As filed with the Securities and Exchange Commission on June 20, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
PHILLIPS-VAN HEUSEN CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 13-1166910
(State of incorporation) (I.R.S Employer
Identification Number)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices)
-------------------
Phillips-Van Heusen Corporation
1997 Stock Option Plan
(Full title of the plan)
-------------------
Eugene O. Kessler Copy to:
Vice President, Human Resources Edward H. Cohen, Esq.
1290 Avenue of the Americas Rosenman & Colin LLP
New York, New York 10104 575 Madison Avenue
(212) 468-7180 New York, New York 10022
(Name, address and telephone (212) 940-8580
number of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price aggregate offering registration
be registered registered per share* price* fee
========================================================================================
<S> <C> <C> <C> <C>
Common Stock,
par value $1.00
per share...... 2,500,000 $14.25 $35,625,000 $10,796
========================================================================================
</TABLE>
*Estimated solely for the purpose of calculating the registration fee;
computed, pursuant to Rule 457(c), upon the basis of the average of the high and
low prices of the Common Stock as quoted on the New York Stock Exchange on June
17, 1997.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Phillips-Van Heusen Corporation (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and, in accordance therewith, files reports and other information with the
Securities and Exchange Commission (the "Commission"). The following documents,
or portions thereof, filed by the Company with the Commission pursuant to the
Exchange Act (File No. 1-724) are incorporated by reference in this Registration
Statement:
a. The Company's Annual Report on Form 10-K for the fiscal year
ended February 2, 1997, filed with the Commission on April 30,
1997.
b. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended May 4, 1997, filed with the Commission on June
9, 1997.
c. The information in respect of the Company's capital stock
under the caption "Description of Capital Stock" contained in
the Company's Registration Statement on Form S-3 (Registration
No. 33-46770), filed with the Commission on March 27, 1992.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment hereto indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the respective dates of filings of such
documents.
Experts. The consolidated financial statements of the Company incorporated
by reference in the Company's Annual Report (Form 10-K) for the year ended
February 2, 1997, have been audited by Ernst and Young LLP, independent
auditors, as set forth in their report thereon incorporated by reference therein
and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information for the thirteen weeks ended May 4, 1997 and April 28, 1996,
incorporated by reference herein, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report, included in the
Company's Quarterly Report on Form 10-Q for the thirteen weeks ended May 4,
1997, and incorporated herein by reference, states that they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such information should
be restricted considering the limited nature of the review procedures applied.
The independent auditors are not subject to the liability provisions of Section
11 of the Securities Act of 1933 (the "Securities Act") for their report on the
unaudited interim financial information because that report is not a "report" or
a "part" of this Registration Statement prepared or certified by the auditors
within the meaning of Sections 7 and 11 of the Securities Act.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The By-Laws of the Company provide that the Company may indemnify any
person to the full extent permitted by the Delaware General Corporation Law (the
"GCL"), the law of the state in which the Company is incorporated. Section 145
of the GCL empowers a corporation, within certain limitations, to indemnify any
person against expenses, including attorneys' fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
any suit or proceeding to which he is a party by reason of the fact that he is
or was a director, officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, as long as he acted in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
corporation. With respect to any criminal proceeding, he must have had no
reasonable cause to believe his conduct was unlawful. In addition, the
Certificate of Incorporation of the Company provides for a director or officer
to be indemnified unless his acts (i) constituted a breach of his fiduciary
duties to the Company or its stockholders, (ii) were committed in bad faith or
were the result of active or deliberate dishonesty, (iii) violated Section 174
of the GCL or (iv) resulted in a personal gain or financial profit or other
advantage to which he is not legally entitled. The Company also has in effect
directors' and officers' liability insurance.
II - 1
<PAGE>
ITEM 8. EXHIBITS
Exhibit No. Description
4(a) Phillips-Van Heusen Corporation 1973 Employees' Stock Option Plan
(incorporated by reference to Exhibit 1 to Form S-8 Registration
Statement, Registration No. 2-72959, filed on July 15, 1981).
4(b) Supplement to 1973 Employees' Stock Option Plan (incorporated by
reference to the Company's Prospectus filed pursuant to Rule 424(c)
to the Form S-8 Registration Statement, Registration No.
2-72959, filed on March 31, 1982).
4(c) Amendment to Phillips-Van Heusen Corporation 1973 Employees' Stock
Option Plan (incorporated by reference to Exhibit 4(c) to Form S-8
Registration Statement, Registration No. 33-24057, filed on August
29, 1988).
