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As filed with the Securities and Exchange Commission
on June 25, 1999
Registration Statement No. 333-
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GERBER CHILDRENSWEAR, INC.
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(Exact name of registrant as specified in its charter)
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Delaware 62-1624764
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7005 Pelham Road, Suite D
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Greenville, South Carolina 29615
(Address, including zip code, of Registrant's Principal Executive Office)
GERBER CHILDRENSWEAR, INC. 1998 LONG-TERM PERFORMANCE INCENTIVE PLAN
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(Full title of the plan)
Richard L. Solar
Senior Vice-President and
Chief Financial Officer
Gerber Childrenswear, Inc.
1333 Broadway, Suite 700
New York, New York 10018
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(Name and address of agent for service)
(212) 268-5100
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(Telephone number, including area code, of agent for service)
Please send copies to:
Michael R. Littenberg, Esq.
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered per offering fee
(1) share(2) price(2)
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Common Stock, $8.8800
$.01 par value 750,000 ------- $4,947,210 $1,376.00
per share $6.4063
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(1) The shares of Common Stock of Gerber Childrenswear, Inc., a Delaware
corporation (the "Company"), being registered include shares of restricted stock
and shares that may be acquired by exercising options issued or issuable to
participants in the Company's 1998 Long-Term Performance Incentive Plan (the
"Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933 (the "Securities
Act"). Includes (i) 57,600 shares which were granted in the form of stock
options that are issuable upon payment of a weighted average exercise price of
$8.8800 per share and (ii) 692,400 shares which may be granted in the form of
restricted stock, stock appreciation rights, other awards of rights to purchase
common stock, or in respect of stock options, with exercise prices to be
determined, the registration fee for which is based on the average of the high
and low prices ($6.4063) of the Common Stock as reported on the New York Stock
Exchange Composite Tape on June 18, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8
will be sent or given to employees participating in the Plan as specified by
Rule 428(b)(1) of the Securities Act. Those documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.--Incorporation of Documents by Reference.
The Securities and Exchange Commission (the "SEC") allows the Company
to "incorporate by reference" the information the Company files with the SEC,
which means the Company can disclose important information to investors by
referring investors to those documents. The information incorporated by
reference is an important part of this Registration Statement, and information
the Company files later will automatically update and supersede this
information. The following documents are incorporated by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1998;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
April 3, 1999;
3. The Company's Proxy Statement on Schedule 14A filed on
April 16, 1999; and
4. The description of the Common Stock contained in registration
statement no. 333-47327, initially filed by the Company with the SEC
on March 4, 1998 under the Securities Act, which is incorporated
by reference into the registration statement on Form 8-A, filed by
the Company with the SEC on June 4, 1998 pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act").
The Company also incorporates by reference in this Registration
Statement all reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and before the Company files a post-effective amendment
which indicates that all securities have been sold or which deregisters all
securities remaining unsold.
Item 4.--Description of Securities.
Not applicable.
Item 5.--Interests of Named Experts and Counsel.
Not applicable.
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Item 6.--Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of
Delaware empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 further provides that: (i) to the extent a director,
officer, employee or agent of a corporation has been successful in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) or in
the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; and (ii) indemnification provided for by Section
145 shall not be deemed exclusive of any other rights to which the indemnified
party may be entitled. In addition, Section 145 empowers the corporation to
purchase and maintain insurance on behalf of any person acting in any capacities
set forth in the second preceding paragraph against any liability asserted
against him or incurred by him in any such capacity or arising out of his status
as such whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
The Company's Certificate of Incorporation provides for the
indemnification of directors and officers of the Company to the fullest extent
permitted by Section 145.
