As filed with the Securities and Exchange Commission on August 27, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
THE LESLIE FAY COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3197085
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1412 Broadway, New York, New York 10018
(Address of Principal Executive Offices) (Zip Code)
1997 Non-Employee Director Stock Option and
Stock Incentive Plan
of
The Leslie Fay Company, Inc.
(Full title of the plan)
John J. Pomerantz
The Leslie Fay Company, Inc.
1412 Broadway
New York, New York 10018
(212) 221-4000
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
Michael J. Shef, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
Approximate date of commencement of proposed sale to public:
As soon as practicable after the effective date of this Registration Statement.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Title of Proposed maximum Proposed
securities Amount to be offering price per maximum aggregate Amount of
to be registered registered(1) share offering price registration fee
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 140,000 $4.0910 (2) $572,750 (2) $168.96 (2)
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 60,000 $6.1875 (3) $371,250 (3) $109.52 (3)
- -----------------------------------------------------------------------------------------------------------------------
Total 200,000 $4.72 $944,000 $278.48
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under
the Plans.
(2) Estimated pursuant to Rule 457 (h), solely for the purpose of
calculating the registration fee on the basis of the exercise price of
presently outstanding options.
(3) Estimated pursuant to Rule 457(c), solely for the purpose of
calculating the registration fee on the basis of the average of the
high and low ask and bid prices per share of the Registrant's Common
Stock on the over-the-counter market bulletin board on August 27,
1998.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the registrant
with the Securities and Exchange Commission (Commission File No. 1-9196)
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "1934
Act") are incorporated herein by reference:
(a) The registrant's Annual Report on Form 10-K for the year
ended January 3, 1998;
(b) The registrant's Quarterly Report on Form 10-Q for the
quarter ended April 4, 1998; and
(c) The registrant's Quarterly Report on Form 10-Q for the
quarter ended July 4, 1998.
All documents filed subsequent to the date of this
Registration Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act and prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference 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 or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
Item 4. Description of Securities.
The following is a summary description of the Company's
Capital Stock and certain provisions of the Company's Certificate of
Incorporation and By-Laws. The following discussion is qualified in its entirety
by reference to such exhibits.
Common Stock
The Company is authorized to issue up to 20,000,000 shares of
Common Stock, par value $.01 per share. As of August 4, 1998 there were issued
and outstanding 6,812,000 shares of Common Stock.
II-1
<PAGE>
Preferred Stock
The Company is authorized to issue up to 500,000 shares of preferred
stock, par value $.01 per share. No shares of preferred stock are outstanding
and the Company has no present plans for the issuance thereof.
Voting Rights
Holders of Common Stock have one vote for each share held on
all matters submitted to a vote of stockholders. The quorum required for an
ordinary meeting of stockholders consists of at least a majority of the voting
power of the outstanding shares of the Company entitled to vote generally in the
election of directors, represented in person or by proxy. The shares of common
stock do not have cumulative voting rights in the election of directors. Thus,
the holders of more than 50% of the Common Stock have the power to elect all of
the directors, to the exclusion of the remaining stockholders.
The Certificate of Incorporation provides that a Business
Combination with an Interested Stockholder (as said terms are defined therein)
must be approved by the affirmative vote of the holders of at least 80% of the
outstanding voting stock, including the affirmative vote of the holders of at
least 80% of the voting stock not owned by the interested stockholder or any
affiliate thereof. Such provisions do not apply in the event the Business
Combination has been approved by a majority of the Continuing Directors (as
defined in the Certificate of Incorporation) or if the consideration paid in the
combination meets certain provisions which are particularly set forth in the
Certificate of Incorporation.
Dividend and Other Rights
Subject to the prior rights of any series of preferred stock
which may from time to time be outstanding, holders of Common Stock are entitled
to receive dividends, when, as and if declared by the Board of Directors out of
the funds legally available therefor and, upon the liquidation, dissolution or
winding up of the Company, are entitled to share ratably in all assets remaining
after payment of liabilities and payment of accrued dividends and at liquidation
preferences on the preferred stock, if any. The financing agreement with CIT
dated June 2, 1997, however, permits the Company to pay dividends and repurchase
stock in the aggregate amount of $5,000,000 in each of fiscal 1998 and 1999 only
if, after giving effect to such payment, there are no continuing events of
default under said financing agreement and if the Company has at least
$5,000,000 in undrawn availability. Holders of Common Stock have no preemptive
rights and have no rights to convert their Common Stock into any other
securities.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
II-2
<PAGE>
Item 6. Indemnification of Directors and Officers.
