<PAGE> 1
As filed with the Securities and Exchange Commission on July 29, 1997
Registration No. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GOODY'S FAMILY CLOTHING, INC.
(Exact name of issuer as specified in its charter)
Tennessee 62-0793974
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
400 Goody's Lane
Knoxville, Tennessee 37922
(Address of Principal Executive Offices) (Zip Code)
----------------
GOODY'S FAMILY CLOTHING INC.
1997 STOCK OPTION PLAN
(Full title of the plan)
----------------
Regis Hebbeler, Esq.
Goody's Family Clothing, Inc.
400 Goody's Lane
Knoxville, Tennessee 37922
(423) 966-2000
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Price Aggregate Amount of
to be Registered to be Registered(1) Per Share(2) Offering Price(2) Registration Fee(3)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 200,000 shares $22.38 $ 4,476,000 $1,356.36
no par value 56,500 shares $25.12 $ 1,419,280 $ 430.08
per share 30,000 shares $28.00 $ 840,000 $ 254.55
713,500 shares $35.875 $25,596,812.50 $7,756.61
---------------- -------------- ---------
1,000,000 shares $32,332,092.50 $9,797.60
================ ============== =========
======================================================================================================================
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, with options for 200,000 shares having been granted
at an exercise price of $22.38 per share, options for 56,500 shares
having been granted at an exercise price of $25.12 per share, options for
30,000 shares having been granted at an exercise price of $28.00 per share
and options for the remaining 713,500 shares on the basis of the average of
the high and low sale prices of the Registrant's Common Stock as
included on The Nasdaq National Market on July 25, 1997.
(3) The Registration Fee has been calculated pursuant to Rule 457 as follows:
200,000 multiplied by one thirty-third of one percent of $22.38 (the
exercise price of such options), 56,500 multiplied by one thirty-third of
one percent of $25.12 (the exercise price of such options), 30,000
multiplied by one thirty-third of one percent of $28.00 (the exercise
price of such options) and 713,500 multiplied by one thirty-third of one
percent of $35.875, the average of the high and low sale prices of the
Registrant's Common Stock as included on The Nasdaq National Market on
July 25, 1997.
<PAGE> 2
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Goody's Family
Clothing, Inc., a Tennessee corporation (the "Registrant"), with the Securities
and Exchange Commission (the "Commission") are incorporated herein by reference.
(a) Annual Report on Form 10-K for the fiscal year ended
February 1, 1997.
(b) Quarterly Report on Form 10-Q for the quarterly
period ended May 3, 1997.
(c) The description of the Registrant's Common Stock, no
par value per share, contained in the Registrant's
Registration Statement on Form 8-A, filed with the
Commission on September 13, 1991.
(d) Amendment to Form 8-A on Form 8 filed with the
Commission on October 23, 1991.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all of the securities offered under
this Registration Statement have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part of this Registration Statement as of the date
of the filing of such documents. Any statement contained in the documents
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded, shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable
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<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The indemnification of officers and directors of the Registrant is
governed by Section 48-18-501 et seq. of the Tennessee Business Corporation Act
(the "TBCA") and the Amended and Restated Charter (the "Charter") and By-laws of
the Registrant.
The Charter and the By-laws of the Registrant provide for the
indemnification of the directors, officers, employees and agents of the
Registrant to the fullest extent permitted by the TBCA. Among other things, the
TBCA permits a corporation's indemnification of a director, officer, employee or
agent made a party to a proceeding by reason of the fact of such relationship
with such corporation against liability incurred in the proceeding if (i) such
person acted in good faith, (ii) such person reasonably believed, (a) in the
case of conduct in his official capacity with the corporation, that his conduct
was in its best interests or (b) in all other cases, that his conduct was at
least not opposed to its best interests, and (iii) in the case of any criminal
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the provisions of clause
(ii)(b) above. However, pursuant to the TBCA, a corporation may not indemnify a
director (i) in connection with a proceeding brought by or in the right of the
corporation in which the director was adjudged liable to the corporation or (ii)
in connection with any other proceeding charging improper personal benefit to
him, whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received by
him. Under the TBCA, unless limited by its charter, a corporation shall
indemnify a director or officer who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a party because he
is or was a director or officer (as applicable) of the corporation against
reasonable expenses incurred by him in connection with the proceeding. Under
certain circumstances, the TBCA also permits a corporation to pay for or
reimburse the reasonable expenses incurred by a director who is a party to a
proceeding in advance of final disposition of the proceeding. The TBCA also
permits a corporation to purchase and maintain insurance on behalf of its
directors, officers, employees and agents regardless of whether the corporation
would have statutory power to indemnify such persons against the liabilities
insured and the TBCA further provides that indemnification and advances of
expenses permitted thereunder are not to be exclusive of any rights to which
those seeking indemnification or advancement of expenses may be entitled,
provided that a corporation may not indemnify a director if a judgment or other
final adjudication adverse to him establishes his liability (i) for any breach
of the duty of loyalty to the corporation or its shareholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law or (iii) under Section 48-18-304 of the TBCA (liability for
unlawful distribution).
