<PAGE> 1
As filed with the Securities and Exchange Commission on June 13, 1997.
Subject to amendment.
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NORTON MCNAUGHTON, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 13-3747173
(State or other jurisdiction (I.R.S. Employer
of incorporation Identification No.)
or organization)
463 Seventh Avenue
New York, New York 10018
(Address of principal executive offices)
NORTON MCNAUGHTON, INC.
EXECUTIVE STOCK OPTION PLAN
(Full title of the plan)
PETER BONEPARTH
President
Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
(212) 947-2960
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
BRADLEY P. COST, ESQ.
Haythe & Curley
237 Park Avenue
New York, New York 10017
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the
Registration Statement becomes effective.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================
Proposed
Title of Proposed maximum maximum Amount of
securities to Amount to offering aggregate registration
be registered be registered price per share* offering price* fee*
- ------------- ------------- ---------------- -------------- -----
<S> <C> <C> <C> <C>
Common Stock 700,000 $5.50 $3,850,000 $1,166.55
($.01 par
value)
================================================================================================================
</TABLE>
*Computed in accordance with Rule 457(h)(1).
==============================================================================
Page 1 of 27 pages
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby states that (i) the documents listed in (a)
through (c) below are incorporated by reference in this Registration Statement
and (ii) all documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended November 2, 1996.
(b) Quarterly Report on Form 10-Q for the quarter ended
February 1, 1997.
(c) The description of the Company's Common Stock contained in
the Company's registration statement on Form 8-A (No. 34-23440) filed February
17, 1994.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Bradley P. Cost, Esq., a partner in the law firm of Haythe &
Curley, the Company's counsel, is a director of the Company. As of May 31, 1997,
Mr. Cost held options under the Company's 1994 Stock Option Plan to purchase
25,000 shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, as
amended, the Company has the power to indemnify directors and officers under
certain prescribed circumstances and subject to certain limitations against
certain costs and expenses, including attorney's fees, actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which any of them is a party by
reason of such person's being a director or officer
II-1
<PAGE> 3
of the Company if it is determined that such person acted in accordance with the
applicable standard of conduct set forth in such statutory provisions.
The Company's Certificate of Incorporation contains a
provision which eliminates the personal liability of a director of the Company
to the Company or to any of its stockholders for monetary damages for a breach
of his fiduciary duty as a director, except in the case where the director
breached his duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law,
or obtained an improper personal benefit.
The Company's Certificate of Incorporation also provides that
the Company will indemnify and hold harmless any director, officer, employee or
agent of the Company from and against any and all expenses and liabilities that
may be imposed upon or incurred by him in connection with, or as a result of,
any proceeding in which he may become involved, as a party or otherwise, by
reason of the fact that he is or was such a director, officer, employee or agent
of the Company, whether or not he continues to be such at the time such expenses
and liabilities shall have been imposed or incurred, to the extent permitted by
the laws of the State of Delaware, as they may be amended from time to time.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes, except as
otherwise specifically provided in the rules of the Securities and Exchange
Commission promulgated under the Securities Act of 1933:
(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-2
<PAGE> 4
(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 hereof) 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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8 and 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; and
(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 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.
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
II-3
<PAGE> 5
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.
II-4
<PAGE> 6
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoints Sanford Greenberg and Peter Boneparth as attorneys-in-fact with
full power of substitution, severally, to execute in the name and on behalf of
the Registrant and each such person, individually and in each capacity stated
below, one or more post-effective amendments to this Registration Statement as
the attorney-in-fact acting in the premises deems appropriate and to file any
such amendment to this Registration Statement with the Securities and Exchange
Commission.
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 New York, State of New York on the 28th day of
May, 1997.
NORTON MCNAUGHTON, INC.