(a) Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in general, that a corporation incorporated
under the laws of the State of Delaware, such as the registrant, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such
person 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, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
In the case of a derivative action, a Delaware corporation may
indemnify any such person against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonably entitled to
indemnity for such expenses.
(b) Article IX of the registrant's Amended and Restated
Certificate of Incorporation provides: "A director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of such director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or modification of this Article IX, shall not adversely affect any right
or protection of a director of the Corporation existing hereunder in respect of
any act or omission occurring prior to such repeal or modification."
Article X of the registrant's Amended and Restated Certificate
of Incorporation provides: "Each person who is or was or had agreed to become a
director or officer of the Corporation, or each such person who is or was
serving or who had agreed to serve at the request of the Board of Directors or
an officer of the Corporation as an employee or agent of the Corporation or as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executor,
administrators or estate of such person), shall be indemnified by the
Corporation, in accordance with the By-laws of the Corporation, to the fullest
II-3
<PAGE>
extent permitted from time to time by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment) or any other applicable laws
as presently or hereafter in effect. The Corporation may, by action of the Board
of Directors, provide indemnification to employees and agents of the
Corporation, and to persons serving as employees or agents of another
corporation, partnership, joint venture, trust or other enterprise, at the
request of the Corporation, with the same scope and effect as the foregoing
indemnification of directors and officers. The Corporation shall be required to
indemnify any person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part thereof)
was authorized by the Board of Directors or is a proceeding to enforce such
person's claim to indemnification pursuant to the rights granted by this
Certificate of Incorporation or otherwise by the Corporation. Without limiting
the generality or the effect of the foregoing, the Corporation may enter into
one or more agreements with any person which provide for indemnification greater
or different than that provided in this Article X. Any amendment or repeal of
this Article X shall not adversely affect any right or protection existing
hereunder in respect of any act or omission occurring prior to such amendment or
repeal."
(c) Article VI of the registrant's By-Laws provides: "(A) Each
person who was or is made a party or is threatened to be made a party to or is
involved in any action, suit, or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she or a person of whom he or she is the legal representative is
or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans maintained or sponsored by the Corporation,
whether the basis of such proceeding is alleged action in an official capacity
as a director or officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended (but, if permitted by
applicable law, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in paragraph (C) of
this Bylaw, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) initiated by such person
was authorized by the Board of Directors. The right to indemnification conferred
in this By-law shall be a contract right and shall include the right to be paid
by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition, such advances to be paid by the Corporation
within 20 days after the receipt by the Corporation of a statement or statements
from the claimant requesting such advance or advances from time to time;
provided,
II-4
<PAGE>
however, that if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this By-law or
otherwise.
"(F) The right to Indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this By-law shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this By-law shall in any
way diminish or adversely affect the rights of any director, officer, employee
or agent of the Corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
"(G) The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware. To
the extent that the Corporation maintains any policy or policies providing such
insurance, each such director or officer, and each such agent or employee to
which rights to Indemnification have been granted as provided in paragraph (H)
of this By-law, shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage thereunder for any such
director, officer, employee or agent.
"(H) The Corporation may, to the extent authorized from time
to time by the Board of Directors, grant rights to Indemnification, and rights
to be paid by the Corporation the expenses incurred in defending any proceeding
in advance of its final disposition, to any employee or agent of the
Corporation, and to persons serving as employees or agents of another
corporation, partnership, joint venture, trust or other enterprise, at the
request of the Corporation, to the fullest extent of the provisions of this
By-law with respect to the Indemnification and advancement of expenses of
directors and officers of the Corporation."
Sections (B) - (E) and Sections (I) - (K) of Article VI of the
registrant's By-laws set forth the procedures for obtaining indemnification.
