<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 2, 1998.
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LAMONTS APPAREL, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 75-2076160
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
12413 WILLOWS ROAD N.E.
KIRKLAND, WASHINGTON 98034
(Address, Including Zip Code, of Principal Executive Offices)
LAMONTS APPAREL, INC. 1998 STOCK OPTION PLAN
AND
WARRANT AGREEMENT(S)
(Full Title of the Plans)
DEBBIE BROWNFIELD
12413 WILLOWS ROAD N.E.,
KIRKLAND, WASHINGTON 98034
(425) 814-5461
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
COPY TO:
MICHAEL A. WORONOFF, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 SOUTH GRAND AVENUE, SUITE 3400
LOS ANGELES, CALIFORNIA 90071
(213) 687-5000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered(1) Offering Price Per Share Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock 1,333,729(2) $0.75(3) $1,000,296.75 $295.09
Class A Common Stock 375,000(4) $0.10(5) $37,500 $11.06
Class A Common Stock 381,065(6) $1.46(7) $556,354.90 $164.12
Total $1,594,151.65 $470.27
</TABLE>
(1) Plus such additional number of shares of Class A Common Stock, par value
$.01 per share (the "Common Stock"), of Lamonts Apparel, Inc. (the
"Company") as may be issuable pursuant to the antidilution provisions of
(a) the Lamonts Apparel, Inc. 1998 Stock Option Plan (the "Stock Option
Plan") and (b) the Warrant Agreements to be entered into between the
Company and each holder of warrants governed by the Stock Option Plan
(collectively, the "Warrant Agreements," and together with the Stock Option
Plan, the "Plans").
(2) Represents the number of shares of Common Stock that may be purchased upon
exercise of options granted under the Stock Option Plan.
(3) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), based upon the weighted average exercise
price per share of Common Stock issuable upon exercise of options under the
Stock Option Plan (1,000,000 shares at an initial exercise price of $1.00
per share and 333,729 shares at an initial exercise price of $.01 per
share).
(4) Represents the maximum number of unallocated shares of Common Stock
reserved for issuance upon exercise of options that have not yet been
granted under the Stock Option Plan.
(5) Calculated pursuant to Rule 457(c) under the Securities Act on the basis of
the average of the bid and asked prices of the Common Stock as quoted on
the OTC Bulletin Board on January 27, 1998.
(6) Represents the number of shares of Common Stock that may be purchased upon
exercise of warrants granted under the Warrant Agreements.
(7) Calculated pursuant to Rule 457(h) under the Securities, based upon the
weighted average highest possible initial exercise price per share of
Common Stock issuable upon exercise of warrants under the Warrant
Agreements (355,661 shares at an initial exercise price of $1.56 per
share and 25,404 shares at an initial exercise price of $.0125 per share).
<PAGE>
EXPLANATORY NOTE
This Registration Statement covers (i) 1,333,729 shares of Class A Common
Stock, par value $.01 per share (the "Common Stock"), of Lamonts Apparel, Inc.
(the "Company"), that may be issued upon the exercise of options granted under
the Lamonts Apparel, Inc. 1998 Stock Option Plan (the "Stock Option Plan"), (ii)
375,000 shares of Common Stock which may be reserved by the Company for issuance
upon exercise of options granted under the Stock Option Plan, and (iii) 381,065
shares of Common Stock that may be issued upon the exercise of 25,404 Class C
Warrants to be issued, on a pro rata basis, to holders of options under the
Stock Option Plan. Pursuant to Rule 428 promulgated under the Securities Act of
1933, as amended (the "Securities Act"), the Company will deliver a prospectus
meeting the requirements of Part I of Form S-8, as amended, to all participants
in the Plans.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Incorporated by reference in this Registration Statement are the following
documents filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's latest Annual Report on Form 10-K filed pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) All other reports of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the Company's most recent fiscal year;
and
(c) The description of the Common Stock and the Class C Warrants which is
contained in the Company's Registration Statement on Form 8-A filed with
the Commission pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on February 2, 1998.
