As filed with the Securities and Exchange Commission on
March 23, 1998.
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JLM COUTURE, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-3337553
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification
No.)
225 West 37th Street, 5th Floor, New York, New York 10018
(Address of principal executive offices) (Zip
Code)
1996 Stock Option Plan
(Full title of the plan)
Richard S. Kalin, Esq.
757 Third Avenue, 7th Floor, New York, NY 10017
(Name and address of agent for service)
(212) 888-9010
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
=================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering
registration
registered registered(1) share(2) price(2) fee
Common Stock, 100,000 $4.125 $412,500 $125.00
par value $.0002
per share.....
(1) The number of shares stated is the aggregate number of
shares
of Common Stock to be issued upon exercise of options
granted
or to be granted under the 1996 Stock Option Plan (the
"Plan").
(2) Estimated solely for the purpose of calculating the
registration fee and based upon the average of the bid and
asked price of the Common Stock as reported by National
Association of Securities Dealers Automated Quotation System
("NASDAQ") on March 18, 1998 as to options to be granted
under
the Plan.
<PAGE>
PART I*
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee
Plan Annual Information.
______________
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act of
1933 and the Note to Part I of Form S-8.<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
1. The following documents, which have been filed by
JLM
COUTURE, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission"), File Number 0-1900, pursuant to
the
Securities Exchange Act of 1934 (the "Exchange Act"), are
incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the
fiscal year ended October 31, 1997,
(b) The Company's Proxy Statement filed with the
Commission on March 2, 1998, and
(c) The Company's Quarterly Report on Form 10-QSB for
the quarter ended January 31, 1998.
2. 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 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 respective date of filing of such
documents. Any statement contained in a document incorporated by
reference herein is modified or superseded for all purposes to
the
extent that a statement contained in this Registration Statement
or
in any other subsequently filed document which is incorporated by
reference modifies or supersedes such statement.
Item 4. Description of Securities.
Common Stock. The authorized capital stock of the
Company
consists of 10,000,000 shares of Common Stock, par value $.0002
per
share. The Company's Common Stock (the "Common Stock") is
publicly-
traded on the NASDAQ system. The holders of Common Stock (i)
will
have equal ratable rights to dividends from funds legally
available
therefor when, as and if declared by the Board of Directors of
the
Company, (ii) are entitled to share ratably in all of the profits
of the Company available for distribution to holders of Common
Stock upon liquidation, dissolution or winding up of the affairs
of
the Company, (iii) do not have preemptive, subscription or
conversion rights and there are no redemption or sinking fund
provisions applicable thereto and (iv) are entitled to one non-
cumulative vote per share on all matters which stockholders may
vote on at all meetings of stockholders. All shares of Common
Stock now outstanding are fully-paid and non-assessable and all
shares of Common Stock which are the subject of this Registration
Statement, when issued, will be fully-paid and non-assessable.
Dividend Policy. The Company does not intend to pay
dividends on the Common Stock. The Company intends to retain
earnings, if any, for use in the operation and expansion of its
business. The amount of dividends, if any, will be determined by
the Board of Directors, based upon the Company's earnings,
financial condition, capital requirements and other conditions.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 145 of the General Corporation Law of the
State
of Delaware provides for the indemnification of officers and
directors under certain circumstances against expenses incurred
in
successfully defending against a claim and authorizes Delaware
corporations to indemnify their officers and directors under
certain circumstances against expenses and liabilities incurred
in
legal proceedings involving such persons because of their being
or
having been an officer or director.
Section 102(b) of the Delaware General Corporation Law
permits a corporation, by so providing in its certificate of
incorporation, to eliminate or limit director's liability to the
corporation and its stockholders for monetary damages arising out
of certain alleged breaches of their fiduciary duty. Section
102(b)(7) provides that no such limitation of liability may
affect
a director's liability with respect to any of the following: (i)
breaches of the director's duty of loyalty to the corporation or
its stockholders; (ii) acts or omissions not made in good faith
or
which involve intentional misconduct of knowing violations of
law;
(iii) liability for dividends paid or stock repurchased or
redeemed
in violation of Section 174 of the Delaware General Corporation
Law; or (iv) transactions from which directors derived an
improper
personal benefit. Section 102(b)(7) does not authorize any
limitation on the ability of the corporation or its stockholders
to
obtain injunctive relief, specific performance or other equitable
relief against directors.