Item 7. Exemption from Registration Claimed.
Not Applicable.
II-5
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.01 Amended and Restated Certificate of Incorporation of the
registrant. Incorporated by reference to Exhibit 1 to the
registrant's Current Report on Form 8-K for an event dated
June 4, 1997.
4.02 Amendment to the Certificate of Incorporation of the
registrant. Incorporated by reference to Exhibit 4.02 to the
registrant's Registration Statement on Form S-8 filed on
August 27, 1998.
4.03 Amended and Restated By-Laws of the registrant. Incorporated
by reference to Exhibit 2 to the registrant's Current Report
on Form 8-K for an event dated June 4, 1997.
*4.04 Form of Stock Option Contract.
*4.05 1997 Non-Employee Director Stock Option and Stock Incentive
Plan.
*5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP as to the
legality of the Common Stock being offered.
*23.01 Consent of Arthur Andersen LLP.
*23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.01).
*24.01 Power of attorney of certain officers and directors of the
registrant (contained in the signature page).
- --------------
* Filed herewith.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof)
II-6
<PAGE>
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions described in Item
6 above, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-7
<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 the 26th day of
August, 1998.
THE LESLIE FAY COMPANY, INC.
By: /s/ John J. Pomerantz
------------------------------------
John J. Pomerantz
Chief Executive Officer and
Chairman of the Board of Directors
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature is below constitutes and appoints each of John J. Pomerantz, John A.
Ward and Warren T. Wishart his true and lawful attorney-in-fact and agent, 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 each said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or either of
them or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 26th day of August, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ John J. Pomerantz Chairman, Chief Executive Officer and Director
- --------------------------
John J. Pomerantz
/s/ John A. Ward President and Director
- --------------------------
John A. Ward
/s/ Warren T. Wishart Chief Financial Officer, Senior Vice President -
- -------------------------- Administration and Finance, Secretary and Treasurer
Warren T. Wishart
II-8
<PAGE>
/s/ Clifford B. Cohn Director
- --------------------------
Clifford B. Cohn
/s/ Mark B. Dickstein Director
- --------------------------
Mark B. Dickstein
/s/ Chaim Y. Edelstein Director
- --------------------------
Chaim Y. Edelstein
/s/ Mark Kaufman Director
- --------------------------
Mark Kaufman
/s/ Bernard Olsoff Director
- --------------------------
Bernard Olsoff
/s/ Robert L. Sind Director
- --------------------------
Robert L. Sind
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.01 Amended and Restated Certificate of Incorporation of the
registrant. Incorporated by reference to Exhibit 1 to the
registrant's Current Report on Form 8-K for an event dated
June 4, 1997.
4.02 Amendment to the Certificate of Incorporation of the
registrant. Incorporated by reference to Exhibit 4.02 to the
registrant's Registration Statement on Form S-8 filed on
August 27, 1998.
4.03 Amended and Restated By-Laws of the registrant. Incorporated
by reference to Exhibit 2 to the registrant's Report on Form
8-K for an event dated June 4, 1997.
*4.04 Form of Stock Option Contract.
*4.05 1997 Non-Employee Director Stock Option and Stock Incentive
Plan.
*5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP, as to the
legality of the Common Stock being offered.
*23.01 Consent of Arthur Andersen LLP.
*23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.01).
*24.01 Power of attorney of certain officers and directors of the
registrant (contained in the signature page).
- --------------
* Filed herewith
E-1
EXHIBIT 4.04
THE LESLIE FAY COMPANY, INC.
---------------------------
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION CONTRACT
----------------------------------
THIS NONQUALIFIED STOCK OPTION CONTRACT entered into as of
June 10, 1997 between THE LESLIE FAY COMPANY, INC., a Delaware corporation (the
"Company"), and _________________ ("Optionee").