In addition, 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 which indicates that all securities offered herein
have been
II-1
<PAGE>
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of Delaware,
a Delaware corporation has the power, under specified circumstances, to
indemnify its directors, officers, employees and agents in connection with
actions, suits or proceedings brought against them by a third party or in the
right of the corporation, by reason of the fact that they were or are such
directors, officers, employees or agents, against liabilities and expenses
incurred in any such action, suit or proceeding. Article VIII of the Company's
Amended and Restated Bylaws provides that the Company shall indemnify all
persons that are officers and directors of the Company on or after January 31,
1998 to the fullest extent permitted by Section 145 of the General Corporation
Law of the State of Delaware.
The officers and directors of the Company will each enter into
indemnification agreements (the "Indemnification Agreements") with the Company
pursuant to which the Company will indemnify, to the fullest extent permitted by
applicable law, such officer or director against liabilities and expenses
incurred by such officer or director in any proceeding or action because such
officer or director is or was a director, officer, employee or agent of the
Company and certain other circumstances. The Indemnification Agreements are in
addition to the indemnification provided in the
II-2
<PAGE>
Company's Amended and Restated Bylaws. In neither case will indemnification be
provided if prohibited under applicable law. Individuals not entering into
indemnification agreements will remain entitled to the indemnification
provisions of the Company's Amended and Restated Bylaws and as otherwise
provided by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
4.1 Specimen Class A Common Stock certificate.(1)
4.2 Specimen Class B Common Stock certificate.(1)
4.3 Warrant Agreement dated January 31, 1998 entered into
between the Company and Norwest Bank Minnesota, N.A., as
Warrant Agent.(2)
4.4 Warrant Agreement dated January 31, 1998 entered into
between the Company and Specialty Investment I LLC.(2)
4.5 Form of Warrant Agreement dated January 31, 1998 entered
into between the Registrant and each of Alan R.
Schlesinger, Loren R. Rothschild, Debbie A. Brownfield,
E.H. Bulen and Gary Grossblatt.(2)
4.6 Warrant Agreement dated January 31, 1998 between the
Company and Gordian Group LLP.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding the legality of the Common Stock being
registered.
23.1 Consent of Coopers & Lybrand LLP.
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<PAGE>
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
registration statement).
99.1 Modified and Restated Plan of Reorganization Under Chapter 11 of
the Bankruptcy Code.(1)
99.2 Supplemented and Restated Disclosure Statement (As Amended) re
Debtor's Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code.(1)
______________
(1) Incorporated by reference from Registration Statement on Form S-1
(Registration No. 333-44311) of the Company, initially filed with the
Commission on January 15, 1998.
(2) Incorporated by reference from Registration Statement on Form 8-A of
the Company, initially filed with the Commission on February 2, 1998.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the
II-4
<PAGE>
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that
II-5
<PAGE>
in the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan R. Schlesinger and Loren R. Rothschild, and
each of them, his true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, 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 or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and each of them, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
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 Kirkland, State of Washington, on this 2nd day of
February, 1998.
LAMONTS APPAREL, INC.
By: /s/ Alan R. Schlesinger
------------------------------------------------
Name: Alan R. Schlesinger
Title: Chairman of the Board, President
and Chief Executive Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Alan R. Schlesinger
- ---------------------- Chairman of the Board, President, February 2, 1998
Alan R. Schlesinger Chief Executive Officer and
Director
/s/ Loren R. Rothschild
- ---------------------- Vice Chairman of the Board February 2, 1998
Loren R. Rothschild and Director
/s/ Debbie A. Brownfield
- ---------------------- Executive Vice President, February 2, 1998
Debbie A. Brownfield Chief Financial Officer
and Secretary
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 Specimen Class A Common Stock certificate.(1)
4.2 Specimen Class B Common Stock certificate.(1)
4.3 Warrant Agreement dated January 31, 1998 entered into
between the Company and Norwest Bank Minnesota, N.A., as
Warrant Agent.(2)
4.4 Warrant Agreement dated January 31, 1998 entered into
between the Company and Specialty Investment I LLC.(2)
4.5 Form of Warrant Agreement dated January 31, 1998 entered
into between the Registrant and each of Alan R. Schlesinger,
Loren R. Rothschild, Debbie A. Brownfield, E.H. Bulen and
Gary Grossblatt.(2)
4.6 Warrant Agreement dated January 31, 1998 between the Company
and Gordian Group LLP.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding the legality of the Common Stock being registered.
