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As filed with the Securities and Exchange Commission on June 6, 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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R. G. BARRY CORPORATION
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(Exact name of registrant as specified in its charter)
Ohio 31-4362899
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13405 Yarmouth Road, N.W., Pickerington, Ohio 43147
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(Address of Principal Executive Offices) (Zip Code)
R. G. Barry Corporation
1997 Incentive Stock Plan
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(Full title of the plan)
Copy to:
Richard L. Burrell Elizabeth Turrell Farrar, Esq.
R. G. Barry Corporation Vorys, Sater, Seymour and Pease
13405 Yarmouth Road, N.W. 52 East Gay Street
Pickerington, Ohio 43147 Columbus, Ohio 43216-1008
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(Name and address of agent for service)
(614) 864-6400
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per unit (1) price (1) fee
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<S> <C> <C> <C> <C>
Common Shares, 450,000 $11.5625 $5,203,125 $1,577
$1.00 Par Value
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<FN>
(1) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) and 457(h)
promulgated under the Securities Act of 1933, as amended, and computed
on the basis of $11.5625 per share, which is the average of the high
and low sales prices of the Common Shares as reported on the New York
Stock Exchange on June 4, 1997.
</TABLE>
Page 1 of 81 Pages.
Index to Exhibits at Page II-18 (Page 19 as sequentially numbered).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Annual Report on Form 10-K for the fiscal year ended December 28,
1996 of R. G. Barry Corporation (the "Registrant") and all other reports filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since that date are hereby incorporated
by reference.
The description of the Registrant's Common Shares contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission on
June 6, 1995 and the description of the Series I Junior Participating Class B
Preferred Share Purchase Rights of the Registrant (the "Rights") contained in
the Registrant's Registration Statement on Form 8-A filed with the Commission on
June 6, 1995, and all amendments thereto or reports filed for the purpose of
updating such descriptions heretofore filed by the Registrant with the
Commission, are hereby incorporated by reference.
Any definitive proxy statement or information statement filed pursuant
to Section 14 of the Exchange Act and all documents which may be filed with the
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act subsequent
to the date hereof and prior to the completion of the offering contemplated
hereby, shall also be deemed to be incorporated herein by reference and to be
made a part hereof from the date of filing of such documents; provided, however,
that no report of the Compensation Committee of the Board of Directors of the
Registrant on executive compensation and no performance graph included in any
proxy statement or information statement filed pursuant to Section 14 of the
Exchange Act shall be deemed to be incorporated herein by reference.
Item 4. Description of Securities.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
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Item 6. Indemnification of Directors and Officers.
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Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than an
action by or in the right of the corporation, by reason of the fact that
he is or was a director, officer, employee, or agent of the corporation,
or is or was serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments,
fines, and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit,
or proceeding by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any
threatened, pending, or completed action or suit by or in the right of
the corporation to procure a judgment in its favor, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually
and reasonably
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incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of
any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to
the extent that, the court of common pleas or the court in which
such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court
of common pleas or such other court shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of the
Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties
to or threatened with the action, suit, or proceeding referred to
in division (E)(1) or (2) of this section;
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(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by
or who has performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2)
of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is
the subject of an action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, the articles or the regulations of a
corporation state, by specific reference to this division, that the
provisions of this division do not apply to the corporation and unless
the only liability asserted against a director in an action, suit, or
proceeding referred to in division (E)(1) or (2) of this section is
pursuant to section 1701.95 of the Revised Code, expenses, including
attorney's fees, incurred by a director in defending the action, suit or
proceeding shall be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding upon
receipt of an undertaking by or on behalf of the director in which he
agrees to do both of the following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken
with deliberate intent to cause injury to the corpo-
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ration or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section, may be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding, as
authorized by the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer, employee,
member, manager, or agent to repay such amount, if it ultimately is
determined that he is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions, and
shall continue as to a person who has ceased to be a director, trustee,
officer, employee, member, manager, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters
of credit, or self-insurance, on behalf of or for any person who is or
was a director, officer, employee, or agent of the corporation, or is or
was serving at the request of the corporation as a director, trustee,
officer, employee, member, manager, or agent of another corporation,
domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section. Insurance may be purchased from or maintained with a
person in which the corporation has a financial interest.
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(8) The authority of a corporation to indemnify persons pursuant
to division (E)(1) or (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5),(6), and
(7) of this section. Divisions (E)(1) and (2) of this section do not
create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5),(6) or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, a partnership, joint
venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as
he would if he had served the new or surviving corporation in the same
capacity.
Article EIGHTH of the Articles of Incorporation, as amended, of the
Registrant governs indemnification by the Registrant and provides as follows:
EIGHTH: I. MANDATORY INDEMNIFICATION. The Corporation shall
indemnify any officer or director of the Corporation who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, any
action threatened or instituted by or in the right of the Corporation),
by reason of the fact that he is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, trustee, officer, employee or agent of
another corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise, against expenses
(including, without limitation, attorneys' fees, filing fees, court
reporters' fees and transcript costs), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and with respect to any criminal action or
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proceeding, he had no reasonable cause to believe his conduct was
unlawful. A person claiming indemnification under this Paragraph I shall
be presumed, in respect of any act or omission giving rise to such claim
for indemnification, to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal matter, to have had no
reasonable cause to believe his conduct was unlawful, and the
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
II. COURT-APPROVED INDEMNIFICATION. Anything contained in these
Articles, the Regulations of the Corporation or elsewhere to the
contrary notwithstanding:
(A) the Corporation shall not indemnify any officer or director
of the Corporation who was a party to any completed action or suit
instituted by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, trustee, officer, employee
or agent of another corporation (domestic or foreign, nonprofit or for
profit), partnership, joint venture, trust or other enterprise, in
respect of any claim, issue or matter asserted in such action or suit as
to which he shall have been adjudged to be liable for acting with
reckless disregard for the best interests of the Corporation or
misconduct (other than negligence) in the performance of his duty to the
Corporation or such other entity unless and only to the extent that the
Court of Common Pleas of Fairfield County, Ohio or the court in which
such action or suit was brought shall determine upon application that,
despite such adjudication of liability, and in view of all the
circumstances of the case, he is fairly and reasonably entitled to such
indemnity as such Court of Common Pleas or such other court shall deem
proper; and
(B) the Corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated
by this Paragraph II.
III. INDEMNIFICATION FOR EXPENSES. Anything contained in these Articles,
the Regulations of the Corporation or elsewhere to the contrary
notwithstanding, to the extent that an officer or director of the
Corporation has been
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successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Paragraph I of this Article EIGHTH, or in
defense of any claim, issue or matter therein, he shall be promptly
indemnified by the Corporation against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) actually and reasonably incurred by him in connection
therewith.
IV. DETERMINATION PERIOD. Any indemnification required under Paragraph I
of this Article EIGHTH and not precluded under Paragraph II of this
Article EIGHTH shall be made by the Corporation only upon a
determination that such indemnification of the officer or director is
proper in the circumstances because he has met the applicable standard
of conduct set forth in Paragraph I of this Article EIGHTH. Such
determination may be made only (A) by a majority vote of a quorum
consisting of directors of the Corporation who were not and are not
parties to, or threatened with, any such action, suit or proceeding, or
(B) if such a quorum is not obtainable or if a majority of the quorum of
disinterested directors so directs, in a written opinion by independent
legal counsel other than an attorney, or a firm having associated with
it an attorney, who has been retained by or who has performed services
for the Corporation, or any person to be indemnified, within the past
five years, or (C) by the shareholders, or (D) by the Court of Common
Pleas of Fairfield County, Ohio or (if the Corporation is a party
thereto) the court in which such action, suit or proceeding was brought,
if any; any such determination may be made by a court under division (D)
of this Paragraph IV at any time [including, without limitation, any
time before, during or after the time when any such determination may be
requested of, be under consideration by or have been denied or
disregarded by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders
under division (C) of this Paragraph IV]; and no failure for any reason
to make any such determination, and no decision for any reason to deny
any such determination, by the disinterested directors under division
(A) or by independent legal counsel under division (B) or by the
shareholders under division (C) of this Paragraph IV shall be evidence
in rebuttal of the presumption recited in Paragraph I of this Article
EIGHTH. Any determination made by the disinterested directors under
division (A) or by independent legal counsel under division (B) of this
Paragraph IV to make indemnification in respect of any claim, issue or
matter asserted in an action or suit threatened or brought by or in the
right of the Corpora-
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tion shall be promptly communicated to the person who threatened or
brought such action or suit, and within ten (10) days after receipt of
such notification such person shall have the right to petition the Court
of Common Pleas of Fairfield County, Ohio or the court in which such
action or suit was brought, if any, to review the reasonableness of such
determination.
V. ADVANCES FOR EXPENSES. Expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript
costs) incurred in defending any action, suit or proceeding referred to
in Paragraph I of this Article EIGHTH shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding
to or on behalf of the officer or director promptly as such expenses are
incurred by him, but only if such officer or director shall first agree,
in writing, to repay all amounts so paid in respect of any claim, issue
or other matter asserted in such action, suit or proceeding in defense
of which he shall not have been successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in Paragraph
IV of this Article EIGHTH that he is not entitled to be indemnified by
the Corporation as provided under Paragraph I of this Article EIGHTH; or
(B) if, in respect of any claim, issue or other matter asserted
by or in the right of the Corporation in such action or suit, he shall
have been adjudged to be liable for acting with reckless disregard for
the best interests of the Corporation or misconduct (other than
negligence) in the performance of his duty to the Corporation, unless
and only to the extent that the Court of Common Pleas of Fairfield
County, Ohio or the court in which such action or suit was brought shall
determine upon application that, despite such adjudication of liability,
and in view of all the circumstances, he is fairly and reasonably
entitled to all or part of such indemnification.
VI. ARTICLE EIGHTH NOT EXCLUSIVE. The indemnification provided by this
Article EIGHTH shall not be exclusive of, and shall be in addition to,
any other rights to which any person seeking indemnification may be
entitled under the Articles or the Regulations or any agreement, vote of
shareholders or disinterested directors, or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to
be an officer or director of the Corporation and shall inure to
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the benefit of the heirs, executors, and administrators of such a
person.
VII. INSURANCE. The Corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the Corporation would have the obligation or the power to
indemnify him against such liability under the provisions of this
Article EIGHTH. Insurance may be purchased from or maintained with a
person in which the Corporation has a financial interest.
VIII. INDEMNITY AGREEMENTS. The Corporation may from time to time enter
into indemnity agreements with the persons who are members of its Board
of Directors and with such officers or other persons as the Board may
designate, such indemnity agreements to provide in substance that the
Corporation will indemnify such person to the fullest extent of the
provisions of this Article EIGHTH and/or to the fullest extent permitted
under Ohio law.
IX. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
Corporation may, under procedures authorized from time to time by the
Board of Directors, grant rights to indemnification and to be paid by
the Corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any employee or agent of the
Corporation to the fullest extent of the provisions of this Article
EIGHTH.
X. CERTAIN DEFINITIONS. For purposes of this Article EIGHTH, and as
examples and not by way of limitation:
(A) A person claiming indemnification under this Article EIGHTH
shall be deemed to have been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Paragraph I of
this Article EIGHTH, or in defense of any claim, issue or other matter
therein, if such action, suit or proceeding shall be terminated as to
such person, with or without prejudice, without the entry of a judgment
or order against him,
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without a conviction of him, without the imposition of a fine upon him
and without his payment or agreement to pay any amount in settlement
thereof (whether or not any such termination is based upon a judicial or
other determination of the lack of merit of the claims made against him
or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and
in a manner he reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of
the Corporation" within the meaning of that phrase as used in this
Article EIGHTH.
XI. VENUE. Any action, suit or proceeding to determine a claim for
indemnification under this Article EIGHTH may be maintained by the
person claiming such indemnification, or by the Corporation, in the
Court of Common Pleas of Fairfield County, Ohio. The Corporation and (by
claiming such indemnification) each such person consent to the exercise
of jurisdiction over its or his person by the Court of Common Pleas of
Fairfield County, Ohio in any such action, suit or proceeding.
