UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
Washington, D.C. 20549
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
ONE PRICE CLOTHING STORES, INC.
(Exact name of Registrant as specified in its Charter)
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<S> <C> <C>
Delaware 57-0779028
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Highway 290, Commerce Park
1875 East Main Street
Duncan, South Carolina 29334
(Address of principle executive office) (Zip Code)
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ONE PRICE CLOTHING STORES, INC. STOCK OPTION AGREEMENT
(Full Title of Plan)
Grant H. Gibson, Secretary
One Price Clothing Stores, Inc.
Highway 290, Commerce Park
1875 East Main Street
Duncan, South Carolina 29334
(Name and address of agent for service)
(864) 433-8888
(Telephone number, including area code of agent for service)
Calculation of Registration Fee
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Proposed
Proposed maximum
Title of securities Amount to be Maximum offering aggregate Amount of
to be registered registered Price per share Offering price Registration fee
Common Stock
$0.01 par value
per share 300,000 $4.125* $1,237,500 $365.06
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* The exercise price of stock options is used for purposes of calculating the
registration fee.
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Part I. Information Required in the Section 10(a) Prospectus
Item 1. Plan Information
Not included in this Registration Statement but provided or to be
provided to Plan participants pursuant to Rule 428(b)(1).
Item 2. Registrant Information and Employee Plan Annual Information
Not included in this Registration Statement but provided or to be
provided to Plan participants pursuant to Rule 428(b).
Part II. Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents or portions thereof are hereby incorporated by
reference:
The Registrant's Annual Report for the fiscal year ended January 31,
1998 on Form 10-K, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (Commission File No. 0-15385) ("the
1997 Form 10-K").
The description of the Registrant's common stock contained in or
incorporated into the Registrant's Registration Statement on Form 8-A
filed with the Securities and Exchange Commission on June 23, 1987,
File No. 0-15385.
All other reports filed by the Registrant pursuant to Section 13(a) or
15(b) of the Exchange Act since the end of the Registrant's 1997 fiscal
year.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to 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 part hereof from the
date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The law firm of Wyche, Burgess, Freeman & Parham, P.A., located in
Greenville, South Carolina, is counsel to the Registrant in connection
with this Registration Statement and has passed on certain aspects of
the legality of the common stock covered hereby. As of May 20, 1998,
attorneys of Wyche, Burgess, Freeman and Parham, P.A. beneficially
owned less than 1% of the outstanding shares of common stock of the
Registrant.
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware respecting indemnification of officers and directors
of Delaware corporations in connection with legal proceedings involving
any such persons because of being or having been an officer or
director. These provisions permit a corporation under certain
circumstances to indemnify an individual made a party to a proceeding
because he or she is or was a director or officer of a corporation
against liability incurred in the proceedings. In addition, this
section requires corporations to indemnify directors or officers
against expenses reasonably and actually incurred in connection with
certain types of proceedings in which such director or officer was
successful, on the merits or otherwise. This section also permits a
corporation to purchase and maintain insurance on behalf of a person
who is or was an officer or director of such corporation.
Reference is further made in Article VII of the Certificate of
Incorporation of the Registrant. (See Exhibit 4(a) and 4(a)(1) to this
Registration Statement.)
Reference is further made to Article XII of the Bylaws of the
Registrant. (See Exhibit 4(b) to this Registration Statement.)
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
4(a) Certificate of Incorporation of the Registrant, as amended:
Incorporated by reference to Exhibit 3(a) in the Registrant's
Registration Statement on Form S-1, (File No. 33-13321) ("the
Form S-1").
4(a)(1) Certificate of Amendment of Certificate of Incorporation of
the Registrant: Incorporated by reference to Exhibit 3(a)(1)
in Registrant's Annual Report on Form 10-K for the year ended
January 1, 1994, (File No. 0-15385) ("the 1993 Form 10-K").
4(b) Restated By-Laws of the Registrant, as of July 22, 1992 and
amended as of July 20, 1994 and March 14, 1996: Incorporated
by reference to Exhibit 3(b) in Registrant's Annual Report on
Form 10-K for the year ended December 30, 1995 (File No.
0-15385) ("the 1994 Form 10-K").
4(d) One Price Clothing Stores, Inc. and Wachovia Bank of North
Carolina, N.A. as Rights Agent Shareholder Rights Agreement
dated November 3, 1994: Incorporated by reference to Exhibit
2 to the Registrant's Form 8-K filed November
10, 1994 (File No. 0-15385).
4(e) Specimen of Certificate of the Registrant's Common Stock:
Incorporated by reference to Exhibit 1 to the Registrants
Registration Statement on Form 8-A filed June 23, 1987 (File
No. 0-15385).