By /s/ Sanford Greenberg
------------------------------
Sanford Greenberg
Chief Executive Officer and
Vice Chairman of the Board
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Sanford Greenberg Vice Chairman of the Board, May 28, 1997
- ----------------------
Sanford Greenberg Chief Executive Officer
and Director (Principal
Executive Officer)
/s/ Peter Boneparth President, Chief Operating May 28, 1997
- ----------------------
Peter Boneparth Officer and Director
/s/ Norton Sperling Vice Chairman of the Board May 28, 1997
- ----------------------
Norton Sperling and Director
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Amanda J. Bokman Chief Financial May 28, 1997
----------------------
Amanda J. Bokman Officer and Director
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ David M. Blumberg Director May 28, 1997
----------------------
David M. Blumberg
/s/ Robert Mann Director May 28, 1997
----------------------
Robert Mann
/s/ Bradley P. Cost Director May 28, 1997
----------------------
Bradley P. Cost
/s/ Jerald S. Politzer Director May 28, 1997
-----------------------
Jerald S. Politzer
</TABLE>
II-6
<PAGE> 8
CONSENT OF COUNSEL
The consent of Haythe & Curley is contained in their opinion
filed as Exhibit 5 to this Registration Statement.
II-7
<PAGE> 9
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Norton McNaughton, Inc.
Executive Stock Option Plan of our report dated December 16, 1996, with respect
to the consolidated financial statements and schedule of Norton McNaughton, Inc.
included in its Annual Report (Form 10-K) for the year ended November 2, 1996,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
June 10, 1997
II-8
<PAGE> 10
INDEX TO EXHIBITS
Number Description of Exhibit Page
------ ---------------------- ----
4(i) - Employment Agreement dated --
April 30, 1997 between Norton
McNaughton, Inc. and Peter
Boneparth
5 - Opinion of Haythe & Curley --
23(i) - Consent of Ernst & Young, LLP, --
Independent Auditors (see
"Consent of Independent
Auditors" in the Registration
Statement)
23(ii) - Consent of Haythe & Curley --
(contained in Exhibit 5)
24 - Power of Attorney (see "Power of --
Attorney" in the Registration
Statement)
II-9
<PAGE> 1
EXHIBIT 4(i)
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 30th day of April, 1997 by and
between NORTON MCNAUGHTON OF SQUIRE, INC., a New York corporation (the
"Company"), and PETER BONEPARTH (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company wishes to retain the services of the
Employee as President and Chief Operating Officer of the Company, and the
Employee wishes to serve in such capacity in the employ of the Company, upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto hereby agree as
follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the
Employee agrees to serve in the employ of the Company, for the term set forth in
Section 1.2, in the positions and with the responsibilities, duties and
authority set forth in Section 2 and on the other terms and conditions set forth
in this Agreement.
1.2 The term of the Employee's employment under this Agreement
(the "Term") shall commence on the date hereof and shall terminate on November
4, 2000, unless sooner terminated in accordance with this Agreement.
2. Positions, Duties. The Employee shall serve in the
positions of President and Chief Operating Officer of the Company. The Employee
shall perform, faithfully and diligently, such duties, and shall have such
responsibilities, appropriate to said positions, as shall be assigned to him
from time to time by the Chief Executive Officer or the Board of Directors of
the Company. The Employee shall report to the Chief Executive Officer and the
Board of Directors of the Company. During the Term, the Employee also agrees to
serve, if elected, as an officer of any parent, subsidiary or affiliate of the
Company. The Employee shall devote his complete and undivided attention to the
performance of his duties and responsibilities hereunder during the normal
working hours of executive employees of the Company. During the Term, the
Company shall cause the Employee to be recommended for election to
<PAGE> 2
the Board of Directors of Norton McNaughton, Inc., a Delaware corporation (the
"Parent"). Subject to the prior consent of the Board of Directors of the Parent,
the Employee shall be permitted to sit on the boards of directors of other
corporations not involving any conflict of interest with the Company.
3. Compensation.
3.1 Salary. During the Term, in consideration of the
performance by the Employee of the services set forth in Section 2 and his
observance of the other covenants set forth herein, the Company shall pay the
Employee, and the Employee shall accept, a salary at a rate of $500,000 per
annum, payable in accordance with the standard payroll practices of the Company.
3.2 Signing Bonus. Upon commencement of the Employee's
employment with the Company, the Company shall pay the Employee a one-time
signing bonus in the amount of $250,000 (the "Signing Bonus"); provided,
however, in the event that the employment of the Employee with the Company shall
terminate within one year of the commencement of the Employee's employment under
this Agreement, other than by reason of a termination by the Company pursuant to
Section 6.4 of this Agreement, the Employee shall repay the Signing Bonus to the
Company immediately upon such termination.