The Charter and By-laws of the Registrant also provide that no director
of the Registrant shall be personally liable to the Registrant or its
shareholders for monetary damages for breach of fiduciary duty as a director
except for liability (i) for any breach of the director's duty of loyalty to the
Registrant or its shareholders, (ii) for acts of omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, or (iii)
arising under Section 47-18-304 of the TBCA.
The Registrant also has entered into agreements with its directors to
further memorialize and reaffirm the Registrant's obligations to indemnify them
as authorized by its Charter and By-laws of the Registrant. Furthermore, the
Registrant has Directors and Officers
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<PAGE> 4
Liability Insurance which, subject to the policy conditions, provides coverage
for indemnification amounts payable by the Registrant with respect to its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration
statement:
<TABLE>
<CAPTION>
Exhibit
Number Description
------- ------------
<S> <C>
4.1 Goody's Family Clothing, Inc. 1997 Stock Option
Plan.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman,
LLP.
15 Accountants' Awareness Letter.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Shereff, Friedman, Hoffman & Goodman,
LLP (included in Exhibit 5.1).
24 Power of Attorney (included in signature page to
this registration statement).
</TABLE>
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
this Registration Statement (or the most
recent post- effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
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<PAGE> 5
Provided, however, that paragraphs (a)(1)(i) and (ii) shall
not apply if 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 Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this 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 the 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 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.
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<PAGE> 6
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
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 Knoxville, State of Tennessee, on this 23rd day of
July, 1997.
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Harry M. Call
--------------------------------------
Harry M. Call
President and Chief Operating Officer
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<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Harry M. Call and Edward R.
Carlin, and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution for him and on his behalf, and in his name, place and stead,
in any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents (with full power of each of them to act alone) 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
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 and the
Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert M. Goodfriend Chairman of the Board and Chief July 23, 1997
- --------------------------- Executive Officer
Robert M. Goodfriend
/s/ Harry M. Call President and Chief Operating July 23, 1997
- ------------------------------- Officer
Harry M. Call
/s/ Edward R. Carlin Executive Vice President and July 23, 1997
- ------------------------------- Chief Financial Officer
Edward R. Carlin (Principal Financial Officer)
/s/ David G. Peek Vice President, Chief Accounting July 23, 1997
- -------------------------------- Officer and Corporate Controller
David G. Peek (Principal Accounting Officer)
/s/ Robert F. Koppel Director July 23, 1997
- ------------------------------
Robert F. Koppel
/s/ Samuel J. Furrow Director July 23, 1997
- ------------------------------
Samuel J. Furrow
</TABLE>
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<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ Irwin L. Lowenstein Director July 23, 1997
- -----------------------------
Irwin L. Lowenstein
/s/ Cheryl L. Turnbull Director July 23, 1997
- -----------------------------
Cheryl L. Turnbull
</TABLE>
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<PAGE> 9
GOODY'S FAMILY CLOTHING, INC.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1 Goody's Family Clothing, Inc. 1997 Stock Option Plan.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
15 Accountants' Awareness Letter.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP
(included in Exhibit 5.1).
24 Power of Attorney (included in signature page to this
registration statement).
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
GOODY'S FAMILY CLOTHING, INC.
1997 STOCK OPTION PLAN
THIS INDENTURE is made as of the 16th day of May, 1997, by Goody's
Family Clothing, Inc., a corporation organized and doing business under the laws
of the State of Tennessee (the "Company").
1. PURPOSE. The Company is adopting the Goody's Family Clothing, Inc.
1997 Stock Option Plan (the "Plan") to secure and retain the services of
directors and key employees of the Company and any of its subsidiaries by giving
them an opportunity to invest in the future success of the Company. The Board of
Directors of the Company (the "Board") believes this Plan will promote personal
interest in the welfare of the Company by, and provide incentive to, the
individuals who are primarily responsible both for the regular operations, and
for shaping and carrying out the long term plans, of the Company, thus
facilitating the continued growth and financial success of the Company.
