As filed with the Securities and Exchange Commission on August 11, 1997
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
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FAB INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2581181
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
200 MADISON AVENUE
NEW YORK, NEW YORK 10016
(Address of Principal Executive Offices)
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FAB INDUSTRIES, INC.
1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
DAVID A. MILLER, VICE PRESIDENT
C/O FAB INDUSTRIES, INC.
200 MADISON AVENUE
NEW YORK, NEW YORK 10016
(Name and Address of Agent for Service)
(212) 592-2700
(Telephone Number, Including Area Code,
of Agent for Service)
COPIES TO:
Richard Marlin, Esq.
Kramer, Levin, Naftalis & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 175,000 shares $32.3125 $5,654,687.50 $1,720
par value $.20
per share
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 (the
"Securities Act"), as amended, based upon the average of the high and
low sales prices for the Common Stock reported on the American Stock
Exchange on August 8, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended November 30, 1996 (File No. 1-5901), filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 1, 1997, filed pursuant to Section 13(a) of the Exchange
Act;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended May 31, 1997, filed pursuant to Section 13(a) of the Exchange Act;
and
(d) The Registrant's Registration Statement on Form S-8 (Registration
No. 33-29219) , filed pursuant to the Securities Act, which contains a
description of the Registrant's Common Stock, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The Consolidated Financial Statements and schedule of the Registrant
for each of the three fiscal years in the period ended November 30, 1996,
incorporated by reference herein, have been audited by BDO Seidman, LLP,
independent certified public accountants, as indicated in their report with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving such
report.
The validity of the shares of Common Stock offered hereby has been
passed upon for the Registrant by Kramer, Levin, Naftalis & Frankel. Richard
Marlin, a director of the Registrant, is a member of Kramer, Levin, Naftalis &
Frankel and owns 500 shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing
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<PAGE>
for liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions), or (iv) for any transaction from which the director
derived an improper personal benefit. The Registrant's Restated Certificate of
Incorporation, as amended, contains provisions permitted by Section 102(b)(7) of
the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify directors and/or officers in an action or
suit by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the director
or officer is adjudged to be liable to the corporation. Where a director or
officer is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such director or officer actually and reasonably incurred.
The Registrant's Restated Certificate of Incorporation, as amended,
provides for indemnification of directors and officers of the Registrant to the
fullest extent permitted by the DGCL. The Registrant also maintains liability
insurance for each director and officer for certain losses arising from claims
or charges made against them while acting in their capacities as directors or
officers of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
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4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 filed as part
of the Registrant's Annual Report on Form 10-K for the
fiscal year ended November 27, 1993).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.3
filed as part of the Registrant's Annual Report on Form
10-K for the fiscal year ended December 3, 1994).
4.3 Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit 3.2 filed as part
filed as part of the Registrant's Annual Report on Form
10-K for the fiscal year ended November 27, 1993).
5 Opinion of Kramer, Levin, Naftalis & Frankel.
23.1 Consent of BDO Seidman, LLP.
23.3 Consent of Kramer, Levin, Naftalis & Frankel (contained
in the opinion filed as Exhibit 5 hereto).
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<PAGE>
24 Power of Attorney (included on the signature page of
this Registration Statement).
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 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 the 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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.
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 Securities and Exchange
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 Securities
Act and will be governed by the final adjudication of such issue.
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<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 this 11 day of
August, 1997.
FAB INDUSTRIES, INC.
By: /s/ Samson Bitensky
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Name: Samson Bitensky
Title: Chairman of the Board
and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Samson Bitensky and David A.
Miller his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or 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, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons on August
11, 1997 in the capacities indicated.