The Registrant has entered into indemnification agreements with its
directors and officers which, among other matters, provide as follows:
The Company is required to maintain directors' and officers' liability
insurance at not less than the current level unless the Board of
Directors concludes that the premium cost is substantially
disproportionate to the amount of coverage provided. The Company is
required to indemnify a director or officer against certain liabilities
if the director or officer has acted in good faith and in a manner the
director or officer reasonably believed to be in or not opposed to the
best interests of the Company. The Company is required to advance
defense costs and expenses to the director or officer so long as the
director or officer agrees to repay any such costs and
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expenses to the Company if it is ultimately determined that the director
or officer is not entitled to indemnification. Indemnification is not
provided for liability arising under the short-swing profits recapture
provisions of Section 16(b) of the Securities Exchange Act of 1934 or
for liability resulting from conduct that is determined to involve
reckless disregard for the best interests of the Company or misconduct
(other than negligence). The indemnification obligations of the Company
continue for so long as the indemnified party may be subject to any
possible action or proceeding. In the event of a "potential change in
control" (as defined in the indemnification agreements), the Company is
required, upon written request of the director or officer, to create a
trust to indemnify the director or officer and to fund such trust in an
amount sufficient to cover expenses reasonably anticipated. Upon a
"change in control" (as defined in the indemnification agreements), the
trust would become irrevocable. All unexpended funds in the trust would
revert to the Company upon a final determination by a court or
independent legal counsel that a director or officer has been fully
indemnified under the terms of the indemnification agreement.
Section 2(d) of the R. G. Barry Corporation 1997 Incentive Stock Plan
(the "Plan") also addresses indemnification and provides:
(d) Indemnification. Each person who is or shall have been a
member of the Committee [which administers the Plan] or of the
Board of Directors shall be indemnified and held harmless by
the Company against and from any loss, cost, liability or
expense that may be imposed upon or reasonably incurred by him
in connection with or resulting from any claim, action, suit
or proceeding to which he may be a party or in which he may be
involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him
in settlement thereof, with the Company's approval, or paid by
him in satisfaction of judgment in any such action, suit or
proceeding against him; provided that he shall give the
Company an opportunity, at its own expense, to handle and
defend the same before he undertakes to handle and defend it
on his own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification
to which such
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person may be entitled under the Company's Articles of
Incorporation or Regulations, as a matter of law, or
otherwise, or any power that the Company may have to indemnify
him or hold him harmless.
In addition, the Registrant has purchased insurance coverage under a
policy which insures directors and officers against certain liabilities which
might be incurred by them in such capacities.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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See the Index to Exhibits attached hereto at page II-18.
Item 9. Undertakings.
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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 of 1933;
(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; and
(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 paragraphs A(1)(i) and A(1)(ii) do not apply if
the information required
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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 Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item
6 of this Part II, 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 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
II-14
<PAGE> 16
the Act and will be governed by the final adjudication of such issue.
[The remainder of this page
intentionally left blank.]
II-15
<PAGE> 17
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 Pickerington, State of Ohio, on the 6th day of June,
1997.
R. G. BARRY CORPORATION
By: /s/ Richard L. Burrell
--------------------------------------
Richard L. Burrell,
Senior Vice President-Finance,
Secretary and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 6th day of June, 1997.
Signature Title
*Gordon Zacks Chairman of the Board,
- --------------------------- President, Chief Executive
Gordon Zacks Officer and Director
*Richard L. Burrell Senior Vice President-Finance,
- --------------------------- Treasurer, Secretary and
Richard L. Burrell Director
*Christian Galvis Executive Vice President-
- --------------------------- Operations and Director
Christian Galvis
*Charles E. Ostrander Executive Vice President-
- --------------------------- Sales & Marketing and Director
Charles E. Ostrander
*By Power of Attorney
/s/ Richard L. Burrell
- ---------------------------
Richard L. Burrell
(Attorney-in-Fact)
II-16
<PAGE> 18
*Leopold Abraham II Director
- ---------------------------
Leopold Abraham II
*Philip G. Barach Director
- ---------------------------
Philip G. Barach
*William Giovanello Director
- ---------------------------
William Giovanello
*Harvey M. Krueger Director
- ---------------------------
Harvey M. Krueger
*Edward M. Stan Director
- ---------------------------
Edward M. Stan
*By Power of Attorney
/s/ Richard L. Burrell
- ---------------------------
Richard L. Burrell
(Attorney-in-Fact)
II-17
<PAGE> 19
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4(a) Trust Indenture, dated as of July 1, 1972, by and Incorporated herein by reference to
between Registrant and The Huntington National Registrant's Registration Statement on
Bank of Columbus, as Trustee Form S-1, filed June 27, 1972
(Registration No. 2-44432)
[Exhibit 4(a)]
4(b) First Supplemental Trust Indenture, dated as of Incorporated herein by reference to
May 2, 1975, by and between Registrant and The Registrant's Registration Statement on
Huntington National Bank of Columbus, as Trustee Form S-7, filed March 3, 1978
(Registration No. 2-60888)
[Exhibit 2(b)(ii)]
4(c) Second Supplemental Trust Indenture, dated as of Incorporated herein by reference to
April 1, 1978, by and between Registrant and The Registrant's Registration Statement on
Huntington National Bank of Columbus, as Trustee Form S-7, filed March 3, 1978
(Registration No. 2-60888)
[Exhibit 2(b)(iii)]
4(d) Third Supplemental Indenture, dated as of June Incorporated herein by reference to
22, 1984, between Registrant and The Huntington Registrant's Current Report on Form 8-K
National Bank, as Trustee dated June 22, 1984, filed June 26, 1984
(File No. 1-7231) [Exhibit 4(d)]
</TABLE>
II-18
<PAGE> 20
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4(e) Fourth Supplemental Trust Indenture, dated as of Incorporated herein by reference to
February 27, 1985, between Registrant and The Registrant's Annual Report on Form 10-K
Huntington National Bank, as Trustee for the fiscal year ended December 29,
1984 (File No. 0-12667)
[Exhibit 4(e)]
4(f) Revolving Credit Agreement, made to be effective Incorporated herein by reference to
on February 28, 1996, among Registrant, The Bank Registrant's Annual Report on Form 10-K
of New York, The Huntington National Bank and NBD for the fiscal year ended December 30,
Bank 1995 (File No. 1-8769) ("Registrant's 1995
Form 10-K")
[Exhibit 4(f)]
4(g) Note Agreement, dated July 5, 1994, between Incorporated herein by reference to
Registrant and Metropolitan Life Insurance Company Registrant's Registration Statement on
Form S-3, filed July 21, 1994
(Registration No. 33-81820)
[Exhibit 4(t)]
4(h)(1) Articles of Incorporation of Registrant (as filed Incorporated herein by reference to
with Ohio Secretary of State on March 26, 1984) Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31,
1988 (File No. 0-12667) ("Registrant's
1988 Form 10-K") [Exhibit 3(a)(i)]
</TABLE>
II-19
<PAGE> 21
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4(h)(2) Certificate of Amendment to the Articles of Incorporated herein by reference to
Incorporation of Registrant Authorizing the Registrant's 1988 Form 10-K [Exhibit
Series I Junior Participating Class B Preferred 3(a)(i)]
Shares (as filed with the Ohio Secretary of State
on March 1, 1988)
4(h)(3) Certificate of Amendment to the Articles of Incorporated herein by reference to
Registrant (as filed with the Ohio Secretary of Registrant's 1988 Form 10-K [Exhibit
State on May 9, 1988) 3(a)(i)]
4(h)(4) Certificate of Amendment to the Articles of Incorporated herein by reference to
Incorporation of Registrant (as filed with the Registrant's 1995 Form 10-K
Ohio Secretary of State on May 22, 1995) [Exhibit 3(b)]
4(h)(5) Certificate of Amendment to Articles of Incorporated herein by reference to
Incorporation of Registrant (as filed with the Registrant's 1995 Form 10-K
Ohio Secretary of State on September 1, 1995) [Exhibit 3(c)]
4(h)(6) Certificate of Amendment to Articles of Pages 23 through 25
Incorporation of Registrant (as filed with the
Ohio Secretary of State on May 30, 1997)
4(h)(7) Articles of Incorporation of Registrant Pages 26 through 52
(reflecting amendments through May 30, 1997) [for
purposes of SEC reporting compliance only]
</TABLE>
II-20
<PAGE> 22
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4(i) Regulations of Registrant, as amended Incorporated herein by reference to
Registrant's Annual Report on Form 10-K
for the fiscal year ended January 2, 1988
(File No. 0-12667)
[Exhibit 3(b)]
4(j) Rights Agreement, dated as of February 29, 1988, Incorporated herein by reference to
between Registrant and The Huntington National Registrant's Current Report on Form 8-K
Bank dated March 14, 1988, filed March 15, 1988
(File No. 0-12667) [Exhibit 4]
4(k) R. G. Barry Corporation 1997 Incentive Stock Plan Pages 53 through 67
5 Opinion of Vorys, Sater, Seymour and Pease, Pages 68 and 69
counsel to Registrant
23(a) Consent of Independent Auditors Pages 70 and 71
23(b) Consent of Vorys, Sater, Seymour and Pease, Filed as part of Exhibit 5 hereof.
counsel to Registrant
24 Powers of Attorney Pages 72 through 81
</TABLE>
II-21
<PAGE> 1
Exhibit 4(h)(6)
---------------
Certificate of Amendment to
Articles of Incorporation of
R. G. Barry Corporation, as
filed with the Ohio Secretary of
State on May 30, 1997
<PAGE> 2
---------------------------
[OHIO LOGO] Prescribed by Charter No. 631200
BOB TAFT, Secretary of State --------------
30 East Broad Street, 14th Floor Approved CR
Columbus, Ohio 43266-0418 -----------------
Form SH-AMD (January 1991) Date 5-30-97
---------------------
Fee 18,785.00
---------------------------
97053026201
CERTIFICATE OF AMENDMENT
BY SHAREHOLDERS TO THE ARTICLES OF INCORPORATION OF
R. G. Barry Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
Gordon Zacks , who is:
- --------------------------------------
[X] Chairman of the Board [ ] President [ ] Vice President (check one)
and
Richard L. Burrell , who is: [X] Secretary [ ] Assistant Secretary (Check One)
- ---------------------
of the above named Ohio corporation for profit do hereby certify that: (check
the appropriate box and complete the appropriate statements)
[X] a meeting of the shareholders was duly called for the purpose of
adopting this amendment and held on May 16, 1997 at which meeting a
quorum of the shareholders was present in person or by proxy, and by the
affirmative vote of the holders of shares entitling them to exercise
72.6% of the voting power of the corporation.
[ ] in a writing signed by all of the shareholders who would be entitled to
notice of a meeting held for that purpose, the following resolution to
amend the articles was adopted:
Please see Annex 1 for resolution adopted by shareholders to amend
Paragraph I of Article FOURTH of Articles of Incorporation
IN WITNESS WHEREOF, the above named officers, acting for and on the behalf
of the corporation, have hereto subscribed their names this 16th day of May,
1997.
By /s/ Gordon Zacks
-------------------------------------
Gordon Zacks, Chairman of the Board
By /s/ Richard L. Burrell
-------------------------------------
Richard L. Burrell, Secretary
NOTE: Ohio law does not permit one officer to sign in two capacities. Two
separate signatures are required, even if this necessitates the election of a
second officer before the filing can be made.
<PAGE> 3
Annex 1
-------
RESOLVED, that the Articles of Incorporation of R. G. Barry
Corporation be, and the same hereby are, amended by deleting present Paragraph I
of Article FOURTH in its entirety and by substituting in its place new Paragraph
I of Article FOURTH in the following form:
Paragraph I
of
Article FOURTH
of
the Articles of Incorporation
of
R. G. Barry Corporation
-----------------------
FOURTH: I. The total number of shares which the Corporation
shall have the authority to issue is 27,500,000 shares, of
which 22,500,000, par value $1.00 per share, shall be of a
class designated "Common Shares," 4,000,000, par value $1.00
per share, shall be of a class designated "Class A Preferred
Shares" and 1,000,000, par value $1.00 per share, shall be of
a class designated "Class B Preferred Shares." The Class A
Preferred Shares and the Class B Preferred Shares are
sometimes collectively referred to herein as the "Preferred
Shares".