23.1 Consent of Coopers & Lybrand LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
registration statement).
99.1 Modified and Restated Plan of Reorganization Under Chapter
11 of the Bankruptcy Code.(1)
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<PAGE>
99.2 Supplemented and Restated Disclosure Statement (As Amended)
re Debtor's Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code.(1)
______________
(1) Incorporated by reference from Registration Statement on Form S-1
(Registration No. 333-44311) of the Company, initially filed with the
Commission on January 15, 1998.
(2) Incorporated by reference from Registration Statement on Form 8-A of
the Company, initially filed with the Commission on February 2, 1998.
II-10
<PAGE>
<PAGE>
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of January 31, 1998, between Lamonts Apparel,
Inc. (the "Company"), and Gordian Group, L.P. ("Gordian") with respect to the
Company's issuance of warrants (the "Warrants") to purchase shares (the "Warrant
Shares") of the Company's common stock (the "Common Stock"). This Warrant
Agreement is adopted pursuant to the "Debtor's Modified and Restated Plan of
Reorganization under Chapter 11 of the Bankruptcy Code" (the "Reorganization
Plan") which was filed by the Company and confirmed by order of the United
States Bankruptcy Court for the Western District of Washington at Seattle on
December 18, 1997, and shall be effective as of the "Effective Date" as defined
in the Reorganization Plan.
Section 1. CERTAIN DEFINITIONS. For the purposes of this Agreement,
(a) "CLOSING PRICE" means (i) the closing sales price per share on the
national securities exchange on which the common stock is principally traded, or
(ii) if the shares are then traded in an over-the-counter market, the average of
the closing bid and asked prices on such national securities exchange or in an
over-the-counter market, then such value as Lamont's Board of Directors shall in
good faith reasonably determine; if Gordian disagrees with such determination,
then an investment banking firm shall be mutually agreed upon, engaged and
compensated by Lamonts for a definitive valuation of the Normalized Share Price
(as hereinafter defined).
(b) "COMMON STOCK" means (i) the class of stock designated as the common
stock of the Company on the date hereof or (ii) any other class of stock
resulting from successive changes or reclassifications of such shares consisting
solely of changes in par value, or from par value to no par value, or from no
par value to par value. Unless the context requires otherwise, all references
to Common Stock and Warrant Shares in this Agreement and in the Warrant
Certificates (as defined herein) shall, in the event of an adjustment pursuant
to Section 8 hereof, be deemed to refer also to any other securities or property
then issuable upon exercise of the Warrants as a result of such adjustment.
(c) "EXERCISE PERIOD" means the period during which the Warrants may be
exercised.
Section 2. FORM OF WARRANT CERTIFICATE; PURCHASE PRICE.
2.1 The Company shall issue certificate(s) evidencing the Warrants (the
"Warrant Certificates"), together with the forms of election to purchase Warrant
Shares
<PAGE>
and of assignment of Warrants to be printed on the reverse thereof, which
Warrant Certificates may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto.
2.2 Each Warrant shall entitle the holder thereof to purchase one Warrant
Share upon the exercise thereof at the applicable Exercise Price (as defined in
Section 3 hereof) subject to adjustment as provided in Section 8 hereof during
the time period specified in Section 3 hereof; PROVIDED, HOWEVER, that the
Warrants are exercisable only for whole shares; cash will be paid in lieu of
fractional shares in accordance with Section 3.3. The Warrant Certificate shall
be executed on behalf of the Company by the manual or facsimile signature of the
present or any future President or any Vice President of the Company, attested
by the manual or facsimile signature of the present or future Secretary or
Assistant Secretary of the Company. Warrants shall be dated as of the date of
their initial issuance.
Section 3. DURATION AND EXERCISE OF WARRANTS.
3.1 (a) The Warrants may be exercised at any time on or after the date of
their issuance and, subject to earlier expiration pursuant to Section 10, will
expire at 5:00 p.m., New York time, on the fifth anniversary the date hereof
(the "Expiration Date"). Upon the Expiration Date, all rights evidenced by the
Warrants shall terminate and the Warrants shall become void.