In that regard, the Certificate of Incorporation provides that the
Company shall indemnify any person who has or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
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director or officer of such corporation, or is or was serving at the request of
such corporation as a director, officer or member of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of such corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. Indemnification in connection with an action or suit
by or in the right of such corporation to procure a judgment in its favor is
limited to payment of settlement of such an action or suit except that no such
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the indemnifying corporation unless and only
to the extend that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine that, despite the adjudication of
liability by in consideration of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
In addition, the Company maintains directors' and officers'
reimbursement and liability insurance pursuant to standard form policies with
aggregate limits of $5,000,000. The risks covered by such policies do not
exclude liabilities under the Securities Act.
Item 7.--Exemption from Registration Claimed.
Not applicable.
Item 8.--Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement:
Exhibit
Number
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4 Gerber Childrenswear, Inc. Long-Term Performance Incentive Plan, as
of March 3, 1998(incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998).
5 Opinion of Schulte Roth & Zabel LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Schulte Roth & Zabel LLP (included in Exhibit 5).
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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:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) 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, 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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
Securities 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 Commission such
indemnification is against public policy as expressed in the Securities 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 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 Act and will be governed by the final adjudication of
such issue.
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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 this 25th day of
June, 1999.
GERBER CHILDRENSWEAR, INC.
By: /s/ RICHARD L. SOLAR
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Richard L. Solar
Senior Vice President and
Chief Financial Officer
I
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on this 25th day of June, 1999.
Signature and Title
/s/ EDWARD KITTREDGE
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Edward Kittredge
Director, Chairman, Chief
Executive Officer and President
(Principal Executive Officer)
/s/ RICHARD L. SOLAR
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Richard L. Solar
Director, Senior Vice President
and Chief Financial Officer
(Chief Financial Officer)
/s/ DAVID E. UREN
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David E. Uren
Vice President of Finance,
Secretary and Treasurer
(Chief Accounting Officer)
/s/ RICHARD CASHIN
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Richard Cashin
Director
/s/ LAWRENCE R. GLENN
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Lawrence R. Glenn
Director
/s/ JAMES P. MANNING
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James P. Manning
Director
/s/ JOSEPH MEDALIE
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Joseph Medalie
Director
/s/ JOHN D. WEBER
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John D. Weber
Director
II-2
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Pursuant to the requirements of the Securities Act of 1933, the
Company's Compensation Committee, as administrator of the Company's Long-Term
Performance Incentive Plan, 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 this 25th day of June, 1999.
GERBER CHILDRENSWEAR, INC.
1998 LONG-TERM PERFORMANCE
INCENTIVE PLAN
By: /s/ James P. Manning
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Name: James P. Manning
Title: Chairman of the
Compensation Committee
II-3
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EXHIBIT INDEX
Exhibit
Number Exhibit
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5 Opinion of Schulte Roth & Zabel LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Schulte Roth & Zabel LLP (included in Exhibit 5)
EXHIBIT 5
June 25, 1999
Gerber Childrenswear, Inc.
7005 Pelham Road
Suite D
Greenville, SC 29015
Dear Sirs:
We have acted as counsel to Gerber Childrenswear, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company with the Securities and Exchange Commission (the "Commission") of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the offer
and sale of an aggregate of 750,000 shares of Common Stock, par value $.01 per
share, of the Company (the "Shares") issuable to participants in the Company's
1998 Long-Term Performance Incentive Plan (the "Plan").
In this capacity, we have examined originals, telecopies or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company and all such agreements, certificates of public officials, certificates
of officers or representatives of the Company and others, and such other
documents, certificates and corporate or other records as we have deemed
necessary or appropriate as a basis for this opinion.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons signing or delivering any instrument, 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.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares have
been duly authorized and, when issued and delivered to plan participants in
accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectus which forms a part thereof. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Schulte Roth & Zabel LLP
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 dated June 25, 1999) pertaining to the Gerber Childrenswear,
Inc. 1998 Long-Term Performance Incentive Plan of our report dated March 3, 1999
with respect to the consolidated financial statements and schedule of Gerber
Childrenswear, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Greenville, South Carolina
June 25, 1999