<PAGE> 1
Exhibit 4(h)(7)
---------------
ARTICLES OF INCORPORATION
OF
R. G. BARRY CORPORATION
(REFLECTING AMENDMENTS
THROUGH MAY 30, 1997)
[FOR PURPOSES OF SEC
REPORTING COMPLIANCE ONLY]
<PAGE> 2
ARTICLES OF INCORPORATION
OF
R. G. BARRY CORPORATION
(reflecting amendments
through May 30, 1997)
[For purposes of SEC
reporting compliance only]
FIRST: The name of the corporation is R. G. Barry Corporation (the
"Corporation").
SECOND: The place in Ohio where the principal office of the Corporation
is to be located is the City of Pickerington, County of Fairfield.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under the General Corporation Law
of Ohio as set forth in Sections 1701.01 to 1701.98 inclusive of the Ohio
Revised Code (the "OGCL").
FOURTH: I. The total number of shares which the Corporation shall have
authority to issue is 27,500,000 shares of which 22,500,000, par value $1.00 per
share, shall be of a class designated "Common Shares", 4,000,000, par value
$1.00 per share, shall be of a class designated "Class A Preferred Shares" and
1,000,000, par value $1.00 per share, shall be of a class designated "Class B
Preferred Shares". The Class A Preferred Shares and Class B Preferred Shares are
sometimes collectively referred to herein as the "Preferred Shares".
II. The Board of Directors of the Corporation is
authorized to provide for the issuance from time to time in one or more series
of any number of authorized and unissued shares of Class A Preferred Shares and
Class B Preferred Shares. The Board of Directors of the Corporation is further
authorized, subject to limitations prescribed by law and the provisions of this
Article FOURTH, to establish the number of shares to be included in each such
series, and to fix the designation, relative rights, preferences, qualifications
and limitations of the shares of each such series. The authority of the Board of
Directors with respect to each series shall include, but not be limited to,
determination of the following:
A. The number of shares constituting that series and the
distinctive designation of that series;
<PAGE> 3
B. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and whether they shall be payable in preference to, or in another
relation to, the dividends payable on any other class or classes or
series of shares;
C. Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion or
exchange, including provision for adjustment of the conversion or
exchange rate in such events as the Board of Directors shall determine;
D. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the manner of selecting shares for redemption if less than
all shares are to be redeemed, the date or dates upon or after which
they shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and at
different redemption dates;
E. Whether that series shall be entitled to the benefit of a
sinking fund to be applied to the purchase or redemption of shares of
that series, and, if so, the terms and amounts of such sinking fund;
F. The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issue of any additional shares
(including additional shares of such series or of any other series) and
upon the payment of dividends or the making of other distributions on,
and the purchase, redemption or other acquisition by the Corporation or
any subsidiary of any outstanding shares of the Corporation;
G. The right of the shares of that series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and whether such rights shall be in preference to, or in
another relation to, the comparable rights of any other class or
classes or series of shares; and
H. Any other relative, participating, optional or other
special rights, qualifications, limitations or restrictions of that
series.
III. Subject to the provisions of any applicable law, the
holders of outstanding Class A Preferred Shares and the holders of outstanding
Class B Preferred Shares shall possess
-2-
<PAGE> 4
voting power for the election of directors and for all other purposes, each
holder of record of Class A Preferred Shares being entitled to one-tenth of one
vote for each Class A Preferred Share standing in his name on the books of the
Corporation and each holder of record of Class B Preferred Shares being entitled
to ten votes for each Class B Preferred Share standing in his name on the books
of the Corporation.
IV. The Board of Directors of the Corporation is
authorized, subject to limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance from time to time of any number of
authorized and unissued Common Shares, and shall determine the terms under which
and the consideration for which the Corporation shall issue its Common Shares.
A. Subject to the provisions of any applicable law, each
holder of record of Common Shares shall be entitled to one vote for
each Common Share standing in his name on the books of the Corporation
for the election of directors and for all other purposes.
B. Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of Preferred Shares,
after payment shall have been made to the holders of Preferred Shares
of the full amount of dividends to which they shall be entitled
pursuant to the resolution or resolutions providing for the issue of
any series of Preferred Shares, the holders of Common Shares shall be
entitled, to the exclusion of the holders of Preferred Shares of any
and all series, to receive such dividends as from time to time may be
declared by the Board of Directors.
C. Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of Preferred Shares,
in the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after payment shall have
been made to the holders of Preferred Shares of the full amount to
which they shall be entitled pursuant to the resolution or resolutions
providing for the issue of any series of Preferred Shares, the holders
of Common Shares shall be entitled, to the exclusion of the holders of
Preferred Shares of any and all series, to share, ratably according to
the number of Common Shares held by them, in all remaining assets of
the Corporation available for distribution to its shareholders.
V. The affirmative vote of the holders of at least a
majority of the votes entitled to be cast by the holders of all the then
outstanding shares of any class of Capital Stock
-3-
<PAGE> 5
(as defined in Article SEVENTH), voting together as a single class, without
regard to series, present in person or represented by proxy and entitled to vote
in respect thereof, given at an annual meeting or at any special meeting duly
called, shall be required to adopt any proposal which (A) increases or decreases
the par value of the issued shares of the particular class of Capital Stock; (B)
changes into a lesser number of shares of the same class of Capital Stock or
into the same or a different number of shares of any other class of Capital
Stock, with or without par value, theretofore or then authorized shares of the
particular class of Capital Stock; (C) changes the express terms of, or adds
express terms to, the shares of the particular class of Capital Stock in any
manner substantially prejudicial to the holders thereof; (D) changes the express
terms of issued shares of any class of Capital Stock senior to the particular
class of Capital Stock in any manner substantially prejudicial to the holders of
shares of the particular class of Capital Stock; (E) authorizes shares of
another class of Capital Stock which are convertible into, or authorizes the
conversion of shares of another class of Capital Stock into, shares of the
particular class of Capital Stock, or authorizes the directors to fix or alter
conversion rights of shares of another class of Capital Stock which are
convertible into shares of the particular class of Capital Stock.
VI. No holder of any shares of the Corporation of any
class or series or of options, warrants or other rights to purchase shares of
the Corporation of any class or series or of other securities of the Corporation
shall have any preemptive or preferential right to purchase or subscribe for any
unissued shares of the Corporation of any class or series or any additional
shares of the Corporation, of any class or series, to be issued by reason of any
increase in the authorized shares of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other securities convertible
into or exchangeable for shares of the Corporation of any class or series, or
carrying any right to purchase shares of the Corporation of any class or series,
but any such unissued shares, additional authorized issue of shares of any class
or series or securities convertible into or exchangeable for shares, or carrying
any right to purchase shares, may be issued and disposed of pursuant to
resolution of the Board of Directors to such holders or to any other persons,
firms, corporations or associations, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole discretion.
VII. The Board of Directors of the Corporation shall have
the power to cause the Corporation from time to time and at any time to
purchase, hold, sell, transfer or otherwise deal with (A) shares of any class or
series issued by it; (B) any
-4-
<PAGE> 6
security or other obligation of the Corporation which may confer upon the holder
thereof the right to convert the same into shares of any class or series
authorized by these Articles of Incorporation; and (C) any security or other
obligation of the Corporation; which may confer upon the holder thereof the
right to purchase shares of any class or series authorized by these Articles of
Incorporation. The Corporation shall have the right to repurchase, if and when
any shareholder desires to sell, or on the happening of any event is required to
sell, shares of any class or series issued by the Corporation. The authority
granted in this Paragraph VII shall not limit the plenary authority of the Board
of Directors to purchase, hold, sell, transfer or otherwise deal with shares of
any class or series, securities, or other obligations issued by the Corporation
or authorized by these Articles of Incorporation.
VIII. A. DESIGNATION OF SERIES. The series shall be
designated "Series I Junior Participating Class B Preferred Shares," par value
$1.00 per share (hereinafter called Series I Class B Preferred Shares").
B. NUMBER OF SHARES. The authorized number of shares of Series
I Class B Preferred Shares is 1,000,000, which number the Board of Directors may
increase or decrease to the extent appropriate in connection with the Rights
issued pursuant to the Rights Agreement between the Company [Corporation] and
The Huntington National Bank, as Rights Agent, dated as of February 29, 1988;
provided, that no decrease shall reduce the number of Series I Class B Preferred
Shares to a number less than that of the shares then outstanding plus the number
of shares issuable upon exercise of outstanding rights, options or warrants or
upon conversion of outstanding securities issued by the Company.
C. DIVIDEND PAYMENT DATES. The dates on which dividends on
shares of the Series I Class B Preferred Shares shall be payable are the
fifteenth day of March, June, September and December of each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series I Class B Preferred Shares.
D. DIVIDEND RATE. The dividend rate for the Series I Class B
Preferred Shares shall be, subject to the provision for adjustment hereinafter
set forth, 10 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions (other than a dividend payable in
Common Shares (by reclassification or otherwise)), declared on the Common
Shares, par value $1.00 per share, of the Company since the immediately
-5-
<PAGE> 7
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series I Class B Preferred Shares. In the event the
Company shall at any time after February 29, 1988 (the "Rights Declaration
Date") (i) declare or pay any dividend on its Common Shares payable in Common
Shares, (ii) subdivide the outstanding Common Shares or (iii) combine the
outstanding Common Shares into a smaller number of shares, then in each such
case, the amount to which holders of shares of Series I Class B Preferred Shares
were entitled immediately prior to such event under this paragraph shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
Subject to the prior and superior rights of the holders of any
preferred shares ranking prior and superior to the Series I Class B Preferred
Shares with respect to dividends, the Company shall declare a dividend or
distribution on the Series I Class B Preferred Shares as provided in the
immediately preceding subparagraph after it declares a dividend or distribution
on the Common Shares (other than a dividend payable in Common Shares); provided
that, in the event no dividend or distribution shall have been declared on the
Common Shares during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $.05 per
share on the Series I Class B Preferred Shares shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
E. CUMULATIVE DATES. Dividends shall begin to accrue and be
cumulative on outstanding shares of Series I Class B Preferred Shares from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series I Class B Preferred Shares, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of
Series I Class B Preferred Shares entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series I Class B Preferred Shares in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of
-6-
<PAGE> 8
holders of shares of Series I Class B Preferred Shares entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be no more than 45 days prior to the date fixed for the payment thereof.
F. VOTING RIGHTS. The holders of shares of Series I Class B
Preferred Shares shall have the voting rights set forth in Article FOURTH of the
Articles of Incorporation and as may otherwise be required by law.
G. REACQUIRED SHARES. Any Series I Class B Preferred Shares
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued Class B Preferred
Shares and may be reissued as part of a new series of Class B Preferred Shares
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
H. LIQUIDATION, DISSOLUTION OR WINDING UP.
(l) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Company, no distribution shall be made to the holders of
shares ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series I Class B Preferred Shares unless, prior thereto,
the holders of shares of Series I Class B Preferred Shares shall have received
$100 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the
"Series I Class B Liquidation Preference"). Following the payment of the full
amount of the Series I Class B Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series I Class B
Preferred Shares unless, prior thereto, the holders of Common Shares shall have
received an amount per share (the "Common Adjustment") equal to the quotient
obtained by dividing (i) the Series I Class B Liquidation Preference by (ii) l0
(as appropriately adjusted as set forth in subparagraph 3 below to reflect such
events as stock splits, stock dividends and recapitalizations with respect to
the Common Shares) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series I Class B Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of
Series I Class B Preferred Shares and Common Shares, respectively, holders of
the Series I Class B Preferred Shares and holders of Common Shares shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to l with respect to such
-7-
<PAGE> 9
Series I Class B Preferred Shares and Common Shares, on a per share basis,
respectively.
(2) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series I Class B Liquidation
Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series I Class B Preferred
Shares, then such remaining assets shall be distributed ratably to the holders
of such parity shares in proportion to their respective liquidation preferences.
In the event, however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Shares.
(3) In the event the Company shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
Common Shares, (ii) subdivide the outstanding Common Shares, or (iii) combine
the outstanding Common Shares into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
I. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Shares are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series I Class B Preferred Shares shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 10 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each Common Share is changed or exchanged. In the
event the Company shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Shares payable in Common Shares, (ii) subdivide
the outstanding Common Shares, or (iii) combine the outstanding Common Shares
into a smaller number of shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of
Series I Class B Preferred Shares shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
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J. NO REDEMPTION. The Series I Class B Preferred Shares shall
not be redeemable.