Article Sixteenth of the Company's Certificate of
Incorporation provides that no director of the Company shall be
personally liable to the registrant or its stockholders for any
monetary damages for breaches of fiduciary duty as a director,
provided that this provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty
of loyalty to the registrant 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.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
Exhibit No. Description
4.1 1996 Stock Option Plan
4.2 Form of Stock Option Agreement
5.1 Opinion of Kalin & Associates, P.C.
15.1 Consent of Arthur Andersen, LLP
24.1 Consent of Kalin & Associates, P.C.
(included in Exhibit 5.1)
25.1 Powers of Attorney (included on Pages
II-5 and II-6 of this Registration
Statement)
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:
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.
(2) That, for the purpose of determining any
liability
under the Securities Act of 1933 (the "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 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 Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
procedures, 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.
<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 March 23, 1998.
JLM COUTURE, INC.
By: s/Joseph L. Murphy
Joseph L. Murphy, President
POWER OF ATTORNEY
Each person whose individual signature appears below hereby
authorizes each of Joseph L. Murphy, Daniel Sullivan or any of
them
as his or her true and lawful attorney-in-fact with full power of
substitution to execute in the name and on behalf of each person,
individually and in each capacity stated below, and to file, any
and all amendments to this Registration Statement, including any
and all post-effective amendments thereto.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
s/Joseph L. Murphy Director and March 23, 1998
Joseph L. Murphy President (Principal
Executive and Financial
Officer)
Chairman of the March 23, 1998
Daniel M. Sullivan Board of Directors
s/Joseph E. O'Grady Director March 23, 1998
Joseph E. O'Grady
EXHIBIT INDEX
Exhibit No. Document
4.1 1996 Stock Option Plan
4.2 Form of Stock Option Agreement
5.1 Opinion of Kalin & Associates, P.C.
15.1 Consent of Arthur Andersen, LLP
24.1 Consent of Kalin & Associates, P.C. (included in
Exhibit 5.1)
25.1 Powers of Attorney (included on Page II-5
of this Registration Statement)
EXHIBIT 4.1
JIM HJELM'S PRIVATE COLLECTION, LTD.
1996 STOCK OPTION PLAN
1. General Plan Information. The purpose of this Stock
Option Plan (the "Plan") is to advance the interests of Jim Hjelm's
Private Collection, Ltd. (the "Company") by enhancing the ability
of the Company to attract and retain selected employees, officers,
consultants, advisors to the Board of Directors and qualified
directors (collectively the "Participants") by creating for such
Participants incentives and rewards for their contributions to the
success of the Company, and by encouraging such Participants to
become owners of shares of the Company's common stock, par value
$0.0002 per share, as the title or par value may be amended (the
"Shares").
Options granted pursuant to the Plan may be incentive stock
options ("Incentive Options") as defined in the Internal Revenue
Code of 1986, as amended (the "Code") or non-qualified options, or
both. The proceeds received from the sale of Shares pursuant to
the Plan shall be used for general corporate purposes.
2. Effective Date of Plan. The Plan will become effective
upon approval by the Board of Directors (the "Board"), and shall be
subject to the approval by the holders of at least a majority of
all Shares present in person and by proxy and entitled to vote
thereon at a meeting of stockholders of the Company prior thereto
or within 12 months thereafter.
3. Administration of the Plan. The Plan will be administered
by the Board of the Company. The Board will have authority, not
inconsistent with the express provisions of the Plan, to take all
action necessary or appropriate thereunder, to interpret its
provisions, and to decide all questions and resolve all disputes
which may arise in connection therewith. Such determinations of
the Board shall be conclusive and shall bind all parties.