3.3 Bonus. During the Term, in addition to the salary provided
for in Section 3.1, the Employee shall be eligible to participate in any bonus
plan for executives of the Company in effect during the Term.
3.4 Stock Options.
(a) GRANT. The Company shall cause to be granted to
the Employee by the Board of Directors of the Parent as promptly as practicable
after the date hereof, options to purchase an aggregate of 700,000 shares of the
common stock, par value $.01 per share (the "Common Stock"), of the Parent, at
an exercise price per share equal to the fair market value of the Common Stock
on the date of grant (the "Options").
(b) EXERCISE. Except as provided in Section 3.4(d),
the number of Options which shall be vested and exercisable at any time shall be
the greater of the number of Options determined under clause (i) or clause (ii)
of this subsection (b).
(i) Options as to 250,000 shares of Common
Stock shall become vested and exercisable if the closing price for the Common
Stock as quoted on the NASDAQ National
<PAGE> 3
Market System (or such other exchange on which the Common Stock is listed) shall
equal or exceed $10.00 on at least twenty (20) consecutive trading days
subsequent to the date of the grant; Options as to an additional 250,000 shares
of Common Stock shall become vested and exercisable if the closing price for the
Common Stock as quoted on the NASDAQ National Market System (or such other
exchange on which the Common Stock is listed) shall equal or exceed $13.00 on at
least twenty (20) consecutive trading days subsequent to the date of the grant;
and Options as to an additional 100,000 shares of Common Stock shall become
vested and exercisable if the closing price for the Common Stock as quoted on
the NASDAQ National Market System (or such other exchange on which the Common
Stock is listed) shall equal or exceed $20.00 on at least twenty (20)
consecutive trading days subsequent to the date of grant (the foregoing
applicable closing prices of the Common Stock set forth in this Section
3.4(b)(i), the "Target Prices").
(ii) The Options shall become vested and exercisable
in accordance with the following schedule:
Cumulative Number
of Options Vested
Vesting Period and Exercisable
-------------- ---------------
After April 30, 1997 100,000
After December 10, 1998 350,000
After December 10, 1999 600,000
After November 4, 2000 700,000,
less the number of Options theretofore exercised.
(c) CHANGE IN CONTROL. In connection with any merger
or consolidation involving the Parent which results in the holders of the
outstanding voting securities of the Parent (determined immediately prior to
such merger or consolidation) owning less than a majority of the outstanding
voting securities of the surviving corporation (determined immediately following
such merger or consolidation), or any sale or transfer by the Parent of all or
substantially all its assets or any tender offer or exchange offer for or the
acquisition, directly or indirectly, by any person or group of all or a majority
of the then outstanding voting securities of the Parent, in each case occurring
during the Term, all outstanding Options shall become vested and exercisable in
full, notwithstanding any other provision hereof, on and after (i) fifteen (15)
days prior to the effective date of such merger, consolidation, sale, transfer
or acquisition or (ii) the
<PAGE> 4
date of commencement of such tender offer or exchange offer, as the case may be;
provided, however, that in the case of any merger, consolidation, transfer or
acquisition, or any tender offer or exchange offer where the effective date or
date of commencement, as the case may be, occurs, or where the Parent shall
enter into any agreement or letter of intent with respect to any such
transaction, in any case, within six months of the date of commencement of the
Employee's employment hereunder, no additional Options shall become vested and
exercisable.
(d) TERM OF OPTIONS. Except as provided below, the
term of the Options shall be ten years.
(i) In the event of termination of the
employment of the Employee pursuant to Section 6.1 of this Agreement, the
Employee's estate shall be entitled to exercise for a period of two years from
the date of the Employee's death, only that number of Options as were vested and
exercisable on the date of the Employee's death.
(ii) In the event of termination of the
employment of the Employee pursuant to Section 6.2 of this Agreement, the
Employee shall be entitled to exercise, for the Disability Exercise Term (as
hereinafter defined), only that number of Options as were vested and exercisable
on the date of termination of the employment of the Employee. For purposes
hereof, "Disability Exercise Term" shall mean the Disability Salary Continuation
Period (as defined in Section 6.2 of this Agreement) plus two years.
