirement
that any such listing, qualification or registration be made and (c) any and all
consents, clearances and approvals in respect of a Plan Action by any
governmental or other regulatory bodies.
3.3 Nonassignability
No award or right granted to any person under the Plan or under any Plan
Agreement shall be assignable or transferable other than by will or by the laws
of descent and distribution. All rights granted under the Plan or any Plan
Agreement shall be exercisable during the life of the grantee only by the
grantee or the grantee's legal representative.
3.4 Requirement of Notification of Election Under Section 83(b) of the Code
If any grantee shall, in connection with the acquisition of shares of
Common Stock under the Plan, make the election permitted under section 83(b) of
the Code (i.e., an election to include in gross income in the year of transfer
the amounts specified in section 83(b)), such grantee shall notify the Company
of such election within 10 days of filing notice of the election with the
Internal Revenue Service, in addition to any filing and notification required
pursuant to regulations issued under the authority of Code section 83(b).
3.5 Requirement of Notification Upon Disqualifying Disposition Under Section
421(b) of the Code
Each Plan Agreement with respect to an incentive stock option shall require
the grantee to notify the Company of any disposition of shares of Common Stock
issued pursuant to the exercise of such option under the circumstances described
in section 421(b) of the Code (relating to certain disqualifying dispositions),
within 10 days of such disposition.
3.6 Withholding Taxes
3.6.1 Whenever cash is to be paid pursuant to an award under the Plan, the
Company shall be entitled to deduct therefrom an amount sufficient in its
opinion to satisfy all federal, state and other governmental tax withholding
requirements related to such payment.
3.6.2 Whenever shares of Common Stock are to be delivered pursuant to an
award under the Plan, the Company shall be entitled to require as a condition of
delivery that the grantee remit to the Company an amount sufficient in the
opinion of the Company to satisfy all federal, state and other governmental tax
withholding requirements related thereto. With the approval of the Committee,
which it shall have sole discretion to grant, the grantee may satisfy the
foregoing condition by electing to have the Company withhold from delivery
shares having a value equal to the amount of tax to be withheld. Such shares
shall be valued at their Fair Market Value on the date as of which the amount of
tax to be withheld is determined (the "Tax Date"). Fractional share amounts
shall be settled in cash. Such a withholding election may be made with respect
to all or any portion of the shares to be delivered pursuant to an award. To the
extent required for such a withholding of stock to qualify for the exemption
available under Rule 16b-3, such an election by a grantee whose transactions in
Common Stock are subject to Section 16(b) of the 1934 Act shall be: (a) subject
to the approval of the Committee in its sole discretion; (b) irrevocable; (c)
made no sooner than six months after the grant of the award
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with respect to which the election is made; and (d) made at least six months
prior to the Tax Date unless such withholding election is in connection with
exercise of an option and both the election and the exercise occur prior to the
Tax Date in a "window period" of 10 business days beginning on the third day
following release of the Company's quarterly or annual summary statement of
sales and earnings.
3.7 Change in Control
3.7.1 For purposes of this Section 3.7, a "Change In Control" shall be
deemed to have occurred upon the happening of any of the following events: (a)
any "person," including a "group," as such terms are defined in Sections 13(d)
and 14(d) of the 1934 Act and the rules promulgated thereunder, becomes the
beneficial owner, directly or indirectly, whether by purchase or acquisition or
agreement to act in concert or otherwise, of 30% or more of the outstanding
shares of Common Stock of the Company and Apollo Related Accounts are
collectively the beneficial owner of less than 30% of such shares; (b) a cash
tender or exchange offer for 50% or more of the outstanding shares of Common
Stock of the Company is commenced other than by the Company; (c) the
shareholders of the Company approve an agreement to merge the company with or
consolidate it into another corporation such that the Company is not the
surviving entity, liquidate the Company, or sell all or substantially all of the
assets of the Company; or (d) two or more directors are elected to the Board
without having previously been nominated and approved (x) by the members of the
Board incumbent on the day immediately preceding such election or (y) by one or
more Apollo Related Accounts exercising rights of a majority shareholder under
the Certificate of Incorporation and/or By-laws of the Company. For purposes of
this Section 3.7. 1, "Apollo Related Accounts" are:
(i) Apollo Advisors, L.P. (a limited partnership the general partner
of which is Apollo Capital Management, Inc.) and its successors, and
(ii) any investment fund, investment amount or investment entity whose
investing manager or general partner, or any controlling principal thereof,
at the time this definition is applied, is Apollo Advisors, L.P. (or its
successors) or a person directly or indirectly controlling or controlled by
or under common control with Apollo Advisors, L.P. (or its successors),
provided that any investment in the Company's securities or acquisition of
control of the Company by such investment fund, investment account or
investment entity is made at the direction of Apollo Advisors, L.P. (or its
successors) or a person directly or indirectly controlling or controlled by
or under common control with Apollo Advisors, L.P. (or its successors).
For purposes of this definition, "control", when used with respect to any
person, means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have the
correlative meanings.
3.7.2 Upon the happening of a Change in Control:
(a) notwithstanding any other provision of this Plan, any option or
stock appreciation right then outstanding whose date of grant was at least
one year prior to the date of the Change in Control shall become fully
vested and immediately exercisable;
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(b) to the extent permitted by law, the Committee may, in its sole
discretion, amend any Plan Agreement in such manner as it deems
appropriate, including, without limitation, by amendments that advance the
dates upon which any or all outstanding shares of restricted stock shall
become free of restrictions or upon which any or all outstanding
performance share awards shall become payable, or that advance the dates
upon which any or all outstanding awards of any type shall terminate.