The Board may, in its discretion, delegate its powers with
respect to the Plan to an employee benefit plan committee or any
other committee (the "Committee"), in which event all references to
the Board hereunder, including without limitation the references in
Section 10, shall be deemed to refer to the Committee. The
Committee shall consist of not fewer than three members. Each of
the members must be a "disinterested person" as that term is
defined in Rule 16b-3 adopted pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act"). A majority of the members of the
Committee shall constitute a quorum, and all determinations of the
Committee shall be made by the majority of its members present at
a meeting. Any determination of the Committee under the Plan may
be made without notice or meeting of the Committee by a writing
signed by all of the Committee members.
The Board and the Committee, if any, shall have the authority
to determine eligibility, the number of options granted and the
exercise price of options.
4. Eligibility. The Participants in the Plan shall be all
employees, officers, consultants, advisors to the Board of
Directors and qualified directors of the Company or any of its
present or future subsidiaries (as defined in Section 9) whether or
not they are also officers of the Company. Members of the
Committee are eligible only if they do not exercise any discretion
in: (i) selecting Participants who receive grants of options; (ii)
determining the number of Shares to be granted to any Participant;
or (iii) determining the exercise price of any options, or as
counsel to the Company may otherwise advise the Committee that the
taking of any such action does not impair the status of such
eligible Committee members as "disinterested persons" within the
meaning of Exchange Act Rule 16b-3.
5. Grant of Options.
(a) The Board shall grant options to Participants that
it, in its sole discretion, selects. Options shall be granted on
such terms as the Board shall determine except that Incentive
Options shall be granted on terms that comply with the Code and
regulations thereunder.
(b) No options shall be granted after August 26, 2006
but options previously granted may extend beyond that date.
6. Option Agreements.
(a) Each option under the Plan shall be evidenced by an
option agreement, which shall be signed by an officer of the
Company and by the optionee and which shall contain such provisions
as may be approved by the Board.
(b) The option agreements shall constitute binding
contracts between the Company and the optionee. Every optionee,
upon acceptance of such option agreement, shall be bound by the
terms and restrictions of this Plan and of the option agreement.
(c) The terms of the option agreement shall be in
accordance with this Plan, but may include additional provisions
and restrictions, provided that the same are not inconsistent with
the Plan.
7. Terms and Conditions of Options.
(a) Exercise Price. Except as provided in Section 5(b)
of this Plan, the purchase price per share for Shares issuable upon
exercise of options shall be a minimum of 100% of fair market value
on the date of grant and shall be determined by the Board. For
this purpose, "fair market value" will be determined as set forth
in Section 9. Notwithstanding the foregoing, if any person to whom
an option is to be granted owns in excess of ten percent of the
outstanding capital stock of the Company, then no option may be
granted to such person for less than 110% of the fair market value
on the date of grant as determined by the Board.
(b) Annual Limit on Grant and Exercise. Incentive
Options shall not be granted to any individual pursuant to this
Plan, the effect of which would be to permit such person to first
exercise options, in any calendar year, for the purchase of Shares
having a fair market value in excess of $100,000 (determined at the
time of the grant of the options). An optionee hereunder may
exercise options for the purchase of Shares valued in excess of
$100,000 (determined at the time of the grant of the options) in a
calendar year, but only if the right to exercise such options shall
have first become available in prior calendar years.
(c) Payment for Delivery of Shares. Shares which are
subject to options shall be issued only upon receipt by the Company
of full payment of the purchase price for the Shares as to which
the option is exercised. The purchase price shall be payable by
the Participant to the Company either (i) in cash, certified
check, bank draft or money order payable to the order of the
Company; or (ii) through the delivery of Shares owned by the
Participant for a period of not less than six months and for which
the Participant has good title (free and clear of any liens and
encumbrances) having a fair market value equal to the purchase
price; or (iii) by a combination of cash and Shares as provided in
(i) and (ii) above.