2. ADMINISTRATION. The Board shall appoint at least two of its members
to a committee (the "Committee") that will administer this Plan on behalf of the
Company. The Committee may be the Compensation Committee of the Board if the
Board so chooses. Each member of the Committee shall be both a "Non-employee
Director" within the meaning of Rule 16b-3 ("Rule 16b-3") of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and an "Outside Director"
as defined for purposes of Section 162(m) of the Internal Revenue Code of 1986,
as amended (the "Code").
Each member of the Committee shall serve at the discretion of the
Board, which may fill any vacancy, however caused, in the Committee. The
Committee shall select one of its members as a chairman and shall hold meetings
at the times and in the places as it may deem advisable. All actions the
Committee takes shall be made by majority decision. Any action evidenced by a
written instrument signed by all of the members of the Committee shall be as
fully effective as if the Committee had taken the action by majority vote at a
meeting duly called and held.
Subject to the express provisions of this Plan, the Committee shall
have complete authority, in its discretion, to determine with respect to all
options other than options granted to directors pursuant to Section 7 hereof
(the "Formula Options"):
a. the directors and key employees of the
Company and any subsidiaries to whom, the times when, and the
prices at which it shall grant options;
b. the type of options to be granted, i.e.,
either incentive stock options as defined in Section 422 of
the Code ("Incentive Stock Options") or non-qualified stock
options ("Non-Qualified Stock Options") (collectively, the
"Options");
<PAGE> 2
c. the total number of Options to grant to an
optionee;
d. the time and duration of the period of
exercise of each Option;
e. the number of shares of the common stock, no
par value per share, of the Company (the "Common Stock")
subject to each Option; and
f. the terms and conditions for payment.
The Committee shall also have complete and conclusive authority to (i)
interpret this Plan, (ii) prescribe, amend and rescind rules and regulations
relating to it, (iii) determine the terms and provisions of the stock option
agreements the Company makes with optionees who are granted Options (the
"Agreement"), the terms of which need not be identical, and (iv) make all other
determinations necessary or advisable for the administration of this Plan. The
Committee's determinations on these matters shall be conclusive.
In addition to any other rights of indemnification that they may have
as directors of the Company or as members of the Committee, the directors of the
Company and members of the Committee shall be indemnified by the Company against
the reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of action taken or failure to act under or in connection with this
Plan or any Option or Formula Option granted hereunder, and against all amounts
paid by them in settlement thereof or paid by them in satisfaction of a judgment
in any action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in the action, suit or proceeding that such director is liable
for gross negligence or misconduct in the performance of his duties; provided
that within 60 days after institution of any action, suit or proceeding, a
director shall in writing offer the Company the opportunity, at its own expense,
to handle and defend the same.
3. ELIGIBILITY. The Committee shall grant Options only to directors and
key employees of the Company or its subsidiary corporations within the meaning
of Code Section 424(f) (each, a "Subsidiary"); provided, however, that an
Incentive Stock Option may only be granted if such individual is an employee of
the Company or a Subsidiary and that only Formula Options may be granted to
directors who are not also employees or officers of the Company. Subject to the
limits set forth in this Plan, the Committee at any time may grant additional
Options to directors or key employees to whom the Committee had previously
granted Options, so that an optionee may hold more than one Option at the same
time.
4. STOCK SUBJECT TO PLAN. The Company has authorized and reserved for
issuance upon the exercise of Options and Formula Options pursuant to this Plan
an aggregate of one million (1,000,000) shares of Common Stock (the "Shares"),
each of which may be the subject of an Incentive Stock Option or a Non-Qualified
Stock Option, in the sole discretion of the Committee. Any one optionee may not
be granted Options, including Formula Options, to purchase in excess of 100,000
Shares during any fiscal year of the Company or
- 2 -
<PAGE> 3
in excess of 1,000,000 Shares. If any Option or Formula Option is canceled,
expires or terminates without the respective optionee exercising it in full, the
Committee may grant Options with respect to those unpurchased Shares to that
same optionee or to another eligible individual or individuals; provided,
however, that in the case of an Option which is canceled in the same fiscal year
in which it is granted, in determining whether an optionee has received the
maximum number of Shares he is entitled to receive during such fiscal year, both
the canceled Option and any other Option issued to such optionee during such
fiscal year shall be treated as outstanding, and, in the case of an Option
canceled at any time, in determining whether an optionee has received the
maximum number of Shares he is entitled to receive during the term of the Plan,
both the canceled Option and any other Option issued to such optionee during the
term of the Plan shall be treated as outstanding.