5 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding
certain aspects of the legality of shares of common stock of
the Registrant covered by this Registration Statement.
23(a) Consent of Wyche, Burgess, Freeman & Parham, P.A. - contained
in Exhibit 5.
23(b) Consent of Deloitte & Touche LLP, Independent Accountants to
incorporation by reference in Registration Statement.
24 Power of Attorney is contained on the signature page of this
filing.
99(a) One Price Clothing Stores, Inc. Stock Option Agreement.
99(b) Employment Agreement dated March 26, 1997 between the
Registrant and Larry I. Kelley: Incorporated by Reference to
Exhibit 10(o) to the Registrant's 1996 Form 10-K.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement: (i) To include any prospectus
required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registrant Statement
(or the most recent post- effective amendment thereof)
which, individually or in the aggregate, represents a
fundamental change in the information set forth in the
Registration Statement. Not withstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (ss.230.424(b) of this
chapter) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement. [Amended to Release No. 33-7168(P. 85,420),
effective June 7 1996, 60 FR 26604.] (iii) To include any
material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; Provided, however, that paragraphs
(a) (1) (i) and (a) (1) (ii) do not apply if the information
required to be included in the post-effective amendment by
those paragraphs is contained in periodic reports filed to
the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in 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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions, 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 Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
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 Duncan, State of
South Carolina, on May 21 1998.
ONE PRICE CLOTHING STORES, INC.
By: /s/ Grant H. Gibson
Grant H. Gibson
Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Henry D. Jacobs, Jr.
and Grant H. Gibson, each of them, as true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including pre-effective and post-effective
amendments) to this Registration Statements, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all which said attorneys-in-fact and agents or any 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 by the following persons in
the capacities and on the date indicated:
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Date: May 21, 1998 /s/ Henry D. Jacobs, Jr.
------------------------
Henry D. Jacobs, Jr.
Chairman of the Board
Date: May 21, 1998 /s/ Larry I. Kelley
-------------------
Larry I. Kelley
President and Chief Executive Officer
(principal executive officer)
Date: May 21, 1998 /s/ Grant H. Gibson
-------------------
Grant H. Gibson
Secretary
Date: May 21, 1998 /s/ Stephen A. Feldman
----------------------
Stephen A. Feldman
Executive Vice President &
Chief Financial Officer
(principal financial officer)
Date: May 21, 1998 /s/ Cynthia R. Cohen
--------------------
Cynthia R. Cohen
Director
Date: May 21, 1998 /s/ Charles D. Moseley, Jr.
---------------------------
Charles D. Moseley, Jr.
Director
Date: May 21, 1998 /s/ Laurie M. Shahon
--------------------
Laurie M. Shahon
Director
Date: May 21, 1998 /s/ Malcolm L. Sherman
----------------------
Malcolm L. Sherman
Director
Date: May 21, 1998 /s/ James M. Shoemaker, Jr.
---------------------------
James M. Shoemaker, Jr.
Director
Date: May 21, 1998 /s/ Leonard M. Snyder
---------------------
Leonard M. Snyder
Director
Date: May 21, 1998 /s/ Raymond S. Waters
---------------------
Raymond S. Waters
Director
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ONE PRICE CLOTHING STORES, INC. AND SUBSIDIARIES
EXHIBIT INDEX
4(a) Certificate of Incorporation of the Registrant, as amended:
Incorporated by reference to Exhibit 3(a) in the Registrant's
Registration Statement on Form S-1, (File No. 33-13321) ("the
Form S-1").
4(a)(1) Certificate of Amendment of Certificate of Incorporation of
the Registrant: Incorporated by reference to Exhibit 3(a)(1)
in Registrant's Annual Report on Form 10-K for the year ended
January 1, 1994, (File No. 0-15385) ("the 1993 Form 10-K").
4(b) Restated By-Laws of the Registrant, as of July 22, 1992 and
amended July 20, 1994 and March 14, 1996: Incorporated by
reference to Exhibit 3(b) in Registrant's Annual Report on
Form 10-K for the year ended December 30, 1995 (File No.
0-15385) ("the 1995 Form 10-K").
4(d) One Price Clothing Stores, Inc. and Wachovia Bank of
North Carolina, N.A. as Rights Agent Shareholder Rights
Agreement dated November 3, 1994: Incorporated by
reference to Exhibit 2 to the Registrant's Form 8-K
filed November 10, 1994 (File No. 0-15385).
4(e) Specimen of Certificate of the Registrant's Common Stock:
Incorporated by reference to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A filed June 23, 1987 (File
No. 0-15385).