4(d) Phillips-Van Heusen Corporation 1987 Stock Option Plan (including
all amendments through June 13, 1995) (incorporated by reference to
Exhibit 4(d) to Form S-8 Registration Statement, Registration No.
33-60793, filed on June 30, 1995).
*4(e) Phillips-Van Heusen Corporation 1997 Stock Option Plan.
4(f) Certificate of Incorporation (incorporated by reference to Exhibit 5
to the Company's Annual Report on Form 10-K for the fiscal year
ended January 29, 1977).
4(g) Amendment to Certificate of Incorporation filed June 27, 1984
(incorporated by reference to Exhibit 3B to the Company's Annual
Report on Form 10-K for the fiscal year ended February 3, 1985).
4(h) Amendment to Certificate of Incorporation filed June 2, 1987
(incorporated by reference to Exhibit 3(c) to the Company's Annual
Report on Form 10-K for the fiscal year ended January 31, 1988).
4(i) Amendment to Certificate of Incorporation filed June 1, 1993
(incorporated by reference to Exhibit 3.5 to the Company's Annual
Report on Form 10-K for the fiscal year ended January 30, 1994).
4(j) Amendment to Certificate of Incorporation filed June 20, 1996
(incorporated by reference to Exhibit 3.1 to the Company's Report on
Form 10-Q for the period ended July 28, 1996).
4(k) By-Laws of the Company, as amended through June 18, 1996
(incorporated by reference to Exhibit 3.2 to the Company's Report on
Form 10-Q for the period ended July 28, 1996).
4(l) Preferred Stock Purchase Rights Agreement (the "Rights Agreement"),
dated June 10, 1986 between the Company and The Chase Manhattan
Bank, N.A. (incorporated by reference to Exhibit 3 to the Company's
Quarterly Report as filed on Form 10-Q for the period ended May 4,
1986).
4(m) Amendment to the Rights Agreement, dated March 31, 1987 between the
Company and The Chase Manhattan Bank, N.A. (incorporated by
reference to Exhibit 4(c) to the Company's Annual Report on Form
10-K for the year ended February 2, 1987).
4(n) Supplemental Rights Agreement and Second Amendment to the Rights
Agreement, dated as of July 30, 1987, between the Company and The
Chase Manhattan Bank, N.A. (incorporated by reference to Exhibit
(c)(4) to the Company's Schedule 13E-4, Issuer Tender Offer
Statement, dated July 31, 1987).
II - 2
<PAGE>
4(o) Notice of extension of Rights Agreement, dated June 5, 1996, from
the Company to The Bank of New York (incorporated by reference to
Exhibit 4.13 to the Company's report on Form 10-Q for the period
ended April 28, 1996).
4(p) Specimen of common stock certificate of the Company (incorporated by
reference to Exhibit 4 to the Company's Annual Report on Form 10-K
for the fiscal year ended January 31, 1981).
*5(a) Opinion of Rosenman & Colin LLP.
*15(a) Letter from Ernst & Young LLP re Unaudited Interim Financial
Information.
*23(a) Consent of Ernst & Young LLP.
*23(b) Consent of Rosenman & Colin LLP (included in Exhibit 5(a)).
- ----------
* Filed herewith
ITEM 9. UNDERTAKINGS
1. The undersigned Company hereby undertakes: (a) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement to include any material information with respect to
the plan of distribution of the securities being registered hereby not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; (b) that, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and (c) 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.
2. The undersigned Company hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II - 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on this 17th day of
June, 1997.
PHILLIPS-VAN HEUSEN CORPORATION
By /s/ Bruce J. Klatsky
------------------------------------
Bruce J. Klatsky
Chairman, President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Bruce J. Klatsky Chairman, President, Chief Executive June 17, 1997
- ------------------------ Officer and Director
Bruce J. Klatsky (Principal Executive Officer)
/s/ Irwin W. Winter Executive Vice President and Chief June 17, 1997
- ------------------------ Financial Officer
Irwin W. Winter
/s/ Emanuel Chirico Vice President and Controller June 17, 1997
- ------------------------ (Principal Accounting Officer)
Emanuel Chirico
/s/ Edward H. Cohen Director June 17, 1997
- ------------------------
Edward H. Cohen
/s/ Joseph B. Fuller Director June 17, 1997
- ------------------------
Joseph B. Fuller
/s/ Joel H. Goldberg Director June 17, 1997
- ------------------------
Joel H. Goldberg
II - 4
<PAGE>
/s/ Marc Grosman Director June 17, 1997
- ------------------------
Marc Grosman
/s/ Dennis F. Hightower Director June 17, 1997
- ------------------------
Dennis F. Hightower
/s/ Maria Elena Lagomasino Director June 17, 1997
- --------------------------
Maria Elena Lagomasino
/s/ Harry N.S. Lee Director June 17, 1997
- ------------------------
Harry N.S. Lee
/s/ Bruce Maggin Director June 17, 1997
- ------------------------
Bruce Maggin
Director June 17, 1997
- ------------------------
Sylvia M. Rhone
Director June 17, 1997
- ------------------------
Peter J. Solomon
II - 5
<PAGE>
EXHIBIT INDEX
Page
Exhibit No. Description Number
- ----------- ----------- ------
4(a) Phillips-Van Heusen Corporation 1973 Employees' Stock
Option Plan (incorporated by reference to Exhibit 1 to
Form S-8 Registration Statement, Registration No.