The Company shall not be obligated to deliver any Shares
unless and until, in the opinion of the Company's counsel, all
applicable federal and state laws and regulations have been
complied with, nor, if the outstanding common stock is at the time
not listed on any securities exchange, unless and until the Shares
to be delivered have been listed (or authorized to be added to the
list upon official notice of issuance) upon such exchange, nor
unless or until all other legal matters in connection with the
issuance and delivery of Shares have been approved by the Company's
counsel. Without limiting the generality of the foregoing, the
Company may require from the person exercising an option such
investment representation or such agreement, if any, as counsel for
the Company may consider necessary in order to comply with the
Securities Act of 1933, as amended and applicable state securities
laws.
A Participant shall have the rights of a shareholder only as
to Shares actually acquired by him under the Plan.
(d) Vesting. Except for options granted pursuant to
Section 5(b) of this Plan, the Board may impose such vesting
restrictions as it sees fit at the time of grant.
(e) Non-Transferability of Options. Options may not be
sold, assigned or otherwise transferred or disposed of in any
manner whatsoever except as provided in Section 7(g).
(f) Forfeiture of Options upon Termination of
Relationship. All options which have not vested shall terminate
and be forfeited automatically upon the termination for any reasons
whatsoever of a Participant's status as an employee, consultant or
advisor to the Board. Unexercised options shall terminate and be
forfeited upon (i) the Participants voluntary termination of his
employment or (ii) the expiration of three months after the
Participant's employment is terminated by the Company. Except as
provided in Section 7(g) below, unexercised options granted to
directors shall not terminate or be forfeited in the event such
person is no longer a director of the Company.
(g) Death. If a Participant dies at a time when he is
entitled to exercise an option, then at any time or times within
one year after his death (or such further period as the Board may
allow) such options may be exercised, as to all or any of the
Shares which the Participant was entitled to purchase immediately
prior to his death, by his personal representative or the person or
persons to whom the options are transferred by the will or the
applicable laws of descent and distribution, and except as so
exercised such options will expire at the end of such period.
(h) Loans to Exercise Options. If requested by any
Participant to whom a grant of non-qualified options has been made,
the Company or any subsidiary may loan such person the amount of
money necessary to pay the federal income taxes incurred as a
result of the exercise of any options (or guarantee a bank loan for
such purpose), assuming that the Participant is in the maximum
federal income tax bracket six months from the time of exercise and
assuming that the Participant has no deductions which would reduce
the amount of such tax owed. The loan shall be made on or after
April 15th of the year following the year in which the amount of
tax is determined as may be requested by the Participant and shall
be made on such terms as the Company or lending bank determines.
(i) Withholding Taxes. To the extent that the Company
is required to withhold taxes for federal income tax purposes in
connection with the exercise of any options, the Company shall have
the right to assist the Participant to satisfy such withholding
requirement by (i) the Participant paying the amount of the
required withholding tax to the Company, (ii) the Participant
delivering to the Company Shares of its common stock previously
owned by the Participant or (iii) the Participant having the
Company retain a portion of the Shares covered by the option
exercise. The number of Shares to be delivered to or withheld by
the Company times the fair market value as defined by Section 8 of
this Plan shall equal the cash required to be withheld. To the
extent that the Company elects to allow the Participant either to
deliver or have withheld Shares of the Company's common stock, the
Board or the Committee may require him to make such election only
during certain periods of time as may be necessary to comply with
appropriate exemptive procedures regarding the "short-swing" profit
provisions of Section 16(b) of the Exchange Act or to meet certain
Code requirements.
8. Shares Subject to Plan.
(a) Number of Shares and Stock to be Delivered. Shares
delivered pursuant to this Plan shall, in the discretion of the
Board, be authorized but unissued Shares of common stock or
previously issued Shares acquired by the Company. Subject to
adjustments as described below, the aggregate number of Shares
which may be delivered under this Plan shall not exceed 100,000
Shares of common stock of the Company.