K. RANKING. The Series I Class B Preferred Shares shall rank
junior to all other series of the Company's Class A or Class B Preferred Shares
as to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise.
L. AMENDMENT. So long as any Series I Class B Preferred Shares
are outstanding, the Articles of Incorporation of the Company shall not be
further amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series I Class B Preferred Shares so as to
affect them adversely without the affirmative vote of the holders of a majority
or more of the outstanding shares of Series I Class B Preferred Shares, voting
separately as a class.
M. FRACTIONAL SHARES. Series I Class B Preferred Shares may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series I Class B Preferred Shares.
FIFTH: The amount of stated capital with which the Corporation shall
begin business is $500.
SIXTH: The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors consisting of not less than nine
nor more than twelve directors, the exact number of directors to be determined
from time to time by resolution adopted by affirmative vote of a majority of the
entire Board of Directors. The directors shall be divided into three classes,
designated Class I, Class II, and Class III. The election of each class of
directors shall be a separate election. The total number of directors
constituting the entire Board of Directors shall be apportioned among the
classes, as nearly equal as possible. Each class shall consist of at least three
directors.
At the 1984 annual meeting of shareholders, Class I directors
shall be elected for a one-year term, Class II directors for a two-year term and
Class III directors for a three-year term. At each succeeding annual meeting of
shareholders beginning in 1985, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class at no
less than
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three, as nearly equal as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting for
the year in which his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board of Directors
that results from an increase in the number of directors, and any other vacancy
occurring in the Board of Directors, may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of his
predecessor.
All the directors or all the directors of a particular class,
or any individual director, may be removed from office only for cause, by the
affirmative vote of the holders of at least 80 percent of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock (as
defined in Article SEVENTH), voting together as a single class, present in
person or represented by proxy and entitled to vote in respect thereof, at an
annual meeting or at any special meeting duly called; provided that unless all
the directors, or all the directors of a particular class, are removed, no
individual director shall be removed if the votes of a sufficient number of
shares are cast against his removal which, if cumulatively voted at an election
of all the directors of a particular class, would be sufficient to elect at
least one director. In case of any such removal, a new director may be elected
at the same meeting for the unexpired term of each director removed. Failure to
elect a director to fill the unexpired term of any director removed shall be
deemed to create a vacancy in the Board of Directors.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Capital Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of these Articles of Incorporation applicable thereto, and such directors
so elected shall not be divided into classes pursuant to this Article SIXTH
unless expressly provided by such terms.
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Nomination for election to the Board of Directors of the
Corporation at a meeting of shareholders by any shareholder of the Corporation
shall be made by notice in writing delivered or mailed by first class United
States mail postage prepaid, to the Secretary of the Corporation, and received
by him not less than 30 days nor more than 60 days prior to any meeting of
shareholders called for the election of directors; provided, however, that if
less than 35 days' notice of the meeting is given to shareholders, such
nomination shall have been mailed or delivered to the Secretary of the
Corporation not later than the close of business on the seventh day following
the day on which the notice of meeting was mailed. Such notice shall set forth
as to each proposed nominee who is not an incumbent director (i) the name, age,
business address and, if known, the residence address of each nominee proposed
in such notice; (ii) the principal occupation or employment of each such
nominee; (iii) the number of shares of Capital Stock that are beneficially owned
by each such nominee and by the nominating shareholder; and (iv) any other
information concerning the nominee that must be disclosed of nominees in proxy
solicitations pursuant to Rule 14(a) of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange Act"), (or any subsequent provisions
replacing the Exchange Act), and such notice shall be accompanied by the written
consent of the proposed nominee to serve as a director.
The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding any other provision of these Articles of
Incorporation or the Regulations of the Corporation (and notwithstanding the
fact that a lesser percentage may be specified by law or in any agreement with
any national securities exchange or any other provision of these Articles of
Incorporation or the Regulations of the Corporation), the affirmative vote of
the holders of at least 80 percent of the votes entitled to be cast by the
holders of all then outstanding shares of Voting Stock, voting together as a
single class, present in person or represented by proxy and entitled to vote in
respect thereof, given at an annual meeting or at any special meeting duly
called, shall be required to amend, alter, change or repeal, or adopt any
provisions inconsistent with, this Article SIXTH; provided that this Paragraph
shall not apply to, and such 80 percent vote shall not be required for, any
amendment, alteration, change, repeal or adoption unanimously recommended by the
Board of Directors of the Corporation if all of such directors are persons who
would be
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eligible to serve as Continuing Directors within the meaning of Paragraph III of
Article SEVENTH.
SEVENTH: I. A. Notwithstanding any affirmative vote required by law or
in any agreement with any national securities exchange or any other provision of
these Articles of Incorporation or the Regulations of the Corporation or
otherwise, and except as otherwise expressly provided in Paragraph II of this
Article SEVENTH:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Shareholder
(as hereinafter defined) or (b) any other corporation (whether or not
itself an Interested Shareholder) which is or after such merger or
consolidation would be an Affiliate or Associate (as hereinafter
defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) with
any Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder involving any assets or securities of the
Corporation, any Subsidiary or any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder which constitutes
more than 20 percent of the Fair Market Value (as hereinafter defined),
as determined by a majority of the Continuing Directors, of the total
consolidated assets of the Corporation and its Subsidiaries taken as a
whole, as of the end of its most recent fiscal year ended prior to the
determination being made; or
(iii) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
(iv) any reclassification of securities (including any reverse
share split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or otherwise involving an
Interested Shareholder) which has the effect, directly or indirectly,
of increasing the proportionate share of any class of equity or
convertible securities of the Corporation or any Subsidiary which is
directly or indirectly beneficially owned by any Interested Shareholder
or any Affiliate or Associate of any Interested Shareholder; or
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(v) any agreement, contract or other arrangement providing for
any one or more of the actions specified in Clauses (i) to (iv) of this
Subparagraph (A),
shall require the affirmative vote of at least 80 percent
of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock, voting together as a single class,
present in person or represented by proxy and entitled to vote in
respect thereof, at an annual meeting or at any special meeting duly
called.
B. The term "Business Combination" as used in this Article
SEVENTH shall mean any transaction which is referred to in any one or
more of Clauses (i) through (v) of Subparagraph (A) of Paragraph I.
C. As used in this Paragraph I of this Article SEVENTH, a
"series of transactions" shall be deemed to include not only a series
of transactions with the same Interested Shareholder but also a series
of separate transactions with an Interested Shareholder or any
Affiliate or Associate of such Interested Shareholder.
II. The provisions of Paragraph I of this Article SEVENTH
shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote, if any, as is
required by law or in any agreement with any national securities exchange or
Article NINTH or any other provision of these Articles of Incorporation or the
Regulations of the Corporation, if all of the conditions specified in either of
the following Subparagraphs (A) or (B) are met:
A. The Business Combination shall have been approved by a
majority (whether such approval is made prior to or subsequent to the
acquisition of beneficial ownership of the Voting Stock which caused
the Interested Shareholder to become an Interested Shareholder) of the
Continuing Directors (as hereinafter defined).
B. All of the following conditions shall have been met:
(i) The aggregate amount of (x) cash and (y) the
Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of Common Shares in such
Business Combination shall be at least equal to the highest
amount determined under Subclauses (a), (b), (c), (d) and (e)
below:
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a. (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on
behalf of the Interested Shareholder for any Common
Share or any share (a "Delaware Share") of Common
Stock, par value $1.00 per share, of R. G. Barry
Corporation, a Delaware corporation ("RGB Delaware"),
in connection with the acquisition by the Interested
Shareholder of beneficial ownership of such share (l)
within the two-year period immediately prior to the
first public announcement of the proposal of the
Business Combination (the "Announcement Date") or (2)
in the transaction in which it became an Interested
Shareholder, whichever is higher;
b. the Fair Market Value per Common Share,
or Delaware Share, as the case may be, on the
Announcement Date or on the date on which the
Interested Shareholder became an Interested
Shareholder (such latter date is referred to in this
Article SEVENTH as the "Determination Date"),
whichever is higher;
c. (if applicable) the price per share
equal to the Fair Market Value per Common Share or
Delaware Share determined pursuant to Subclause
(B)(i)(b) of this Paragraph II, multiplied by the
ratio of (l) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the
Interested Shareholder for any Common Share or
Delaware Share in connection with the acquisition by
the Interested Shareholder of beneficial ownership of
Common Shares or Delaware Shares within the two-year
period immediately prior to the Announcement Date to
(2) the Fair Market Value per Common Share on the
first day in such two-year period on which the
Interested Shareholder acquired beneficial ownership
of either any Common Share or any Delaware Share;
d. the per share book value of the Common
Shares, or Delaware Shares, as the case may be, as
reported at the end of the fiscal quarter immediately
prior to the Announcement Date; and
e. the earnings per Common Share or
Delaware Share for the four full consecutive
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fiscal quarters immediately preceding the record date
for solicitation of votes on such Business
Combination, multiplied by the then price/earnings
multiple (if any) of such Interested Shareholder as
customarily computed and reported in the financial
community;
(ii) The aggregate amount of (x) cash and (y) the
Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of shares of any class or, if
there be more than one series in a class, then, any series, of
outstanding Preferred Shares, shall be at least equal to the
highest amount determined under Subclauses (a), (b), (c) and
(d) below:
a. (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on
behalf of the Interested Shareholder for any share of
such class or, if there be more than one series in a
class, then, such series, of Preferred Shares in
connection with the acquisition by the Interested
Shareholder of beneficial ownership of such share (l)
within the two-year period immediately prior to the
Announcement Date or (2) in the transaction in which
it became an Interested Shareholder, whichever is
higher;
b. the highest preferential amount per
share to which the holders of shares of such class
or, if there be more than one series in a class,
then, such series, of Preferred Shares would be
entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs
of the Corporation, regardless of whether the
Business Combination to be consummated constitutes
such an event;
c. the Fair Market Value per share of such
class or, if there be more than one series in a
class, then, such series, of Preferred Shares on the
Announcement Date or on the Determination Date,
whichever is higher; and
d. (if applicable) the price per share
equal to the Fair Market Value per share of such
class or, if there be more than one series in a
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class, then, such series, of Preferred Shares
determined pursuant to Subclause (B)(ii)(c) of this
Paragraph II, multiplied by the ratio of (l) the
highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested
Shareholder for any share of such class or, if there
be more than one series in a class, then, such
series, of Preferred Shares in connection with the
acquisition by the Interested Shareholder of
beneficial ownership of shares of such class or
series of Preferred Shares within the two-year period
immediately prior to the Announcement Date to (2) the
Fair Market Value per share of shares of such class
or, if there be more than one series in a class,
then, such series, of Preferred Shares on the first
day in such two-year period on which the Interested
Shareholder acquired beneficial ownership of any
share of such class or series of Preferred Shares;
The provisions of this Clause (B)(ii) shall be required to be
met with respect to every class or, if there be more than one
series in a class, then, every series, of outstanding
Preferred Shares, whether or not the Interested Shareholder
has previously acquired beneficial ownership of any shares of
a particular class or series of Preferred Shares;
(iii) The consideration to be received by holders of
a particular class or series of outstanding Capital Stock
shall be in cash or in the same form as previously has been
paid by or on behalf of the Interested Shareholder in
connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of
Capital Stock. If the consideration so paid for shares of any
class or series of Capital Stock varied as to form, the form
of consideration for such class or series of Capital Stock
shall be either cash or the form used to acquire beneficial
ownership of the largest number of shares of such class or
series of Capital Stock previously acquired by the Interested
Shareholder;
(iv) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
Business Combination: (a) except as approved by a majority of
the Continuing Directors, there shall have been no failure to
declare and pay at
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the regular date therefor any full quarterly dividends
(whether or not cumulative) on the outstanding Preferred
Shares; (b) there shall have been (l) no reduction in the
annual rate of dividends paid on the Common Shares (except as
necessary to reflect any subdivision of the Common Shares),
except as approved by a majority of the Continuing Directors,
and (2) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any
reverse share split), recapitalization, reorganization or any
similar transaction which has the effect of reducing the
number of outstanding Common Shares, unless the failure so to
increase such annual rate is approved by a majority of the
Continuing Directors; and (c) such Interested Shareholder
shall not have become the beneficial owner of any additional
shares of Capital Stock except as part of the transaction
which results in such Interested Shareholder becoming an
Interested Shareholder and except in a transaction which,
after giving effect thereto, would not result in any increase
in the Interested Shareholder's percentage beneficial
ownership of any class of Capital Stock;
(v) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall not
have received the benefit, directly or indirectly (except
proportionately as a shareholder of the Corporation), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided
by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise;
(vi) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Exchange Act (or any subsequent provisions
replacing the Exchange Act), shall be mailed to all
shareholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed
pursuant to the Exchange Act or subsequent provisions). The
proxy statement shall contain on the first page thereof, in a
prominent place, any recommendation as to the advisability (or
inadvisability) of the Business Combination which the
Continuing Directors, or any of them, may choose to state and,
if deemed advisable by a majority of the Continuing Directors,
the opinion of an investment banking firm selected by a
majority of the Continuing Directors as to the fairness (or
not) of the terms of the Business
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Combination, from the point of view of the holders of the
outstanding shares of Capital Stock other than the Interested
Shareholder and its Affiliates and Associates (such investment
banking firm to be paid a reasonable fee for its services by
the Corporation); and
(vii) Such Interested Shareholder shall not have made
any major change in the Corporation's business or equity
capital structure without the approval of the majority of the
Continuing Directors.