(b) Subject to the provisions of this Agreement, the registered
holder of each Warrant shall have the right to purchase from the Company (and
the Company shall issue and sell to such registered holder) one fully paid and
nonassessable Warrant Share (or such number of Warrant Shares as may result from
adjustments made from time to time as provided in this Agreement), at the
exercise price per Warrant Share in lawful money of the United States of America
(such exercise price per Warrant Share, as adjusted from time to time as
provided herein, being referred to herein as the "Exercise Price"), upon (i)
surrender of the Warrant Certificates to the Company, and (ii) payment, in
lawful money of the United States of America, of the Exercise Price for the
Warrant Share or Warrant Shares in respect of which such Warrant is then
exercised. The Warrants may be exercised for all or some of the Warrant Shares.
The number of shares for which the warrants will be exercisable in the aggregate
will be equal to $200,000 divided by the "Normalized Share Price" defined below.
The Exercise Price will be initially set equal to the Normalized Share Price.
The Normalized Share Price
2
<PAGE>
will be set equal to the average closing price of the common stock for the 45
trading days commencing 45 calendar days following the Effective Date of the
Reorganization Plan. The Exercise Price payable upon exercise of Warrants may
at the option of the holder be paid in cash, certified check or money order
payable to the order of the Company. Except as provided in Section 8 hereof, no
adjustment shall be made for any dividends on any share of Common Stock issuable
upon exercise of a Warrant. Upon surrender of a Warrant Certificate, and
payment of the Exercise Price, the Company shall issue and cause to be delivered
with all reasonable dispatch to or upon the written order of the registered
holder of such Warrant and in such name or names and in such per share amounts
as such registered holder may reasonably designate, a certificate or
certificates for the number of Warrant Shares so purchased upon the exercise of
such Warrant, together with cash in respect of any fraction of a Warrant Share
issuable upon such surrender.
(c) Each person in whose name any certificate for Warrant Shares is
issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the Warrant Shares represented thereby, and such
certificate shall be dated the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Exercise Price
(and any applicable transfer taxes pursuant to Section 4 hereof) was made;
PROVIDED, HOWEVER, that if the date of such surrender and payment is a date upon
which the Common Stock transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such Warrant Shares on, and
such certificate shall be dated, the next succeeding business day on which the
Common Stock transfer books of the Company are open.
3.2 The Warrants evidenced by a Warrant Certificate shall be exercisable,
at the election of the registered holder thereof, either as an entirety or from
time to time for only part of the number of Warrants specified in the Warrant
Certificate. In the event that less than all of the Warrants represented by a
Warrant Certificate are exercised before 5:00 p.m., New York time, on the
Expiration Date, a new Warrant Certificate, duly executed by the company, will
be issued for the remaining number of Warrants exercisable pursuant to the
Warrant Certificate so surrendered.
3.3 No fractional shares of Common Stock shall be issued to any holder in
connection with the exercise of a Warrant. Instead of any fractional shares of
Common Stock that would otherwise be issuable to such holder, the Company will
pay to such holder a cash adjustment in respect of such fractional interest in
an amount equal to that fractional interest of the then current Closing Price
per share of Common Stock.
3
<PAGE>
3.4 The number of Warrant Shares to be received upon the exercise of a
Warrant and the price to be paid for a Warrant Share are subject to adjustment
from time to time as hereinafter set forth.
Section 4. PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes attributable to the original issuance of the Warrants and of the
shares of Common Stock issuable upon the exercise of Warrants; PROVIDED,
HOWEVER, that the Company shall not be required to (a) pay any tax which may be
payable in respect to any transfer involved in the transfer and delivery of
Warrant Certificates or the issuance or delivery of certificates for Warrant
Shares in a name other than that of the registered holder of the Warrant
Certificate surrendered upon the exercise of a Warrant, or (b) issue or deliver
any certificate for Warrant Shares upon the exercise of any Warrants until any
such tax required to be paid under clause (a) shall have been paid, all such tax
being payable by the holder of such Warrant at the time of surrender.