W I T N E S S E T H:
-------------------
1. The Company, in accordance with the terms and conditions of the 1997
Non-Employee Director Stock Option Plan of the Company (the "Plan"),
hereby grants to the Optionee an option to purchase an aggregate of
10,000 shares of Common Stock (the "Option Shares") at an exercise
price of $6.18 per share, being equal to the fair market value of such
shares on the date hereof. This option is not intended to constitute an
incentive stock option within the meaning of section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. The term of this option shall be 10 years from the date hereof, subject
to earlier termination as provided in the Plan. This option shall vest
and become exercisable as follows:
(a) General. This option shall become exercisable (i) with
respect to 3,333 of the shares of Common Stock subject thereto on the
first anniversary of the date of grant; (ii) with respect to an
additional 3,333 of the shares of Common Stock subject thereto on the
second anniversary of the date of grant; and (iii) with respect to an
additional 3,334 shares of Common Stock subject thereto on the third
anniversary of the date of grant.
(b) Change of Control. This option shall become fully
exercisable upon the occurrence of a Change of Control.
(c) Termination of Directorship. This option shall become
fully exercisable upon the Optionee's ceasing to be a director for any
reason other than his resignation or his refusal in writing to stand
for re-election or for Cause.
The right to purchase Option Shares under this option shall be
cumulative, so that if the full number of Option Shares purchasable in
a period shall not be purchased, the balance may be purchased at any
time or from time to time thereafter, but not after the expiration of
the option.
3. This option shall be exercised by giving five business days' written
notice to the Company at its then principal office stating that the
Optionee is exercising the option hereunder, specifying the number of
shares being purchased and accompanied by payment in full of the
aggregate purchase price therefor (a) in cash or by certified check,
(b) with previously acquired shares
<PAGE>
of Common Stock which have been held by the Optionee for the applicable
period required by any Company plan or agreement with the Company
pursuant to which such shares were issued and if not so restricted,
which have been held for at least six months, or (c) a combination of
the foregoing. Notwithstanding the foregoing, the purchase price may be
paid by delivery by the Optionee of a properly executed notice,
together with a copy of his irrevocable instructions to a broker
acceptable to the Board, to deliver promptly to the Company the amount
of sale or loan proceeds sufficient to pay such purchase price.
4. The Company may withhold cash or shares of Common Stock to be issued to
the Optionee in the amount that the Company determines is necessary to
satisfy its obligation to withhold taxes or other amounts incurred by
reason of the grant or exercise of this option or the disposition of
the underlying shares of Common Stock. Alternatively, the Company may
require the Optionee to pay the Company such amount in cash promptly
upon demand.
5. Notwithstanding the foregoing, this option shall not be exercisable by
the Optionee unless (a) a Registration Statement under the Securities
Act of 1933, as amended (the "Securities Act") with respect to the
shares of Common Stock to be received upon the exercise of this option
shall be effective and current at the time of exercise or (b) there is
an exemption from registration under the Securities Act for the
issuance of the shares of Common Stock upon such exercise. The Optionee
hereby represents and warrants to the Company that, unless such a
Registration Statement is effective and current at the time of exercise
of this option, the shares of Common Stock to be issued upon the
exercise of this option will be acquired by the Optionee for his or her
own account, for investment only and not with a view to the resale or
distribution thereof.
6. Notwithstanding anything herein to the contrary, if at any time the
Board shall determine, in its discretion, that the listing or
qualification of the shares of Common Stock subject to this option on
any securities exchange or under any applicable law, or the consent or
approval of any governmental agency or regulatory body, is necessary or
desirable as a condition to, or in connection with, the granting of an
option or the issue of shares of Common Stock hereunder, this option
may not be exercised in whole or in part unless such listing,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board.
7. The Company may affix appropriate legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may
issue such "stop transfer" instructions to its transfer agent in
respect of such shares as it determines, in its discretion, to be
necessary or appropriate to (a) prevent a violation of, or to perfect
an exemption from, the registration requirements of the Securities Act,
or (b) implement the provisions of the Plan or this Contract or any
other agreement between the Company and the Optionee with respect to
such shares of Common Stock.
8. Nothing in the Plan or herein shall confer upon the Optionee any right
to continue in the service of the Company or any Affiliate, or
interfere in any way with any right of the Company or any Affiliate to
terminate such service at any time.