3.7.3 Whenever deemed appropriate by the Committee, any action referred to
in Section 3.7.2(b) may be made conditional upon the consummation of the
applicable Change in Control transaction.
3.8 Right of Discharge Reserved
Nothing in the Plan or in any Plan Agreement shall confer upon any grantee
the right to continue in the employ of an Employer or affect any right which an
Employer may have to terminate such employment.
3.9 Nature of Payments
3.9.1 Any and all grants of awards and issuances of shares of Common Stock
under the Plan shall be in consideration of services performed for one or more
Employers by the grantee.
3.9.2 All such grants and issuances shall constitute a special incentive
payment to the grantee and shall not be taken into account in computing the
amount of salary or compensation of the grantee for the purpose of determining
any benefits under any pension, retirement, profit-sharing, bonus, life
insurance or other benefit plan of any Employer or under any agreement between
an Employer and the grantee, unless such plan or agreement specifically provides
otherwise.
3.10 Non-Uniform Determinations
The Committee's determinations under the Plan need not be uniform and may
be made by it selectively among persons who receive, or are eligible to receive,
awards under the Plan (whether or not such persons are similarly situated).
Without limiting the generality of the foregoing, the Committee shall be
entitled, among other things, to make non-uniform and selective determinations,
and to enter into non-uniform and selective Plan agreements, as to (a) the
persons to receive awards under the Plan, (b) the terms and provisions of awards
under the Plan, and (c) the treatment of leaves of absence pursuant to Section
1.6.5.
3.11 Other Payments or Awards
Nothing contained in the Plan shall be deemed in any way to limit or
restrict any Employer from making any award or payment to any person under any
other plan, arrangement or understanding, whether now existing or hereafter in
effect.
3.12 Section Headings
The section headings contained herein are for the purpose of convenience
only and are not intended to define or limit the contents of said sections.
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3.13 Effective Date and Term of Plan
3.13.1 The Company was the debtor and debtor in possession in a Chapter 11
proceeding before the United States Bankruptcy Court for the Southern District
of New York (Case No. 92B45993); the Plan was included as part of the Plan of
Reorganization of the Company submitted to such Court, and the Plan became
effective, and was deemed approved by the shareholders of the Company, on June
30, 1993, the Effective Date of such Plan of Reorganization.
3.13.2 Unless sooner terminated by the Board, the provisions of the Plan
respecting the grant of incentive stock options shall terminate on the tenth
anniversary of the date determined pursuant to Section 3.13.1., and no incentive
stock option awards shall thereafter be made under the Plan. All such awards
made under the Plan prior to its termination shall remain in effect until such
awards have been satisfied or terminated in accordance with the terms and
provisions of the Plan and the applicable Plan Agreements.
3.14 Governing Law
All rights and obligations under the Plan shall be construed and
interpreted in accordance with the laws of the State of New York, without giving
effect to principles of conflict of laws.
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EXHIBIT 5.1
HERRICK, FEINSTEIN LLP
2 PARK AVENUE
NEW YORK, NEW YORK 10016
Telephone Number: (212) 592-1412
Telecopier Number: (212) 889-7577
September 15, 1998
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549
ARIS INDUSTRIES, INC.
Registration Statement on Form S-8
Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") to be filed on September 15, 1998 by ARIS INDUSTRIES,
INC., a New York corporation (the "Company"), with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations promulgated thereunder, we have been
requested by the Company to furnish our opinion as to the legality of the
3,500,000 shares of the Company's Common Stock, par value $0.01 per share, to be
registered thereunder.
In connection with the furnishing of this opinion, we have examined
originals or copies, authenticated to our satisfaction, of the following
documents (collectively, the "Documents"): the Restated Certificate of
Incorporation and the Amended and Restated By-Laws of the Company; the Aris
Industries, Inc. 1993 Stock Incentive Plan as amended through April 6, 1998 (the
"Stock Incentive Plan"); and records of certain of the Company's corporate
proceedings. We have also made such other investigations of fact and law, and
have examined and relied upon the originals or copies, certified or otherwise
identified to our satisfaction, of such documents, records, certificates or
other instruments, and upon such factual information otherwise supplied to us,
as in our judgment are necessary or appropriate to render the opinions expressed
below.
In our examination of the aforesaid Documents, we have assumed, without
independent investigation, the genuineness of all signatures, the enforceability
of the Documents against each party thereto, the legal capacity of all
individuals who have executed any of the Documents, the authenticity of all
documents submitted to us as originals, the conformity to the original documents
of all documents submitted to us as certified, photostatic, reproduced or
conformed copies of valid existing agreements or other documents and the
authenticity of all such latter documents.
Based upon the foregoing, we are of the opinion that:
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1. The Company is duly organized and validly existing under the laws of the
State of New York.
2. There have been reserved for issuance by the Board of Directors of the
Company 3,500,000 shares of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"). The shares of Common Stock when issued upon exercise
of options under and pursuant to the terms of the Stock Incentive Plan will be
validly authorized, legally issued, fully paid and nonassessable.
We hereby consent to be named in the Registration Statement as counsel of
the Company, and we hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
HERRICK, FEINSTEIN LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Aris Industries, Inc. on Form S-8 of our report dated March 18, 1998, appearing
in the Annual Report on Form 10-K of Aris Industries, Inc. for the year ended
December 31, 1997.
Deloitte & Touche LLP
Parsippany, New Jersey
September 10, 1998
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