5 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding
certain aspects of the legality of shares of common stock of
the Registrant covered by this Registration Statement.
23(a) Consent of Wyche, Burgess, Freeman & Parham, P.A. - contained
in Exhibit 5.
23(b) Consent of Deloitte & Touche LLP, Independent Accountants to
incorporation by reference in Registration Statement.
24 Power of Attorney is contained on the signature page of this filing.
99(a) One Price Clothing Stores, Inc. Stock Option Agreement.
99(b) Employment Agreement dated March 26, 1997 between the
Registrant and Larry I. Kelley: Incorporated by Reference to
Exhibit 10(o) to the Registrant's 1996 Form 10-K.
(File No. 0-158385) ("the 1996 Form 10-K").
ONE PRICE CLOTHING STORES, INC. AND SUBSIDIARIES
EXHIBIT 5 - OPINION OF WYCHE, BURGESS, FREEMAN AND PARHAM, P.A.
REGARDING ASPECTS OF THE LEGALITY OF SHARES OF COMMON STOCK
OF THE REGISTRANT COVERED BY THIS REGISTRATION STATEMENT
May 21, 1998
One Price Clothing Stores, Inc.
Hwy 290, Commerce Park
Duncan, South Carolina 29334
Re: Registration Statement on Form S-8
One Price Clothing Stores, Inc.
Ladies and Gentlemen:
The opinion set forth below is rendered with respect to the
300,000 shares, par value of $0.01 per share, of common stock of One
Price Clothing Stores, Inc., a Delaware corporation (the "Company"),
which will be registered with the Securities and Exchange Commission by
the above-referenced Registration Statement on Form S-8 pursuant to the
Securities Act of 1933, as amended, in connection with the Company's
Stock Option Agreement (the "Agreement"). We have examined the
Company's Articles of Incorporation, and all amendments thereto, the
Company's By-Laws, as amended, and reviewed the records of the
Company's corporate proceedings, all as provided by the Company. We
have made such other investigation of law and fact, as we have deemed
necessary in order to enable us to have made such other investigation
of law and fact, as we have deemed necessary in order to enable us to
render this opinion. We have examined and relied upon a Certificate of
Existence with respect to the Company, furnished by the Delaware
Secretary of State and dated May 20, 1998, and assumed no change from
the date thereof.
Based on the foregoing and subject to the comments,
limitations and qualifications set forth below, we are of the opinion
that:
1. The Company is currently existing as a corporate
under the laws of the State of Delaware.
2. The shares of common stock of the Company covered by
the Agreement have been duly authorized and, upon
satisfaction of any investing or other conditions set
forth or referred to in the Agreement, including
payment of the applicable exercise price, the shares
of the Company's common stock covered by the
above-referenced Registration Statement which are
reissued after the date hereof under and in
compliance with the terms of the Agreement will be
legally issued, fully paid and non-assessable.
The foregoing opinion is limited to matters governed by the
business corporations law of the State of Delaware in force on the date
of this letter. We are not attorneys admitted to the bar of the state
of Delaware, but we have examined the provisions of the business
corporations law of the State of Delaware as such is commonly used. We
express no opinion with regard to any matter which may be (or which
purports to be) governed by the laws of any other state or
jurisdiction. We express no opinion as to any shares of the Company's
common stock other than original issue shares.
This opinion is rendered as of the date of this letter and
applies only to the matters specifically covered by this opinion, and
we disclaim any continuing responsibility for matters occurring after
the date of this letter.
This opinion is rendered solely for your benefit in connection
with the Registration Statement on Form S-8 respecting shares of the
Company's common stock to be issued under the Agreement and may not be
relied upon, quoted or used by any other person or entity or for any
other purpose without our prior written consent.
We consent to the use of this opinion as an exhibit to the
Registration Statement on Form S-8 respecting shares of the Company's
common stock to be issued under the Agreement.
Wyche, Burgess, Freeman & Parham, P.A.
/s/ James M. Shoemaker, Jr.
By: James M. Shoemaker, Jr.
ONE PRICE CLOTHING STORES AND SUBSIDIARIES
EXHIBIT 23(b) - CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the One Price Clothing Stores, Inc.
Stock Option Agreement of our report dated March 20, 1998 (April 21,
1998 - as to Note B) with respect to the consolidated financial
statements and schedules of One Price Clothing Stores, Inc. and
subsidiaries in the Annual Report for the fiscal year ended January 31,
1998 on Form 10-K.
DELOITTE & TOUCHE LLP
Charlotte, North Carolina
May 21, 1998
ONE PRICE CLOTHING STORES, INC.