III. For purposes of this Article SEVENTH:
A. The term "person shall mean any individual, firm,
corporation or other entity and shall include any group comprised of any person
and any other person with whom such person or any Affiliate or Associate (as
hereinafter defined) of such person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring, holding,
voting or disposing of Capital Stock of the Corporation.
B. The term "Interested Shareholder" shall mean any person
(other than (i) the Corporation or any Subsidiary, (ii) any profit-sharing,
employee share ownership or other employee benefit plan of the Corporation or
any Subsidiary or any trustee of or fiduciary with respect to any such plan when
acting in such capacity, or (iii) persons who, immediately after the adoption of
these Articles of Incorporation, are Affiliates of RGB Delaware, and the
respective successors, executors, administrators, legal representatives, heirs
and legal assigns (provided that any such assign is such an Affiliate
immediately prior to assignment, transfer or other disposition to such assign)
of such persons) who or which:
(i) is the beneficial owner (as hereinafter defined) of more
than 10 percent of the Voting Stock; or
(ii) is an Affiliate or Associate of the Corporation and at
any time within the two-year period immediately prior to the date in
question was the beneficial owner of 10 percent or more of the Voting
Stock.
C. A person shall be a "beneficial owner" of any Capital
Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly;
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(ii) which such person or any of its Affiliates or Associates
has, directly or indirectly, (a) the right to acquire (whether such
right is exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Capital Stock.
D. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Subparagraph (B) of this Paragraph III, the
number of shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned through application of Subparagraph (C) of this
Paragraph III but shall not include any other shares of Capital Stock which may
be issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
E. The terms "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule l2b-2 of the Exchange Act as
in effect on March l, 1984.
F. The term "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in Subparagraph (B) of this Paragraph III, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Corporation.
G. The term "Continuing Director" means any member of the
Board of Directors, while such person is a member of the Board of Directors of
the Corporation, who is not an Affiliate or Associate or representative of the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Continuing Director, while such successor is a member of the Board, who is not
an Affiliate or Associate or representative of the Interested Shareholder and is
recommended or elected to succeed a Continuing Director by a majority of
Continuing Directors.
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H. The term "Capital Stock" shall mean all capital stock of
this Corporation authorized to be issued from time to time under Article FOURTH
of these Articles of Incorporation, and the term "Voting Stock" shall mean all
Capital Stock which by its terms may be voted on all matters submitted to
shareholders of this Corporation generally.
I. The term "Fair Market Value" means (i) in the case of
shares, the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the Composite Tape
for New York Stock Exchange-Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States securities exchange
registered under the Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation with respect to a
share of such stock during the 30-day period preceding the date in question on
the National Association of Securities Dealers, Inc. Automated Quotations System
or any successor system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as determined
by a majority of the Continuing Directors in good faith; and (ii) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Continuing
Directors.
J. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in Clauses (B)(i) and (ii) of Paragraph II of this Article SEVENTH shall
include Common Shares and/or the shares of any other class of Preferred Shares
retained by the holders of such shares.
IV. The Board of Directors shall have the power and duty
to determine for the purposes of this Article SEVENTH, on the basis of
information known to them after reasonable inquiry, (A) whether a person is an
Interested Shareholder, (B) the number of shares of Capital Stock or other
securities beneficially owned by any person, and (C) whether a person is an
Affiliate or Associate of another. Any such determination made in good faith
shall be binding and conclusive on all parties.
V. Nothing contained in this Article SEVENTH shall be
construed to relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
VI. The fact that any Business Combination complies with
the provisions of Paragraph II of this Article SEVENTH shall not be construed to
impose any fiduciary duty, obligation
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or responsibility on the Board of Directors, or any member thereof, to approve
such Business Combination or recommend its adoption or approval to the
shareholders of the Corporation, nor shall such compliance limit, prohibit or
otherwise restrict in any manner the Board of Directors, or any member thereof,
with respect to evaluations of or actions and responses taken with respect to
such Business Combination.
VII. Notwithstanding any other provisions of these
Articles of Incorporation or the Regulations of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law or in
any agreement with any national securities exchange or any other provision of
these Articles of Incorporation or the Regulations of the Corporation), the
affirmative vote of the holders of at least 80 percent of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock, voting
together as a single class, present in person or represented by proxy and
entitled to vote in respect thereof, at an annual meeting or any special meeting
duly called, shall be required to amend, alter, change or repeal, or adopt any
provisions inconsistent with, this Article SEVENTH; provided that this Paragraph
VII shall not apply to, and such 80 percent vote shall not be required for, any
amendment, alteration, change, repeal or adoption unanimously recommended by the
Board of Directors of the Corporation if all of such directors are persons who
would be eligible to serve as Continuing Directors within the meaning of
Paragraph III of this Article SEVENTH.
EIGHTH: I. MANDATORY INDEMNIFICATION. The Corporation shall indemnify
any officer or director of the Corporation who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action threatened or instituted by or in the
right of the Corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer, employee or agent of
another corporation (domestic or foreign, nonprofit or for profit),partnership,
joint venture, trust or other enterprise, against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and transcript
costs), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any criminal action
or proceeding, he had no reasonable cause to believe his conduct was unlawful. A
person claiming indemnification under this Paragraph I shall be presumed, in
respect of any act or omission
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giving rise to such claim for indemnification, to have acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, and with respect to any criminal matter, to have had no
reasonable cause to believe his conduct was unlawful, and the termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, rebut such
presumption.
II. COURT-APPROVED INDEMNIFICATION. Anything contained in
these Articles, the Regulations of the Corporation or elsewhere to the contrary
notwithstanding:
(A) the Corporation shall not indemnify any officer or
director of the Corporation who was a party to any completed action or
suit instituted by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in such
action or suit as to which he shall have been adjudged to be liable for
acting with reckless disregard for the best interests of the
corporation or misconduct (other than negligence) in the performance of
his duty to the Corporation or such other entity unless and only to the
extent that the Court of Common Pleas of Fairfield County, Ohio or the
court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in view
of all the circumstances of the case, he is fairly and reasonably
entitled to such indemnity as such Court of Common Pleas or such other
court shall deem proper; and
(B) the Corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Paragraph II.
III. INDEMNIFICATION FOR EXPENSES. Anything contained in
these Articles, the Regulations of the Corporation or elsewhere to the contrary
notwithstanding, to the extent that an officer or director of the Corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Paragraph I of this Article EIGHTH, or in defense of
any claim, issue or matter therein, he shall be promptly indemnified by the
Corporation against expenses (including, without limitation, attorneys' fees,
filing fees, court
-22-
<PAGE> 24
reporters' fees and transcript costs) actually and reasonably incurred by him in
connection therewith.
IV. DETERMINATION PERIOD. Any indemnification required
under Paragraph I of this Article EIGHTH and not precluded under Paragraph II of
this Article EIGHTH shall be made by the Corporation only upon a determination
that such indemnification of the officer or director is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Paragraph I of this Article EIGHTH. Such determination may be made only (A) by a
majority vote of a quorum consisting of directors of the Corporation who were
not and are not parties to, or threatened with, any such action, suit or
proceeding, or (B) if such a quorum is not obtainable or if a majority of a
quorum of disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having associated
with it an attorney, who has been retained by or who has performed services for
the Corporation, or any person to be indemnified, within the past five years, or
(C) by the shareholders, or (D) by the Court of Common Pleas of Fairfield
County, Ohio or (if the Corporation is a party thereto) the court in which such
action, suit or proceeding was brought, if any; any such determination may be
made by a court under division (D) of this Paragraph IV at any time [including,
without limitation, any time before, during or after the time when any such
determination may be requested of, be under consideration by or have been denied
or disregarded by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Paragraph IV]; and no failure for any reason to make such
determination, and no decision for any reason to deny any such determination, by
the disinterested directors under division (A) or by independent legal counsel
under division (B) or by the shareholders under division (C) of this Paragraph
IV shall be evidence in rebuttal of the presumption recited in Paragraph I of
this Article EIGHTH. Any determination made by the disinterested directors under
division (A) or by independent legal counsel under division (B) of this
Paragraph IV to make indemnification in respect of any claim, issue or matter
asserted in an action or suit threatened or brought by or in the right of the
Corporation shall be promptly communicated to the person who threatened or
brought such action or suit, and within ten (10) days after receipt of such
notification such person shall have the right to petition the Court of Common
Pleas of Fairfield County, Ohio or the court in which such action or suit was
brought, if any, to review the reasonableness of such determination.
V. ADVANCES FOR EXPENSES. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and transcript
costs) incurred in defending any
-23-
<PAGE> 25
action, suit or proceeding referred to in Paragraph I of this Article EIGHTH
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding to or on behalf of the officer or director promptly
as such expenses are incurred by him, but only if such officer or director shall
first agree, in writing, to repay all amounts so paid in respect of any claim,
issue or other matter asserted in such action, suit or proceeding in defense of
which he shall not have been successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in
Paragraph IV of this Article EIGHTH that he is not entitled to be
indemnified by the Corporation as provided under Paragraph I of this
Article EIGHTH; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the Corporation in such action or suit,
he shall have been adjudged to be liable for acting with reckless
disregard for the best interests of the Corporation or misconduct
(other than negligence) in the performance of his duty to the
Corporation, unless and only to the extent that the Court of Common
Pleas of Fairfield County, Ohio or the court in which such action or
suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances, he is
fairly and reasonably entitled to all or part of such indemnification.
VI. ARTICLE EIGHTH NOT EXCLUSIVE. The indemnification
provided by this Article EIGHTH shall not be exclusive of, and shall be in
addition to, any other rights to which any person seeking indemnification may be
entitled under the Articles or the Regulations or any agreement, vote of
shareholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be an officer or
director of the Corporation and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
VII. INSURANCE. The Corporation may purchase and maintain
insurance or furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee, or agent of another corporation (domestic or foreign, nonprofit or for
profit), partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of
-24-
<PAGE> 26
his status as such, whether or not the Corporation would have the obligation or
the power to indemnify him against such liability under the provisions of this
Article EIGHTH. Insurance may be purchased from or maintained with a person in
which the Corporation has a financial interest.
VIII. INDEMNITY AGREEMENTS. The Corporation may from time
to time enter into indemnity agreements with the persons who are members of its
Board of Directors and with such officers or other persons as the Board may
designate, such indemnity agreements to provide in substance that the
Corporation will indemnify such person to the fullest extent of the provisions
of this Article EIGHTH and/or to the fullest extent permitted under Ohio law.
IX. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, under procedures authorized from time to time
by the Board of Directors, grant rights to indemnification and to be paid by the
Corporation the expenses incurred in defending any proceeding in advance of its
final disposition, to any employee or agent of the Corporation to the fullest
extent of the provisions of this Article EIGHTH.
