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As filed with the Securities and Exchange Commission on August 12, 1998
Registration No. 333-60895
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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NAUTICA ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-2431048
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 West 57th Street
New York, New York 10019
(Address of principal executive offices)
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NAUTICA ENTERPRISES, INC. EMPLOYEE STOCK OPTION
(Full title of the plan)
Mr. Harvey Sanders
Nautica Enterprises, Inc.
40 West 57th Street, New York, New York 10019
(Name and address of agent for service)
(212) 541-5757
(Telephone number, including area code, of agent for service)
Copy to:
Charles M. Modlin, Esq.
Modlin Haftel & Nathan LLP
777 Third Avenue - 30th Floor
New York, New York 10017
(212) 832-1600
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EXPLANATORY NOTE
This Post-effective Amendment No. 1 to Registration Statement No.
333-60895 has been prepared in accordance with Form S-8 and is intended to be
used to register shares to be issued and sold pursuant to the plan described
therein. The Reoffer Prospectus filed as part of this Post-effective Amendment
No. 1 has been prepared in accordance with Part I of Form S-3 and may be used
for reofferings or resales of common stock previously acquired or to be acquired
by the participant in the plan who is deemed a control person of the registrant.
PART I
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
REOFFER PROSPECTUS PREPARED
IN ACCORDANCE WITH PART I OF FORM S-3
BEGINS ON NEXT PAGE
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REOFFER PROSPECTUS
NAUTICA ENTERPRISES, INC.
681,964 Shares of Common Stock
Nautica Enterprises, Inc. Employee Stock Option
This Prospectus relates to the reoffering of up to an aggregate of
681,964 shares (the "Shares") of Common Stock, par value $.10 per share ("Common
Stock"), of Nautica Enterprises, Inc. (the "Company"), a Delaware corporation,
which may be acquired from time to time by Mr. David Chu, Executive Vice
President and a Director of the Company (the "Selling Stockholder") upon the
exercise of stock options previously granted to him by the Company. Each stock
option is exercisable for one share of the Company's Common Stock, at an
exercise price of $.87 per share. The distribution of the Shares may be effected
in one or more transactions through one or more brokers or dealers in the
over-the-counter market, through privately negotiated transactions or otherwise,
at market prices prevailing at the time of sale or at prices otherwise
negotiated. None of the proceeds from the sale of the Shares will be received by
the Company (although it will receive proceeds of $.87 per share upon exercise
of such options by the Selling Stockholder).
Upon any sale of the Shares covered by this Prospectus, the Selling
Stockholder and participating brokers or dealers may be deemed to be
underwriters as that term is defined in the Securities Act of 1933, as amended
(the "Act"), and commissions or discounts or any profit realized on the sale of
such Shares received by the Selling Stockholder and such brokers or dealers may
be deemed to be underwriting commissions or discounts within the meaning of the
Act.
The Company's Common Stock is publicly quoted on the National Market
System of the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") under the trading symbol "NAUT". On August 11, 1998, the
closing sale price for the Common Stock, as reported by NASDAQ, was $24.
All expenses of registration incurred in connection with this offering
are being borne by the Company, but all brokerage commissions, discounts and
other expenses incurred by the Selling Stockholder will be borne by the Selling
Stockholder. No underwriter is being utilized.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS
PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is August 12, 1998.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") Washington, D.C. a Registration Statement and Post-effective
Amendment thereto on Form S-8 under the Act, with respect to the securities
offered hereby. This Prospectus does not contain all of the information set
forth in such Registration Statement and the exhibits thereto. For further
information with respect to the Company, reference is hereby made to the
Registration Statement and the exhibits thereto, which may be inspected without
charge at the public reference facilities maintained at the principal office of
the Commission at 450 Fifth Street, N.W., Room 1024, Washington D.C. 20549 and
at the Commission's regional offices at 7 World Trade Center, New York, New York
10048 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400 ,
Chicago, Illinois 60661. Copies of such materials may be obtained upon written
request from the public reference section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Electronic registration
statements, reports, proxy and information statements and other information made
through the Electronic Data Gathering, Analysis and Retrieval System are
publicly available through the Commission's Web site (http://www.sec.gov).
Statements contained in the Prospectus as to the contents of any contract or
other document referred to herein are not necessarily complete and in each
instance reference is made to the copy of such contract or other document filed
(or incorporated by reference) as an exhibit to the Registration Statement each
such statement being qualified in all respects by such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Commission.
Such reports and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at the
addresses shown above. Copies of such material can be obtained from the Public
Reference Section of the Commission at the address shown above at prescribed
rates or through the Commission's Web site.
The Company's Common Stock is traded on the Nasdaq National Market
under the symbol "NAUT". Certain information, reports and proxy statements of
the Company are also available for inspection at the offices of the Nasdaq
National Market Reports Section, 1735 K Street, Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated into this Prospectus by reference:
1. Annual Report on From 10-K for the fiscal year ended February 28,
1998;
2. Quarterly Report on Form 10-Q for the quarter ended May 30, 1998;
and
3. Proxy Statement relating to the Company's Annual Meeting of
Stockholders held on July 1, 1998.