The Committee shall adjust the total number of Shares and any
outstanding Options and Formula Options, both as to the number of Shares and the
exercise price, and the number of Shares to be issued pursuant to Formula
Options granted under Section 7 hereof, for any increase or decrease in the
number of outstanding Shares resulting from a stock split or a payment of a
stock dividend on the Shares, a subdivision or combination of the Shares, a
reclassification of the Shares in accordance with the provisions of the next
paragraph, a merger or consolidation of the Shares or any other like changes in
the Shares or in their value. The Committee shall not issue fractional Shares as
a result of any of these changes and shall eliminate from the outstanding
Options and Formula Options any fractional Shares that result from such a
change. The Committee shall not adjust outstanding Options and Formula Options
for cash dividends or the issuance of rights to subscribe for additional stock
or securities of the Company.
Except as provided in the following paragraph, after any merger of one
or more corporations into the Company, any merger of the Company into another
corporation, any consolidation of the Company and one or more other
corporations, or any other corporate reorganization to which the Company is a
party that involves any exchange, conversion, adjustment or other modification
of the outstanding Options and Formula Options, each optionee shall receive at
no additional cost upon the exercise of his Option or Formula Option, as
applicable, subject to any required action by shareholders and in lieu of the
number of Shares as to which he would otherwise exercise the Option or Formula
Option, as applicable, the number and class of shares of stock or other
securities or any other property (including cash) to which the terms of the
agreement of merger, consolidation or other reorganization would entitle the
optionee to receive, if, at the time of the merger, consolidation or other
reorganization, the optionee had been a holder of record of the number of Shares
as to which he could exercise the Option or Formula Option, as applicable.
Comparable rights shall accrue to each optionee in the event of successive
mergers, consolidations or other reorganizations.
In the event of a Sale of the Company (as hereinafter defined) in which
the purchaser of the Company does not agree to the assumption of the Options or
Formula Options, provisions shall be made to cause each outstanding Option and
Formula Option to become exercisable prior to the Sale of the Company and to
terminate upon the consummation of the
- 3 -
<PAGE> 4
Sale of the Company. "Sale of the Company" shall mean (i) the approval by the
shareholders of the Company of a reorganization, merger or consolidation, in
each case with respect to which all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Common Stock and
the Company's voting securities outstanding immediately prior to such
reorganization, merger or consolidation do not, following such reorganization,
merger or consolidation, beneficially own, directly or indirectly, a majority or
more of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, of the corporation resulting from such
reorganization, merger or consolidation, in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger or
consolidation, of the Common Stock and the Company's voting securities,
respectively; or (ii) the approval by the shareholders of the Company of (a) a
complete liquidation or dissolution of the Company or (b) the sale or other
disposition of all or substantially all of the assets of the Company, other than
to a corporation with respect to which following such sale or other disposition,
a majority or more of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Common Stock and the Company's voting securities
outstanding immediately prior to such sale or other disposition, in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Common Stock and the Company's voting
securities, respectively.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any adjustment may provide for the elimination of any fractional
Share which might otherwise become subject to an Option or Formula Option.
The grant of an Option or Formula Option by the Committee shall not
affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes in its capital or business
structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all
or any part of its business or assets.
5. TERMS AND CONDITIONS OF OPTIONS AND FORMULA OPTIONS. Each Option and
Formula Option granted pursuant to this Plan shall be authorized by the
Committee and shall be evidenced by an Agreement, or a Formula Option Agreement
(as defined in Section 7 hereof) in the case of a Formula Option, in the form
and containing the terms and conditions as the Committee from time to time may
determine, provided that each Agreement or Formula Option Agreement, as the case
may be, shall:
a. state the number of Shares to which it
pertains;
- 4 -
<PAGE> 5
b. state that the price at which each Share may
be purchased shall not be less than the "Fair Market Value"
(as defined below) of a Share on the date of grant of the
Option;
c. state the terms and conditions for payment,
except as otherwise provided by Section 11 hereof;
d. state the term of the Option or Formula
Option, as the case may be, and the period or periods during
the term in which the optionee may exercise the Option or
Formula Option, as the case may be, or portions thereof;
e. provide that the Option or Formula Option,
as the case may be, is not transferable by the grantee other
than by will or the laws of lineal descent and, in the case of
an Option or Formula Option other than an Incentive Stock
Option (i) to the spouse or any lineal ancestor or descendant
of the grantee, (ii) to any trust, the sole beneficiaries of
which are any one or all of such grantee, such grantee's
spouse or any lineal ancestors or descendants of such grantee,
and (iii) to any other person or entity as the Committee may
approve. A holder of an Option or Formula Option other than
the grantee thereof may not transfer such option other than by
will or the laws of lineal descent;
f. provide that, with respect to any Options or
Formula Options granted to an employee and/or director, the
Option or Formula Option, as the case may be, shall terminate
30 days following the date the grantee ceases to be an
employee and/or director of the Company or a Subsidiary, other
than by reason of death or disability (as defined in Code
Section 22(e)(3));
g. provide that, if a grantee dies or becomes
disabled (as defined in Code Section 22(e)(3)) while he is an
employee and/or director of the Company or a Subsidiary, as
applicable, any Options or Formula Options, as the case may
be, granted to such grantee may be exercised by the then
holder thereof at any time within one year after the grantee's
death or disability or, if earlier, the expiration of the term
of such Option or Formula Option, as the case may be; and
h. specify whether the Option is an Incentive
Stock Option or a Non-Qualified Stock Option.
