Registration No. 333-23555
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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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ITHACA INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 56-1385842
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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HIGHWAY 268 WEST
P.O. BOX 620
WILKESBORO, NORTH CAROLINA 28697
(910) 667-5231
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
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ITHACA INDUSTRIES, INC.
1996 LONG-TERM STOCK INCENTIVE PLAN AND
1997 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
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ERIC N. HOYLE
ITHACA INDUSTRIES, INC.
HIGHWAY 268 WEST
P.O. BOX 620
WILKESBORO, NORTH CAROLINA 28697
(910) 667-5231
(Name and Address, including Zip Code,
and Telephone Number, including Area Code of Agent For Service)
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COPIES TO:
CARL L. REISNER, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
(1)MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED TO BE REGISTERED PER SHARE (2) PRICE (2) REGISTRATION FEE
================================= ================ =============== =================== ================
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share........................ 864,672 $6.00 $5,188,032.00 $1,572.13
================================= ================ =============== =================== ================
</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the
Securities Act of 1933.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) of the Securities Act of 1933.
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JULY 30, 1997
<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectuses being delivered by Ithaca Industries, Inc.
(the "Company") to participants in the Ithaca Industries, Inc. 1996 Long-Term
Stock Incentive Plan (the "1996 Stock Incentive Plan"), and the Ithaca
Industries, Inc. 1997 Stock Option Plan for Non-Employee Directors (the "1997
Non-Employee Director Option Plan") as required by Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act"), have been prepared in accordance
with the requirements of Form S-8 and relate to shares of Common Stock, par
value $0.01 per share, of the Company (the "Common Stock") which have been
reserved for issuance pursuant to the 1996 Stock Incentive Plan and the 1997
Non-Employee Director Option Plan. The information regarding the 1996 Stock
Incentive Plan and the 1997 Non-Employee Director Option Plan required in the
Section 10(a) prospectuses is included in documents being maintained and
delivered by the Company as required by Rule 428 under the Securities Act. The
Company shall provide to participants in the 1996 Stock Incentive Plan and the
1997 Non-Employee Director Option 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>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Ithaca Industries,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K, dated May 2, 1997;
(b) the Company's Quarterly Report on Form 10-Q for the thirteen weeks
ended May 3, 1997, filed with the Commission June 17, 1997; and
(c) the description of the Company's Common Stock, par value $.01 per
share, contained in the Company's Registration Statement filed on Form 8-A,
pursuant to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act") declared effective by the Commission on April 30, 1997.
All documents subsequently filed by the Company with the Commission
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 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. Any statement in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the DGCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation (a "Derivative Action")), if the relevant party
acted in good faith and in a manner they 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 their conduct
was unlawful. A similar standard is applicable in the case of Derivative
Actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
actions, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification had been found liable
to the corporation. The Statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
Section 8.1 of the Company's Amended and Restated Certificate of
Incorporation (the "Certificate") and Article 8.1 of the Company's Amended and
Restated By-Laws (the "By-Laws") call for indemnification to the full extent
permitted under Delaware law as from time to time in effect. Subject to any
restrictions imposed by Delaware law, the By-Laws provide a right to
indemnification for expenses (including attorneys' fees and disbursements,
judgments, fines, excise taxes, penalties, amounts paid in settlement, charges
and costs) actually and reasonably incurred or suffered by any person in
connection with any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative or investigative (including, to the extent
permitted by law, any Derivative Action) by reason of the fact that such person
is or was serving as a director or officer of the registrant or that, being or
having been a director or officer or an employee of the registrant, such person
is or was serving at the request of the registrant as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including an employee benefit plan. The By-Laws also provide
that the registrant may, by action of its Board of Directors, provide
indemnification to its employees and agents with the same scope and effect as
the foregoing indemnification of directors and officers.
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 laws of Delaware, the Certificate and By-Laws, 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 of the
registrant 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
5 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in its
opinion filed as Exhibit 5 to this Registration Statement).
24 Power of Attorney (included as part of the signature page to this
Registration Statement and incorporated herein by reference).
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;
provided, however, that paragraph (a)(l)(i) and (a)(l)(ii) do not
apply if the information required to be included in a post-effective
amendment by the foregoing paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference 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 of 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 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
II-3
<PAGE>
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 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, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all 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 Wilkesboro, state of North Carolina, on July 30,
1997.
ITHACA INDUSTRIES, INC.