2-72959, filed on July 15, 1981).
4(b) Supplement to 1973 Employees' Stock Option Plan
(incorporated by reference to the Company's Prospectus
filed pursuant to Rule 424(c) to the Form S-8
Registration Statement, Registration No. 2-72959,
filed on March 31, 1982).
4(c) Amendment to Phillips-Van Heusen Corporation 1973
Employees' Stock Option Plan (incorporated by
reference to Exhibit 4(c) to Form S-8 Registration
Statement, Registration No. 33-24057, filed on August
29, 1988).
4(d) Phillips-Van Heusen Corporation 1987 Stock Option Plan
(including all amendments through April 18, 1995)
(incorporated by reference to Exhibit 4(d) to Form S-8
Registration Statement, Registration No. 33-60793,
filed on June 30, 1995).
*4(e) Phillips-Van Heusen Corporation 1997 Stock Option
Plan.
4(f) Certificate of Incorporation (incorporated by
reference to Exhibit 5 to the Company's Annual Report
on Form 10-K for the fiscal year ended January 29,
1977).
4(g) Amendment to Certificate of Incorporation filed June
27, 1984 (incorporated by reference to Exhibit 3B to
the Company's Annual Report on Form 10-K for the
fiscal year ended February 3, 1985).
4(h) Amendment to Certificate of Incorporation filed June
2, 1987 (incorporated by reference to Exhibit 3(c) to
the Company's Annual Report on Form 10-K for the
fiscal year ended January 31, 1988).
4(i) Amendment to Certificate of Incorporation filed June
1, 1993 (incorporated by reference to Exhibit 3.5 to
the Company's Annual Report on Form 10-K for the
fiscal year ended January 30, 1994).
4(j) Amendment to Certificate of Incorporation filed June
20, 1996 (incorporated by reference to Exhibit 3.1 to
the Company's Report on Form 10-Q for the period ended
July 28, 1996).
4(k) By-Laws of the Company, as amended through June 18,
1996 (incorporated by reference to Exhibit 3.2 to the
Company's Report on Form 10-Q for the period ended
July 28, 1996).
4(l) Preferred Stock Purchase Rights Agreement (the "Rights
Agreement"), dated June 10, 1986 between the Company
and The Chase Manhattan Bank, N.A. (incorporated by
reference to Exhibit 3 to the Company's Quarterly
Report as filed on Form 10-Q for the period ended May
4, 1986).
<PAGE>
Page
Exhibit No. Description Number
- ----------- ----------- ------
4(m) Amendment to the Rights Agreement, dated March 31,
1987 between the Company and The Chase Manhattan Bank,
N.A. (incorporated by reference to Exhibit 4(c) to the
Company's Annual Report on Form 10-K for the year
ended February 2, 1987).
4(n) Supplemental Rights Agreement and Second Amendment to
the Rights Agreement, dated as of July 30, 1987,
between the Company and The Chase Manhattan Bank, N.A.
(incorporated by reference to Exhibit (c)(4) to the
Company's Schedule 13E-4, Issuer Tender Offer
Statement, dated July 31, 1987).
4(o) Notice of extension of Rights Agreement, dated June 5,
1996, from the Company to The Bank of New York
(incorporated by reference to Exhibit 4.13 to the
Company's report on Form 10-Q for the period ended
April 28, 1996).
4(p) Specimen of common stock certificate of the Company
(incorporated by reference to Exhibit 4 to the
Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1981).
*5(a) Opinion of Rosenman & Colin LLP.
*15(a) Letter from Ernst & Young LLP re Unaudited Interim
Financial Information.
*23(a) Consent of Ernst & Young LLP.