(b) Changes in Stock. In the event of a stock dividend,
stock split or combination of Shares, recapitalization, merger in
which the Company is the surviving corporation or other change in
the Company's capital stock, the number and kind of Shares of stock
or securities of the Company to be subject to the Plan and to
options then outstanding or to be granted thereunder, the maximum
number of Shares or securities which may be delivered under the
Plan, the option price and other relevant provisions, shall be
appropriately adjusted by the Board whose determination shall be
binding on all persons. In the event of a consolidation or merger
in which the Company is not the surviving corporation or which
results in the acquisition of substantially all the Company's
outstanding stock by a single person or entity, or in the event of
the sale or transfer of substantially all the Company's assets, all
outstanding options shall thereupon terminate.
The Board may also adjust the number of Shares subject to
outstanding options, the exercise price of outstanding options and
the terms of outstanding options to take into consideration
material changes in accounting practices or principles,
consolidations or mergers (except those in which the Company is not
the surviving Corporation as described in the immediately preceding
paragraph), acquisitions or dispositions of stock or property or
any other event if it is determined by the Board that such
adjustment is appropriate to avoid distortion in the operation of
the Plan.
9. Definitions.
(a) For purposes of the Plan, a subsidiary is any
corporation (i) in which the Company owns, directly or indirectly,
stock possessing 50 percent or more of the total combined voting
power of all classes of stock or (ii) over which the Company has
effective operating control.
(b) The fair market value of the Shares of common stock
shall be deemed to be:
(i) the closing price of the Company's common stock
appearing on a national securities exchange if the Company's common
stock is listed on such an exchange, or if not listed, the average
closing bid price appearing on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ");
(ii) if the Shares of common stock are not listed
on NASDAQ, then the average bid price for the Company's stock as
listed in the National Quotation Bureau's pink sheets;
(iii) if there are no listed bid prices published
in the pink sheets, then the market value shall be based upon the
average closing bid price as determined following a polling of all
dealers making a market in the Company's Shares.
10. Indemnification of Board. In addition to and without
affecting such other rights of indemnification as they may have as
members of the Board or otherwise, each member of the Board shall
be indemnified by the Company to the extent legally possible
against reasonable expenses, including attorney's fees, actually
and reasonably incurred in connection with any appeal therein, to
which he may be a party by reason of any action taken or failure to
act under or in connection with the Plan, or any option granted
thereunder, and against all judgments, fines and amounts paid by
him in settlement thereof; provided that such payment of amounts so
indemnified is first approved by a majority of the members of the
Board who are not parties to such action, suit or proceeding, or by
independent legal counsel selected by the Company, in either case
on the basis of a determination that such member acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; and except that no
indemnification shall be made in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such
Board member is liable for a breach of the duty of loyalty, bad
faith or intentional misconduct in his duties; and provided
further, that the Board member shall, in writing, offer the Company
the opportunity, at its own expense, to handle and defend same.
11. Amendments. The Board may at any time discontinue
granting options under the Plan. The Board may at any time or
times amend the Plan or amend any outstanding option or options for
the purpose of satisfying the requirements of any changes in
applicable laws or regulations or for any other purpose which may
at the time be permitted by law, provided that (except to the
extent explicitly required or permitted herein above) no such
amendment will, without the approval of the stockholders of the
Company, (a) increase the maximum number of Shares available under
the Plan, (b) reduce the option price of outstanding options or
reduce the price at which options may be granted, (c) extend the
time within which options may be granted, (d) amend the provisions
of this Section 11 of the Plan, (e) adversely affect the rights of
any Participant (without his consent) under any options theretofore
granted or (f) be effective if stockholder approval is required by
applicable statute, rule or regulation.
Date Approved by Board of Directors: August 26, 1996
Date Approved by Shareholders: June 25, 1997
EXHIBIT 5.1
March 23, 1998
JLM Couture, Inc.
225 West 37th Street
New York, NY 10018
Gentlemen:
You have requested our opinion with respect to the offering by
JLM Couture, Inc., a Delaware corporation (the "Company"), of up to
100,000 shares (the "Option Shares") of Common Stock, par value
$.0002 per share, of the Company (the "Common Stock"), pursuant to
the provisions of the Company's 1996 Stock Option Plan (the
"Plan"). The Option Shares are being offered and sold pursuant to
a Registration Statement (the "Registration Statement") on Form S-8
under the Securities Act of 1933, as amended (the "Act").