-2-
<PAGE>
9. The Company and the Optionee (by his acceptance of this option) agree
that they will both be subject to and bound by all of the terms and
conditions of the Plan, a copy of which is attached hereto and made a
part hereof. Any capitalized term not defined herein shall have the
meaning ascribed to it in the Plan. In the event of a conflict between
the terms of this Contract and the terms of the Plan, the terms of the
Plan shall govern.
10. The Optionee (by his acceptance of this option) represents and agrees
that he will comply with all applicable laws relating to the Plan and
the grant and exercise of this option and the disposition of the shares
of Common Stock acquired upon exercise of the option, including,
without limitation, federal and state securities and "blue sky" laws.
11. This option is not transferable by the Optionee otherwise than by will
or the laws of descent and distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee or the Optionee's
legal representatives.
12. This Contract shall be binding upon and inure to the benefit of any
successor or assign of the Company and to any heir, distributee,
executor, administrator or legal representative entitled to the
Optionee's rights hereunder.
13. This Contract shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without regard to
the conflicts of law rules thereof.
14. The invalidity, illegality or unenforceability of any provision herein
shall not affect the validity, legality or enforceability of any other
provision.
15. The Optionee (by his or her acceptance of this option) agrees that the
Company may amend the Plan and the option granted to the Optionee under
the Plan, subject to the limitations contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract as of the day and year first above written.
THE LESLIE FAY COMPANY, INC.
-------------------------------
Name: John J. Pomerantz
Title: Chairman of the Board
-------------------------------
[Optionee]
-3-
EXHIBIT 4.05
THE LESLIE FAY COMPANY, INC.
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION
AND STOCK INCENTIVE PLAN
(as amended through April 14, 1998)
Section 1: Purpose
The Leslie Fay Company, Inc. 1997 Non-Employee Director Stock Option
and Stock Incentive Plan (the "Plan") has been adopted to promote the long-term
growth and financial success of The Leslie Fay Company, Inc. (the "Company") by
attracting and retaining non-employee directors of outstanding ability and
assisting the Company in promoting a greater identity of interest between the
Company's non-employee directors and its stockholders.
Section 2: Definitions
As used in the Plan, the following terms have the respective meanings
as set forth below.
(a) "Affiliate" means (i) any Person directly or indirectly
controlling, or controlled by, or under direct or indirect common control with,
the Company, (ii) any spouse, immediate family member or other relative who has
the same principal residence of any Person described in (i) above, (iii) any
trust in which any Persons described in clause (i) or (ii) above has a
beneficial interest and (iv) any corporation or other organization of which any
Persons described in clause (i), (ii) or (iii) above collectively own more than
50% of the equity of such entity. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise. The terms "controlled"
and "controlling" have meanings correlative to the foregoing.
(b) "Award" means any Stock Option or Stock Incentive Grant made under
the Plan.
(c) "Board" means the Company's Board of Directors.
(d) "Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated and whether voting ) of such Person's capital stock and any and all
rights, warrants or options exchangeable for or convertible into such capital
stock.
<PAGE>
(e) "Cause" means (unless otherwise defined in a written agreement with
a Participant) (i) conviction of the Participant for committing a felony under
federal law or the law of the state in which such action occurred, (ii)
perpetration by the Participant of an illegal act which causes significant
economic injury to the Company or any of its Affiliates or of a common law fraud
against the Company or any of its Affiliates, or (iii) continuing willful and
deliberate failure on the part of the Participant to perform his or her duties
as a director of the Company in any material respect. The Committee shall have
the sole discretion to determine whether "Cause" exists, and its determination
shall be final.
(f) "Change of Control" means the happening of either of the following
events:
(i) An acquisition by any Person (other than Dickstein Partners
Inc. or any of its Affiliates) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
1934 Act) of 50% or more of either (A) the then outstanding
shares of Common Stock (the "Outstanding Company Common
Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to
vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly from
the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security
being so converted was itself acquired directly from the
Company, (2) any acquisition by the Company or (3) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Affiliate; or
(ii) The approval by the stockholders of the Company of the
complete liquidation or dissolution of the Company.
(g) "Common Stock" means the common stock, $.01 par value, of the
Company.