4. The description of the Common Stock of the Registrant which is
contained in a registration statement filed by the Registrant under Section 12
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating such
description.
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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 termination of the
offering of Common Stock made hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus 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 such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus is delivered, upon the written or oral request
of any such person, a copy of any or all of the documents incorporated by
reference (other than exhibits to those documents which are not specifically
incorporated by reference) in the Registration Statement of which this
Prospectus is a part. Requests for such copies should be directed to Mr. Neal
Nackman, Vice President - Finance, Nautica Enterprises, Inc., 40 West 57th
Street, New York, New York 10019. The telephone number is (212) 541-5757.
Certain statements included in this Annual Report, including the words
"believes," "anticipates," "expects," "will" and similar expressions are
intended to identify forward-looking statements. Such statements are subject to
certain risks and uncertainties which could cause actual results to differ
materially from those projected. Readers are cautioned not to place undue
reliance on these forward-looking statements which speak only as of the date
hereof. The Company undertakes no obligation to republish revised
forward-looking statements to reflect events or circumstances after the date
hereof or to reflect the occurrence of unanticipated events. Readers are also
urged to carefully review and consider the various disclosures made by the
Company in its periodic reports on Forms 10-K and 10-Q and other filings with
the Securities and Exchange Commission.
TABLE OF CONTENTS
Page
THE COMPANY 4
SELLING STOCKHOLDER 5
PLAN OF DISTRIBUTION 6
LEGAL MATTERS 6
EXPERTS 6
INDEMNIFICATION 7
3
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THE COMPANY
Nautica Enterprises, Inc., a Delaware corporation (the "Company")
designs, sources and markets men's apparel. Men's casual sportswear, outerwear,
activewear, sleepwear and robes are sold under the Nautica brand. Golf
sportswear is sold under the E. Magrath and Byron Nelson brands. These products
feature innovative designs, classic styling, quality fabrics and functionality.
Nautica's in-store shop program is a significant component of the
Company's wholesale business. Through this program, Nautica and a department
store customer create a specific area within the store dedicated to the
exclusive merchandising and sale of the Nautica collections. Each of these shops
is outfitted with signature Nautica fixtures and presents the Nautica collection
in a visually attractive environment consistent with the Nautica image.
In addition to Nautica's wholesale business, the Company operates
outlet stores which provide an additional sales channel for Nautica products and
allows for the organized distribution of excess and out-of-season merchandise.
The Company strategically extends the Nautica product lines and
broadens the international distribution of the Nautica apparel collection
through license arrangements. The Nautica name is currently licensed for a range
of products consistent with Nautica's design concepts and image. The Nautica
name is also licensed globally to agents or companies for distribution of the
Nautica collection in international regions.
The Company is a majority partner in a limited liability company to
market and distribute Nautica apparel throughout Europe.
The Company's principal executive offices are located at 40 West 57th
Street, New York, New York 10019. Its telephone number is (212) 541-5757.
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SELLING STOCKHOLDER
The Selling Stockholder is Mr. David Chu. Mr. Chu has served for more
than the past three years as the Executive Vice President and a Director of
the Company, and President of Nautica Apparel, Inc. and Nautica International,
Inc., each wholly owned subsidiaries of the Company.
The Shares to which this Prospectus relates are shares of Common Stock
which the Selling Stockholder has the right to acquire upon the exercise of
stock options previously granted to him by the Company. The exercise price of
such options is $.87 per share, as adjusted for stock splits, representing the
fair market value of a share of Common Stock on the date of grant.
The Company will not receive any proceeds from the sale of the Shares
other than indirectly through the payment by the Selling Stockholder of $.87 per
share for the exercise of each option.
The following table sets forth the number of shares and percentage of
Common Stock beneficially owned by the Selling Stockholder as of August 1, 1998,
and the number of shares and percentage of Common Stock which will be owned by
the Selling Stockholder upon completion of the offering contemplated by this
Prospectus:
<TABLE>
<CAPTION>
Percent of Outstanding Common Stock Percent of Outstanding
Common Stock Common Stock Beneficially Common Stock
Beneficially Beneficially Owned upon Beneficially Owned
Owned as of Owned as of Completion of upon Completion of
Selling Stockholder August 1, 1998 (1) August 1, 1998 the Offering (2) the Offering
- ------------------- ------------------ -------------- ---------------- ------------
<S> <C> <C> <C> <C>
David Chu 1,070,263 2.6% 388,299 1%
- -------------
</TABLE>
(1) Includes 1,031,564 shares which may be acquired by Mr. Chu pursuant to
existing stock options which are presently exercisable.
(2) Assumes Mr. Chu sells all of the Shares. Includes 349,600 shares which
may be acquired by Mr. Chu pursuant to existing stock options which are
presently exercisable.