We have examined a copy of the Certificate of Incorporation
and By-Laws, as amended, of the Company, the minutes of various
meetings of the Company's Board of Directors and Stockholders, the
Registration Statement prepared by the Company and filed with the
Securities and Exchange Commission and the original or certified
copies of such agreements, certificates of public officials,
certificates of officers and representatives of the Company and
others, opinions of counsel, documents, papers, statutes and
authorities as we deemed necessary as a basis for the opinions
hereinafter set forth. In such examinations we have assumed the
genuineness of all signatures and the conformity to original
documents of all copies. As to various questions of fact material
to such opinions, we have relied upon statements and certificates
of officers and representatives of the Company and others.
Based upon the foregoing, we are of the opinion that the
Option Shares have been duly and validly authorized and, when sold,
paid for and issued as contemplated by the Plans and the
Registration Statement, will be duly and validly issued, fully-paid
and non-assessable.
JLM Couture, Inc.
March 23, 1998
Page 2
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement, and to the use of our name as your
counsel in connection with the Registration Statement and in the
Prospectus forming a part thereof. In giving this consent, we do
not thereby concede that we come within the categories of persons
whose consent is required by the Act or the General Rules and
Regulations promulgated thereunder.
Very truly yours,
s/Kalin & Associates, P.C.
Kalin & Associates, P.C.
EXHIBIT
15.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated January 29, 1998 included in JLM Couture, Inc.'s
Form
10-KSB for the year ended October 31, 1997 and to all references
to
our Firm included in this registration statement.
New York, New York
March 23, 1998 s/Arthur Andersen LLP
EXHIBIT 4.2
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, is made and entered into this
day of 1998, by and between JLM Couture, Inc.,
a Delaware corporation (the "Company"), and (the
"Optionee").
R E C I T A L S
WHEREAS, Optionee is a valued employee, officer, consultant,
advisor to the Board of Directors Company or a qualified director
of the Board; and
WHEREAS, the Company desires, by affording the Optionee an
opportunity to purchase shares of Common Stock of the Company
(hereinafter called "Common Stock") as hereinafter provided, to
carry out the purpose of the Company's 1996 Stock Option Plan (the
"Plan").
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, and for other good and valuable
consideration, the parties hereto have agreed, and do hereby agree,
as follows:
1. Grant of Option. The Company hereby irrevocably grants
to the Optionee the right and option (hereinafter called the
"Option") to purchase all or any part of an aggregate of
shares of Common Stock (such number being subject to adjustment as
provided in Article 6 hereof) on the terms and conditions herein
set forth. The Optionee acknowledges that the Option is an
"incentive option" within the meaning of an "incentive stock option
plan" and Section 422A of the Internal Revenue Code of 1986, as
amended, and that it is being granted pursuant to the Plan.
2. Purchase Price. The purchase price of the shares of
Common Stock covered by the Option shall be $ per share, as
determined pursuant to Article 7 of the Plan as of the date hereof.
3. Terms of Option. This Option shall be exercisable
commencing _______________________. The term of the Option shall
expire on , subject only that in any one year the
value of the options first exercisable by the Optionee shall not
exceed $100,000 based on the current fair market price for such
shares of Common Stock at the time and exercise, determined in
accordance with Article 7 of the Plan, and provided further, the
Optionee is an employee of the Company at the time of the exercise
of the Option in accordance with the provisions of Article 7
hereof.
3.1 Payment. The purchase price of the shares of Common
Stock as to which the Option shall be exercised shall be paid in
full at the time of exercise (i) in cash, by certified check by
bank draft or money order payable to the order of the Company;
(ii) subject to any legal restrictions on the acquisition or
purchase of such shares of Common Stock by the Company, by the
delivery of shares of Common Stock owned by the Optionee for a
period of not less than six months and for which the Optionee has
good title (free and clear of any liens and encumbrances) having a
fair market value equal to the purchase price; or (iii) by any
combination of (i) or (ii) above. The Optionee shall not have any
of the rights of a shareholder with respect to the shares of Common
Stock covered by the Option as to any shares of Common Stock not
actually issued and delivered to the Optionee.