(h) "Company" means The Leslie Fay Company, Inc., a Delaware
corporation.
(i) "Fair Market Value" means, as of any given date, the mean between
the highest and lowest reported sale prices of a share of Common Stock on the
New York Stock Exchange, Inc. Composite Tape or, if not listed on such exchange,
on any other national securities exchange on which the Common Stock is then
listed or admitted to unlisted trading privileges or on the National Association
of Securities Dealers, Inc. Automated Quotation System. If there is no regular
public trading market for such Common Stock, the Fair Market Value of the Common
Stock shall be determined by the Board in good faith.
(j) "Grant Date" means the conclusion of each annual meeting of
stockholders of the Company.
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<PAGE>
(k) "1934 Act" means the Securities Exchange Act of 1934, as amended
from time to time.
(l) "Non-Employee Director" means a member of the Board who, as of the
close of business on the date as of which a determination is made, is not an
employee of the Company or any Subsidiary.
(m) "Participant" means a Person holding an Award..
(n) "Person" means any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act).
(o) "Stock Incentive Grant" means an Award in the form of a grant of a
specified number of shares of Common Stock in accordance with Section 7 of the
Plan.
(p) "Stock Option" means an Award in the form of the right to purchase
a specified number of shares of Common Stock at a specified price during a
specified period granted under Section 6 of the Plan.
(q) "Subsidiary" means any corporation, partnership or other entity in
which the Company owns, directly or indirectly, an equity interest of 50% or
more.
Section 3: Effective Date
The Plan became effective as of June 4, 1997. The Plan, as amended,
shall become effective on the date it is approved by the stockholders of the
Company entitled to vote at the annual meeting of stockholders of the Company to
be held in 1998, or any adjournment thereof. No Awards may be made under the
Plan after 10 years after June 3, 2007 or the earlier termination of the Plan by
the Board.
Section 4: Plan Operation
The Plan is intended to be a "formula plan" and, accordingly, is
generally intended to be self-governing. To this end, the Plan requires no
discretionary action by any administrative body with regard to any transaction
under the Plan, except as otherwise provided in the Plan. To the extent, if any,
that any question of interpretation arises, such question shall be resolved by
the Board.
Section 5: Stock Available for Awards
(a) Common Shares Available. The maximum number of Shares available for
Awards under the Plan may not exceed 100,000 shares of Common Stock.
3
<PAGE>
(b) Adjustments and Reorganizations. Adjustments shall be made to meet
the intent of the Plan. Such appropriate adjustments shall be made to (i) the
number of shares of Common Stock available under the Plan and which thereafter
may be made the subject of Awards under the Plan, and (ii) the number and type
and exercise price of shares of Common Stock, securities or other property
subject to outstanding Stock Options, provided such adjustments are consistent
with the effect on other stockholders arising from any corporate transaction.
Such actions may include, but are not limited to, any stock dividend, stock
split, combination or exchange of shares of Common Stock, merger, consolidation,
spin-off, recapitalization or other distributions (other than normal cash
dividends) of Company assets to stockholders, or any other change affecting
shares of Common Stock. Adjustments shall be made in the calculation of Fair
Market Value as necessary to preserve the Participants' rights under the Plan.
(c) Common Stock Usage. The number of shares of Common Stock underlying
any Award granted under the Plan which is forfeited, canceled, reacquired by the
Company, satisfied without issuance of Common Stock or otherwise terminated
(other than by exercise) shall again become available for granting of additional
Awards under the Plan.
Section 6: Stock Option Awards
Each Non-Employee Director who was such on June 4, 1997 shall
automatically be granted a non-qualified Stock Option to purchase 10,000 shares.
Upon election or appointment to the Board, thereafter, each new Non-Employee
Director shall automatically be granted a non-qualified Stock Option to purchase
5,000 shares.