X. CERTAIN DEFINITIONS. For purposes of this Article
EIGHTH, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article
EIGHTH shall be deemed to have been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
Paragraph I of this Article EIGHTH, or in defense of any claim, issue
or other matter therein, if such action, suit or proceeding shall be
terminated as to such person, with or without prejudice, without the
entry of a judgment or order against him, without a conviction of him,
without the imposition of a fine upon him and without his payment or
agreement to pay any amount in settlement thereof (whether or not any
such termination is based upon a judicial or other determination of the
lack of merit of the claims made against him or otherwise results in a
vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries;
-25-
<PAGE> 27
and a person who acted in good faith and in a manner he reasonably
believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the Corporation"
within the meaning of that phrase as used in this Article EIGHTH.
XI. VENUE. Any action, suit or proceeding to determine a
claim for indemnification under this Article EIGHTH may be maintained by the
person claiming such indemnification, or by the Corporation in the Court of
Common Pleas of Fairfield County, Ohio. The Corporation and (by claiming such
indemnification) each such person consent to the exercise of jurisdiction over
its or his person by the Court of Common Pleas of Fairfield County, Ohio in any
such action, suit or proceeding.
NINTH: Except as otherwise provided in these Articles of Incorporation,
including without limitation Article SEVENTH hereof, the shareholders of the
Corporation, at a meeting held for such purpose or purposes, may by the
affirmative vote of the holders of at least a majority of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock, voting
together as a single class, present in person or represented by proxy and
entitled to vote in respect thereof, at an annual meeting or any special meeting
duly called, (i) adopt an agreement of merger or consolidation; (ii) authorize
the lease, sale, exchange, transfer, or other disposition of all or
substantially all of the assets of the Corporation; or (iii) adopt a resolution
providing for the dissolution of the Corporation.
TENTH: Except as otherwise provided in these Articles of Incorporation,
including without limitation Article SIXTH and Article SEVENTH hereof, the
shareholders of the Corporation, at a meeting held for such purpose, may by the
affirmative vote of the holders of at least a majority of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock, voting
together as a single class, present in person or represented by proxy and
entitled to vote in respect thereof, at an annual meeting or any special meeting
duly called, alter or repeal any provision contained in these Articles of
Incorporation.
ELEVENTH: Shareholders shall not have the right to vote cumulatively in
the election of directors.
-26-
<PAGE> 1
Exhibit 4(k)
------------
R. G. BARRY CORPORATION
1997 INCENTIVE STOCK PLAN
<PAGE> 2
R. G. BARRY CORPORATION
1997 INCENTIVE STOCK PLAN
PART I GENERAL
1. PURPOSE
-------
The purpose of this R. G. Barry Corporation 1997 Incentive Stock Plan
(the "Plan") is to advance the interests of R. G. Barry Corporation or any
adopting successor thereto (the "Company") and its present and future
subsidiaries and to enhance the value of the shareholders' investment in the
Company by encouraging key employees to acquire or increase and retain a
financial interest in the Company and thereby encourage the key employees to
remain in the employment of the Company and its subsidiaries and to put forth
maximum efforts for the success of the Company. In addition, the Plan is
intended to enable the Company and its subsidiaries to compete effectively for
the services of potential employees by furnishing an additional incentive to
join the employment of the Company and its subsidiaries.
2. ADMINISTRATION OF THE PLAN
--------------------------
(a) COMMITTEE. The Plan shall be administered by a committee (the
"Committee") of at least three persons which shall be either the Compensation
Committee of the Board of Directors or such other committee comprised entirely
of (i) "outside directors" within the meaning of Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"), or any successor provision, and
the regulations and rulings thereunder; and (ii) "non-employee directors" within
the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or any successor rule or regulation, as the Board of
Directors of the Company may from time to time designate.
(b) AUTHORITY OF THE COMMITTEE. The Committee shall have full power and
authority in its discretion, subject to and not inconsistent with the express
provisions of the Plan, to administer the Plan and to exercise all the power and
authority specifically granted to it under the Plan or necessary or advisable,
in the sole and absolute discretion of the Committee, to the administration of
the Plan including, without limitation, the authority to: select from among
eligible employees those persons to whom options, stock appreciation rights or
restricted share awards may be granted pursuant to the Plan; fix the terms
<PAGE> 3
and provisions and restrictions of any option, stock appreciation right or
restricted share award granted under the Plan; grant options, stock appreciation
rights and restricted share awards; interpret and construe any provision of the
Plan or of any option, stock appreciation right or restricted share award
granted hereunder; make all required or appropriate determinations under the
Plan or any option, stock appreciation right or restricted share award granted
hereunder; adopt, amend and rescind such rules and regulations relating to the
Plan as the Committee shall determine in its discretion, subject to the express
provisions of the Plan; and make all other determinations deemed by it necessary
or advisable for the administration of the Plan. All decisions and designations
made by the Committee pursuant to the provisions of the Plan shall be final,
binding and conclusive with respect to all interested parties.
(c) VACANCIES, ETC. The Board of Directors shall fill all vacancies,
however caused, in the Committee. The Board of Directors may from time to time
appoint additional members to the Committee, and may at any time remove one or
more Committee members and substitute others. One member of the Committee shall
be selected by the Board of Directors to serve as chairman of the Committee. The
Committee shall hold its meetings at such times and places as it shall deem
advisable. All determinations of the Committee shall be made by a majority of
its members. The Committee may appoint a secretary and make such rules and
regulations for the conduct of its business as it shall deem advisable, and
shall keep minutes of its meetings.
(d) INDEMNIFICATION. Each person who is or shall have been a member of
the Committee or of the Board of Directors shall be indemnified and held
harmless by the Company against and from any loss, cost, liability or expense
that may be imposed upon or reasonably incurred by him in connection with or
resulting from any claim, action, suit or proceeding to which he may be a party
or in which he may be involved by reason of any action taken or failure to act
under the Plan and against and from any and all amounts paid by him in
settlement thereof, with the Company's approval, or paid by him in satisfaction
of judgment in any such action, suit or proceeding against him; provided that he
shall give the Company an opportunity, at its own expense, to handle and defend
the same before he undertakes to handle and defend it on his own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such person may be entitled under the Company's
Articles of Incorporation or Regulations, as a matter of law, or otherwise, or
any power that the Company may have to indemnify him or hold him harmless.
<PAGE> 4
3. ELIGIBILITY
-----------
(a) GENERAL. All full-time employees of the Company, including those
who are officers or directors, are eligible to receive options, stock
appreciation rights and restricted share awards pursuant to the Plan if selected
as a participant; provided, however, that members of the Committee may not
participate in the Plan. More than one option, stock appreciation right or
restricted share award may be granted to an employee.
(b) FACTORS. In determining the employees to whom options, stock
appreciation rights and/or restricted share awards are to be granted under the
Plan, the Committee shall consider such factors as it deems pertinent in
selecting such employees and in determining the type and amount of their
respective awards, including, without limitation: (a) the financial condition of
the Company and its subsidiaries; (b) anticipated profits for the current or
future years; (c) contributions of the employees to the profitability and
development of the Company and its subsidiaries; and (d) other compensation
provided to employees of the Company.
(c) NO OTHER RIGHTS. Nothing contained in the Plan, nor any option,
stock appreciation right or restricted share award granted pursuant to the Plan,
shall confer upon any employee any right to continue in the employment of the
Company nor limit in any way the right of the Company to terminate the
employment of any employee at any time.
4. SHARES SUBJECT TO THE PLAN
--------------------------
(a) The shares for which options, stock appreciation rights and
restricted share awards may be granted under the Plan shall consist of 450,000
Common Shares, par value $1.00 per share (the "Common Shares"), of the Company;
provided, however, that whatever number of said Common Shares is not issued
pursuant to the exercise of options, stock appreciation rights and restricted
share awards at the time of any stock split, stock dividend or other change in
the Company's capitalization shall be appropriately and proportionately adjusted
to reflect such stock split, stock dividend or other change in capitalization.
(b) Common Shares subject to the Plan may be, at the discretion of the
Board of Directors, either authorized and unissued Common Shares or Common
Shares reacquired by the Company and held as treasury shares.
(c) If any outstanding option or stock appreciation right under the
Plan for any reason expires or is terminated without
<PAGE> 5
having been exercised in full or surrendered in full in connection with the
exercise of a stock appreciation right, the Common Shares allocable to the
unexercised portion of such option or stock appreciation right shall (unless the
Plan shall have been terminated) become available for subsequent grants of
options, stock appreciation rights and restricted share awards under the Plan.
If any Common Shares issued pursuant to a restricted share award under the Plan
are forfeited to the Company or otherwise acquired by the Company, such Common
Shares shall become available for subsequent grants of options, stock
appreciation rights and restricted share awards under the Plan.
5. EFFECTIVE DATE AND TERMINATION OF PLAN
--------------------------------------
The Plan was approved by the affirmative vote of the Board of Directors
and became effective on February 20, 1997; provided, however, that, if the Plan
is not approved by the shareholders of the Company within twelve (l2) months
following such adoption, the Plan and all outstanding options, stock
appreciation rights and restricted shares, if any, shall be deemed null and void
and shall be of no force or effect. No options or stock appreciation rights
granted under the Plan may be exercised and no restricted share award shall
become vested prior to approval of the Plan by the shareholders of the Company.
This Plan shall terminate upon the earlier of (i) February 19, 2007; or (ii) the
date on which all Common Shares available for issuance under the Plan have been
issued pursuant to restricted share awards or the exercise of options granted
hereunder or with respect to which payments have been made upon the exercise of
a stock appreciation right or other rights; or (iii) the determination of the
Board that the Plan shall terminate. No options, stock appreciation rights or
restricted share awards may be granted under the Plan after such termination
date, provided that the options, stock appreciation rights and restricted share
awards granted and outstanding on such date shall continue to have force and
effect in accordance with the provisions of the documents evidencing such
options, stock appreciation rights and restricted share awards.
6. AMENDMENT OF THE PLAN
---------------------
The Board of Directors may from time to time amend or modify or make
such changes in and additions to this Plan as it may deem desirable, without
further action on the part of the shareholders of the Company except as such
shareholder approval may be required (a) to satisfy the requirements of Rule
16b-3 under the Exchange Act, or any successor rule or regulation; (b) to
satisfy applicable requirements of the Code; or (c) to satisfy applicable
requirements of any securities exchange on which are listed any of the Company's
equity securities. No such action to amend the
<PAGE> 6
Plan shall reduce the then-existing number of options, stock appreciation rights
or restricted shares granted to any employee or adversely change the terms and
conditions thereof without such employee's consent.
7. NOTICES
-------
Each notice relating to this Plan shall be in writing and delivered in
person or by first class or certified mail to the proper addressee. Each notice
shall be deemed to have been given on the date it is received. Each notice to
the Committee shall be addressed as follows:
R. G. Barry Corporation
13405 Yarmouth Road, N.W.
Pickerington, Ohio 43147
Attention: Secretary
Each notice to a holder of options, stock appreciation rights or
restricted shares (or other person or persons then entitled to exercise an
option or stock appreciation right) shall be addressed to the holder (or such
other person or persons), at the holder's address set forth in the Company's
current personnel records. Anyone to whom a notice may be given under this Plan
may designate, in writing, a new address by notice to that effect.
8. DEFINITIONS
-----------
(a) The term "Code," when used in this Plan, shall mean the Internal
Revenue Code of 1986, as amended, or any successor provision.
(b) The term "subsidiary," when used in this Plan, shall have the
meaning set forth in Section 424 of the Code.
PART II OPTIONS, STOCK APPRECIATION RIGHTS AND RESTRICTED SHARES
9. GRANT OF OPTIONS, STOCK APPRECIATION RIGHTS OR RESTRICTED SHARES
----------------------------------------------------------------
(a) To the extent not inconsistent with the provisions of this Plan,
the Committee shall fix the terms and provisions and restrictions of options and
stock appreciation rights, including the number of Common Shares to be subject
to each option or stock appreciation right, the dates on which options or stock
appreciation rights may be fully or partially exercised, the minimum period (if
any) during which the same must be held until
<PAGE> 7
exercisable and the expiration dates thereof. In addition, to the extent not
inconsistent with the provisions of this Plan, the Committee shall fix the terms
and conditions of restricted share awards, as described in Section 9(f) of the
Plan. During the period in which this Plan remains in effect, no person shall be
granted options, stock appreciation rights and/or restricted shares under this
Plan covering, in the aggregate, more than 100,000 Common Shares, subject to
adjustments upon changes in capitalization. Options, stock appreciation rights
and restricted shares granted hereunder shall be evidenced by a written
agreement (an "Agreement") between the employee and the Committee. The Agreement
shall contain such terms, conditions and limitations as provided by the
Committee, but shall also be subject to the provisions of this Section 9 and
other applicable Sections of Part II of this Plan.