Section 5. MUTILATED OR MISSING WARRANTS. In case any of the Warrants
shall be mutilated, lost, stolen or destroyed, the Company may in its discretion
issue, or in lieu of and substitution for the lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of like tenor and evidencing the number
of Warrant Shares purchasable upon exercise of the Warrant Certificate so
mutilated, lost, stolen or destroyed, but only upon receipt of evidence
satisfactory to the Company of such loss, theft or destruction of such Warrant
Certificate and indemnity, if requested, also satisfactory to it. Applicants
for such substitute Warrant Certificate shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company may
prescribe. Any such new Warrant Certificate shall constitute an original
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant Certificate shall be at any time
enforceable by anyone.
Section 6. RESERVATION OF WARRANT SHARES; STOCK CERTIFICATES. The
Company shall at all times reserve for issuance and delivery upon exercise of
the Warrants, such number of Warrant Shares or other shares of capital stock of
the Company from time to time issuable upon exercise of the Warrants. All such
shares shall be duly authorized and, when issued upon such exercise, shall be
validly issued, fully paid and nonassessable, free and clear of all liens,
security interests, charges and other encumbrances or restrictions on sale
(other than restrictions on transfer imposed under federal or state securities
laws) and free and clear of all preemptive rights. The Company is hereby
irrevocably authorized to requisition from time to time from the Company's
transfer agent stock certificates issuable upon exercise of outstanding
Warrants. All Warrants surrendered upon exercise shall be canceled by the
Company and shall thereafter be delivered to the Company or otherwise disposed
of in a manner
4
<PAGE>
satisfactory to the Company. The Company shall keep a copy of this Agreement on
file with its transfer agent and with every transfer agent for any shares of
Common Stock.
Section 7. RIGHTS OF WARRANT CERTIFICATE HOLDER. The holder of any
Warrant Certificate or Warrant shall not, by virtue thereof, be entitled to any
rights of a stockholder of the Company, either at law or in equity, and the
rights of the holder are limited to those expressed in this Agreement.
Section 8. ANTIDILUTION PROVISIONS. The Exercise Price and the number
of Warrant Shares that may be purchased upon the exercise of a Warrant will be
subject to change or adjustment as follows:
(a) STOCK DIVIDENDS AND STOCK SPLITS. If at any time after the date of
the issuance of the Warrants and before 5:00 p.m., New York time, on the
Expiration Date, (i) the Company shall fix a record date for the issuance of any
stock dividend payable in shares of Common Stock or (ii) the number of shares of
Common Stock shall have been increased by a subdivision or split-up of shares of
Common Stock, then, on the record date fixed for the determination of holders of
Common Stock entitled to receive such dividend or immediately after the
effective date of such subdivision or split-up, as the case may be, the number
of shares to be delivered upon exercise of any Warrant will be appropriately
increased so that each holder thereafter will be entitled to receive the number
of shares of Common Stock that such holder would have owned immediately
following such action had the warrant been exercised immediately prior thereto,
and the Exercise Price will be appropriately adjusted.
(b) COMBINATION OF STOCK. If the number of shares of Common Stock
outstanding at any time after the date of the issuance of the Warrants and
before 5:00 p.m., New York time, on the Expiration Date shall have been
decreased by a combination of the outstanding shares of Common Stock, then,
immediately after the effective date of such combination, the number of shares
of Common Stock to be delivered upon exercise of any Warrant will be
appropriately decreased so that each holder thereafter will be entitled to
receive the number of shares of Common Stock that such holder would have owned
immediately following such action had the Warrant been exercised immediately
prior thereto, and the Exercise Price will be appropriately adjusted.
(c) SPECIAL DIVIDENDS. If (other than in a dissolution or liquidation)
securities of the Company (other than shares of Common Stock) or assets (other
than cash dividends payable out of retained earnings or out of any amounts
legally available for dividends under the laws of the State of Delaware) are
issued by way of a dividend on outstanding shares of Common Stock, then the
Exercise Price shall be adjusted so
5
<PAGE>
that it shall equal the price determined by multiplying the Exercise Price in
effect immediately prior to the close of business on the record date for the
determination of the stockholders entitled to receive such dividend by a
fraction, the numerator of which shall be the Closing Price on such record date
less the then fair market value as determined by the Board of Directors of the
Company, whose determination shall be conclusive, of the portion of the
securities or assets distributed applicable to one share of Common Stock, and
the denominator of which shall be such Closing Price. Such adjustment shall
become effective immediately prior to the opening of business on the day
following such record date.
