AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 5, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BISCAYNE APPAREL, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0200397
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(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1373 BROAD STREET
CLIFTON, NEW JERSEY 07013
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
BISCAYNE APPAREL, INC. 1997 STOCK OPTION PLAN
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(FULL TITLE OF THE PLAN)
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PETER VANDENBERG, JR.
EXECUTIVE VICE PRESIDENT, TREASURER AND CHIEF FINANCIAL OFFICER
1373 BROAD STREET
CLIFTON, NEW JERSEY 07013
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(201) 473-3240
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(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
(305) 579-0664
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------ ------------------- ---------------------------- ------------------------------ -----------------
<S> <C> <C> <C> <C>
COMMON STOCK, $.01 PAR VALUE 306,695 SHARES $.875 $268,359 $81.33
============================== =================== ============================ ============================== =================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(h) of the Securities Act of 1933, as
amended, on the basis of the average of the high and low sale price of the
Common Stock on September 2, 1997.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are hereby incorporated by
reference in this Registration Statement:
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, 1996;
(b) the Registrant's quarterly reports on Form 10-Q for the three
months ended March 31, 1997 and for the six months ended June
30, 1997;
(c) all other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since January 1, 1997; and
(d) 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
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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 -5.
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
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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.
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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 August 28, 1997.
BISCAYNE APPAREL, INC.
By: /s/ PETER VANDENBERG, JR.
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Peter Vandenberg, Jr.
Executive Vice President,
Treasurer and Chief Financial 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 Phillip T.
George, M.D. 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.
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SIGNATURE TITLE DATE
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/S/ EARL W. POWELL Chairman, President and Chief August 28, 1997
- ----------------------------------------- Executive Officer
Earl W. Powell
/S/ PETER VANDENBERG, JR. Executive Vice President, August 28, 1997
- ----------------------------------------- Treasurer and Chief Financial Officer
Peter Vandenberg, Jr. (Principal Financial and Accounting Officer)
/S/ KURT C. GUTFREUND Vice Chairman August 28, 1997
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Kurt C. Gutfreund
/S/ HAROLD E. BERRIT Director August 28, 1997
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Harold E. Berritt
/S/ PHILLIP T. GEORGE, M.D. Director August 28, 1997
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Phillip T. George, M.D.
/S/ JOSEPH B. GILDENHORN Director August 28, 1997
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Joseph B. Gildenhorn
/S/ R. STEPHEN LEFLER Director August 28, 1997
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R. Stephen Lefler
/S/ JAMES J. PINTO Director August 28, 1997
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James J. Pinto
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Registrant's Amended and Restated Articles of Incorporation(1)
4.2 Registrant's Bylaws(2)
4.3 Registrant's 1997 Stock Option Plan (3)
5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
23.1 Consent of Independent Accountants, 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)
24.1 Power of Attorney is included in the Signatures section of this
Registration Statement
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(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Annual Report on Form 10-K for the year ended 1994.
(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.
(3) Incorporated by reference to Exhibit A filed with the Registrant's
Schedule 14A filed on April 28, 1997.
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EXHIBIT 5.1
GREENBERG
ATTORNEY AT LAW
TRAURIG
[LETTERHEAD]
August 28, 1997
Biscayne Apparel, Inc.
1373 Broad Street
Clifton, New Jersey 07013
Ladies and Gentlemen:
We have acted as counsel to Biscayne Apparel, Inc., a Florida
corporation (the "Company"), and have reviewed the Company's Registration
Statement on Form S-8 covering 306,695 shares of the Company's authorized but
unissued common stock, $0.01 par value (the "Common Stock"), issuable pursuant
to stock options granted pursuant to the Company's 1997 Stock Option Plan, as
amended (the "Plan"). It is our opinion that shares of Common Stock issuable
under the Plan, when issued upon exercise of and in accordance with the terms of
stock options outstanding or to be granted under the Plan, will be validly
issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the above referenced
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
EXHIBIT 23.1
COOPERS Coopers & Lybrand L.L.P.
& LYBRAND
a professional services firm
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. 1997 Stock Option Plan of our
report dated March 7, 1997, except for Note 7, for which the date is March 24,
1997, 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, 1996, filed with the Securities and Exchange Commission.
/s/ COOPERS & LYBRAND L.L.P.
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Coopers & Lybrand L.L.P.
Parsippany, New Jersey
September 5, 1997