4. Competition. In consideration for the grant of this
Option, the Optionee agrees that, during the term of this Option
agreement and for a period of one year thereafter, he shall not in
any manner, engage or become interested in as owner, stockholder,
partner, director, officer, employee, consultant or otherwise, any
business which competes with the business conducted by the Company
or any of its affiliates.
5. Termination of Option. Except as otherwise stated
herein, the Option to the extent not heretofore exercised shall
terminate upon the first of the following dates to occur:
(a) In the event of the Optionee's death, the Optionee's
executors or administrators may exercise, within twelve
(12) months following the date of the Optionee's death,
the Option as to all or part of such number of shares
which the Optionee was entitled to purchase immediately
prior to his death, as determined in accordance with
article 2, not theretofore exercised during the
Optionee's lifetime;
(b) Except if the optionee is a director, on the date
the Optionee voluntarily terminates his employment;
(c) Except if the optionee is a director, the expiration
of three months after the date on which the Optionee's
employment by the Company is terminated (except if such
termination be by reason of death; and
(d) , the ______ anniversary date of this
Agreement.
6. Adjustment. Each outstanding Option shall be adjusted
according to Article 8 of the Plan.
Except as hereinbefore expressly provided, the Optionee shall
have no rights by reason of any subdivision or consolidation of
shares of Common Stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares
of Common Stock or stock of any class or by reason of dissolution,
liquidation, merger, or consolidation or spin-off of assets or
stock of another corporation, and any issue by the Company of
shares of Common Stock or stock of any class, or securities
convertible into shares of Common Stock or stock and no adjustment
by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to the Option.
The grant of an Option pursuant to the Plan shall not affect
in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or transfer all or any part of its business
assets.
Shares of Common Stock not purchased under an Option granted
under the Plan which are no longer available for purchase
thereunder by virtue of the total or partial expiration or
termination of such Option and any issue by the Company of shares
of Common Stock or stock of any class, or securities convertible
into shares of Common Stock or stock of any class, shall not
affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject
to the Option.
Shares of Common Stock not purchased under an Option granted
under the Plan which are no longer available for purchase
thereunder by virtue of the total or partial expiration,
termination, or voluntary surrender of the Option shall continue to
be otherwise available for the purposes of the Plan.
7. Method of Exercising Option. Subject to the terms and
conditions of this Option Agreement, this Option may be exercised
by written notice to the Company, at its principal office in the
State of New York, which presently is located at 225 West 37th
Street, New York, New York 10018. Such notice shall state the
election to exercise the Option and the number of shares of Common
Stock in respect to which it is being exercised and shall be signed
by the person or persons exercising the Option. Such notice shall
be accompanied by payment in accordance with the terms hereof, and
the Company shall deliver a certificate or certificates
representing the shares of Common Stock subject to such exercise as
soon as practicable after the notice shall be received. The
certificate or certificates for the shares of Common Stock as to
which the Option shall have been so exercised shall be registered
in the name of the person or persons so exercising the Option and
shall be delivered as provided above to or upon written order of
the person or persons exercising the Option. In the event the
Option shall be exercised by any person or persons other than the
Optionee in accordance with the terms hereof, such notice shall be
accompanied by appropriate proof of the right of such persons to
exercise the Option. All shares of Common Stock that shall be
purchased upon the exercise of the Option as provided herein shall
be fully paid and nonassessable. The holder of this Option shall
not be entitled to the privileges of share ownership as to any
shares of Common Stock not actually issued and delivered to
Optionee.
8. No Agreement to Employ. Nothing in this Agreement shall
be construed to constitute or be evidence of any agreement or
understanding, express or implied, on the part of the Company to
employ or retain Optionee for any specific period of time.