(d) RIGHTS OFFERING. If the Company at any time after the date of
issuance of the Warrants and before 5:00 p.m., New York time, on the Expiration
Date shall issue or sell or fix a record date for the issuance of rights,
options, warrants or convertible or exchangeable securities to all holders of
Common Stock entitling the holders thereof to subscribe for or purchase Common
Stock (or securities convertible into Common Stock), in any such case, at a
price per share (or having a conversion price per share) that, together with the
value (if for consideration other than cash, as determined in good faith by the
Board of Directors of the Company) of any consideration paid for any such
rights, options, warrants or convertible or exchangeable securities, is less
than the Closing Price on the date of such issuance or sale or on such record
date, then, immediately after the date of such issuance or sale or on such
record date, as the case may be, the number of shares to be delivered upon
exercise of the Warrants shall be appropriately increased so that each holder
thereafter, during the Exercise Period, will be entitled to receive the number
of shares of Common Stock determined by multiplying the number of shares such
holder would have been entitled to receive immediately before the date of such
issuance or sale or such record date by a fraction, the numerator of which will
be the number of shares of Common Stock outstanding on such date plus the number
of additional shares of Common Stock offered for subscription or purchase (or
into which the convertible securities so offered are initially convertible) and
the denominator of which will be the number of shares of Common Stock
outstanding on such date plus the number of shares of Common Stock that the
aggregate offering price of the total number of shares so offered for
subscription or purchase (or the aggregate initial conversion price of the
convertible securities so offered) would purchase at such Closing Price.
(e) NO ADJUSTMENTS TO EXERCISE PRICE. No adjustment in the Exercise Price
in accordance with the provisions of Section 8.1 or 8.2 of this Section 8 need
be made if such adjustment would amount to a change in such Exercise Price of
less than $.01; PROVIDED, HOWEVER, that the amount by which any adjustment is
not made by reason of
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the provisions of this Section shall be carried forward and taken into account
at the time of any subsequent adjustment in the Exercise Price.
(f) READJUSTMENTS, ETC. If an adjustment is made under Section 8.1, 8.2,
8.3 or 8.4, of this Section 8, and the event to which the adjustment relates
does not occur, then any adjustments in the Exercise Price or Warrant Shares
that were made in accordance with such paragraphs shall be adjusted back to the
Exercise Price and the number of Warrant Shares that were in effect immediately
prior to the record date for such event.
(g) Neither the issuance nor the exercise of options under the Company's
1998 Stock Option Plan or the Class A Warrants, the Class B Warrants or the
Class C Warrants, in each case adopted pursuant to the Reorganization Plan,
shall result in an adjustment to the exercise price or the number of shares
issuable upon the exercise of the Warrants issued hereunder.
Section 9. OFFICER'S CERTIFICATE. Whenever the number of Warrant
Shares that may be purchased upon exercise of the Warrants or the Exercise Price
is adjusted as required by the provisions of this Agreement, the Company will
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal office an officer's certificate showing the adjusted number of Warrant
Shares that may be purchased upon exercise of the Warrants and the adjusted
Exercise Price, determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of computing such
adjustment. Each such officer's certificate shall be made available at all
reasonable times for inspection by the holder of any Warrant. The Company
shall, forthwith after each such adjustment, cause a copy of such certificate to
be mailed to the holder of any Warrant.
