As filed with the Securities and Exchange Commission on April 1,
1996 Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BISCAYNE APPAREL, INC.
(Exact name of registrant as specified in its charter)
Florida 65-0200397
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
1373 Broad Street
Clifton, New Jersey 07013
(Address of Principal Executive Offices)
Biscayne Apparel, Inc. 1994 Stock Option Plan
(Full title of the Plans)
John E. Pollack
President and Chief Executive Officer
Biscayne Apparel, Inc.
1373 Broad Street
Clifton, New Jersey 07013
(Name and address of agent for service)
(201) 473-3240
(Telephone number, including area code, of agent for service)
Copy to:
Brian J. Walsh, Esq.
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
<S> <C> <C>
Title of securities Amount to be Proposed maximum
to be registered registered offering price
per share (1)
Common Stock,
$.01 par value 150,000
shares $.5938
(continued)
<S> <C> <C>
Proposed Amount of
maximum aggregate registration
offering price(1) fee
Common Stock,
$.01 par value $89,070 $100
</TABLE>
(1) Estimated solely for the purpose of calculating the
registration fee which was computed in accordance with Rule
457(h) on the basis of the average of the high and low sale
price of the Common Stock on March 29, 1996.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this
Registration Statement the following documents or portions thereof
as indicated:
(a) the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(b) all other reports filed by the Registrant pursuant
to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") since
January 1, 1996; and
(c) the description of the Registrant's Common Stock
contained in the Registrant's Registration
Statement on Form 8-A, including any amendments to
such description in such Registration Statement.
In addition, all documents subsequently filed by the
Registrant 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 hereby have been sold
or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant has authority under Section 607.0850 of
the Florida Business Corporation Act to indemnify its directors and
officers to the extent provided in such statute. The Registrant's
Amended and Restated Articles of Incorporation provide that the
Registrant may indemnify its executive officers and directors to
the fullest extent permitted by law either now or hereafter. The
Registrant has also entered into an agreement with each of its
directors and certain of its officers wherein it has agreed to
indemnify each of them to the fullest extent permitted by law.
The provisions of the Florida Business Corporation Act
that authorize indemnification do not eliminate the duty of care of
a director, and in appropriate circumstances equitable remedies
such as injunctive or other forms of nonmonetary relief will remain
available under Florida law. In addition, each director will
continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe his
conduct was unlawful; (b) deriving an improper personal benefit
from a transaction; (c) voting for or assenting to an unlawful
distribution; and (d) willful misconduct or a conscious disregard
for the best interests of the Registrant in a proceeding by or in
the right of the Registrant to procure a judgment in its favor or
in a proceeding by or in the right of a shareholder. The statute
does not affect a director's responsibilities under any other law,
such as the federal securities laws or state or federal
environmental laws.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended (the "1933 Act") may be
permitted to directors, officers or controlling persons of
Registrant, pursuant to the foregoing provisions or otherwise,
Registrant has been advised that, in the opinion of the Securities
and Exchange Commission (the "Commission"), such indemnification is
against public policy as expressed in the 1933 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 Registrant in the successful defense of
any suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered hereunder, 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 1993 Act and will be governed by the final adjudication of such
issue.
At present, there is no pending litigation or proceeding
involving a director or officer of the Registrant as to which
indemnification is being sought, nor is the Registrant aware of any
threatened litigation that may result in claims for indemnification
by any officer or director.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
See "Exhibit Index" on page II-7.
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 registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the 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 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.
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 Clifton, State of New Jersey on March 26, 1996.
BISCAYNE APPAREL, INC.
By:/s/ JOHN E. POLLACK
John E. Pollack
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Earl W.
Powell and John E. Pollack his true and lawful attorneys-in-fact,
each acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any
and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to
file the same, with exhibits thereto, and other documents to be
filed in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said
attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/EARL W. POWELL Chairman of the Board March 26, 1996
Earl W. Powell
/s/PHILLIP T. GEORGE,
M.D. Vice Chairman of March 26, 1996
Philip T. George, the Board
M.D.