The option exercise price per share of Common Stock shall be equal to
the Fair Market Value on the date of grant. Each Stock Option shall have a term
of 10 years and shall become exercisable as follows: options with respect to
one-third of the shares of Common Stock subject thereto one year after election
to the Board; options with respect to an additional one-third of the shares of
Common Stock subject thereto two years after election to the Board; options with
respect to an additional one-third of the shares of Common Stock subject thereto
three years after election to the Board (upon which date the Stock Option shall
become fully exercisable). Notwithstanding the foregoing, the Board may
accelerate the vesting of any Stock Option. Participants will receive credit for
prior service on the Board in satisfying this vesting requirement. Such Stock
Options shall continue to be granted to new Non-Employee Directors until the
Plan is terminated or amended to eliminate or change such grants.
Notwithstanding the foregoing, in the event of a Change of Control or in the
event that a Participant ceases to be a Non-Employee Director for any reason
other than his resignation or his refusal in writing to stand for re-election,
each outstanding Stock Option of the Participant shall become fully exercisable,
provided the Participant has served continuously as a director of the Company
during the preceding six-month period.
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<PAGE>
Section 7: Stock Incentive Grants
(a) Each Non-Employee Director shall automatically be granted an Award
for 1,000 Shares under the Plan, as of each Grant Date, commencing with the
annual meeting to be held in 1998. An individual who shall become an
Non-Employee Director subsequent to the date of the annual meeting of
stockholders of the Company for any year shall first become eligible to
participate in the Plan commencing on the date of the next annual meeting of
stockholders of the Company.
(b) Shares, when issued, will be represented by a stock certificate or
certificates registered in the name of the Non-Employee Director to whom such
Shares shall have been granted. Shares shall constitute issued and outstanding
shares of Common Stock for all corporate purposes. The Non-Employee Director
will have all rights, powers and privileges of a holder of Common Stock with
respect to such Shares.
Section 8: General Provisions Applicable to Awards
(a) Non-Transferability of Stock Options. Stock Options granted under
Section 6 hereof may not be sold, pledged, assigned, hypothecated, transferred
or disposed of in any manner other than by will or under the laws of descent and
distribution. The designation of a beneficiary shall not constitute a transfer.
A Stock Option may be exercised, during the lifetime of the Participant, only by
such Participant or his legal representative.
(b) No Right to Nomination. Nothing contained in the Plan shall confer
upon any Non-Employee Director the right to be nominated for reelection to the
Board.
(c) Termination of Directorship. If a Participant ceases to be a
director of the Company while holding a Stock Option granted under this Plan,
any Stock Option which has vested shall continue to be exercisable for a period
of three years or the remainder of the option term whichever is shorter.
Notwithstanding the foregoing, if a Participant ceases to be a director of the
Company for Cause, any Stock Option awarded under the Plan and held by the
Participant shall be canceled as of the date of such termination.
(d) Documentation of Grants. Awards made under the Plan shall be
evidenced by written agreements or such other appropriate documentation as the
Board shall prescribe.
(e) Nonalienation of Benefits. No right or benefit under the Plan shall
be subject to anticipation, alienation, sale, assignment, hypothecation, pledge,
exchange, transfer, encumbrance or charge, and any attempt to anticipate,
alienate, sell, assign, hypothecate, pledge, exchange, transfer, encumber or
charge the same shall be void. No right or benefit hereunder shall in any manner
be liable for or subject to the debts, contracts, liabilities or torts of the
person entitled to such benefit. If any Non-Employee Director or beneficiary
hereunder should become bankrupt or attempt to anticipate, alienate, sell,
assign, hypothecate, pledge,
5
<PAGE>
exchange, transfer, encumber or charge any right or benefit hereunder, then such
right or benefit shall, in the discretion of the Board, cease and terminate, and
in such event, the Board in its discretion may hold or apply the same or any
part thereof for the benefit of the Non- Employee Director, his or her
beneficiary, spouse, children or other dependents, or any of them, in such
manner and in such proportion as the Board may deem proper.
(f) Withholding Taxes. At the time any Shares are issued, each
Non-Employee Director shall pay to the Company the amount of any Federal, state
or local taxes of any kind required by law to be withheld with respect thereto.
If a Non-Employee Director shall fail to make the payments required hereunder,
the Company shall, to the extent permitted by law, have the right to deduct from
any payment of any kind otherwise due to such Non-Employee Director any Federal,
state or local taxes of any kind required by law to be withheld with respect to
such Shares.
