As filed with the Securities and Exchange Commission on April 27, 2000
Registration No. 333-______
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Containing a Reoffer Prospectus on Form S-3
Garan, Incorporated
(Exact name of registrant as specified in its charter)
Virginia No. 0005665557
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
350 Fifth Avenue
New York, New York 10118
(212) 563-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
Garan, Incorporated 1999 Restricted Stock Plan
(Full title of the plan)
----------------
Marvin S. Robinson, Esq.
Tannenbaum Dubin & Robinson, LLP
1140 Avenue of the Americas
New York, New York 10036
(212) 302-2900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
Maximum Maximum
Title of Each Amount Offering Aggregate Amount of
Class of Securities to be Price Per Offering Registration
to be Registered Registered Share Price Fee
- ------------------------------------------------------------------------------
Garan, Incorporated 1999
Restricted Stock Plan
Common Stock (no par value) 160,000 $26.75(1) $4,280,000 $1,130
- ------------------------------------------------------------------------------
(1) All such shares have been issued pursuant to the Company's Restricted
Stock Plan at the indicated proposed maximum offering price per share.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1933, as amended, and, in accordance therewith,
files reports, proxy statements, and other information with the Securities and
Exchange Commission ("Commission"). Such reports, proxy statements, and other
information are available for inspection and copying at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the following regional offices of the
Commission: 7 World Trade Centre, Suite 1300, New York, New York 10048 and
500 West Madison Street, Suite 1400, Chicago, Illinois 60621. Copies of such
material also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 at
prescribed rates.
The Company will provide without charge to each person to whom a copy of
the Prospectus included in this Registration Statement is delivered, upon
written or oral request of such person, a copy of any and all of the
information that has been incorporated by reference in such Prospectus and any
Registration Statement containing such Prospectus (not including exhibits to
the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference in the information that such Prospectus
and any Registration Statement containing such Prospectus incorporates). Such
requests should be made to Alexander J. Sistarenik, Treasurer, Garan,
Incorporated, 350 Fifth Avenue, New York, New York 10118, (212) 563-2000.
<PAGE>
PROSPECTUS
----------
GARAN, INCORPORATED
160,000 Shares
COMMON STOCK
No par value
This Prospectus relates to the offer and sale of 160,000 shares
("Shares") of common stock, no par value ("Common Stock"), of Garan,
Incorporated ("Company") which may be offered hereby from time to time by any
or all of the selling stockholders named herein ("Selling Stockholders") for
their own benefit. The Company will not receive any of the proceeds from the
sale of the Shares of Common Stock by the Selling Stockholders.
The Company's Common Stock is listed on the American Stock Exchange under
the symbol "GAN".
The Common Stock offered hereby involves risk.
See "Risk Factors".
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus in connection
with the offering made hereby, and if given or made, such information or
representation must not be relied upon as having been authorized by the
Company or by any other person. Neither the delivery of this Prospectus nor
any sale made hereunder shall create, under any circumstances, any implication
that information herein is correct as of any time subsequent to the date
hereof. This Prospectus does not constitute an offer to sell or a
solicitation of any offer to buy any security other than the securities
covered by this Prospectus, nor does it constitute an offer to or solicitation
of any person in any jurisdiction in which such offer or solicitation may not
be lawfully made.
The date of this Prospectus is April 27, 2000
<PAGE>
THE COMPANY
The Company's principal office is located at 350 Fifth Avenue, New York,
New York 10118, and its telephone number is (212) 563-2000.
RISK FACTORS
This Prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended ("Securities Act"), and
Section 21E of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), that involve certain risks and uncertainties. Discussions containing
such forward-looking statements may be found in the material set forth below
as well as in this Prospectus generally, including the documents incorporated
by reference herein. Without limiting the foregoing, the words "believes,"
"anticipates," "plans," "expects," and similar expressions are intended to
identify forward-looking statements. The Company's actual results could differ
materially from those anticipated in such forward-looking statements as a
result of certain factors, including those appearing elsewhere in this
Prospectus and in the documents incorporated by reference herein. These
forward-looking statements are made as of the date of this Prospectus and the
Company assumes no obligation to update such forward-looking statements or to
update the reasons why actual results could differ materially from those
anticipated in such forward-looking statements.
In addition to the other information in this Prospectus, the following
risk factors should be considered carefully in evaluating the Company and its
business before purchasing the Common Stock offered by this Prospectus.
No Assurance of Profitability. Although the Company has been profitable
for a substantial number of years, there can be no assurance that the Company
will be profitable in any future period. Future operating results will depend
on many factors, including conditions in the apparel industry generally,
market acceptance of the Company's products, competition, and the other
factors set forth in these "Risk Factors."