Section 10. NOTICE OF CERTAIN EVENTS. At any time before the last day
of the Exercise Period, in the event:
(a) the Company authorizes the issuance to all holders of the Common Stock
of rights, options or warrants to subscribe for or purchase shares or of
convertible or exchangeable securities; or
(b) the Company authorizes the distribution to all holders of the Common
Stock of evidences of its indebtedness or assets (other than cash dividends
payable out of retained earnings or out of amounts legally available for
distribution under the laws of the State of Delaware); or
7
<PAGE>
(c) of any capital reorganization or reclassification of the Common Stock
(other than a subdivision or combination of the outstanding Common Stock and
other than a change in par value of the Common Stock) or any other consolidation
or merger to which the Company is a party (other than a consolidation or merger
in which the Company is the continuing corporation and that does not result in
any reclassification or change in the outstanding Common Stock) or of the sale,
lease or other transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution or winding-up of the
Company;
then the Company will cause to be mailed to the registered holder of any
Warrant, at least 10 days before the applicable record or effective date, as the
case may be, a notice stating (A) the date as of which the holders of Common
Stock of record entitled to receive any such rights, warrants or distributions
are to be determined or (B) the date on which any such capital reorganization or
reclassification of Common Stock, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding-up is expected to become effective, such
that the holders of Common Stock of record will be entitled to exchange their
shares of Common Stock for securities or other property, if any, deliverable
upon such reorganization, reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding-up (the "Entitlement Date").
Section 11. SUCCESSORS. All covenants and provisions of this Agreement
by or for the benefit of the Company or the holders of the Warrants shall bind
and inure to the benefit of their respective successors, assigns, heirs and
personal representatives.
Section 12. TERMINATION. This Agreement shall terminate at 5:00 p.m.,
New York time, on the Expiration Date or on such earlier date upon which all
Warrants have been exercised.
Section 13. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same agreement.
Section 14. HEADINGS. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
8
<PAGE>
Section 15. SUPPLEMENTS AND AMENDMENTS. The Company may from time to
time supplement or amend this Agreement without the approval of any holders of
any Warrants in order to cure any ambiguity or to correct or supplement any
provisions contained herein which may be defective or inconsistent with any
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company may deem necessary or desirable
and which do not adversely affect the interests of the holders of Warrants.
Any other supplement or amendment to this Agreement may be made with the
written consent of the Company and the affirmative vote or the written consent
of holders holding not less than two-thirds in interest of the then outstanding
Warrants; PROVIDED, HOWEVER, that, except as expressly provided herein, this
Agreement may not be amended to change (a) the Exercise Price, (b) the Exercise
Period, (c) the number or type of securities to be issued upon the exercise of
the Warrants, or (d) the provisions of this Section 15, without the consent of
each holder of the Warrants.
Section 16. NOTICES. Any notice pursuant to this Agreement to be given
by the registered holder of any Warrant to the Company shall be sufficiently
given if sent by first-class mail, postage pre-paid, as follows:
Lamonts Apparel, Inc.
12413 Willows Road N.E.
Kirkland, WA 98034
Attn: Ms. Debbie Brownfield
Section 17. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or corporation, other than the Company and
the registered holders of the Warrant Certificates, any legal or equitable
right, remedy or claim under this Agreement, but this Agreement shall be for the
sole and exclusive benefit of the Company and the registered holders of the
Warrants.
Section 18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 19. EXEMPTION FROM REGISTRATION OF WARRANTS AND WARRANT SHARES.
The Reorganization Plan will provide that the Warrants and the Warrant Shares
will be issued in accordance with the securities law exemption of section 1145
of the Bankruptcy Code of 1978, as amended.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the first date written above.
LAMONTS APPAREL, INC.
By: /s/ Alan R. Schlesinger
---------------------------------
Name: Alan R. Schlesinger
Title: Chairman of the Board, President
and Chief Executive Officer
Attest:
By: /s/ Debbie A. Brownfield
---------------------------------
Name: Debbie A. Brownfield
Title: Executive Vice President,
Chief Financial Officer and Secretary
GORDIAN GROUP, L.P.
By: Blue Claw Capital, Inc.,
General Partner
By: /s/ Peter S. Kaufman
---------------------------------
Name: Peter S. Kaufman
Title: Managing Director
Attest:
By: /s/ Judy Yu
---------------------------------
Name: Judy Yu
Title: Office Administrator
10
<PAGE>
February 2, 1998
Lamonts Apparel, Inc.