23(b) Consent of Rosenman & Colin LLP (included in Exhibit
5(a)).
- --------
* Filed herewith
EXHIBIT 4(e)
<PAGE>
PHILLIPS-VAN HEUSEN CORPORATION
1997 STOCK OPTION PLAN
1. Purpose.
The purposes of the 1997 Stock Option Plan (the "Plan") are to induce
certain individuals to remain in the employ, or to continue to serve as
directors, of Phillips-Van Heusen Corporation (the "Company") and its present
and future subsidiary corporations (each a "Subsidiary"), as defined in Section
424(f) of the Internal Revenue Code of 1986, as amended (the "Code"), to attract
new individuals to enter into such employment and service and to encourage such
individuals to secure or increase on reasonable terms their stock ownership in
the Company. The Board of Directors of the Company (the "Board") believes that
the granting of stock options (the "Options") under the Plan will promote
continuity of management and increased incentive and personal interest in the
welfare of the Company by those who are or may become primarily responsible for
shaping and carrying out the long range plans of the Company and securing its
continued growth and financial success. Options granted hereunder are intended
to be either (a) "incentive stock options" (which term, when used herein, shall
have the meaning ascribed thereto by the provisions of Section 422(b) of the
Code) or (b) options which are not incentive stock options ("non-incentive stock
options") or (c) a combination thereof, as determined by the Committee (the
"Committee") referred to in Section 5 hereof at the time of the grant thereof.
<PAGE>
2. Effective Date of the Plan.
The Plan became effective on April 29, 1997, subject to ratification by
the stockholders of the Company.
3. Stock Subject to Plan.
2,500,000 of the authorized but unissued shares of the common stock, $1.00
par value, of the Company (the "Common Stock") are hereby reserved for issue
upon the exercise of Options granted under the Plan; provided, however, that the
number of shares so reserved may from time to time be reduced to the extent that
a corresponding number of issued and outstanding shares of the Common Stock are
purchased by the Company and set aside for issue upon the exercise of Options.
If any Options expire or terminate for any reason without having been exercised
in full, the unpurchased shares subject thereto shall again be available for the
purposes of the Plan.
4. Administration.
The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall have complete authority, in its
discretion, to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, to determine the terms and provisions of the
respective option agreements or certificates (which need not be identical), to
determine the individuals (each a "Participant") to whom and the
2
<PAGE>
times and the prices at which Options shall be granted, the periods during which
each Option shall be exercisable, the number of shares of the Common Stock to be
subject to each Option and whether such Option shall be an incentive stock
option or a non-incentive stock option and to make all other determinations
necessary or advisable for the administration of the Plan. In making such
determinations, the Committee may take into account the nature of the services
rendered by the respective individuals, their present and potential
contributions to the success of the Company and the Subsidiaries and such other
factors as the Committee in its discretion shall deem relevant. The Committee's
determination on the matters referred to in this Section 4 shall be conclusive.
Any dispute or disagreement which may arise under or as a result of or with
respect to any Option shall be determined by the Committee, in its sole
discretion, and any interpretations by the Committee of the terms of any Option
shall be final, binding and conclusive.
5. Committee.
The Committee shall consist of two or more members of the Board both or
all of whom shall be "non-employee directors" within the meaning of Rule
16b-3(b)(3) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and both or all of whom shall be "outside directors"
within the contemplation of Section 162(m)(4)(C)(i) of the Code. The Committee
shall be appointed annually by the Board, which may at any time and from time to
time remove any members of the Committee, with or without
3
<PAGE>
cause, appoint additional members to the Committee and fill vacancies, however
caused, in the Committee. A majority of the members of the Committee shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members present at a meeting duly called and held, except that
the Committee may delegate to any one of its members the authority of the
Committee with respect to the grant of Options to persons who shall not be
officers and/or directors of the Company and who are not, and in the judgment of
the Committee may not be reasonably expected to become, a "covered employee"
within the meaning of Section 162(m)(3) of the Code. Any decision or
determination of the Committee reduced to writing and signed by all of the
members of the Committee (or by the member of the Committee to whom authority
has been delegated) shall be fully as effective as if it had been made at a
meeting duly called and held.
6. Eligibility.
An Option may be granted only to a key employee of the Company or a
Subsidiary or to a director of the Company or a Subsidiary who is not an
employee of the Company or a Subsidiary.