/s/JOHN E. POLLACK President, Chief March 26, 1996
John E. Pollack Executive Officer
and Director (principal
executive officer)
/s/PETER VANDENBERG,
JR. Vice President, March 26, 1996
Peter Vandenberg, Treasurer, Chief
Jr. Financial Officer and
Director (principal
financial and accounting
officer)
/s/HAROLD E. BERRITT Director March 26, 1996
Harold E. Berritt
/s/JOSEPH B. GILDENHORN Director March 26, 1996
Joseph B. Gildenhorn
/s/KURT C. GUTFREUND Director March 26, 1996
Kurt C. Gutfreund
/s/JOHN W. PARTRIDGE Director March 26, 1996
John W. Partridge
/s/JAMES J. PINTO Director March 26, 1996
James J. Pinto
EXHIBIT INDEX
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<TABLE>
<S> <C> <C>
Exhibit Sequential
Number Description Page No.
4.1 Registrant's Amended and
Restated Articles of
Incorporation(1).
4.2 Registrant's Bylaws(2).
5 Opinion of Greenberg, Traurig,
Hoffman, Lipoff, Rosen &
Quentel, P.A.
23.1 Consent of Coopers &
Lybrand L.L.P.
23.2 Consent of Greenberg, Traurig,
Hoffman, Lipoff, Rosen &
Quentel, P.A. (contained in
its opinion filed as Exhibit
5.1 hereto)
24 Power of Attorney is included in
the Signatures section of this
Registration Statement
</TABLE>
(1) Incorporated by reference to Exhibit 3.1 filed with the
Registrant's Registration Statement on Form 8-B (No. 1-9636).
(2) Incorporated by reference to Exhibit 3.2 filed with the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1991.
EXHIBIT 5
April 1, 1996
Biscayne Apparel, Inc.
1373 Broad Street
Clifton, New Jersey 07013
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
On the date hereof, Biscayne Apparel, Inc., a Florida corpo-
ration (the "Company"), filed with the Securities and Exchange
Commission a Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the
"Act"). The Registration Statement relates to the offering and
sale by the Company of up to 150,000 shares of the Company's Common
Stock, par value $.01 per share (the "Common Stock"), pursuant to
stock options ("Options") granted or to be granted under the
Company's 1994 Stock Option Plan (the "Plan"). We have acted as
special counsel to the Company in connection with the preparation
and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the
original or a copy, certified to our satisfaction, of (i) the
Amended and Restated Articles of Incorporation and Bylaws of the
Company; (ii) records of corporate proceedings of the Company
authorizing the Plan, any amendments thereto, and the preparation
of the Registration Statement and related matters; (iii) the
Registration Statement and exhibits thereto; and (iv) such other
documents and instruments as we have deemed necessary for the
expression of the opinions herein contained. In making the
foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As
to various questions of fact material to this opinion, we have
relied, to the extent we deem reasonably appropriate, upon
representations or certificates of officers or directors of the
Company and upon documents, records and instruments furnished to us
by the Company, without independently checking or verifying the
accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion
that the Company presently has available at least 150,000 auth-
orized and unissued shares of Common Stock from which the 150,000
shares of Common Stock proposed to be sold pursuant to the exercise
of Options granted under the Plan may be issued, and, assuming
that the Company maintains an adequate number of authorized and
unissued shares of Common Stock available for issuance to those
persons who exercise Options granted under the Plan and the
consideration for shares of Common Stock issued pursuant to such
Options is actually received by the Company as provided in the
Plan, the shares of Common Stock issued pursuant to the exercise of
Options granted under and in accordance with the terms of the Plan
will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving such consent, we do not
admit that we come within the category of persons whose consent is
required by Section 7 of the Act or the rules and regulations of
the Commission thereunder.
Sincerely,
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Biscayne Apparel, Inc. 1994
Stock Option Plan of our report dated February 23, 1996, except for
the first paragraph of Note 2, for which the date is March 27,
1996, and Note 6, for which the date is March 28, 1996, with
respect to the consolidated financial statements and schedules of
Biscayne Apparel, Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
COOPERS & LYBRAND LLP
Parsippany, New Jersey
April 1, 1996