By: /s/ Eric N. Hoyle
------------------------------------------------
Eric N. Hoyle
Senior Vice President Finance and Administration
Principal Financial and Chief Accounting Officer
We, the undersigned directors of Ithaca Industries, Inc., hereby severally
constitute Jim D. Waller, and Eric N. Hoyle, and each of them singly, our true
and lawful attorneys with full power to them, and each of them singly, to sign
for us and in our names in the capacities indicated below, any and all
amendments, including post-effective amendments, to this Registration Statement,
and generally do all such things in our name and on our behalf in such
capacities to enable Ithaca Industries, Inc. to comply with the applicable
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, and we hereby ratify and confirm our
signatures as they may be signed by our said attorneys, or either of them, to
any and all such amendments.
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.
Signature Title Date
--------- ----- ----
/s/ Jim D. Waller Chairman, Chief July 24, 1997
- ------------------------------ Executive Officer,
Jim D. Waller President and Director
Director
- ------------------------------
Walter J. Branson
/s/ Marvin B. Crow Director July 24, 1997
- ------------------------------
Marvin B. Crow
/s/ Francis Goldwyn Director July 24, 1997
- ------------------------------
Francis Goldwyn
/s/ Morton E. Handel Director July 24, 1997
- ------------------------------
Morton E. Handel
/s/ David N. Weinstein Director July 24, 1997
- ------------------------------
David N. Weinstein
/s/ James A. Williams Director July 24, 1997
- ------------------------------
James A. Williams
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibits
- ----------- -----------------------
2 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(included in its opinion filed as Exhibit 5 to this
Registration Statement).
24 Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
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Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
July 30, 1997
Via EDGAR
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by Ithaca Industries, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations promulgated thereunder (the "Rules"), which relates to the
864,672 shares (the "Option Shares") of common stock, par value $.01 per share
(the "Common Stock"), of the Company to be issued pursuant to the Ithaca
Industries, Inc. 1996 Long-Term Incentive Plan (the "Option Plan"), and the
45,000 shares (the "Director Shares") of common stock to be issued pursuant to
the Ithaca Industries, Inc. 1997 Stock Option Plan for Non-Employee Directors
(the "Director Plan"), we have been requested by the Company to render this
opinion as to the legality of the Option Shares and the Director Shares.
In this connection, we have examined originals or copies certified
or otherwise identified to our satisfaction, of (i) the Registration Statement,
(ii) the Option Plan, (iii) the Director Plan, (iv) the Amended and Restated
Certificate of
<PAGE>
Paul, Weiss, Rifkind, Wharton & Garrison
Securities and Exchange Commission 2
Incorporation and Amended and Restated By-laws of the Company, each as amended
to date, and (v) all such corporate records of the Company and all such other
documents as we have considered necessary in order to form a basis for the
opinion hereinafter expressed. In our examination of documents, we have assumed,
without independent investigation, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified photostatic,
reproduced or conformed copies of valid existing agreements or other documents,
the authenticity of all such latter documents and the legal capacity of all
individuals who have executed any of the aforesaid documents. As to certain
matters of fact, we have relied on representations, statements or certificates
of officers of the Company and of public authorities.
Based on the foregoing, and subject to the assumptions, exceptions
and qualifications stated herein, we are of the opinion that (i) the Option
Shares and the Director Shares have been duly authorized for issuance and that
such Option Shares and such Director Shares, when issued and delivered by the
Company and paid for in accordance with the terms and provisions of the Option
Plan and the Director Plan, as applicable, will be validly issued, fully paid
and nonassessable.
Our opinion expressed above is limited to the General Corporation
Law of the State of Delaware. Our opinion is also rendered only with respect to
the laws and the rules, regulations and orders thereunder, which are currently
in effect. Please be advised that no member of this firm is admitted to practice
in the State of Delaware. We hereby consent to the filing of this opinion as an
exhibit to the
<PAGE>
Paul, Weiss, Rifkind, Wharton & Garrison
Securities and Exchange Commission 3
Registration Statement. In giving this consent, we do not hereby agree that we
come within the category of persons whose consent is required by the Act or the
Rules.
Very truly yours,
/s/ Paul, Weiss, Rifkind, Wharton & Garrison
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
The Board of Directors
Ithaca Industries, Inc.
We consent to the use of our reports included herein by reference.
Our report dated March 27, 1997 contains an explanatory paragraph that states
that the company emerged from bankruptcy and as of November 22, 1996, adopted
fresh-start reporting in accordance with the American Institute of Certified
Public Accountants Statement of Position 90-7, FINANCIAL REPORTING BY ENTITIES
IN
REORGANIZATION UNDER THE BANKRUPTCY CODE.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Atlanta, Georgia
July 25, 1997