7. Option Prices.
A. The initial per share option price of any Option shall be the price
determined by the Committee, but not less than the fair market value of a share
of the Common Stock on the date of grant; provided, however, that, in the case
of a Participant who owns more
4
<PAGE>
than 10% of the total combined voting power of the Common Stock at the time an
Option which is an incentive stock option is granted to him or her, the initial
per share option price shall not be less than 110% of the fair market value of a
share of the Common Stock on the date of grant.
B. For all purposes of the Plan, the fair market value of a share of the
Common Stock on any date shall be equal to (i) the closing sale price of the
Common Stock on the New York Stock Exchange on the business day preceding such
date or (ii) if there is no sale of the Common Stock on such Exchange on such
business day, the average of the bid and asked prices on such Exchange at the
close of the market on such business day.
8. Option Term.
Participants shall be granted Options for such term as the Committee shall
determine, not in excess of ten years from the date of the granting thereof;
provided, however, that, in the case of a Participant who owns more than 10% of
the total combined voting power of the Common Stock at the time an Option which
is an incentive stock option is granted to him or her, the term with respect to
such Option shall not be in excess of five years from the date of the granting
thereof.
9. Limitations on Amount of Options Granted.
A. The aggregate fair market value of the shares of the Common Stock for
which any Participant may be granted incentive
5
<PAGE>
stock options which are exercisable for the first time in any calendar year
(whether under the terms of the Plan or any other stock option plan of the
Company) shall not exceed $100,000.
B. No Participant shall, during any fiscal year of the Company, be granted
Options to purchase more than 100,000 shares of the Common Stock.
10. Exercise of Options.
A. Except as otherwise determined by the Committee at the time of grant, a
Participant may not exercise an Option during the period commencing on the date
of the granting of such Option to him or her and ending on the day next
preceding the third anniversary of such date. Except as otherwise determined by
the Committee at the time of grant, a Participant may (i) during the period
commencing on the third anniversary of the date of the granting of an Option to
him or her and ending on the day next preceding the fourth anniversary of such
date, exercise such Option with respect to one-third of the shares granted
thereby, (ii) during the period commencing on such fourth anniversary and ending
on the day next preceding the fifth anniversary of the date of the granting of
such Option, exercise such Option with respect to two-thirds of the shares
granted thereby, and (iii) during the period commencing on such fifth
anniversary, exercise such Option with respect to all of the shares granted
thereby.
6
<PAGE>
B. Except as hereinbefore otherwise set forth, an Option may be exercised
either in whole at any time or in part from time to time.
C. An Option may be exercised only by a written notice of intent to
exercise such Option with respect to a specific number of shares of the Common
Stock and payment to the Company of the amount of the option price for the
number of shares of the Common Stock so specified; provided, however, that, if
the Committee shall in its sole discretion so determine at the time of the grant
of any Option, all or any portion of such payment may be made in kind by the
delivery of shares of the Common Stock having a fair market value equal to the
portion of the option price so paid; provided, further, however, that no portion
of such payment may be made by delivering shares of the Common Stock acquired
upon the exercise of an Option if such shares shall not have been held by the
Participant for at least six months; provided, further, however, that, subject
to the requirements of Regulation T (as in effect from time to time) promulgated
under the Exchange Act, the Committee may implement procedures to allow a broker
chosen by a Participant to make payment of all or any portion of the option
price payable upon the exercise of an Option and receive, on behalf of such
Participant, all or any portion of the shares of the Common Stock issuable upon
such exercise.
7
<PAGE>
D. The Board may, in its discretion, permit any Option to be exercised, in
whole or in part, prior to the time when it would otherwise be exercisable.
E. I. Notwithstanding the provisions of paragraph A of this Section 10, in
the event that a Change in Control shall occur, then, each Option theretofore
granted to any Participant which shall not have theretofore expired or otherwise
been cancelled or become unexercisable shall become immediately exercisable in
full. For the purposes of this paragraph E, a "Change in Control" shall be
deemed to occur upon (a) the election of one or more individuals to the Board
which election results in one-third of the directors of the Company consisting
of individuals who have not been directors of the Company for at least two
years, unless such individuals have been elected as directors or nominated for
election by the stockholders as directors by three-fourths of the directors of
the Company who have been directors of the Company for at least two years, (b)
the sale by the Company of all or substantially all of its assets to any Person,
the consolidation of the Company with any Person, the merger of the Company with
any Person as a result of which merger the Company is not the surviving entity
as a publicly held corporation, (c) the sale or transfer of shares of the
Company by the Company and/or any one or more of its stockholders, in one or
more transactions, related or unrelated, to one or more Persons under
circumstances whereby any Person and its Affiliates shall own, after such sales
and transfers, at least one-fourth, but less than one-half, of the shares of the
Company having
8
<PAGE>
voting power for the election of directors, unless such sale or transfer has
been approved in advance by three-fourths of the directors of the Company who
have been directors of the Company for at least two years, or (d) the sale or
transfer of shares of the Company by the Company and/or any one or more of its
stockholders, in one or more transactions, related or unrelated, to one or more
Persons under circumstances whereby any Person and its Affiliates shall own,
after such sales and transfers, at least one-half of the shares of the Company
having voting power for the election of directors. For the purposes of this
division I, (1) the term "Affiliate" shall mean any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, any other Person, (2) the term "Person" shall mean
any individual, partnership, firm, trust, corporation or other similar entity
and (3) when two or more Persons act as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding or disposing of
securities of the Company, such partnership, limited partnership, syndicate or
group shall be deemed a "Person".