The Committee may provide in any Option or Formula Option, as the case
may be, which it grants that a condition to the exercise of such Option or
Formula Option, as the case may be, shall be the grantee's agreement to remain
an employee of and/or to otherwise render services to the Company or any of its
Subsidiaries for a specified period of time following the date of grant. This
condition shall not impose on the Company or any Subsidiary any
- 5 -
<PAGE> 6
obligation to employ the grantee or otherwise retain the grantee as a director
for any period of time or otherwise constitute a contract of employment.
The "Fair Market Value" of a Share on a given date shall be (a) if the
Common Stock is then listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or The Nasdaq SmallCap
Market, the last reported sales price of a Share for the trading day immediately
preceding such date as reported on such exchange or such market, as the case may
be; (b) if the Common Stock is not then listed or admitted for trading on any
national securities exchange or included in The Nasdaq National Market or The
Nasdaq SmallCap Market, the average of the last reported closing bid and asked
quotation for a Share as reported on the Automated Quotation System of NASDAQ or
a similar service if NASDAQ is not reporting such information for the trading
day immediately preceding such date; (c) if the Common Stock is not then listed
or admitted for trading on any national securities exchange or included in The
Nasdaq National Market or The Nasdaq SmallCap Market or quoted by NASDAQ or a
similar service, the average of the last reported bid and asked quotation for a
Share as quoted by a market maker in the Common Stock for the trading day
immediately preceding such date(or if there is more than one market maker, the
bid and asked quotation shall be obtained from two market makers and the average
of the lowest bid and highest asked quotation shall be the "Fair Market Value");
or (d) if the Common Stock is not then listed or admitted for trading on any
national securities exchange or included in The Nasdaq National Market or The
Nasdaq SmallCap Market or quoted by NASDAQ and there is no market maker in the
Common Stock, the fair market value of a Share as determined by the Committee in
good faith.
6. ADDITIONAL TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS. In
addition to the terms and conditions set forth in Section 5 hereof, each
Agreement evidencing the grant of an Incentive Stock Option shall:
a. provide for an exercise price that shall not
be less than 100% of the Fair Market Value (as defined above
in Section 5 hereof) of the Shares on the date of grant of the
Option, provided that: i. if the optionee owns (subject to
applicable ownership attribution rules of Code Section 424(d)
and the regulations promulgated thereunder by the Department
of Treasury) stock possessing more than 10% of the total
combined voting power of all Shares or of shares of any parent
corporation within the meaning of Code Section 424(e) (a
"Parent") or Subsidiary of the Company at the time the Option
is granted (assuming the immediate exercise of such Option),
the exercise price shall not be less than 110% of the Fair
Market Value of the pertinent number of Shares of the Company
on the date the Option is granted; and ii. subject to the
foregoing, the Committee, in determining the Fair Market
Value, shall have full authority and discretion and be fully
protected in doing so;
b. provide that the Option is not exercisable
after the expiration of ten (10) years (or such lesser period
as is specified in the Agreement) from the date the Option is
granted, except that, if the optionee owns (subject to
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applicable ownership attribution rules of Code Section 424(d)
and the regulations promulgated thereunder by the Department
of the Treasury) more than 10% of the total combined voting
power of all Shares or of shares of any Parent or Subsidiary
at the time the Option is granted (assuming the immediate
exercise of such Option), the Option is not exercisable after
the expiration of five (5) years (or such lesser period as is
specified in the Agreement) from the date the Option is
granted; and
c. provide that during the optionee's lifetime,
the Option is exercisable only by the optionee.