Dependence on Relationship with Wal-Mart. During the Company's fiscal
years ended September 30, 1999, 1998, and 1997, sales to Wal-Mart Stores, Inc.
("Wal-Mart") were approximately $204 million, $155 million, and $109 million,
respectively, and accounted for 89%, 80%, and 71%, respectively, of the
Company's net sales. While sales to Wal-Mart have increased significantly in
the last several years both in absolute dollars and as a percentage of the
Company's net sales, generally these sales are on a seasonal or multi-seasonal
basis, meaning that there can be no assurance that, or the extent to which,
Wal-Mart will continue to do business with the Company at any particular
volume. If for any reason there were a substantial reduction in the amount of
the Company's business with Wal-Mart, the effect upon the Company's business,
operating results, and financial condition would be significant.
Competition. The apparel business in the United States is highly
competitive, and no single enterprise sells more than a small portion of the
total apparel sold in the United States. The Company competes with numerous
domestic and foreign entities, and it is possible that one or more of such
competitors could win orders sought by the Company. In addition, the
Company's customers are increasingly sourcing and importing apparel products
for their own account and could do so in lieu of ordering such items from the
Company. There can be no assurance that the Company will be able to compete
successfully with existing or new competitors or that competition or customer
direct sourcing and importing will not have a material adverse effect on the
Company's business, operating results, and financial condition.
Attracting and Retaining Key Employees. The Company believes that its
future success will depend in significant part on its ability to attract and
retain highly skilled management and production personnel, particularly for
its Central American facilities, and sales personnel. Competition for such
personnel is intense, and the failure to obtain or loss of one or more of the
Company's key personnel could have a material adverse impact on the Company's
business, operating results, and financial condition.
Central American Operations. A substantial portion of the Company's
production takes place in Central America, and such portion has increased over
the last several years. While the Company knows of no risks associated with
its Central American operations, political instability or other events of a
local nature could disrupt the Company's operations and its ability to
transport goods to and from the region, and such disruption could have a
material adverse impact on the Company's business, operating results, and
financial condition.
Availability of Raw Materials. Raw materials, such as fabric, thread,
trimmings, and the like, are essential to the Company's business. While raw
materials are readily available to the Company from various alternate sources
of supply, any disruption in the Company's ability to obtain raw materials of
usable quality in sufficient quantities could have a material adverse impact
on the Company's business, operating results, and financial condition.
Antitakeover Effects of the Company's Rights Plan, Charter, and By-laws.
On April 21, 1993, the Company adopted an Amended and Restated Rights
Agreement ("Rights Plan") pursuant to which shareholders were granted one
right for each share of Common Stock held by them. In the event 20% or more
of the Company's stock is acquired by any one person, other shareholders have
the right with respect to each share of Common Stock held by them to purchase
for a purchase price of $90 such number of shares of Common Stock as has a
market value equal to twice that amount. In addition, the Company's Board of
Directors has the authority to issue up to 500,000 shares of Preferred Stock
and to determine the price, preferences, privileges, and restrictions,
including voting rights, of those shares without any further vote or action by
the shareholders. The rights of the holders of Common Stock will be subject
to, and may be adversely affected by, the rights of the holders of any
Preferred Stock that may be issued in the future. The issuance of Common
Stock pursuant to the Rights Plan or the issuance of Preferred Stock may have
the effect of making it more difficult for a third party to acquire a majority
of the outstanding voting stock of the Company. In addition, pursuant to the
Company's By-laws, each director is elected for a term of three years and the
terms are staggered so that only one-third of the directors are elected each
year. These provisions could have the effect of delaying any change in the
constitution of the Board of Directors of the Company as a result of a third-
party acquiring a majority of the outstanding voting stock of the Company.
The Rights Plan and the Charter and By-law provisions referred to in this
paragraph may have the effect of discouraging, delaying, or preventing a
merger, tender offer, or proxy contest involving the Company, which could
adversely the market price of the Company's Common Stock.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares of Common Stock by the Selling Stockholders.
THE SELLING STOCKHOLDERS
This Prospectus relates to possible sales by stockholders of the Company
of Shares issued pursuant to the Company's Restricted Stock Plan. The
following table shows the names of the Selling Stockholders, the number of
outstanding Shares of Common Stock of the Company beneficially owned by each
of them as of April 27, 2000, and the number of Shares available for resale
hereunder, subject to terms of the Company's Restricted Stock Plan. Because
the Selling Stockholders may sell all or part of their Shares pursuant to this
Prospectus, no estimate can be given as to the amount of Shares that will be
held by each Selling Stockholder upon termination of this offering.