(iii) In the event of termination of
the employment of the Employee by the Company for Due Cause pursuant to Section
6.3 of this Agreement, no Options shall be exercisable.
(iv) In the event of termination of the
employment of the Employee by the Company pursuant to Section 6.4 of this
Agreement, the Employee shall be entitled to exercise, for the Exercise Term (as
hereinafter defined), only that number of Options as were vested and exercisable
on the date of termination of the employment of the Employee. For purposes
hereof, "Exercise Term" shall mean the Salary Continuation Period (as defined in
Section 6.4 of this Agreement) plus two years.
(v) In the event of termination of the
employment of the Employee with the Company by the Employee during the Term for
any reason other than pursuant to Sections 6.1, 6.2, 6.3 or 6.4 of this
Agreement, no Options shall be exercisable.
<PAGE> 5
(e) ADJUSTMENTS. In the event of any dividend or
other distribution (whether in the form of cash, Common Stock, other securities
or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of the Parent,
issuance of warrants or other rights to purchase Common Stock, the Board of
Directors shall, in such manner as it may deem equitable, adjust the number of
shares of Common Stock (or other securities or property) subject to the Options,
the exercise price with respect to any Options, the Target Prices with respect
to any Options, or all of the foregoing.
(f) LIMITATION ON SALES OF COMMON STOCK. The Employee
agrees, for the benefit of the Company and the Parent, that during the period of
his employment with the Company and at all times thereafter for so long as he
shall beneficially own in the aggregate more than 100,000 shares of Common Stock
or Options and whether or not he is at the time deemed to be an "affiliate" (as
such term is used in Rule 144 under the Securities Act of 1933, as amended) of
the Company, he shall not sell shares of Common Stock in excess of the volume
limitation which from time to time would be applicable to him under Rule
144(e)(1) determined as if he were an affiliate.
(g) REGISTRATION OF SHARES. The Parent shall, as
promptly as practicable following the commencement of the Employee's employment
hereunder, file a registration statement on Form S-8, or any successor to such
Form, with respect to the shares of Common Stock covered by the Options.
4. Expense Reimbursement. During the Term, (i) the Company
shall reimburse the Employee for all reasonable and necessary out-of-pocket
expenses incurred by him in connection with the performance of his duties
hereunder, upon the presentation of proper accounts therefor in accordance with
the Company's policies and (ii) the Company shall pay for the benefit of the
Employee all reasonable and necessary expenses incurred by him in the ordinary
and usual course of business and in accordance with the Company's policies (in
any case, as such policies are adopted from time to time by the Compensation
Committee of the Board of Directors).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be
entitled to participate in all employee benefit plans and programs offered by
the Company (and, to the extent required by applicable law or this Agreement,
<PAGE> 6
approved by the Compensation Committee of the Board of Directors) from time to
time to its employees of comparable seniority, subject to the provisions of such
plans and programs as in effect from time to time.
5.2 Vacation. During the Term, the Employee shall be entitled
to paid vacation in accordance with Company policy for its executive employees.
5.3 Life Insurance. During the Term, the Company will provide
the Employee with $2 million term life insurance coverage. The beneficiary of
such policy shall be the Employee's estate or other beneficiary so designated by
the Employee.
5.4 Disability. During the Term, the Company shall provide the
Employee with disability insurance providing the same monthly disability benefit
as provided to the Chief Executive Officer of the Company; provided, however
that the annual expenditure by the Company for disability insurance premiums for
the Employee shall not exceed the annual expenditure by the Company for
disability insurance premiums for the Chief Executive Officer of the Company.
The Company's obligations under Section 6.2 of this Agreement shall be subject
to appropriate reduction for amounts paid to the Employee under disability
insurance during the Disability Salary Continuation Period (as hereinafter
defined), taking into account the tax treatment of such disability insurance
payments.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during
the Term, the Company shall pay to the estate or other legal representative of
the Employee the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee. Rights and benefits
of the estate or other legal representative of the Employee under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Section 3.4(d).