II. In the event that a Change of Control shall occur, then, from and
after the time of such event, neither the provisions of this paragraph E nor any
of the rights of any Participant thereunder shall be modified or amended in any
way.
F. Notwithstanding any other provision of the Plan to the contrary,
including, but not limited to, the provisions of
9
<PAGE>
paragraph D of Section 10, if any Participant shall have effected a Hardship
Withdrawal from a 401(k) Plan maintained by the Company and/or one or more of
the Subsidiaries, then, during the period of one year commencing on the date of
such Hardship Withdrawal, such Participant may not exercise any Option using
cash. For the purpose of this paragraph F, a "Hardship Withdrawal" shall mean a
distribution to a Participant provided for in Reg. ss. 1.401(k)- 1(d)(1)(ii)
promulgated under Section 401(k)(2)(B)(i)(IV) of the Code or an analogous
provision of the Puerto Rico Internal Revenue Code of 1994, as amended (the
"Puerto Rico Code") and the regulations promulgated thereunder, and a "401(k)
Plan" shall mean a plan which is a "qualified plan" within the contemplation of
Section 401(a) of the Code or an analogous provision of the Puerto Rico Code
which contains a "qualified cash or deferred arrangement" within the
contemplation of Section 401(k)(2) of the Code or an analogous provision of the
Puerto Rico Code.
11. Transferability.
No Option shall be assignable or transferable except by will and/or by the
laws of descent and distribution and, during the life of any Participant, each
Option granted to him or her may be exercised only by him or her.
12. Termination of Employment.
In the event a Participant leaves the employ, or ceases to serve as a
director, of the Company and the Subsidiaries, whether
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voluntarily or otherwise but other than by reason of his or her death or
retirement, each Option theretofore granted to him or her which shall not have
theretofore expired or otherwise been cancelled shall, to the extent exercisable
on the date of such termination of employment or service and not theretofore
exercised, terminate upon the earlier to occur of the expiration of 30 days
after the date of such Participant's termination of employment or cessation of
service and the date of termination specified in such Option. Notwithstanding
the foregoing, if a Participant is terminated for cause (as defined herein),
each Option theretofore granted to him or her which shall not have theretofore
expired or otherwise been cancelled shall, to the extent not theretofore
exercised, terminate forthwith. In the event a Participant leaves the employ, or
ceases to serve as a director, of the Company and the Subsidiaries by reason of
his or her retirement, each Option theretofore granted to him or her which shall
not have theretofore expired or otherwise been cancelled shall become
immediately exercisable in full and shall, to the extent not theretofore
exercised, terminate upon the earlier to occur of the expiration of three years
after the date of such retirement and the date of termination specified in such
Option. In the event a Participant's employment, or service as a director, with
the Company and the Subsidiaries terminates by reason of his or her death, each
Option theretofore granted to him or her which shall not have theretofore
expired or otherwise been cancelled shall become immediately exercisable in full
and shall, to the extent not theretofore
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<PAGE>
exercised, terminate upon the earlier to occur of the expiration of three months
after the date of the qualification of a representative of his or her estate and
the date of termination specified in such Option. For purposes of the foregoing,
(a) the term "cause" shall mean: (i) the commission by the Participant of any
act or omission that would constitute a crime under federal, state or equivalent
foreign law, (ii) the commission by the Participant of any act of moral
turpitude, (iii) fraud, dishonesty or other acts or omissions that result in a
breach of any fiduciary or other material duty to the Company and/or the
Subsidiaries, or (iv) continued alcohol or other substance abuse that renders
the Participant incapable of performing his or her material duties to the
satisfaction of the Company and/or the Subsidiaries and (b) the term
"retirement" shall mean (i) the termination of a Participant's employment with
the Company and all of the Subsidiaries (A) other than for cause or by reason of
his or her death and (B) on or after the earlier to occur of (I) the first day
of the calendar month in which his or her 65th birthday shall occur and (II) the
date on which he or she shall have both attained his or her 55th birthday and
completed 10 years of employment or service as a director with the Company
and/or the Subsidiaries or (ii) the termination of a Participant's service as a
director with the Company and all of the Subsidiaries (A) other than for cause
or by reason of his or her death and (B) on or after the first day of the
calendar month in which his or her 65th birthday shall occur.