SELLING STOCKHOLDER TABLE
Number of Number of
Shares Shares Available
Beneficially For Sale
Name Owned Percent Hereunder
- ------ ------------ ------- ----------------
Lichtenstein, Seymour.............. 722,650 (1) 13.6% 65,670
Kamiel, Jerald..................... 160,175 (2) 3.0% 44,775
Wilson, William J.................. 72,425 (3) 1.4% 26,865
Faver, Rodney...................... 62,412 1.2% 22,690
- -----------
* Less than 1%.
(1) Includes 19,200 shares owned by The Lichtenstein Foundation, Inc., a
charitable foundation of which Mr. Lichtenstein is president and a director,
100 shares owned by Mr. Lichtenstein's wife as custodian for their son, 4,012
shares owned by Mr. Lichtenstein's wife, and 12,500 shares subject to options
currently exercisable by Mr. Lichtenstein's wife.
(2) Includes 20,000 shares subject to options currently exercisable.
(3) Includes 17,000 shares subject to options currently exercisable.
PLAN OF DISTRIBUTION
The Shares offered hereby are being sold by the Selling Stockholders for
their own account. The Company will not receive any of the proceeds from this
offering.
It is anticipated that the Selling Stockholders may from time to time
make sales of all or part of the Shares of Common Stock covered by this
Prospectus over the American Stock Exchange, by block trading, in negotiated
transactions, or otherwise at prices then prevailing or in private
transactions at negotiated prices. In addition to sales under this
Prospectus, the Selling Stockholders also may effect sales of Shares of Common
Stock covered by this Prospectus pursuant to Rule 144 promulgated under the
Act. All the foregoing transactions will be made without payment of any
underwriting commissions or discounts, other than the customary brokers' fees
normally paid in connection with such transactions. The Selling Stockholders
will have the right to withdraw the offered Shares prior to sale. There is no
present plan of distribution.
LEGAL MATTERS
The validity of the issuance of the Shares offered hereby will be passed
upon by Tannenbaum Dubin & Robinson, LLP, New York, New York. As of April 24,
2000, Marvin S. Robinson, a director and the Vice President--General Counsel
and the Secretary of the Company and a member of Tannenbaum Dubin & Robinson,
LLP, owned 5,956 shares of the Company's Common Stock having a market value on
such date of $126,565.
EXPERTS
The financial statements of the Company included in the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1999, are
incorporated herein by reference, and audited financial statements to be
included in subsequently filed documents will be incorporated herein, in
reliance on the report of Citrin Cooperman & Company, LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission are incorporated by
reference in this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1999;
(c) All documents subsequently filed with the Commission by Securities
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act of 1934, as amended, prior to the filing of a post-effective amendment
which indicates that all securities offered herein 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 a part
hereof from the date of filing of such documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Virginia Stock Corporation Act gives Virginia corporations the power
to indemnify their present and former officers and directors under certain
circumstances, and the Restated Articles of Incorporation of the Company state
that: "Each person made a party to any action, suit, or proceeding by reason
of the fact that he, his testator or intestate, is or was a director, officer
or employee of the Corporation, or of any corporation which he served as such
at the request of the Corporation, shall be indemnified by the Corporation
against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense of such action,
suit or proceeding, or in connection with any appeal therein, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such officer, director or employee is liable for negligence or
misconduct in the performance of his duties. Such right of indemnification
shall not be deemed exclusive of any rights to which such director, officer,
or employee may be entitled under any By-law, agreement, vote of stockholders
or otherwise." In addition the Company has entered into indemnification
agreements with each of its officers and directors in which it has agreed to
indemnify each such individual for actions taken on behalf of the Company in
which the officer or director believed that his conduct was at least not
opposed to the best interests of the Company and the officer or director was
not adjudged liable to the Company.
The Company maintains, on behalf of its present and former directors and
officers, insurance protection against certain liabilities arising out of the
discharge of their duties and also insurance covering the Company against
indemnification payments to its directors and officers for certain
liabilities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company
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 Company 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.
==============================================================================
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations not contained in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company or the Selling
Stockholders. This Prospectus does not constitute an offer to sell, or
solicitation of an offer to sell, any securities other than the registered
securities to which it relates, or an offer to or solicitation of any person
in any jurisdiction where such an offer or solicitation would be unlawful.
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create an implication that the information contained
herein is correct as of any time subsequent to the date hereof.