(b) It is intended that certain options granted pursuant to this Plan
shall constitute incentive stock options within the meaning of Section 422 of
the Code ("Incentive Stock Options"). Non-qualified stock options may also be
granted under this Plan in accordance with the Plan's terms and conditions. An
eligible employee may be granted Incentive Stock Options, non-qualified stock
options or both, but only on the terms and subject to the restrictions set forth
in this Plan.
(c) Notwithstanding anything in this Plan to the contrary, no person
shall be eligible to receive an Incentive Stock Option if, at the time of grant,
such person owns of record and beneficially more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company, then
outstanding and entitled to vote; provided, however, that the foregoing
limitation shall not apply if the option price at the time the option is granted
is at least one hundred ten percent (110%) of the fair market value (as defined
in Section 9(e) of this Plan) of the Common Shares subject to the option on the
date of grant of the option and the option term is not more than five (5) years.
Further, the aggregate fair market value (determined at the time the option is
granted) of the Common Shares with respect to which Incentive Stock Options are
exercisable for the first time by the option holder during any calendar year
(under all stock option plans of the Company) shall not exceed One Hundred
Thousand Dollars ($100,000).
(d) Subject to the exception set forth in Section 9(c) of this Plan,
the purchase price of the Common Shares covered by each option shall not be less
than one hundred percent (100%) of the fair market value of such Common Shares
on the date of grant of such option.
<PAGE> 8
(e) The fair market value of Common Shares on a particular date shall
be the closing sale price for the Company's Common Shares as reported on any
securities exchange on which the Company's Common Shares may be listed on such
date or, if no such sale occurred on that date, then for the next preceding date
on which a sale was made. If the Common Shares should be no longer listed on a
securities exchange, the fair market value shall be determined by the Committee.
Subject to the foregoing, the Committee, in fixing the purchase price, shall
have full authority and discretion and be fully protected in doing so.
(f) To the extent not inconsistent with the terms of this Plan, the
Committee may grant restricted share awards to employees who are eligible to
participate in the Plan. Restricted share awards will consist of Common Shares
transferred to an employee who is eligible to participate in the Plan without
other payment therefor (other than the payment of the par value of such Common
Shares if required by applicable law) as additional compensation for his or her
services to the Company or one of its subsidiaries. Restricted share awards
shall be subject to such terms and conditions as the Committee determines
appropriate including, without limitation, restrictions on the sale or other
disposition of such shares and rights of the Company to reacquire such shares
upon termination of the employee's employment within specified periods. Subject
to such other restrictions as are imposed by the Committee, the Common Shares
covered by a restricted share award granted to an eligible employee under the
Plan may be sold or otherwise disposed of only after six (6) months from the
grant date of the award.
(g) An option, stock appreciation right or restricted share award
granted hereunder shall provide as determined by the Committee for appropriate
arrangements for the satisfaction by the Company and the holder of all federal,
state, local or other income, excise or employment taxes or tax withholding
requirements applicable to the issuance or lapse of restrictions on transfer of
restricted shares or the exercise of any option or stock appreciation right or
the later disposition of the Common Shares or other property acquired upon
exercise thereof and all such additional taxes or amounts as determined by the
Committee in its discretion, including, without limitation, the right of the
Company to receive transfers of Common Shares or other property from such holder
or to deduct or withhold in the form of cash or shares from any transfer or
payment to such holder, in such amount or amounts deemed required or appropriate
by the Committee in its sole and absolute discretion.
(h) The Committee shall have the authority to effect, at any time and
from time to time, with the consent of the affected option holder or option
holders, the cancellation of any or all
<PAGE> 9
outstanding options granted under the Plan and the grant in substitution
therefor of new options under the Plan (subject to the limitations hereof)
covering the same or different numbers of Common Shares at an option price per
share in all events not less than the fair market value of the Common Shares on
the new grant date (as determined under Section 9(e)).
10. NOTICE OF GRANT OF OPTION, STOCK APPRECIATION RIGHT OR RESTRICTED SHARE
-----------------------------------------------------------------------
AWARD
-----
Upon the granting of any option, stock appreciation right or restricted
share award to an employee, the Committee shall promptly cause such employee to
be notified of the fact of such grant. The date on which an option, stock
appreciation right or restricted share award shall be granted shall be the date
of the Committee's authorization of such grant or such later date as may be
determined by the Committee at the time such grant is authorized, subject to
satisfaction of any conditions the Committee may place on the effectiveness of
the grant.
11. ADJUSTMENTS AND CHANGES IN THE COMMON SHARES
--------------------------------------------
(a) In the event that the Common Shares as presently constituted shall
be changed into or exchanged for a different kind of shares or other securities
of the Company or of another corporation (whether by reason of merger,
consolidation, recapitalization, reclassification, split-up, combination of
shares or otherwise) or if the number of such shares shall be increased through
the payment of a stock dividend, then except as otherwise provided in Section 12
hereof, there shall be substituted for or added to each share of the Company
theretofore appropriated or thereafter subject or which may become subject to an
option or other award under this Plan, the number and kind of shares or other
securities into which each outstanding share of the Company shall be so changed,
or for which each such share shall be exchanged, or to which the holder of each
such share shall be entitled, as the case may be. Outstanding options or other
awards under this Plan shall also be appropriately amended as to price and other
terms as may be necessary to reflect the foregoing events. In the event there
shall be any other change in the number or kind of the outstanding shares of the
Company, or of any shares or other securities into which such shares shall have
been changed, or for which they shall have been exchanged, then if the Committee
shall, in its sole discretion, determine that such change equitably requires an
adjustment in any option or other award theretofore granted under the Plan or
which may be granted under the Plan, such adjustment shall be made in accordance
with such determination. Fractional shares resulting from any adjustment
pursuant to this Section 11 shall be rounded down to the nearest whole number of
shares.
(b) Notwithstanding the foregoing, any and all adjustments in
connection with an Incentive Stock Option shall comply in all respects with
Sections 422 and 424 of the Code and the regulations promulgated thereunder.
(c) Notice of any adjustment shall be given by the Company to each
holder of an option or other award under this Plan which shall have been so
adjusted, provided that such adjustment (whether or not such notice is given)
shall be effective and binding for all purposes of the Plan and any instrument
or agreement issued thereunder.
12. ACCELERATION OF AWARDS
----------------------
(a) In the event that the Company or its shareholders enter into one or
more agreements to dispose of all or substantially all of the assets or fifty
percent or more of the outstanding capital stock of the Company by means of sale
(whether as a result of a tender offer or otherwise), merger, reorganization or
liquidation in one or a series of related transactions (each, an "Acceleration
Event"), then each option and stock appreciation right outstanding under the
Plan shall become exercisable during the fifteen days immediately prior to the
scheduled consummation of the Acceleration Event with respect to the full number
of Common Shares for which such option or stock appreciation right has been
granted; provided, however, that no such Acceleration Event shall occur in the
event that (i) the primary purpose of the transaction is to change the Company's
domicile solely within the United States, (ii) the terms of the agreement(s)
require as a prerequisite for the consummation of the transaction that each such
option or stock appreciation right shall either be assumed by the successor
corporation or parent thereof or be replaced with a comparable option to
purchase shares of capital stock of the successor corporation or parent thereof
or stock appreciation right, or (iii) the transaction is approved by a majority
of the members of the Board of Directors of the Company who had either been in
office for more than twelve months prior to such transaction or had been
elected, or nominated for election by the Company's shareholders, by the vote of
three-fourths of the directors then still in office who were directors at the
beginning of such twelve-month period; and provided further that any such
exercise of an option or stock appreciation right during such fifteen day period
shall be conditioned upon the consummation of such transaction and shall be
effective only immediately before such consummation, except to the extent that
the holder may indicate, in writing, that such exercise is unconditional with
regard to all or part of the unaccelerated
<PAGE> 10
portion of the option or stock appreciation right. Upon consummation of the
Acceleration Event, all outstanding options and stock appreciation rights,
whether or not accelerated, shall terminate and cease to be exercisable, unless
assumed by the successor corporation or parent thereof.
(b) Subject to the six month holding requirement of Section 9(f) and
unless otherwise provided in the Agreement pursuant to which the restricted
shares are granted, in the event an Acceleration Event (as defined in Section
12(a)) shall occur, all terms and conditions of the restricted share awards
shall be deemed satisfied as of the date of the Acceleration Event, including
all restrictions on transfer of the restricted shares.
(c) The grant of options, stock appreciation rights or restricted share
awards under this Plan shall in no way affect the right of the Company to
adjust, reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets.
13. STOCK APPRECIATION RIGHTS
-------------------------
(a) The Committee may, in its sole and absolute discretion, grant a
stock appreciation right (an "SAR"), either alone or in conjunction with any
option granted under the Plan. An SAR granted in conjunction with an option may
be granted at the time said option is granted or (in the case of options other
than Incentive Stock Options) at a later date during the term of the option with
respect to an existing option (except as otherwise provided in Section 5 of this
Plan).
(b) An option holder who is granted an SAR may exercise the SAR by oral
or written notice to the Company, stating the number of Common Shares with
respect to which the SAR is being exercised, to the extent that said SAR is then
exercisable. Any oral notice of exercise of said SAR shall be confirmed in
writing in all cases no later than the date of payment to the option holder. In
the event of the exercise of an SAR granted in conjunction with an option, the
obligation of the Company in respect of the option to which the SAR relates (or
such portion thereof) shall be discharged by payment of the SAR so exercised.
(c) The Agreement evidencing any SAR granted hereunder shall set forth
the method of computation and form of payment of the SAR and such other terms
and conditions as determined by the Committee in its discretion or as otherwise
required by this Plan, provided that no SAR granted in conjunction with an
option shall exceed the difference between one hundred percent (100%) of the
then fair market value (as determined under Section 9(e)) on
<PAGE> 11
the date of exercise of the Common Shares subject to the option or portion
thereof surrendered by the option holder, and the aggregate option exercise
price of such Common Shares. Without limiting the generality of the foregoing,
the Committee may provide for the payment of an SAR in cash or in Common Shares
valued at fair market value as of the date of exercise, or in any combination
thereof as determined by the Committee.
(d) Notwithstanding any contrary provision hereof: (i) each SAR shall
expire upon its stated maturity date or, in the case of an SAR granted in
conjunction with an option, upon the expiration of the option to which such SAR
relates, and each SAR granted in conjunction with an option shall be exercisable
only to the extent the option to which such SAR relates is then exercisable
(further subject to such additional conditions and restrictions as may be
imposed by the Committee), and (ii) in the case of any SAR related to an
Incentive Stock Option granted hereunder, said SAR shall be exercisable only
when the then fair market value of the Common Shares subject to the option (or
portion thereof) surrendered by the option holder exceeds the exercise price of
such option (or such portion thereof).
(e) References in this Plan to the term "option" shall, where
appropriate, include an SAR.
14. ADDITIONAL PROVISIONS
---------------------
Any Agreements authorized under the Plan shall contain such other
provisions as the Committee and the Board of Directors of the Company shall deem
advisable which are not inconsistent with the terms herein stated. All Incentive
Stock Option Agreements shall contain such limitations and restrictions upon the
exercise of the option governed thereby as shall be necessary in order that such
option will be an "incentive stock option" as defined in Section 422 of the
Code, or to conform to any change in the applicable law, rulings or regulations.
15. EXERCISE OF OPTIONS
-------------------
Each option granted under this Plan shall be exercisable on such date
or dates and during such period and for such number of Common Shares as shall be
determined pursuant to the terms of the Agreement evidencing such option. An
option may be exercised by notice given to the Committee in such form as the
Committee shall require. No fractions of a Common Share may be purchased by an
option holder upon exercising his option, and to the extent that the use of
fractional or percentage computations would otherwise give rise to the right of
the option holder to purchase a
<PAGE> 12
fraction of a Common Share, the total Common Shares subject to exercise shall be
adjusted down to the nearest whole number.