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<PAGE>
13. Adjustment of Number of Shares.
In the event that a dividend shall be declared upon the Common Stock
payable in shares of the Common Stock, the number of shares of the Common Stock
then subject to any Option and the number of shares of the Common Stock reserved
for issuance in accordance with the provisions of the Plan but not yet covered
by an Option and the number of shares set forth in paragraph B of Section 9
hereof shall be adjusted by adding to each share the number of shares which
would be distributable thereon if such shares had been outstanding on the date
fixed for determining the stockholders entitled to receive such stock dividend.
In the event that the outstanding shares of the Common Stock shall be changed
into or exchanged for a different number or kind of shares of stock or other
securities of the Company or of another corporation, whether through
reorganization, recapitalization, stock split-up, combination of shares, sale of
assets, merger or consolidation in which the Company is the surviving
corporation, then, there shall be substituted for each share of the Common Stock
then subject to any Option and for each share of the Common Stock reserved for
issuance in accordance with the provisions of the Plan but not yet covered by an
Option and for each share of the Common Stock referred to in paragraph B of
Section 9 hereof, the number and kind of shares of stock or other securities
into which each outstanding share of the Common Stock shall be so changed or for
which each such share shall be exchanged. In the event that there shall be any
change, other than as specified in this Section 13, in the number or kind of
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<PAGE>
outstanding shares of the Common Stock, or of any stock or other securities into
which the Common Stock shall have been changed, or for which it shall have been
exchanged, then, if the Committee shall, in its sole discretion, determine that
such change equitably requires an adjustment in the number or kind of shares
then subject to any Option and the number or kind of shares reserved for
issuance in accordance with the provisions of the Plan but not yet covered by an
Option and the number or kind of shares referred to in paragraph B of Section 9
hereof, such adjustment shall be made by the Committee and shall be effective
and binding for all purposes of the Plan and of each stock option agreement or
certificate entered into in accordance with the provisions of the Plan. In the
case of any substitution or adjustment in accordance with the provisions of this
Section 13, the option price in each stock option agreement or certificate for
each share covered thereby prior to such substitution or adjustment shall be the
option price for all shares of stock or other securities which shall have been
substituted for such share or to which such share shall have been adjusted in
accordance with the provisions of this Section 13. No adjustment or substitution
provided for in this Section 13 shall require the Company to sell a fractional
share under any stock option agreement or certificate. In the event of the
dissolution or liquidation of the Company, or a merger, reorganization or
consolidation in which the Company is not the surviving corporation, then,
except as otherwise provided in the
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second sentence of this Section 13, each Option, to the extent not theretofore
exercised, shall terminate forthwith.
14. Purchase for Investment, Withholding and Waivers.
Unless the shares to be issued upon the exercise of an Option by a
Participant shall be registered prior to the issuance thereof under the
Securities Act of 1933, as amended, such Participant will, as a condition of the
Company's obligation to issue such shares, be required to give a representation
in writing that he or she is acquiring such shares for his or her own account as
an investment and not with a view to, or for sale in connection with, the
distribution of any thereof. In the event of the death of a Participant, a
condition of exercising any Option shall be the delivery to the Company of such
tax waivers and other documents as the Committee shall determine. In the case of
each non-incentive stock option, a condition of exercising the same shall be the
entry by the person exercising the same into such arrangements with the Company
with respect to withholding as the Committee may determine.
15. No Stockholder Status.
Neither any Participant nor his or her legal representatives, legatees or
distributees shall be or be deemed to be the holder of any share of the Common
Stock covered by an Option unless and until a certificate for such share has
been issued. Upon payment of the purchase price thereof, a share issued upon
exercise of an Option shall be fully paid and non-assessable.
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16. No Restrictions on Corporate Acts.
Neither the existence of the Plan nor any Option shall in any way affect
the right or power of the Company or its stockholders to make or authorize any
or all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding whether
of a similar character or otherwise.
