As filed with the Securities and Exchange Commission on May 28, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CHIC BY H.I.S, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3494627
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1372 Broadway
New York, New York 10018
(212) 302-6400
(Address of principal executive offices) (Zip code)
CHIC BY H.I.S, INC. 1993 STOCK OPTION PLAN
(Full title of the plan)
Daniel Rubin Copies to:
Chief Executive Officer Lawrence H. Budish, Esq.
Chic By H.I.S, Inc. Proskauer Rose LLP
1372 Broadway 1585 Broadway
New York, New York 10018 New York, New York 10036
(212) 302-6400 (212) 969-3000
(Name, address, including zip code, and
telephone number, including area
code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered(1) offering price aggregate offering registration
registered per share(2) price(2) fee
- ---------------- -------------- ---------------- ------------------ ------------
Common Stock,
par value
$0.01 per share 400,000 shares $3.00 $1,200,000 $333.6
(1) Represents the aggregate number of additional shares of the
common stock, par value $0.01 (the "Common Stock"), of Chic By
H.I.S, Inc. (the "Company") issuable upon the exercise of the
stock options granted or to be granted under the Chic By
H.I.S, Inc. 1993 Stock Option Plan (the "Plan") pursuant to
amendments to the Plan adopted at the Company's 1999 Annual
Meeting of Stockholders.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h). The maximum offering
price per share is based upon the average of the high and low
sale prices of the Common Stock as reported on the New York
Stock Exchange on May 25, 1999.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The Section 10(a) prospectus for the Chic By H.I.S,Inc. 1993 Stock Option
Plan, as amended, is not being filed with the Securities and Exchange Commission
(the "Commission") as part of this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Chic By H.I.S,
Inc., a Delaware corporation (the "Company" or the "Registrant"), are
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended November 7, 1998; and
(2) The description of the Company's common stock, par value
$0.01 per share (the "Common Stock") contained in the Company's
Registration Statement on Form 8-A, which was filed pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and declared effective on February 17, 1993.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all remaining 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 such documents. Any statement in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "GCL")permits
a corporation to indemnify its directors and officers against expenses
(including attorney's fees), judgments, fines and amounts paid in settlements
actually and reasonably incurred by them in connection with
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any action, suit or proceeding brought by third parties, if such directors or
officers acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reason to believe their conduct was
unlawful. In a derivative action, i.e., one by or in the right of the
corporation, indemnification may be made only for expenses actually and
reasonably incurred by directors and officers in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to which
they shall have acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interest of the corporation, except that no
indemnification shall be made if such person shall have been adjudged liable to
the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the defendant
officers or directors are reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Section 102(b)(7) of the GCL provides that a corporation may eliminate
or limit the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the GCL, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
Section 9 of the Restated Certificate of Incorporation and Article 8 of
the By-laws of the Company provide that, to the extent not prohibited by law,
the Company shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or proceeding
(a "Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Company to
procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Company, or is or was serving in any capacity at the request of
the Company for any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise (an "Other Entity"), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees and disbursements). The
Company's By-laws provide that the foregoing indemnification shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled apart from the foregoing provisions.
Under Section 9 of the Restated Certificate of Incorporation and
Article 8 of the By-laws, the Company is authorized to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of an Other Entity, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Company would
have the power to indemnify such
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person against such liability under the provisions of the Restated Certificate
of Incorporation, the By-laws or under Section 145 of the GCL or any other
provision of law.
The Company maintains a standard form of officers' and directors'
liability insurance policy which provides coverage to the officers and directors
of the Company for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Company.
(Incorporated herein by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 No.
33-56270).
4.2 By-laws of the Company, as amended. (Incorporated herein by
reference to Exhibit 3.4 to the Company's Registration
Statement on Form S-l No. 33-56270).
*5.l Opinion of Proskauer Rose LLP.
*23.1 Consent of BDO Seidman, LLP.
*23.2 Consent of Proskauer Rose LLP (included in Exhibit 5.1).
*24 Power of Attorney (included on signature page)
* Filed herewith.
Item 9. Undertakings.
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, as amended (the "Securities Act");
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(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 end 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 a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
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
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York on May 25, 1999.
CHIC BY H.I.S, INC.