12413 Willows Road N.E.
Kirkland, Washington 98034
Re: LAMONTS APPAREL, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as special counsel to Lamonts Apparel, Inc., a
Delaware corporation (the "Company"), in connection with the filing with the
Securities and Exchange Commission (the "Commission"), of its Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), covering (i) up to 1,708,729
shares (the "Option Shares") of Class A Common Stock, par value $.01 per
share, of the Company ("Common Stock"), to be issued by the Company upon
exercise of options granted under the Lamonts Apparel, Inc. 1998 Stock Option
Plan (the "Plan"), and (ii) up to 381,065 shares (the "Warrant Shares," and
together with the Option Shares, the "Shares") of Common Stock to be issued
upon exercise of 25,404 Class C Warrants to purchase Common Stock (the
"Warrants") to be issued by the Company pursuant to the Company's Modified
and Restated Plan of Reorganization under Chapter 11 of the Bankruptcy Code
(the "Plan of Reorganization").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Plan, (ii) the warrant agreements,
dated as of January 31, 1998 (collectively, the "Warrant Agreements"),
between the Company and each holder of options under the Plan, (iii) the
Second Restated Certificate of Incorporation of the Company and the Amended
and Restated Bylaws of the Company, (iv) the Registration Statement, (v)
copies of certain resolutions of the Board of Directors of the Company
relating to, among other things, the Plan, the Warrant Agreements, the
Shares, the
<PAGE>
Lamonts Apparel, Inc.
February 2, 1998
Page 2
Warrants and the Registration Statement, (vi) the form of certificates
representing the Shares and the Warrants, (vii) the Plan of Reorganization,
the accompanying disclosure statement and the Plan Documentary Supplement
filed therewith, and (vi) such records of the Company and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates and records as we have considered necessary or appropriate as a
basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as conformed, certified or photostatic
copies and the authenticity of the originals of such latter documents. In
making our examination of documents executed by parties other than the
Company, we have assumed that such parties had the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed
the due authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and that such
documents constitute or will constitute valid and binding obligations of such
parties. As to any facts material to the opinions expressed herein that we
have not independently established or verified, we have relied upon oral or
written statements and representations of officers and other representatives
of the Company and others.
This opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act.
Members of our firm are admitted to the Bar in the State of
California and we express no opinion as to the laws of any other jurisdiction
other than the Delaware General Corporation Law.
Based upon and subject to the foregoing, and to the limitations,
qualifications, exceptions and assumptions set forth herein, and assuming (i)
the valid issuance of options pursuant to the Plan, (ii) the valid issuance
of the Warrants pursuant to the Warrant Agreements, (iii) the conformity of
the certificates representing the Shares and the Warrants to the forms
thereof examined by us and (iv) the due execution and countersignature of
such certificates, we are of the opinion that upon the issuance and sale of
Shares upon the exercise of the options or Warrants, as the case may be,
granted pursuant to the Plan and the Warrant Agreements, respectively, and
receipt by the Company of the exercise price of such options and Warrants, in
the manner
<PAGE>
Lamonts Apparel, Inc.
February 2, 1998
Page 3
contemplated by the Plan, the Warrant Agreements and the Registration
Statement, and subject to the Company completing all actions and proceedings
required on its part to be taken prior to the issuance of the Shares pursuant
to the terms of the Plan and the Warrant Agreements, the Shares will be
validly issued, fully paid and nonassessable.
This opinion is furnished to you solely for your benefit in
connection with the filing of the Registration Statement and, except as set
forth in the next sentence, is not to be used, circulated, quoted or
otherwise referred to for any other purpose or relied upon by any other
person for any purpose without our prior express written consent. We hereby
consent to the filing of this opinion with the Commission as Exhibit 5.1 to
the Registration Statement. In giving this consent, we do not thereby admit
that we are included in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom LLP
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Lamonts Apparel, Inc. on Form S-8 of our report which includes an explanatory
paragraph that describes an uncertainty regarding Lamonts Apparel, Inc.'s
ability to continue as a going concern and to recover the carrying amounts of
its assets, dated March 28, 1997, on our audits of the consolidated financial
statements of Lamonts Apparel, Inc. as of February 1, 1997, February 3, 1996
and January 28, 1995 and for the 52 weeks ended February 1, 1997, 53 weeks
ended February 3, 1996, quarter ended January 28, 1995 and the 52 weeks ended
October 29, 1994, which report is included in the Company's Annual Report on
Form 10-K.
Coopers & Lybrand L.L.P.
Seattle, Washington
January 30, 1998