-------------------
TABLE OF CONTENTS
Page
----
Available Information....................................... __
The Company................................................. __
Risk Factors................................................ __
Use of Proceeds............................................. __
The Selling Stockholders.................................... __
Plan of Distribution........................................ __
Legal Matters............................................... __
Experts..................................................... __
Incorporation of Certain Information by Reference........... __
Indemnification of Directors and Officers................... __
-------------------
==============================================================================
160,000 Shares
GARAN, INCORPORATED
Common Stock
----------
PROSPECTUS
----------
April 27, 2000
==============================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
("Commission") are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1999.
(c) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the securities Exchange Act of 1934, as
amended ("Exchange Act") prior to the filing of a post-effective amendment
which indicates that all securities offered herein 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 a part
hereof from the date of filing of such documents.
The Company will provide, without charge, to each person to whom this
Registration Statement is delivered, on written or oral request, a copy of any
or all of the foregoing documents. Requests should be directed to Mr.
Alexander J. Sistarenik, Treasurer, Garan, Incorporated, 350 Fifth Avenue, New
York, New York 10118, (212) 563-2000.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
Counsel to the Company, Tannenbaum Dubin & Robinson, LLP, 1140 Avenue of
the Americas, New York, New York 10036, has rendered an opinion to the effect
that the Common Stock offered hereby have been duly authorized and are validly
issued, fully paid, and non-assessable. As of April 24, 2000, Marvin S.
Robinson, a director and the Vice President-General Counsel and Secretary of
the Company and a member of Tannenbaum Dubin & Robinson, LLP, owned 5,956
shares of the Company's Common Stock having a market value, as of such date,
of $126,565.
Item 6. Indemnification of Directors and Officers
The Virginia Stock Corporation Act gives Virginia corporations the power
to indemnify their present and former officers and directors under certain
circumstances, and the Restated Articles of Incorporation of the Company state
that: "Each person made a party to any action, suit, or proceeding by reason
of the fact that he, his testator or intestate, is or was a director, officer
or employee of the Corporation, or of any corporation which he served as such
at the request of the Corporation, shall be indemnified by the Corporation
against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense of such action,
suit or proceeding, or in connection with any appeal therein, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such officer, director or employee is liable for negligence or
misconduct in the performance of his duties. Such right of indemnification
shall not be deemed exclusive of any rights to which such director, officer,
or employee may be entitled under any By-law, agreement, vote of stockholders
or otherwise." In addition the Company has entered into indemnification
agreements with each of its officers and directors in which it has agreed to
indemnify each such individual for actions taken on behalf of the Company in
which the officer or director believed that his conduct was at least not
opposed to the best interests of the Company and the officer or director was
not adjudged liable to the Company.
The Company maintains, on behalf of its present and former directors and
officers, insurance protection against certain liabilities arising out of the
discharge of their duties and also insurance covering the Company against
indemnification payments to its directors and officers for certain
liabilities.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
-------------- ------------------------------------------------
Exhibit 4.1 Restated Articles of Incorporation of the Company
dated May 15, 1986 (filed as an Exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1988, and
incorporated herein by reference).
Exhibit 4.2. Articles of Amendment of the Restated Articles of
Incorporation of the Company dated May 10, 1988
(filed as an Exhibit to the Company's Annual
Report on Form 10-K for the fiscal year ended
September 30, 1988, and incorporated herein by
reference).
Exhibit 4.3. Articles of Amendment of the Restated Articles of
Incorporation dated November 9, 1992 (filed as an
Exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended September 30,
1992, and incorporated herein by reference).
Exhibit 4.4 By-Laws, as amended through April 21, 1993, of
the Company (filed as an Exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter
ended March 31, 1993, and incorporated herein by
reference).
Exhibit 4.5 Garan, Incorporated 1999 Restricted Stock Plan.
Exhibit 5.1 Opinion of Tannenbaum Dubin & Robinson, LLP.
Exhibit 23.1 Consent of Tannenbaum Dubin & Robinson, LLP
(contained in Exhibit 5.1).
Exhibit 23.2 Consent of Citrin Cooperman & Company, LLP.
Exhibit 24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
The Company will provide, without charge, to each person to whom this
Registration Statement is delivered, on written or oral request, a copy of any
and all of the foregoing documents. Requests should be directed to Mr.
Alexander J. Sistarenik, Treasurer, Garan, Incorporated, 350 Fifth Avenue, New
York, New York 10118, (212) 563-2000.
Item 9. Undertakings
(a) The Company 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 ("Securities Act").