STOCK OPTION AGREEMENT
Name of Optionee: Larry I. Kelley
Date of Grant: March 26, 1997
Number of shares subject to Options: 300,000
Exercise price per share: $4.125
Option expires and is no longer valid on or after: April 24, 2007 unless an
earlier date of expiration occurs pursuant to the terms set forth below
The Options shall be exercisable according to the following schedule (subject to
adjustment as provided below):
75,000 Shares Beginning April 24, 1997 56,250 Shares Beginning
April 24, 1998 56,250 Shares Beginning April 24, 1999 56,250
Shares Beginning April 24, 2000 56,250 Shares Beginning April
24, 2001
An Option that becomes exercisable in whole or in part according to the
foregoing schedule may be exercised subsequently at any time prior to its
scheduled expiration, subject to earlier termination as described below.
Additional Option Terms:
The Options shall not be transferable except to members of the
Optionee's immediate family or a trust for the benefit of members of his family.
Any unexercised Option shall terminate on the date the Optionee ceases
to be an employee of One Price Clothing Stores, Inc. (the "Company") or a
subsidiary of the Company, unless the Optionee shall (a) die while an employee
of the Company, in which case his legatees under his last will or his personal
representative or representatives may exercise the previously unexercised
portion of the Options at any time within one (1) year after his death to the
extent the Optionee could have exercised such Options as of the April 24th next
following his death; (b) becomes permanently or totally disabled within the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
(the "Code") (or any successor provision), in which case he or his personal
representative may exercise the previously unexercised portion of the Options at
any time within one (1) year after termination of his employment to the extent
the Optionee could have exercised such Options as of the April 24th next
following his termination of employment; or (c) resign or retire with the
consent of the Company or be terminated without Cause (as defined in that
certain Employment Agreement by and between the Company and Mr. Kelley dated
March 26, 1997 (the "Employment Agreement")), in which case he may exercise the
previously unexercised but then exercisable portion of the Options at any time
within three (3) months after his resignation, retirement or termination without
Cause. In no event may the Options be exercised after the expiration of their
fixed term.
An Option shall be deemed exercised when the holder (a) shall indicate the
decision to do so in writing delivered to the Company, (b) shall at the same
time tender to the Company payment in full in cash (or in shares of the
Company's Common Stock at the value of such shares at the time of exercise ) of
the exercise price for the shares for which the Option is exercised, (c) shall
tender to the Company payment in full in cash of the amount of all federal and
state withholding or other employment taxes applicable to the taxable income, if
any, of Mr. Kelley resulting from such exercise, and (d) shall comply with such
other reasonable requirements as the Board or Compensation Committee of the
Board (the "Committee") may establish. The Optionee shall not have any of the
rights of a shareholder with reference to shares subject to an Option until a
certificate for the shares has been executed and delivered.
An Option may be exercised for any lesser number of shares than the
full amount for which it could be exercised. Such a partial exercise of an
Option shall not affect the right to exercise the Options from time to time in
accordance with this agreement for the remaining shares subject to the Options.
The number and kind of shares subject to Options hereunder and/or the
exercise price will be appropriately adjusted by the Committee in the event of
any change in the outstanding stock of the Company by reason of stock dividend,
stock split, recapitalization, reorganization, merger, split up or the like.
Such adjustment shall be designed to preserve, but not increase, the benefits to
the Optionee. The determinations of the Committee as to what adjustments shall
be made, and the extent thereof, shall be final, binding and conclusive.
No certificate(s) for shares shall be executed or delivered upon
exercise of an Option until the Company shall have taken such action, if any, as
is then required to comply with the provisions of the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the South Carolina
Uniform Securities Act, as amended, any other applicable state blue sky law(s)
and the requirements of any exchange on which the Company's Common Stock may, at
the time, be listed. Promptly following the date hereof, the Company will
register with the United State Securities and Exchange Commission on a Form S-8
the shares underlying the Options and take other steps as it deems necessary or
appropriate in order that the shares covered hereby may be lawfully issued. In
the case of the exercise of an Option by a person or estate acquiring the right
to exercise the Option by bequest or inheritance, the Board or Committee may
require reasonable evidence as to the ownership of the Option and may require
such consents and releases of taxing authorities as it may deem advisable.
Nothing in this Agreement shall in any way alter any of the rights or
duties of the Company or the Optionee under the Employment Agreement.
By the Optionee's and the Company's signatures below, the Optionee and
the Company agree that this Option is granted under and governed by the terms
and conditions of this agreement.
ONE PRICE CLOTHING STORES, INC.
By: Henry D. Jacobs, Jr.
Title: Chairman of the Board
WITNESS:
/s/ Diane G. O'Bryant
OPTIONEE:
Larry I. Kelley
Larry I. Kelley