7. FORMULA GRANTS TO DIRECTORS. Each person who is first elected as a
non-employee director of the Company after May 16, 1997 shall be granted a
non-qualified stock option as of the date he or she first commences services as
a director to acquire 7,500 Shares at a per share exercise price equal to the
Fair Market Value (as defined above in Section 5 hereof) of a Share. Each
non-employee director of the Company shall be granted a non-qualified stock
option pursuant to this Section each year on the date of the first Board meeting
following each annual meeting of shareholders, commencing with the annual
meeting of shareholders of the Company first held after the date hereof, to
acquire 1,500 Shares at a per share exercise price equal to the Fair Market
Value of a Share, provided such individual is a director of the Company on such
date. Formula Options shall be subject to such additional terms as may be set
forth in a Non-Qualified Formula Stock Option Agreement (the "Formula Option
Agreement") complying with Section 5 hereof, approved by the Committee and used
to evidence the grant of a Formula Option. Notwithstanding any other provision
of this Plan, the provisions of this Section 7 and of the Formula Option
Agreement may not be amended more than once every six months, other than to
conform it with changes in the Code, the Employee Retirement Income Security Act
of 1974, or any rules promulgated under either of the foregoing.
8. COMPLIANCE WITH CODE FOR INCENTIVE STOCK OPTIONS. All Incentive
Stock Options are intended to comply with Code Section 422, and all provisions
of this Plan and all Incentive Stock Options granted hereunder shall be
construed in such manner as to effectuate that intent.
9. LIMITATION ON INCENTIVE STOCK OPTION AMOUNTS. An Incentive Stock
Option may not be granted to an optionee to the extent the aggregate Fair Market
Value, determined at the time the Committee grants the Option, of Common Stock
with respect to which stock options intended to meet the requirements of Section
422 of the Code are exercisable for the first time by such optionee during any
calendar year under all plans of the Company and any Parent or Subsidiary
exceeds $100,000.
10. TERM OF PLAN. The Company shall submit this Plan to its
shareholders for approval within 12 months of the adoption of this Plan by the
Board. No Option or Formula Option shall be exercisable prior to the receipt of
such shareholder approval. Unless shareholder approval is obtained within said
twelve-month period, both this Plan and all
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<PAGE> 8
outstanding Options and Formula Options shall be rendered immediately void and
of no effect.
The effective date of this Plan shall be the earlier of the date on
which the shareholders of the Company or the Board approve this Plan (the
"Effective Date"). This Plan shall terminate 10 years after that date. The
Committee may grant Options and Formula Options pursuant to this Plan at any
time on or between the Effective Date and that termination date, subject to the
other provisions contained herein.
11. EXERCISE OF OPTION BY OPTIONEE. A holder of an Option or Formula
Option may purchase Shares pursuant thereto only upon receipt by the Company of
a notice in writing from such holder of his intent to purchase a specific number
of Shares, which notice contains such representations regarding compliance with
the federal and state securities laws as the Committee may reasonably request.
The exercise price shall be paid in full upon the exercise of an Option or
Formula Option, and no Shares shall be issued or delivered until full payment
thereof has been made. Payment of the exercise price for all Shares purchased
pursuant to the exercise of an Option or Formula Option shall be made in cash or
by certified check or, alternatively, if the applicable Agreement so allows, as
follows:
a. by delivery to the Company of a number of
shares of Common Stock which have been owned by the holder for
at least six months prior to the date of exercise, having a
fair market value on the date of exercise, as determined by
the Committee in its sole discretion, either equal to the
exercise price or in combination with cash in a sufficient
amount to equal the purchase price; or
b. by receipt of the exercise price in cash
from a broker, dealer or other "creditor" as defined by
Regulation T issued by the Board of Governors of the Federal
Reserve System following delivery by the holder to the
Committee of instructions in a form acceptable to the
Committee regarding delivery to such broker, dealer or other
creditor of that number of shares of Common Stock with respect
to which the Option or Formula Option is exercised.
Until the Option or Formula Option has been exercised and payment of
the exercise price for, and any withholding tax obligations with respect to, all
Shares purchased pursuant to the exercise of the Option or Formula Option has
been received by the Company in accordance with the terms of the applicable
Agreement or Formula Option Agreement, the holder shall have no rights as a
shareholder with respect to the Shares the Option or Formula Option covers. The
Company shall make no adjustment to the Shares for any dividends or
distributions or other rights for which the record date is prior to the issuance
of that stock certificate, except as this Plan otherwise provides.