(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 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 this Registration Statement
or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(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 with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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 contains a form of prospectus 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 Company pursuant to the foregoing provisions, or otherwise, the
Company 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
Company of expenses incurred or paid by a director, officer, or controlling
person of the Company 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 Company, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
will 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.
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company, Garan,
Incorporated, 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, on this 26th day of April, 2000.
GARAN, INCORPORATED
/S/ SEYMOUR LICHTENSTEIN
-------------------------------------------
Seymour Lichtenstein, Chairman of the Board
Principal Executive Officer
<PAGE>
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
We, the undersigned officers and directors of Garan, Incorporated, hereby
severally constitute and appoint Seymour Lichtenstein and William J. Wilson,
and each of them singly, our true and lawful attorneys, with full power to
them and each of them singly, to sign for us in our names in the capacities
indicated below, any amendments to this Registration Statement on Form S-8
(including post-effective amendments), and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, and generally to do all things in our names and on our
behalf in our capacities as officers and directors to enable Garan,
Incorporated to comply with the provisions of the Securities Act of 1933, as
amended, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said Registration Statement and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- ---------- ----- ----
/S/ SEYMOUR LICHTENSTEIN Chairman of the Board April 26, 2000
- --------------------------- (Principal Executive Officer)
Seymour Lichtenstein
/S/ WILLIAM J. WILSON Vice President - Finance and April 26, 2000
- --------------------------- Administration (Principal
William J. Wilson Financial and Accounting Officer)
/S/ STEPHEN J. DONOHUE Director April 26, 2000
- -----------------------
Stephen J. Donohue
/S/ RODNEY FAVER Director April 26, 2000
- -----------------------
Rodney Faver
/S/ JERALD KAMIEL Director April 26, 2000
- -----------------------
Jerald Kamiel
/S/ RICHARD A. LICHTENSTEIN Director April 26, 2000
- -----------------------
Richard A. Lichtenstein
/S/ FRANK MARTUCCI Director April 26, 2000
- -----------------------
Frank Martucci
/S/ PERRY MULLEN Director April 26, 2000
- -----------------------
Perry Mullen
/S/ MARVIN S. ROBINSON Director April 26, 2000
- -----------------------
Marvin S. Robinson
<PAGE>
<PAGE>
Exhibit Index
- -------------
Sequentially
Exhibit Numbered
Number Description Page
-------- ----------- ----
4.1. Restated Articles of Incorporation of the Company
dated May 15,1986 (filed as an Exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1988, and
incorporated herein by reference).
4.2. Articles of Amendment of the Restated Articles of
Incorporation of the Company dated May 10, 1988
(filed as an Exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended September 30,
1988, and incorporated herein by reference).
4.3. Articles of Amendment of the Restated Articles of
Incorporation dated November 9, 1992 (filed as an
Exhibit to the Company's Annual Report on
Form 10-K for the fiscal year ended September 30,
1992, and incorporated herein by reference)
4.4. By-Laws as amended through April 21, 1993, of the
Company (filed as an Exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31,
1993, and incorporated herein by reference).
4.5 Garan Incorporated 1999 Restricted Stock Plan.
5.1 Opinion of Tannenbaum Dubin & Robinson, LLP.
23.1 Consent of Tannenbaum Dubin & Robinson, LLP
(contained in Exhibit 5.1).
23.2 Consent of Citrin Cooperman & Company, LLP.
24.1 Power of Attorney (included as part of
the signature page to this Registration Statement).
EXHIBIT 4.5
GARAN, INCORPORATED
1999 RESTRICTED STOCK PLAN
SECTION I
Establishment, Purpose, and Duration
1.1. Garan, Incorporated hereby establishes an incentive
compensation plan known as the Garan, Incorporated 1999 Restricted Stock Plan
to permit the grant of restricted stock to certain selected employees of
Garan, Incorporated and its subsidiaries.
1.2. The purpose of the Garan, Incorporated 1999 Restricted Stock
Plan is to provide an increased incentive for the participating employees to
contribute to the future success and prosperity of Garan, Incorporated, to
link the personal interest of the participating employees with the Garan,
Incorporated shareholders so that the value of the Garan, Incorporated Common
Stock is enhanced for the benefit of its shareholders, and to increase the
ability of Garan, Incorporated and its subsidiaries to retain individuals of
exceptional skill.
1.3. The Garan, Incorporated 1999 Restricted Stock Plan shall be
effective on May 7, 1999, and remain effective until all shares of Common
Stock subject to it shall have been granted and fully vested.
SECTION II
Definitions and Construction
2.1. The following terms used in this 1999 Restricted Stock Plan
shall have the respective meanings set forth in this Section.