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform his normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, subject to Section 5.4 of this
Agreement, the
<PAGE> 7
Company shall continue to pay to the Employee the salary provided for in Section
3.1 (i) if such termination shall occur within one year of the commencement of
the Employee's employment under this Agreement, for one year from the date of
termination of the Employee's employment; or (ii) if such termination shall
occur after the first anniversary of the commencement of the Employee's
employment under this Agreement, for the remainder of the Term (the applicable
period of time during which the Company shall be required to continue to pay
such salary, the "Disability Salary Continuation Period"). Rights and benefits
of the Employee under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 3.4(d), 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee. Rights and benefits of the
Employee under the benefit plans and programs of the Company shall be determined
in accordance with the provisions of such plans and programs. After the
satisfaction of any claim of the Company against the Employee incidental to such
Due Cause, neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 3.4(d), 7, 8, 9
and 10. For purposes hereof, "Due Cause" shall mean (a) the Employee's gross
negligence or willful misconduct in bad faith in the discharge of his duties and
responsibilities to any member of the Company Group (as defined in Section 9
below), as determined by the Board of Directors of the Company (other than the
Employee if he is a member of such at the time), (b) the Employee's material and
repeated failure to obey appropriate directions from the Chief Executive Officer
of the Company and the Board of Directors of the Company, (c) any willful or
purposeful act or omission of the Employee taken or omitted in bad faith and
intended to materially injure, and which had the effect of materially injuring,
the business or business relationships of any member of the Company Group or (d)
the Employee's conviction or other adjudication of (1) a felony or (2) any crime
or offense involving fraud; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that it
intends to terminate the Employee's employment for Due Cause under this Section,
which written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment,
<PAGE> 8
and the Employee shall then be given the opportunity, within fifteen (15) days
of his receipt of such notice, to have a meeting with the Board of Directors of
the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may
terminate the Employee's employment at any time during the Term for whatever
reason it deems appropriate or without reason; provided, however, that in the
event that such termination is not pursuant to Section 6.1, 6.2 or 6.3, the
Company shall continue to pay to the Employee the salary provided for in Section
3.1 (i) if such termination shall occur within one year of the commencement of
the Employee's employment under this Agreement, for one year from the date of
termination of the Employee's employment; or (ii) if such termination shall
occur after the first anniversary of the commencement of the Employee's
employment under this Agreement, for the remainder of the Term (the applicable
period of time during which the Company shall be required to continue to pay
such salary, the "Salary Continuation Period"). In either case, the Employee
shall be required to seek subsequent employment in good faith and upon obtaining
subsequent employment shall inform the Company that he obtained such employment
and to offset any amounts earned from such subsequent employment (whether as an
employee, a consultant or otherwise) against such salary continuation by the
Company. Rights and benefits of the Employee under the benefit plans and
programs of the Company shall be determined in accordance with the provisions of
such plans and programs. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 3.4(d), 7, 8, 9 and 10.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times
thereafter, treat as confidential and, except as required in the performance of
his duties and responsibilities under this Agreement, not disclose, publish or
otherwise make available to the public or to any individual, firm or corporation
any confidential material (as hereinafter defined). The Employee agrees that all
confidential material, together with all notes and records of the Employee
relating thereto, and all copies or facsimiles thereof in the possession of the
Employee, are the exclusive property of the Company and the Employee agrees to
return such material to the Company promptly upon the termination of the
Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material"
shall mean all information acquired by the Employee in the course of the
Employee's employment
<PAGE> 9
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Company Group or the
customers of the Company or any member of the Company Group, including, without
limitation, all information concerning trade secrets and the preparation of raw
material for, manufacture of, and/or finishing processes utilized in the
production of, the products or projects of the Company or any member of the
Company Group and/or any improvements therein, all sales and financial
information concerning the Company or any member of the Company Group, all
customer and supplier lists, all information concerning projects in research and
development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Company Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public other than as a result of a disclosure by the
Employee, (b) was available to the Employee on a non-confidential basis prior to
his employment with the Company or (c) becomes available to the Employee on a
non-confidential basis from a source other than the Company or any of its
agents, franchisees, creditors, suppliers, lessors, lessees or customers
provided that such source is not bound by a confidentiality agreement with the
Company or any of such agents or customers.