Signature Title(s)
--------- --------
/s/ Samson Bitensky
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Samson Bitensky Chairman of the Board, Chief Executive
Officer, and Director (Principal
Executive Officer)
/s/ David A. Miller
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David A. Miller Vice President - Finance and Treasurer
(Principal Financial and Accounting
Officer)
/s/ Sherman S. Lawrence
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Sherman S. Lawrence Secretary and Director
/s/ Lawrence Bober
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Lawrence Bober Director
/s/ Richard Marlin
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Richard Marlin Director
/s/ Louis Feil
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Louis Feil Director
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Oscar Kunreuther Director
/s/ Susan B. Lerner
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Susan B. Lerner Director
EXHIBIT 5
Kramer, Levin, Naftalis & Frankel
919 THIRD AVENUE
NEW YORK, N.Y. 10022 - 3852
(212) 715 - 9100
Arthur H. Aufses III Monica C. Lord Sherwin Kamin
Thomas D. Balliett Richard Marlin Arthur B. Kramer
Jay G. Baris Thomas E. Molner Maurice N. Nessen
Philip Bentley Thomas H. Moreland Founding Partners
Saul E. Burian Ellen R. Nadler Counsel
Barry Michael Cass Gary P. Naftalis _____
Thomas E. Constance Michael J. Nassau
Michael J. Dell Michael S. Nelson Martin Balsam
Kenneth H. Eckstein Jay A. Neveloff Joshua M. Berman
Charlotte M. Fischman Michael S. Oberman Jules Buchwald
David S. Frankel Paul S. Pearlman Rudolph de Winter
Marvin E. Frankel Susan J. Penry-Williams Meyer Eisenberg
Alan R. Friedman Bruce Rabb Arthur D. Emil
Carl Frischling Allan E. Reznick Maria T. Jones
Mark J. Headley Scott S. Rosenblum Maxwell M. Rabb
Robert M. Heller Michele D. Ross James Schreiber
Philip S. Kaufman Howard J. Rothman Counsel
Peter S. Kolevzon Max J. Schwartz _____
Kenneth P. Kopelman Mark B. Segall
Michael Paul Korotkin Judith Singer M. Frances Buchinsky
Shari K. Krouner Howard A. Sobel Abbe L. Dienstag
Kevin B. Leblang Jeffrey S. Trachtman Ronald S. Greenberg
David P. Levin Jonathan M. Wagner Debora K. Grobman
Ezra G. Levin Harold P. Weinberger Christian S. Herzeca
Larry M. Loeb E. Lisk Wyckoff, Jr. Jane Lee
Pinchas Mendelson
Lynn R. Saidenberg
Special Counsel
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FAX
(212) 715-8000
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WRITER'S DIRECT NUMBER
(212)715-9100
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August 11, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as counsel to Fab Industries, Inc., a Delaware
corporation (the "Registrant"), in connection with the preparation and filing of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 175,000 shares (the "Shares") of common stock, par value $.20 per
share, to be issued pursuant to the Registrant's 1997 Stock Incentive Plan (the
"Plan").
In connection with the registration of the Shares, we have reviewed
copies of the Registration Statement, the Plan, the Restated Certificate of
Incorporation and the Bylaws, as amended, of the Registrant, and such other
documents and records as we have deemed necessary to enable us to express an
opinion on the matters covered hereby. In
<PAGE>
KRAMER, LEVIN, NAFTALIS & FRANKEL
Securities and Exchange Commission
August 11, 1997
Page 2
rendering this opinion, we have (a) assumed (i) the genuineness of all
signatures on all documents examined by us, (ii) the authenticity of all
documents submitted to us as originals, and (iii) the conformity to original
documents of all documents submitted to us as photostatic or conformed copies
and the authenticity of the originals of such copies; and (b) relied on (i)
certificates of public officials and (ii) as to matters of fact, statements and
certificates of officers and representatives of the Registrant.
Based upon the foregoing, we are of the opinion that the Shares covered
by the Registration Statement, following the granting of the options and
restricted stock described in the Plan and upon delivery of such Shares and
payment therefor at the prices and in accordance with the terms stated in the
Plan, will be validly issued, fully paid and non-assessable.
Richard Marlin, a member of this firm, is a director of the Registrant
and owns 500 shares of Common Stock of the Registrant. Such information is also
disclosed in Item 5 of Part II of the Registration Statement.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name in Item 5 of Part II in the
Registration Statement. In giving the foregoing consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission thereunder.
We are delivering this opinion to the Registrant, and no person other
than the Registrant may rely upon it.
Very truly yours,
/s/ KRAMER, LEVIN, NAFTALIS & FRANKEL
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KRAMER, LEVIN, NAFTALIS & FRANKEL
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Fab Industries, Inc.
New York, New York
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 6, 1997 relating
to the consolidated financial statements and schedule of Fab Industries, Inc.
and subsidiaries appearing in the Company's Annual Report on Form 10-K for the
year ended November 30, 1996.
We also consent to the reference to us under the caption "Experts" in
the Registration Statement.
BDO SEIDMAN, LLP
New York, New York
August 11, 1997