(g) Plan Amendment. The Board may suspend the Plan or any portion of
the Plan. The Board may also amend the Plan if deemed to be in the best
interests of the Company and its stockholders; provided, however, that no such
amendment may impair any Participant's right regarding any outstanding grants,
elections or other right to receive shares of Common Stock under the Plan
without his or her consent; and further provided, that the Board may not,
without approval by the holders of a majority of the voting securities of the
Company, (i) increase the maximum number of Shares which may be granted
hereunder in the aggregate (except for adjustments by the Board as hereinabove
provided in Section 5(b)) or (ii) modify the provisions of the Plan as to
eligibility for participation in the Plan.
(h) Government and Other Regulations. Notwithstanding any other
provisions of the Plan, the obligations of the Company with respect to Shares
shall be subject to all applicable laws, rules and regulations, and such
approvals by any governmental agencies as may be required or deemed appropriate
by the Company. The Company reserves the right to delay or restrict, in whole or
in part, the issuance or delivery of Common Stock pursuant to any grants of
Shares or exercise of Stock Options under the Plan until such time as:
(i) any legal requirements or regulations shall have been met
relating to the issuance of such Shares or to their registration, qualification
or exemption from registration or qualification under the Securities Act of
1933, as amended from time to time, or any applicable state securities laws; and
(ii) satisfactory assurances shall have been received that
such Shares when delivered will be duly listed on any applicable securities
exchange.
(i) Nonexclusivity of Plan. Neither the adoption of the Plan by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the awarding of stock or Stock Options
6
<PAGE>
otherwise than under the Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
(j) Governing Law. The validity, construction and effect of the Plan
and any such actions taken under or relating to the Plan shall be determined in
accordance with the laws of the State of New York and applicable federal law.
7
EXHIBIT 5.01
PARKER CHAPIN FLATTAU & KLIMPL, LLP
COUNSELLORS AT LAW
1211 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-8735
(212) 704-6000
CABLE LAWPARK
FAX (212) 704-6288
TELEX 640347
August 27, 1998
The Leslie Fay Company, Inc.
1412 Broadway
New York, New York 10018
Gentlemen:
We have acted as counsel to The Leslie Fay Company, Inc. (the
"Registrant") in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to 200,000 shares of Common Stock, par value $.01 per share,
of the Registrant (the "Common Stock"), issuable upon exercise of options
granted or to be granted under the Registrant's 1997 Non-Employee Director Stock
Option and Stock Incentive Plan (the "Plan") or upon automatic annual grants of
shares of Common Stock under the Plan.
In connection with the foregoing, we have examined, among
other things, the Plan, the Registration Statement and originals or copies,
satisfactory to us, of all such corporate records and of all such agreements,
certificates and other documents as we have deemed relevant and necessary as a
basis for the opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity with the original documents of
documents submitted to us as copies. As to any facts material to such opinion,
we have, to the extent that relevant facts were not independently established by
us, relied on certificates of public officials and certificates, oaths and
declarations of officers or other representatives of the Registrant.
Based upon and subject to the foregoing, we are of the opinion
that the shares of Common Stock to be issued pursuant to the exercise of options
granted or to be granted under the Plan and pursuant to automatic annual grants
of shares of Common Stock under the Plan will be, when issued pursuant to the
provisions of the Plan, validly issued, fully paid and non-assessable.
<PAGE>
The Leslie Fay Company, Inc.
August 27, 1998
Page 2
We hereby consent to the filing of a copy of this opinion as
an exhibit to the Registration Statement.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
---------------------------------------
Parker Chapin Flattau & Klimpl, LLP
EXHIBIT 23.01
INDEPENDENT ACCOUNTANTS' CONSENT
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 relating to the 1997
Non-Employee Director Stock Option and Stock Incentive Plan of The Leslie Fay
Company, Inc. of our report dated February 27, 1998, except with respect to Note
6 as to which the date is March 31, 1998, included in The Leslie Fay Company,
Inc.'s Form 10-K for the year ended January 3, 1998 and to all references to our
Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
New York, New York
August 25, 1998