By: /S/ Daniel Rubin
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Daniel Rubin
Chief Executive Officer and Co-Chairman of
the Board of Directors
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Daniel Rubin, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to act, for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent 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 full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
/s/ Daniel Rubin Chief Executive Officer and May 25, 1999
- ------------------------- Co-Chairman of the Board of Directors
Daniel Rubin (principal executive officer)
/s/ Christine Hadjigeorge Treasurer, Chief Financial Officer May 25, 1999
- ------------------------- and Secretary (principal financial
Christine Hadjigeorge officer and principal accounting officer)
/s/ Arnold M. Amster Co-Chairman of the Board of May 25, 1999
- ------------------------- Directors
Arnold M. Amster
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/s/ Walter Berman Director May 25, 1999
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Walter Berman
/s/ Peter D. Brown Director May 25, 1999
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Peter D. Brown
/s/ Michael Conroy Director May 25, 1999
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Michael Conroy
/s/ Herbert A. Denton Director May 25, 1999
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Herbert A. Denton
/s/ Roland L. Kimberlin Director and President- May 25, 1999
- ------------------------- Manufacturing Operations
Roland L. Kimberlin
/s/ Mark Metzger Director May 25, 1999
- -------------------------
Mark Metzger
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EXHIBIT INDEX
Exhibit Description of Exhibit Location
4.1 Restated Certificate of Incorporation Incorporated herein by reference
of the Company to Exhibit 3.2 to the Company's
Registration Statement on Form
S-1 No. 33-56270.
4.2 By-laws of the Company, as amended Incorporated herein by reference
to Exhibit 3.4 to the Company's
Registration Statement on Form
S-l No. 33-56270.
5.l Opinion of Proskauer Rose LLP Filed herewith.
23.1 Consent of BDO Seidman, LLP Filed herewith.
23.2 Consent of Proskauer Rose LLP Included in Exhibit 5.1.
24 Power of Attorney Included on signature page.
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EXHIBIT 5.1
May 27, 1999
Chic By H.I.S, Inc.
1372 Broadway
New York, New York 10018
Ladies and Gentlemen:
We are acting as counsel to Chic By H.I.S, Inc., a Delaware corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company under the Securities Act of 1933,
as amended, relating to the registration of 400,000 shares (the "Shares") of the
common stock, par value $0.01, of the Company issuable under the Chic By H.I.S,
Inc. 1993 Stock Option Plan, as amended (the "Plan").
We have examined and relied upon originals or copies, certified or otherwise
authenticated to our satisfaction, of all such corporate records, documents,
agreements and instruments relating to the Company, and certificates of public
officials and of representatives of the Company, and have made such
investigations of law, and have discussed with representatives of the Company
and such other persons such questions of fact, as we have deemed proper or
necessary as a basis for rendering this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares will be, when issued in accordance with the provisions of the Plan and
the respective stock option agreements issued thereunder (including payment of
the option exercise price provided for therein), legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in 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,
PROSKAUER ROSE LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Chic By H.I.S, Inc.
1372 Broadway
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of the Registration Statement on Form S-8 of our reports
dated January 7, 1999 with respect to the consolidated financial statements and
schedule of Chic By H.I.S, Inc. and subsidiaries appearing in the Company's
Annual Report on Form 10-K for the year ended November 7, 1998.
BDO SEIDMAN, LLP
New York, New York
May 27, 1999
EXHIBIT 5
[Proskauer Rose LLP ]
April 8, 1999
Bed Bath & Beyond Inc.
650 Liberty Avenue
Union, NJ 07083
Dear Sirs:
We are acting as counsel to Bed Bath & Beyond Inc., a New York corporation
(the "Company"), in connection with the registration statement on Form S-8 (the
"Registration Statement") filed by the Company under the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder, relating to
the registration of 6,000,000 shares (the "Shares") of Common Stock, par value
$.01 per share, of the Company. The Shares are to be issued by the Company
pursuant to the Company's 1998 Stock Option Plan (the "Plan").
As such counsel, we have participated in the preparation of the
Registration Statement and have reviewed the corporate minutes relating to the
issuance of the Shares pursuant to the Plan and have also examined and relied
upon originals or copies, certified or otherwise authenticated to our
satisfaction, of all such corporate records, documents, agreements, and
instruments relating to the Company, and certificates of public officials and of
representatives of the Company.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized and, upon issuance of the Shares in accordance with
the terms of the Plan, will be, assuming no change in the applicable law or
pertinent facts, validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in 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/ Proskauer Rose LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Chic By H.I.S, Inc.
1372 Broadway
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of the Registration Statement on Form S-8 of our reports
dated January 7, 1999 with respect to the consolidated financial statements and
schedule of Chic By H.I.S, Inc. and subsidiaries appearing in the Company's
Annual Report on Form 10-K for the year ended November 7, 1998.
BDO SEIDMAN, LLP
New York, New York
May 27, 1999
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