8. Inventions. Any and all inventions, innovations or
improvements ("inventions") made, developed or created by the Employee (whether
at the request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the period of his employment with the Company which may be directly or
indirectly useful in, or relate to, the business of the Company, shall be
promptly and fully disclosed by the Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
him as aforesaid. The Employee shall, at the request of the Company and without
any payment therefor, execute any documents necessary or advisable in the
opinion of the Company's counsel to direct issuance of patents or copyrights to
the Company with respect to such inventions as are to be the Company's exclusive
property as against the Employee or to vest in the Company title to such
inventions
<PAGE> 10
as against the Employee. The expense of securing any such patent or copyright
shall be borne by the Company.
9. Non-Competition. The Employee acknowledges that the
services to be rendered by him to the Company are of a special and unique
character. In consideration of his employment hereunder, the Employee agrees,
for the benefit of the Company, that he will not, during the period of his
employment with the Company and thereafter for the Applicable Period (as
hereinafter defined) commencing on the date of termination of his employment
with the Company, (a) engage, directly or indirectly, whether as principal,
agent, distributor, representative, consultant, employee, partner, stockholder,
limited partner or other investor (other than an investment of not more than (i)
one percent (1%) of the stock or equity of any corporation the capital stock of
which is publicly traded or (ii) five percent (5%) of the ownership interest of
any limited partnership or other entity) or otherwise, anywhere in the United
States, in any activity or business venture which is in competition with the
business then conducted by the Company (presently, the manufacture,
merchandising, distribution and sale of women's clothing), any of its
subsidiaries or any of its corporate parents or affiliates (including, without
limitation, Norty's, Inc. and Norton McNaughton, Inc., each a Delaware
corporation) (collectively, the "Company Group"), (b) solicit or entice or
endeavor to solicit or entice away from any member of the Company Group any
person who was an officer, employee or consultant of any member of the Company
Group, either for his own account or for any individual, firm or corporation,
whether or not such person would commit any breach of his contract of employment
by reason of leaving the service of a member of the Company Group, and the
Employee agrees not to employ, directly or indirectly, any person who was an
officer or employee of any member of the Company Group or who by reason of such
position at any time is or may be likely to be in possession of any confidential
information or trade secrets relating to the businesses or products of any
member of the Company Group, or (c) solicit or entice or endeavor to solicit or
entice away from any member of the Company Group any customer or prospective
customer of any member of the Company Group, either for his own account or for
any individual, firm or corporation. As used herein, the term "Applicable
Period" shall mean, (i) in the case of termination of employment pursuant to
Section 6.4 of the Agreement, the period during which the Company is obligated
to continue to pay salary to the Employee (determined without regard to the
Employee's duty to offset as specified in such Section 6.4), and (ii) in the
case of any other termination, three (3) years.
<PAGE> 11
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the
Employee of any of the provisions of Sections 7, 8 or 9 of this Agreement, the
Employee hereby consents and agrees that the Company shall be entitled to an
injunction or similar equitable relief from any court of competent jurisdiction
restraining the Employee from committing or continuing any such breach or
threatened breach or granting specific performance of any act required to be
performed by the Employee under any of such provisions, without the necessity of
showing any actual damage or that money damages would not afford an adequate
remedy and without the necessity of posting any bond or other security. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies at law or in equity which it may have with respect to any such breach
or threatened breach.
10.2 The Company and the Employee understand and agree that in
any lawsuit or other proceeding between any of them with respect to Sections 7,
8 or 9 hereof, the prevailing party in such lawsuit or proceeding shall be
entitled to recover from the other party in such lawsuit or proceeding, and such
other party hereby agrees to pay such prevailing party, for all costs and
expenses, including attorneys' fees, incurred by such prevailing party in the
defense, prosecution or investigation of the matters which are the subject of
such lawsuit or proceeding.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign
this Agreement or any part thereof without the prior written consent of a
majority of the Board of Directors of the Company (other than the Employee if he
is a member of such Board at the time); provided, however, that nothing herein
shall preclude one or more beneficiaries of the Employee from receiving any
amount that may be payable following the occurrence of his legal incompetency or
his
<PAGE> 12
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract
made under, and for all purposes shall be construed in accordance with, the laws
of the State of New York applicable to contracts to be performed entirely within
such State.