16. EXERCISE AFTER TERMINATION OF EMPLOYMENT
----------------------------------------
(a) Except as otherwise provided in the Plan, an option holder's
options (i) are exercisable only while the option holder is in the employment of
the Company and then only if the options have become exercisable by their terms,
and (ii) if not exercisable by their terms at the time the option holder ceases
to be in the employment of the Company, shall immediately expire on the date of
termination of employment.
(b) Except as otherwise provided in this Section 16, any option
holder's option which is exercisable by its terms at the time the option holder
ceases to be in the employment of the Company must be exercised on or before the
earlier of three (3) months after the date of termination of employment or the
fixed expiration date of such option after which period such option shall
expire. If an option holder is terminated for willful, deliberate or gross
misconduct (such as, for example, dishonesty), however, all options granted to
such option holder shall, to the extent not previously exercised, expire
immediately upon such termination.
(c) In the event of the death of an option holder (i) while in the
employment of the Company or (ii) within three (3) months after his termination
of employment other than for willful, deliberate or gross misconduct, each of
that option holder's unexercised options (whether or not then exercisable by
their terms) shall become immediately exercisable by his estate for a period
ending on the earlier of the fixed expiration date of such option or twelve
months after the date of death, after which period such option shall expire. For
purposes hereof, the estate of an option holder shall be defined to include the
legal representatives thereof or any person who has acquired the right to
exercise an option by reason of the death of the option holder.
(d) In the case of any options, other than Incentive Stock Options, in
the event of the termination of employment by reason of the permanent disability
(as defined below) of the option holder, each of that option holder's
unexercised options (whether or not then exercisable by their terms) shall
become exercisable for a period ending on the earlier of the fixed expiration
date of such option or twelve months from the date of termination of employment,
after which period such option shall expire. For purposes of this Section 16(d),
"permanent disability" shall be deemed to be the inability of the option holder
to perform the duties of his job with the Company because of a physical or
<PAGE> 13
mental disability as evidenced by the opinion of a Company-approved doctor of
medicine licensed to practice medicine in the United States of America.
(e) In the case of any options, other than Incentive Stock Options, in
the event of the normal retirement of the option holder, each of that option
holder's unexercised options (whether or not then exercisable by its terms)
granted to that option holder on or before his 65th birthday shall become
immediately exercisable for a period ending on the earlier of the fixed
expiration date of such option or twelve months after the date of death, after
which period such option shall expire. Also, in the event of the normal
retirement of the option holder, each of that option holder's unexercised
options, other than Incentive Stock Options (whether or not then exercisable by
its terms) granted to that option holder after his 65th birthday and held for a
period of at least twelve consecutive months of active employment with the
Company after the date of grant shall become immediately exercisable for a
period ending on the earlier of the fixed expiration date of such option or
twelve months after the date of death, after which period such option shall
expire. For purposes of this Section 16(e), retirement shall be deemed to be
"normal retirement" if the option holder is at least 65 years of age and has
completed at least five consecutive years of employment with the Company at the
date of retirement.
(f) In the case of Incentive Stock Options, in the event of the
termination of employment by reason of the permanent disability or the normal
retirement of the option holder (as defined in Sections 16(d) and (e),
respectively, above), each Incentive Stock Option then held by the option holder
shall become exercisable and terminate on the earlier of the period ending three
months after the termination of employment or the fixed expiration date of such
option; provided, however, that, if such termination of employment occurs by
reason of "disability" within the meaning of Section 22(e)(3) of the Code, said
three-month period shall be extended to twelve months.
17. PAYMENT FOR COMMON SHARES
-------------------------
Common Shares which are subject to an option shall be transferred only
upon exercise of the option in whole or in part and upon full payment of the
purchase price for the Common Shares as to which the option is exercised. The
option price shall be payable upon exercise of the option in United States
dollars in cash (including check, bank draft or money order). If permitted by
the Committee, the option price may also be paid (a) by delivery of Common
Shares of the Company already owned by the option holder, or (b) by delivery of
a combination of Common Shares and cash. Any Common Shares delivered to the
Company in
<PAGE> 14
payment of the option price shall be valued at their fair market value (as
defined in Section 9(e) of this Plan) on the date of delivery. An employee to
whom an option or stock appreciation right has been granted shall have none of
the rights of a shareholder with respect to the Common Shares to be acquired
until such Common Shares are issued to him.
18. TERMINATION OF OPTION OR STOCK APPRECIATION RIGHT
-------------------------------------------------
Each option and stock appreciation right shall terminate in any event
no later than ten (10) years from the date of grant except as provided in
Section 9(c) of this Plan. In the case of any option or stock appreciation right
providing for exercise in installments, unless the option or stock appreciation
right has been canceled, on termination of employment by reason of death prior
to the next succeeding maturity date of an installment, the option or stock
appreciation right shall be exercisable with respect to a proportionate part of
such installment based upon the number of days of employment during the period
of such installment in relation to the total number of days in such period.
19. ASSIGNABILITY
-------------
With the permission of the Committee, a person who has been granted a
non-qualified stock option (that is, a stock option that is not an Incentive
Stock Option) under the Plan, may transfer such option to a revocable inter
vivos trust as to which the option holder is the settlor or may transfer such a
stock option to a "Permissible Transferee." A Permissible Transferee shall be
defined as any member of the immediate family of the option holder, any trust,
whether revocable or irrevocable, solely for the benefit of members of the
option holder's immediate family, or any partnership whose only partners are
members of the option holder's immediate family. Any such transferee of a
non-qualified stock option shall remain subject to all of the terms and
conditions applicable to such non-qualified stock option and subject to the
rules and regulations prescribed by the Committee. A non-qualified stock option
may not be retransferred by a Permissible Transferee except by will or the laws
of descent and distribution and then only to another Permissible Transferee.
Other than as described above, an option, stock appreciation right or restricted
share award granted under the Plan may not be transferred except by will or the
laws of descent and distribution and, during the lifetime of the employee to
whom granted, may be exercised only by him, his guardian or legal
representative.
<PAGE> 15
20. LAWS AND REGULATIONS
--------------------
(a) The Plan and all options, stock appreciation rights and restricted
share awards granted pursuant to it are subject to all laws and regulations of
any governmental authority which may be applicable thereto, and notwithstanding
any provisions of this Plan or the options, stock appreciation rights or
restricted share awards granted hereunder, the holder of an option, a stock
appreciation right or restricted share award shall not be entitled to exercise
such option, stock appreciation right or restricted share award, nor shall the
Company be obligated to issue any Common Shares or pay any cash under the Plan
to the holder, if such exercise, issuance or payment shall constitute a
violation by the holder or the Company of any provisions of any such law or
regulation.
(b) The Company, in its discretion, may postpone the issuance and
delivery of Common Shares upon any exercise of an option or the grant of a
restricted share award until completion of any stock exchange listing or
registration or other qualification of such Common Shares under any state or
federal law, rule or regulation as the Company may consider appropriate; and may
require any person exercising an option or receiving a restricted share award to
make such representations and furnish such information as it may consider
appropriate in connection with the issuance of the Common Shares in compliance
with applicable law.
(c) Common Shares issued and delivered upon exercise of an option or
stock appreciation right or pursuant to a restricted share award shall be
subject to such restrictions on trading, including appropriate legending of
certificates to that effect, as the Company, in its discretion, shall determine
are necessary to satisfy applicable legal requirements and obligations.
21. USE OF PROCEEDS
---------------
The proceeds received by the Company from the sale of Common Shares
pursuant to the options or other awards granted under this Plan shall be used
for general corporate purposes.
22. EXPENSES
--------
The expenses of the Plan shall be borne by the Company.
<PAGE> 1
Exhibit 5
---------
[VORYS, SATER, SEYMOUR AND PEASE LETTERHEAD]
June 5, 1997
Board of Directors
R. G. Barry Corporation
13405 Yarmouth Road, N.W.
Pickerington, OH 43147
Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
R. G. Barry Corporation, an Ohio corporation (the "Company"), in connection with
the institution of the R. G. Barry Corporation 1997 Incentive Stock Plan (the
"Plan"), the granting of options to purchase common shares, par value $1.00 per
share (the "Common Shares"), of the Company, the granting of stock appreciation
rights ("SARs") pursuant to the Plan, the issuance and sale of Common Shares of
the Company upon exercise of options and SARs to be granted under the Plan, and
the granting of restricted share awards under the Plan, all as described in the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on June 6, 1997. The purpose of the
Registration Statement is to register 450,000 Common Shares reserved for
issuance under the Plan pursuant to the provisions of the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
In connection with this opinion, we have examined an original or copy
of, and have relied upon the accuracy of, without independent verification or
investigation: (a) the Registration Statement; (b) the Plan; (c) the Company's
Articles of Incorporation, as amended; (d) the Company's Regulations, as
amended; and (e) certain proceedings of the directors and of the shareholders of
the Company. We have also relied upon such representations of the Company and
officers of the Company and such authorities of law as we have deemed relevant
as a basis for this opinion.
<PAGE> 2
Board of Directors
R. G. Barry Corporation
June 5, 1997
Page 2
We have relied solely upon the examinations and inquiries recited
herein, and we have not undertaken any independent investigation to determine
the existence or absence of any facts, and no inference as to our knowledge
concerning such facts should be drawn.
Based upon and subject to the foregoing and the further qualifications
and limitations set forth below, as of the date hereof, we are of the opinion
that after the 450,000 Common Shares of the Company to be registered under the
Registration Statement have been issued and delivered by the Company upon the
exercise of options under the Plan against payment of the purchase price
therefor, upon exercise of SARs under the Plan and upon grant of restricted
share awards under the Plan, in each case in accordance with the terms of the
Plan, said Common Shares will be validly issued, fully paid and non-assessable,
assuming compliance with applicable federal and state securities laws.
Our opinion is limited to the General Corporation Law of Ohio in effect
as of the date hereof. This opinion is furnished by us solely for the benefit of
the Company in connection with the offering of the Common Shares pursuant to the
Plan and the filing of the Registration Statement and any amendments thereto.
This opinion may not be relied upon by any other person or assigned, quoted or
otherwise used without our specific written consent.
Notwithstanding the foregoing, we consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to us therein.
Very truly yours,
/s/ VORYS, SATER, SEYMOUR AND PEASE
VORYS, SATER, SEYMOUR AND PEASE
<PAGE> 1
EXHIBIT 23(a)
-------------
CONSENT OF INDEPENDENT AUDITORS
<PAGE> 2
KPMG PEAT MARWICK LLP
Two Nationwide Plaza Telephone 614 249 2300 Telefax 614 249 2348
Columbus, OH 43215
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
R. G. Barry Corporation:
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick
Columbus, Ohio
June 5, 1997
<PAGE> 1
EXHIBIT 24
----------
POWERS OF ATTORNEY
<PAGE> 2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ Gordon Zacks
-----------------------------
Gordon Zacks
<PAGE> 3
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ Richard L. Burrell
---------------------------------
Richard L. Burrell
<PAGE> 4
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ Christian Galvis
-------------------------------
Christian Galvis
<PAGE> 5
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ Charles E. Ostrander
---------------------------------
Charles E. Ostrander
<PAGE> 6
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 21st
day of May, 1997.
/s/ Leopold Abraham II
-------------------------------------
Leopold Abraham II
<PAGE> 7
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ Philip G. Barach
--------------------------------
Philip G. Barach
<PAGE> 8
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ William Giovanello
------------------------------
William Giovanello
<PAGE> 9
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ Harvey M. Krueger
---------------------------------
Harvey M. Krueger
<PAGE> 10
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of R. G. BARRY CORPORATION, an Ohio corporation, which is about to file
with the Securities and Exchange Commission, Washington, D.C., under the
provisions of the Securities Act of 1933, as amended, a REGISTRATION STATEMENT
ON FORM S-8 for the registration of certain of its common shares for offering
and sale pursuant to the R. G. BARRY CORPORATION 1997 INCENTIVE STOCK PLAN,
hereby constitutes and appoints GORDON ZACKS, RICHARD L. BURRELL and ROGER E.
LAUTZENHISER, and each of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign such Registration
Statement and any and all amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and the New York Stock Exchange, granting
unto each of said attorneys-in-fact and agents, and substitute or substitutes,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all things that each of said attorneys-in-fact and agents, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 16th
day of May, 1997.
/s/ Edward M. Stan
---------------------------
Edward M. Stan