17. No Employment Right.
Neither the existence of the Plan nor the grant of any Option shall
require the Company or any Subsidiary to continue any Participant in the employ
of the Company or such Subsidiary.
18. Termination and Amendment of the Plan.
The Board may at any time terminate the Plan or make such
modifications of the Plan as it shall deem advisable; provided, however, that
the Board may not without further approval of the holders of a majority of the
shares of the Common Stock present in person or by proxy at any special or
annual meeting of the stockholders, increase the number of shares as to which
Options may be granted under the Plan (as adjusted in accordance with the
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provisions of Section 13 hereof), or change the class of persons eligible to
participate in the Plan, or change the manner of determining the option prices.
Except as otherwise provided in Section 13 hereof, no termination or amendment
of the Plan may, without the consent of the Participant to whom any Option shall
theretofore have been granted, adversely affect the rights of such Participant
under such Option. The Committee may not, without further approval of the
holders of a majority of the shares of the Common Stock present in person or by
proxy at any special or annual meeting of the stockholders, amend any
outstanding Option to reduce the option price, or cancel any outstanding Option
and contemporaneously award a new Option to the same optionee for substantially
the same number of shares at a lower option price.
19. Expiration and Termination of the Plan.
The Plan shall terminate on April 28, 2007 or at such earlier time as the
Board may determine. Options may be granted under the Plan at any time and from
time to time prior to its termination. Any Option outstanding under the Plan at
the time of the termination of the Plan shall remain in effect until such Option
shall have been exercised or shall have expired in accordance with its terms.
20. Options for Outside Directors.
A. A director of the Company who is not an employee of the Company or a
Subsidiary (an "Outside Director") shall be eligible
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to receive, in addition to any other Option which he or she may receive pursuant
to Section 7 hereof, an annual Option. Except as otherwise provided in this
Section 20, each such Option shall be subject to all of the terms and conditions
of the Plan.
B. I. At the first meeting of the Board immediately following each Annual
Meeting of the Stockholders of the Company, each Outside Director shall be
granted an Option, which shall be a non-incentive stock option, to purchase
4,000 shares of the Common Stock.
II. The initial per share option price of each Option granted to an
Outside Director shall under this Section 20 be equal to the fair market value
of a share of the Common Stock on the date of grant.
III. The term of each Option granted to an Outside Director shall be ten
years from the date of the granting thereof.
IV. All or any portion of the payment required upon the exercise of an
Option granted to an Outside Director may be made in kind by the delivery of
shares of the Common Stock having a fair market value equal to the portion of
the option price so paid.
C. The provisions of this Section 20 may not be amended except by the vote
of a majority of the members of the Board and by the vote of a majority of the
members of the Board who are not Outside Directors.
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EXHIBIT 5(a)
<PAGE>
June 18, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
We have been requested by Phillips-Van Heusen Corporation (the "Company"), a
Delaware corporation, to furnish our opinion in connection with the registration
statement (the "Registration Statement") on Form S-8, filed with you on the date
hereof, with respect to the registration of 2,500,000 shares of the Company's
common stock, par value $1.00 per share, for issuance upon the exercise of
options granted under the Company's 1997 Stock Option Plan (all shares being
registered are hereinafter referred to as the "Shares").
We have made such examination as we have deemed necessary for the purpose of
this opinion. Based upon such examination, it is our opinion that, when the
Registration Statement has become effective under the Securities Act of 1933,
and when the Shares to be issued and sold by the Company have been issued, sold
and paid for in the manner described in said Plan, the Shares will have been
validly issued and will be fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
ROSENMAN & COLIN LLP
By: /s/ Mark D. Fischer
----------------------
A Partner
EXHIBIT 15(a)
<PAGE>
Stockholders and Board of Directors
Phillips-Van Heusen Corporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Phillips-Van Heusen Corporation 1997 Stock Option
Plan of our report dated May 22, 1997 relating to the unaudited condensed
consolidated interim financial statements of Phillips-Van Heusen Corporation
that are included in its Form 10-Q for the thirteen weeks ended May 4, 1997.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
New York, New York
June 18, 1997
EXHIBIT 23(a)
<PAGE>
Consent of Independent Auditors
We consent to the reference of our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Phillips-Van Heusen
Corporation 1997 Stock Option Plan and to the incorporation by reference therein
of our reports dated March 11, 1997 and April 29, 1997, with respect to the
consolidated financial statements of Phillips-Van Heusen Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
February 2, 1997 and the related financial statement schedule included therein,
respectively, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
June 18, 1997