Board shall mean the Board of Directors of Garan.
Cause shall mean, with respect to a Grantee, the commission
by the Grantee of one or more acts which constitute an indictable crime under
Federal, state, or local law, each as may be determined in good faith by
written resolution adopted by a majority of the members of the Board at a
meeting duly called and held for that purpose after reasonable notice to the
Grantee and opportunity for the Grantee and his or her counsel to be heard.
Change in Control shall mean: (a) Continuing Directors no
longer constitute at least a majority of the Board; (b) any person or group of
persons (as defined in Rule 13d-5 under the Exchange Act), together with its
affiliates, become the beneficial owner, directly or indirectly, of at least
40% of Garan's then outstanding Common Stock; (c) the approval by Garan's
shareholders of the merger or consolidation of Garan with any other
corporation, the sale of substantially all of the assets of Garan, or the
liquidation or dissolution of Garan unless, in the case of a merger or
consolidation, the Continuing Directors in office immediately prior to such
merger or consolidation will constitute at least a majority of directors of
the surviving corporation of such merger or consolidation and any parent (as
such terms is defined in Rule 12b-2 under the Exchange Act) of such
corporation, and such surviving corporation (and such parent, if any) shall
have at least five directors; or (d) at least a majority of the Continuing
Directors in office immediately prior to any other action proposed to be taken
by Garan's shareholders or by the Board determines that such proposed action,
if taken, would constitute a change of control of Garan and such proposed
action is thereafter taken.
Committee shall mean the Compensation Committee appointed by
the Board.
Common Stock shall mean the Common Stock, no par value, of
Garan.
Company shall mean Garan, Incorporated and its Subsidiaries.
Continuing Director shall mean any individual who is a
member of the Board on May 7, 1999, or is designated after such date (before
such person's initial election as a director) as a Continuing Director by a
majority of the then Continuing Directors.
Disabled shall mean that a Grantee, in the reasonable
opinion of the Committee, has been unable for a period of 90 consecutive days
or for an aggregate of 120 days during any period of 360 consecutive days to
substantially carry out the duties customarily performed by him or her for the
Company because of psychological, emotional, or physical reasons.
Exchange Act shall mean the Securities Exchange Act of 1934,
as amended.
Fair Market Value shall mean with respect to a share of
Common Stock granted as a Stock Award, the reported closing price of the
Common Stock on the trading day prior to the date on which the Stock Award was
granted or, if there was no reported sale of Common Stock on that day, than
the reported closing price on the next preceding trading day on which there
was such a sale.
Garan shall mean Garan, Incorporated
Grantee shall mean an individual who has been granted a
Stock Award.
Parent Corporation shall mean a parent corporation, as
defined in Section 424(e) of the Code.
Plan shall mean this Garan, Incorporated 1999 Restricted
Stock Plan.
Restricted Stock Award Agreement shall mean an agreement
between Garan and each Grantee setting forth the terms and provisions
applicable to his or her Stock Award.
Restriction Period shall mean the period beginning on the
date of a Stock Award and ending on the earlier of (a) the day prior to the
fifth anniversary of the date of the Stock Award, (b) the date of death of the
Grantee if such death occurs while the Grantee is in the employ of the
Company, (c) the date that the Grantee becomes Disabled if such event occurs
while the Grantee is in the employ of the Company, or (d) the date of a Change
in Control.
Stock Award shall mean shares of Common Stock awarded to a
Grantee in accordance with Section 5.1.
Subsidiary shall mean a subsidiary corporation, as defined
in Section 424(f) of the Code.
Termination of Employment shall mean the voluntary
termination, including retirement, by a Grantee of his or her employment or
consulting relationship with the Company or a termination by the Company of a
Grantee's employment without Cause but shall exclude a change from employee to
consultant status.
Termination With Cause shall mean a termination by the
Company of a Grantee's employment for Cause.
2.2. When used in this Plan, unless the context clearly indicates
to the contrary, (a) the singular shall include the plural and (b) if a
defined term is intended, it shall be capitalized.
SECTION III
Administration
3.1. Except as otherwise provided in the Plan, and subject to
Section 3.2, the Committee shall administer the Plan and shall have full power
to grant Stock Awards in such amounts as the Committee may determine, to
determine whether a Grantee shall forfeit any portion of his or her stock
grant if the Grantee incurs a Termination of Employment during the Restriction
Period, construe and interpret the Plan, establish and amend rules and
regulations for administration of the Plan, and perform all other acts
relating to the Plan including the delegation of administrative
responsibilities which the Committee believes reasonable and proper.