12. WITHHOLDING TAXES. Whenever the Company proposes or is required to
issue Shares to a holder of an Option or Formula Option, pursuant to the
exercise of a Non-
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<PAGE> 9
Qualified Stock Option or Formula Option granted under this Plan, or the holder
makes a disqualifying disposition (within the meaning of Code Section 421(b)) of
Shares acquired upon the exercise of an Incentive Stock Option, the Company
shall have the right to require the grantee to remit to the Company an amount
sufficient to satisfy any federal, state and local withholding tax requirement
prior to the delivery of any certificate or certificates for such Shares. A
grantee may pay the withholding tax (a) by making payment in cash or by
certified check, (b) if the applicable Agreement or Formula Option Agreement so
provides, by electing to tender to the Company the smallest number of whole
Shares that have been owned by such grantee for at least six months prior to the
Tax Date (defined below) that, when multiplied by the Fair Market Value of the
Shares determined as of the Tax Date, is sufficient to satisfy federal, state
and local, if any, withholding taxes arising from exercise of the Option or
Formula Option if the applicable Agreement or Formula Option Agreement so
provides, or (c) by electing to have the number of Shares which the holder is to
receive upon exercise reduced by the number of Shares determined in (b) above (a
grantee's election to tender or offset as described in (b) or (c) above is
referred to as a "Withholding Election"). A grantee may make a Withholding
Election only if the following conditions are met:
(a) the Withholding Election must be made no
later than the date on which the amount of tax required to be
withheld is determined (the "Tax Date") by executing and
delivering to the Company a properly completed notice of
Withholding Election in the form prescribed by the Committee;
(b) any Withholding Election is irrevocably
given in a manner that satisfies the requirements of the
exemption provided under Rule 16b-3, if any; and
(c) If the grantee is considered by the
Committee to be subject to Section 16 of the Exchange Act, the
Withholding Election is delivered to the Company sufficiently
in advance of the Tax Date as the Committee determines is
necessary or appropriate to satisfy the conditions of the
exemption from Section 16(b) of the Exchange Act provided
under Rule 16b-3.
Notwithstanding anything to the contrary herein, the Committee may in
its sole discretion disapprove and give no effect to any Withholding Election
for an Option or Formula Option and no Option or Formula Option to which any
Withholding Election relates may be exercised prior to one year after the
Company has been subject to the reporting requirements of Section 13 of the
Exchange Act and has filed all reports and statements required to be filed
pursuant to that Section during that year.
13. ASSIGNABILITY. Except as Section 5 of this Plan permits or the
terms of the Option or Formula Option Agreement permit, no Option or Formula
Option or any of the rights and privileges thereof accruing to an optionee shall
be transferred, assigned, pledged or hypothecated in any way whether by
operation of law or otherwise, and no Option or
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<PAGE> 10
Formula Option, or right or privilege shall be subject to execution, attachment
or similar process.
14. THE RIGHT OF THE COMPANY TO TERMINATE EMPLOYMENT. No provision in
this Plan or any Option or Formula Option shall confer upon any grantee any
right to continue in the employment of the Company or any Subsidiary or to
continue performing services for or to interfere in any way with the right of
the Company or any Subsidiary to terminate his employment or of the right of
shareholders of the Company to remove such grantee as a director at any time for
any reason.
15. AMENDMENT AND TERMINATION. Except as set forth in Section 7 hereof,
the Board at any time may amend or terminate this Plan without shareholder
approval; provided, however, that the Board may condition any amendment on the
approval of the shareholders of the Company if such approval is necessary or
advisable with respect to tax (including Code Sections 162(m) and 422),
securities or other applicable laws and rules and regulations to which the
Company, this Plan, optionees or eligible employees and/or directors are
subject. No amendment or termination of this Plan shall adversely affect the
rights of an optionee with regard to his Options or Formula Options without his
consent.
16. GENERAL RESTRICTION. Notwithstanding anything contained herein or
in any of the Agreements to the contrary, no purported exercise of any Option or
Formula Option granted pursuant to this Plan shall be effective without the
approval of the Committee, which may be withheld to the extent that the
exercise, either individually or in the aggregate together with the exercise of
other previously exercised stock options and/or offers and sales pursuant to any
prior or contemplated offering of securities, would, in the sole and absolute
judgment of the Committee, require the filing of a registration statement with
the United States Securities and Exchange Commission or with the securities
commission of any state. The Company shall avail itself of any exemptions from
registration contained in applicable federal and state securities laws which are
reasonably available to the Company on terms which, in the Committee's sole and
absolute discretion, it deems reasonable and not unduly burdensome or costly.