13. Entire Agreement. This Agreement contains all the
understandings and representations between the parties hereto pertaining to the
subject matter hereof. This Agreement supersedes all understandings and
agreements, whether oral or in writing, if any, previously entered into by the
Company with the Employee in any way relating to the employment of the Employee
by the Company, all of which agreements and understandings are hereby terminated
and all rights and entitlements thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this
Agreement may be amended or modified unless such amendment or modification is
agreed to in writing and signed by the Employee and by representatives of the
Company (other than the Employee) who have been duly authorized by the Board of
Directors of the Company to do so (other than the Employee if he is a member of
such Board at the time). Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of a similar or dissimilar provision or
condition at the same or any prior or subsequent time, nor shall the failure of
or delay by either party hereto in exercising any right, power or privilege
hereunder operate as a waiver thereof to preclude any other or further exercise
thereof or the exercise of any other such right, power or privilege.
15. Notices. Any notice to be given hereunder shall be in
writing and delivered personally or sent by certified mail, postage prepaid,
return receipt requested, addressed to the party concerned at the address
indicated
<PAGE> 13
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
c/o Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Attention: Compensation Committee and
the Chief Executive Officer
If to the Employee:
Peter Boneparth
250 Briarwood Crossing
Lawrence, New York 11559
With a copy to:
Richard E. Haftel, Esq.
Haftel & Silverman, P.C.
26 Broadway
New York, New York 10004
16. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall, except as provided in
Section 10, be settled by binding arbitration in accordance with the rules of
the American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
17. Severability. Should any provision of this Agreement be
held by a court or arbitration panel of competent jurisdiction to be enforceable
only if modified, such holding shall not affect the validity of the remainder of
this Agreement, the balance of which shall continue to be binding upon the
parties hereto with any such modification to become a part hereof and treated as
though originally set forth in this Agreement. The parties further agree that
any such court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified
<PAGE> 14
by the court or arbitration panel shall be binding upon and enforceable against
each of them. In any event, should one or more of the provisions of this
Agreement be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
hereof, and if such provision or provisions are not modified as provided above,
this Agreement shall be construed as if such invalid, illegal or unenforceable
provisions had never been set forth herein.
18. Authority. The Company represents and warrants to the
Employee that the execution and delivery of this Agreement by the Company and
the performance by the Company of its covenants and agreements hereunder have
been duly authorized by all necessary corporate action and that this Agreement
has been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
20. Subsidiaries, etc. The Employee shall be deemed to resign
as an officer and director of any parent, subsidiary or affiliate of the Company
upon termination of his employment under this Agreement.
21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are
intended solely for convenience and no provision of this Agreement is to be
construed by reference to the title of any section.
23. Counterparts. This Agreement may be executed in two or
more counterpart copies, each of which shall be deemed to be an original and all
of which taken together shall be deemed one document.
* * *
<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NORTON MCNAUGHTON OF SQUIRE, INC.
By /s/ Sanford Greenberg
----------------------------
Title: Chief Executive
Officer
EMPLOYEE:
/s/ Peter Boneparth
----------------------------
Peter Boneparth
<PAGE> 1
EXHIBIT 5
June 13, 1997
Norton McNaughton, Inc.
463 Seventh Avenue
New York, New York 10018
Dear Sir or Madam:
We have acted as counsel for Norton McNaughton, Inc., a
Delaware corporation (the "Company"), in connection with the registration
statement on Form S-8 being filed by the Company under the Securities Act of
1933, as amended, with respect to 700,000 shares (the "Stock Option Shares") of
the Company's common stock, $.01 par value, which have been or are to be offered
to Peter Boneparth pursuant to that certain Employment Agreement dated as of
April 30, 1997 between the Company and Peter Boneparth (the "Stock Option
Plan").
In connection with such registration statement, we have
examined such records and documents and such questions of law as we have deemed
appropriate for purposes of this opinion. On the basis of such examination, we
advise you that in our opinion:
(1) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware; and
(2) the Stock Option Shares have been duly and validly
authorized and, when issued and paid for in
accordance with the terms of the Stock Option Plan,
and stock options duly granted or to be granted
thereunder, will be validly issued, fully paid and
non-assessable.
<PAGE> 2
Norton McNaughton, Inc.
June 13, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit
to the aforesaid registration statement.
Very truly yours,
/s/ Haythe & Curley