3.2. Subject to the provisions of the Plan and the right of the
Board to give specific direction, the Committee shall establish the policies
and criteria pursuant to which it shall grant Stock Awards and administer the
Plan and, in its discretion, shall determine which employees of the Company
shall be granted Stock Awards, the number of shares covered by any such Stock
Awards, and the terms and conditions of the Stock Awards.
3.3. Any decision made, or action taken, by the Committee or the
Board arising out of or in connection with the interpretation and
administration of the Plan shall be final and conclusive.
SECTION IV
Shares Subject to the Plan
4.1. The total number of shares of Common Stock available for
awards of Stock Grants under the Plan shall be 160,000, subject to adjustment
in accordance with Section VII. These shares may be either authorized and
unissued or reacquired shares of Common Stock. If any portion of a Stock
Award shall be forfeited, the forfeited shares covered by such Stock Award
shall be available for future grants of Stock Awards.
SECTION V
Eligibility
5.1. Stock Awards may be granted by the Committee to employees of
the Company who contribute to the management, direction, and/or overall
success of the Company.
SECTION VI
Terms of Stock Awards
6.1. Each Stock Award shall be evidenced by a Restricted Stock
Award Agreement that shall contain the following terms and provisions and such
other terms and provisions as the Committee or Board shall determine:
6.1.a. The number of shares of Common Stock granted.
6.1.b. The applicable Restriction Period.
6.1.c. During the Restriction Period (i) a Grantee may
not sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of
shares granted pursuant to a Stock Award, (ii) Garan shall retain custody of
the certificates evidencing shares granted pursuant to a Stock Award, and
(iii) the Grantee will deliver to Garan a stock power, endorsed in blank, with
respect to each Stock Award.
6.1.d. If a Grantee during the Restriction Period
incurs a Termination With Cause, all shares granted under his or her Stock
Award shall be forfeited.
6.1.e. The Stock Award shall have an initial value
equal to Fair Market Value.
6.1.f. Unless the shares of Common Stock granted by the
Stock Award are registered on the date of grant of the Stock Award under the
Securities Act of 1933, as amended, if counsel to Garan advises that the same
is required prior to delivery of the shares granted, the Grantee shall agree
to hold such shares for investment only and not with a view to resale or
distribution of such shares to the public, and such Grantee shall deliver to
Garan a letter to that effect in a form specified by counsel to Garan together
with any additional documents specified by counsel, and, in the event that
issuance of shares of Common Stock pursuant to a Stock Award is subject to
laws, rules, and/or regulations of a jurisdiction other than the United States
of America, the Grantee simultaneously shall comply with requirements of
counsel to Garan to satisfy the same.
6.2. During the Restriction Period (as set forth in the
applicable Restricted Stock Award Agreement), a Grantee will have all rights
of a shareholder with respect to all shares of Common Stock granted to him or
her as a Stock Award which have not been forfeited, including the right to
receive dividends and vote the shares.
6.3. The limitations set forth in Section 6.1.c shall not apply
after the Restriction Period to shares granted as a Stock Award; shares of
Common Stock granted as a Stock Award shall become freely transferable by the
Grantee (subject to the provisions of Section 6.1.f) after the last day of the
applicable Restriction Period and the certificates evidencing the shares
granted shall be delivered to the Grantee.
SECTION VII
Adjustments
7.1. If (a) Garan shall at any time be involved in a transaction
to which Section 424(a) of the Internal Revenue Code of 1986, as amended, is
applicable, (b) Garan shall declare a dividend payable in, or shall subdivide
or combine, its Common Stock, or (c) any other event shall occur which in the
judgment of the Committee necessitates action by way of adjusting the terms of
the outstanding Stock Awards, the Committee may take any such action as in its
judgment shall be necessary to preserve the Grantee's rights substantially
proportionate to the rights existing prior to such event and to the extent
that such action shall include an increase or decrease in the number of shares
of Common Stock subject to outstanding Stock Awards, the number of shares
available under Section IV shall be increased or decreased, as the case may
be, proportionately. The judgment of the Committee with respect to any matter
referred to in this Section VII shall be conclusive and binding upon each
Grantee.
SECTION VIII
Amendment and Termination of Plan
8.1. The Board may at any time, or from time to time, suspend or
terminate the Plan in whole or in part or amend it in such respects as the
Board may deem appropriate.
8.2. No amendment, suspension, or termination of this Plan,
without a Grantee's consent, shall alter or impair any of the rights or
obligations under any Stock Award theretofore granted under the Plan.