9. Restrictions. The holder of this Option, by acceptance
hereof, represents and warrants as follows:
(a) This Option and the right to purchase Common Stock
hereunder is personal to the holder and shall not be
transferred to any other person, other than by will or the
laws of descent and distribution.
(b) The holder hereof has been advised and understands
that the Option has been issued in reliance upon exemptions
from registration under the Securities Act and applicable
state statutes; the exercise of the Option and resale of the
Option and the Common Stock have not been registered under the
Securities Act or applicable state statutes and must be held
and may not be sold, transferred, or otherwise disposed of for
value unless they are subsequently registered under the
Securities Act or an exemption from such registration is
available; except as set forth herein, the Company is under no
obligation to register the Option or the Common Stock under
the Securities Act or the applicable state statutes; in the
absence of such registration, the sale of the Option or the
Common Stock may be practicably impossible; the Company's
registrar and transfer agent will maintain stop-transfer
instructions against registration or transfer of the Option
and the Common Stock and any certificate issued upon exercise
of the Option representing the Common Stock will bear on its
face a legend in substantially the following form restricting
the sale of the Common Stock:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND ARE
"RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE
144 PROMULGATED UNDER THE SECURITIES ACT. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD OR TRANSFERRED WITHOUT COMPLYING
WITH RULE 144 IN THE ABSENCE OF EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER THE
SECURITIES ACT.
(c) Prior to two years from the date the Option has been
exercised and the Common Stock fully paid for, the Company may
refuse to transfer the Common Stock unless the holder thereof
provides an opinion of legal counsel reasonably satisfactory
to the Company or a "no action" letter or interpretive
response from the staff of the Securities and Exchange
Commission to the effect that the transfer is proper; further,
unless such opinion letter or response states that the Common
Stock are free of any restrictions under the Securities Act,
the Company may refuse to transfer the Common Stock to any
transferee who does not furnish in writing to the Company the
same representations and agree to the same conditions with
respect to such Common Stock as are set forth herein.
Notwithstanding any of the foregoing, the Company may refuse
to transfer the Common Stock if any circumstances are present
reasonably indicating that the transferee's representations
are not accurate.
(d) After two years but prior to three years from the
date the Option has been exercised and the Common Stock fully
paid for, the Company may refuse to transfer the Common Stock
unless the holder either (i) meets the requirements of
subparagraph (b) above; or (ii) sells such Common Stock in
accordance with Rule 144 and furnishes to the Company written
assurances of compliance therewith in the form of a copy of
the Notice of Form 144 and appropriate letters of compliance
from the holder of such Common Stock and the securities
broker-dealer to or through which such Common Stock are being
sold. No opinion of counsel for the holder of the Common
Stock shall be required respecting sales in reliance on Rule
144 pursuant to clause (ii) of this subparagraph (d).
(e) After three years from the date the Option has been
exercised and the Common Stock fully paid for, the Company
shall, upon the written request of any persons who have held
the Common Stock for three years (excluding any tolling period
provided for by Rule 144) and who is not, and has not been
during the preceding three months, an affiliate of the
Company, reissue to such holder in such names and
denominations as the holder shall request, one or more
certificates for the Common Stock without any restriction
whatsoever on their further transfer and cancel any and all
stop transfer instructions regarding such Common Stock on the
books and records of the Company.
10. General. The Company shall at all times during the term
of this Option reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of
this Option Agreement, shall pay all original issue and transfer
taxes with respect to the issue and transfer of shares of Common
Stock pursuant thereto and all other fees and expenses necessarily
incurred by the Company in connection therewith, and will from time
to time use its best efforts to comply with all laws and
regulations, which in the opinion of counsel for the Company, shall
be applicable thereto.
11. Validity and Construction. The validity and construction
of this Option shall be governed by the laws of the State of New
York. Such construction is vested in the board and its
construction shall be final and conclusive.
IN WITNESS WHEREOF, the Company has caused this Option
Agreement to be duly executed by its proper corporate officers
thereunto duly authorized.
JLM COUTURE, INC.
By:
(Authorized Officer)
Optionee