Each holder shall, prior to the exercise of an Option or Formula Option, deliver
to the Company such information, representations and warranties as the Committee
may reasonably request in order for the Committee to be able to satisfy itself
that the Shares to be acquired pursuant to the exercise of an Option or Formula
Option are being acquired in accordance with the terms of an applicable
exemption from the securities registration requirements of applicable federal
and state securities laws.
17. CHOICE OF LAW. The laws of the State of Tennessee shall govern this
Plan.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed in
the form and as of the date set forth above.
Attest: GOODY'S FAMILY CLOTHING, INC.
By: /s/ Edward R. Carlin By:/s/ Harry M. Call
Title: Secretary Title: President
[CORPORATE SEAL]
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EXHIBIT 5.1
OPINION OF SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
July 29, 1997
Goody's Family Clothing, Inc.
400 Goody's Lane
Knoxville, Tennessee 37922
Ladies and Gentlemen:
On the date hereof, Goody's Family Clothing, Inc., a Tennessee
corporation (the "Company"), intends to transmit for filing with the Securities
and Exchange Commission a Registration Statement on Form S-8 (the "Registration
Statement") relating to 1,000,000 shares (the "Shares") of common stock, no par
value per share (the "Common Stock"), of the Company which may be offered from
time to time pursuant to the Company's 1997 Stock Option Plan (the "Plan"). This
opinion is an exhibit to the Registration Statement.
We have at times acted as counsel to the Company with respect to
certain corporate and securities matters, and in such capacity we are familiar
with the various corporate and other proceedings taken by or on behalf of the
Company in connection with the proposed offer and sale of the Shares as
contemplated by the Registration Statement. We have examined copies (in each
case signed, certified or otherwise proven to our satisfaction to be genuine) of
the Company's Amended and Restated Charter as presently in effect, the Company's
By-Laws as presently in effect, minutes and other instruments evidencing actions
taken by the Company's directors and shareholders, the Plan and such other
documents and instruments relating to the Company and the proposed offering as
we have deemed necessary under the circumstances. Insofar as this opinion
relates to securities to be issued in the future, we have assumed that all
applicable laws, rules and regulations in effect at the time of such issuance
will be the same as such laws, rules and regulations in effect as of the date
hereof.
We note that we are members of the Bar of the State of New York and
that we are not admitted to the Bar in the State of Tennessee. To the extent
that the opinions expressed herein involve the law of the State of Tennessee,
such opinions are based solely upon our reading of the Tennessee Business
Corporation Act as reported by Prentice-Hall
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<PAGE> 2
Legal and Financial Services without any investigation of the legal decisions or
other statutory provisions in effect in such state that may relate to the
opinions expressed herein.
Based on the foregoing, and subject to and in reliance on the accuracy
and completeness of the information relevant thereto provided to us, it is our
opinion that the Shares to be issued pursuant to the Plan (including upon the
proper exercise of options granted pursuant to the Plan) have been duly
authorized and, subject to the effectiveness of the Registration Statement and
compliance with applicable state securities laws, when issued in accordance with
the terms set forth in the Plan and in the option agreements issued in
accordance with the Plan, will be legally and validly issued, fully paid and
nonassessable.
It should be understood that nothing in this opinion is intended to
apply to any disposition of the Shares which any participant in the Plan might
propose to make.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to any filing made by the Company under
the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose, except as expressly provided in the preceding
paragraph, without our express written consent, and no party other than you is
entitled to rely on it. This opinion is rendered to you as of the date hereof
and we undertake no obligation to advise you of any change, whether legal or
factual, after the date hereof.
Very truly yours,
/s/Shereff, Friedman, Hoffman & Goodman, LLP
----------------------------------------------
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SFH&G,LLP:RAG:DSR:EKS
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EXHIBIT 15
ACCOUNTANTS' AWARENESS LETTER
Board of Directors and Shareholders
Goody's Family Clothing, Inc.
Knoxville, Tennessee
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Goody's Family Clothing, Inc. for the periods ended May 3, 1997
and May 4, 1996, as indicated in our report dated May 19, 1997; because we did
not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which was included in your
Quarterly Report on Form 10-Q for the quarter ended May 3, 1997, is being used
in this Registration Statement.
We also are aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
July 15, 1997
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<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Goody's Family Clothing, Inc. on Form S-8 of our report dated March 19, 1997
incorporated by reference in the Annual Report on Form 10-K of Goody's Family
Clothing, Inc. for the year ended February 1, 1997.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
July 15, 1997
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