SECTION IX
Government and Other Regulations
9.1. The obligation of Garan to issue, or transfer and deliver,
shares for Stock Awards granted under the Plan shall be subject to all
applicable laws, regulations, rules, orders, and approvals which shall then be
in effect and required by governmental entities and any stock exchanges on
which the Common Stock may be traded.
SECTION X
Miscellaneous Provisions
10.1. The right of the Company to terminate (whether by a
Termination With Cause, a Termination Without Cause, or retirement) the
Grantee's employment at any time at will or as otherwise provided by any
agreement between the Company and the Grantee is specifically reserved.
10.2. All expenses of administering the Plan shall be borne by
Garan.
10.3. In addition to such other rights of indemnification as they
may have as members of the Board or the Committee, the members of the Board
and the Committee shall be indemnified by Garan against all costs and expenses
reasonably incurred by them in connection with any action, suit, or proceeding
to which they or any of them may be party by reason of any action taken or
failure to act under or in connection with the Plan or any Stock Award granted
under the Plan, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
Garan) or paid by them in satisfaction of a judgment in any such action, suit,
or proceeding, except a judgment based upon a finding of bad faith, provided
that upon the institution of any such action, suit, or proceeding, a Committee
or Board member, in writing, shall give Garan notice thereof and an
opportunity, at its own expense, to handle and defend the same before such
Committee or Board member undertakes to handle and defend it on such member's
own behalf.
EXHIBIT 5.1
[TANNENBAUM DUBIN & ROBINSON, LLP]
April 27, 2000
Garan, Incorporated
350 Fifth Avenue
New York, New York 10118
Re: Registration Statement on Form S-8 Relating to the
Garan, Incorporated 1999 Restricted Stock Plan ("Plan")
-------------------------------------------------------
Gentlemen:
This opinion is submitted in connection with the Registration Statement
on Form S-8 ("Registration Statement") filed by Garan, Incorporated
("Company") on the date hereof with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, relating to 160,000 shares of
Common Stock, no par value, of the Company issued pursuant to the Plan.
We have examined such corporate documents and records of the Company,
certificates of public officials, and such other documents and questions of
law as we have deemed necessary or appropriate for the purpose of rendering
this opinion.
In examining the foregoing, we have assumed, without independent
verification, the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to original
documents of documents submitted to us as certified or photostatic copies.
While nothing has been brought to our attention which leads us to believe that
the opinions expressed herein are factually incorrect, we have not, beyond the
examination described above, made independent factual investigations for the
purpose of rendering this opinion, although we have made such inquiry of
officers of the Company as we have deemed necessary for the proper discharge
of our responsibilities as counsel to the Company and for the purpose of
rendering this opinion.
Notwithstanding anything herein to the contrary, whether expressly stated
or implied, the opinion hereinafter expressed is subject to the following
further qualifications and limitations, whether or not a specific reference is
made in this opinion to such qualifications and limitations:
A. The effect of applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws, statutes, or rules of general application
relating to, or affecting, the enforcement of creditors' rights generally, now
or hereafter in effect.
B. As we are admitted to practice only in the State of New York,
this opinion is limited to the laws of the United States and State of New
York, and we offer no opinion as to the possible application of laws of other
jurisdictions, provided, however, that insofar as this opinion expresses an
opinion as to matters of Virginia law, we have relied upon the opinion of
Messrs. Hunton & Williams, Richmond, Virginia.
C. The effect of rules of law governing specific performance and
injunctive relief and such other principles of equity as the courts having
jurisdiction may apply at their discretion whether in a proceeding at law or
in equity.
Based upon the foregoing and upon such other information, documents, and
inquiry as we believe necessary to enable us to render this opinion, we are of
the opinion that the 160,000 shares of Common Stock issued under the Plan
have been duly authorized and are validly issued, fully paid, and
non-assessable.
Marvin S. Robinson, a member of this firm, is also a director and the
Vice President, General Counsel and Secretary of the Company.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Respectfully submitted,
/s/ Tannenbaum Dubin & Robinson, LLP
-------------------------------------
TANNENBAUM DUBIN & ROBINSON, LLP
EXHIBIT 23.2
CONSENT OF CITRIN COOPERMAN & COMPANY, LLP
INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 10, 1999, on our audits of
the consolidated financial statements of Garan, Incorporated as of September
30, 1999 and 1998 filed with the Securities and Exchange Commission pursuant
to the Securities Act of 1933.
/s/ Citrin Cooperman & Company, LLP
------------------------------------
CITRIN COOPERMAN & COMPANY, LLP
New York, New York
April 26, 2000