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PLAN OF DISTRIBUTION
The Shares covered by this Prospectus are being registered by the
Company for the account of the Selling Stockholder. The expenses for registering
the Shares will be paid by the Company. The Company will not receive any of the
proceeds from sales by the Selling Stockholder other than as set forth above.
The Company understands that none of such Shares will be offered through
underwriters.
The Company has been advised by the Selling Stockholder that there are
no underwriting arrangements with respect to the sale of the Shares. Any or all
of the Shares may be sold from time to time to purchasers directly by the
Selling Stockholder. Alternatively, the Selling Stockholder may from time to
time offer the Shares through underwriters, dealers or agents who may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Stockholder and/or the purchasers of the Shares for whom they
may act as agents. The Selling Stockholder and any such underwriters, dealers or
agents that participate in the distribution of the Shares may be deemed to be
underwriters under the Securities Act, and any profit on the sale of the Shares
by them and any discounts, commissions or concessions received by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
The Shares may be sold from time to time in one or more transactions at a fixed
offering price, which may be changed, or at varying prices determined at the
time of sale or at negotiated prices. The distribution of the Shares by the
Selling Stockholder may be effected in one or more transactions that may take
place over the counter, including ordinary brokers' transactions,
privately-negotiated transactions (with or without a broker) or through sales to
one or more broker-dealers for resale of such shares as principals, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. Usual and customary or specifically
negotiated brokerage fees, discounts and commissions may be paid by the Selling
Stockholder in connection with such sales of securities.
To the extent required, this Prospectus will be updated to reflect the
number of shares so offered for the Selling Stockholder's account and, if such
offering is to be made by or through underwriters, brokers or dealers, the names
of such underwriters, brokers or dealers and the principal terms of the
arrangements between the underwriters, brokers or dealers and the Selling
Stockholder for whose account such offering is being made.
In order to comply with certain states securities laws, if applicable,
the Shares will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the Shares may not be sold unless
the Shares have been registered or qualified for sale in such state, or unless
an exemption from registration or qualification is available and is obtained.
LEGAL MATTERS
The validity of the Shares being offered hereby is being passed upon by
Modlin Haftel & Nathan LLP, 777 Third Avenue, New York, New York 10017, counsel
for the Company.
EXPERTS
The consolidated financial statements and financial statement schedule
of the Company as of February 28, 1998 and February 28, 1997 and for each of the
years in the three-year period ended February 28, 1998, incorporated by
reference herein and elsewhere in this Prospectus, have been incorporated by
reference in reliance upon the report of Grant Thornton LLP, independent
certified public accountants and upon the authority of said firm as experts in
accounting and auditing.
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INDEMNIFICATION
Section 145 of the General Corporation Law of the State of Delaware
grants each corporation organized thereunder the power to indemnify its officers
and directors against liability under certain circumstances. The Company's
Certificate of Incorporation provides that the Company shall, to the full extent
permitted by law, indemnify all directors, officers, employees, and agents of
the Company. The Company's Certificate of Incorporation also contains a
provision eliminating the liability of directors of the Company to the Company
or its stockholders for monetary damages except under certain circumstances.
The Company has an insurance policy insuring its directors and officers
against certain liabilities, including liabilities under the Act.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Act and is therefore unenforceable.
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No person has been authorized in connection
with this distribution to give any information
or make any representation other than those
contained in this Prospectus and, if given or
made, such information or representation must
not be relied upon as having been authorized.
This Prospectus does not constitute an offer to
sell or solicitation of an offer to buy any
securities other than the registered securities to
which it relates, or an offer to or solicitation of
any person in any jurisdiction in which such
offer or solicitation would be unlawful. The
delivery of this Prospectus as of any time does
not imply that information herein is correct as
of any time subsequent to its date.
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain
Documents by Reference 2
The Company 4
Selling Stockholder 5
Plan of Distribution 6
Legal Matters 6
Experts 6
Indemnification 7
681,964 Shares
Common Stock
($.10 par value)
NAUTICA ENTERPRISES, INC.
PROSPECTUS
August 12, 1998
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Nautica Enterprises,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference:
(a) Annual Report on Form 10-K for the year ended
February 28, 1998;
(b) Quarterly Report on Form 10-Q for the quarter ended
May 30, 1998; and
(c) The description of the Common Stock of the Registrant
which is contained in a registration statement filed
by the Registrant under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for
the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act of 1934 after the date of this
Registration Statement and 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 by reference into this Registration Statement and made a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statements. 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.
Except as herein set forth, there is no charter provision, by-law,
contract, arrangement or statute under which any director or officer of the
Registrant is insured or indemnified in any manner against any liability which
he may incur in his capacity as such.
Section 145 of the Delaware General Corporation Law provides as
follows:
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE.
(a) A corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he the person was or is a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
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partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
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
reasonable cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person 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
reasonable cause to believe that the person's conduct was unlawful.
(b) A corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
or (3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written option, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person
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who is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise 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 corporation would have the power to indemnify such
person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interest of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
Articles TENTH and TWELFTH of the Certificate of Incorporation of the
Registrant provide as follows:
ARTICLE TENTH: INDEMNIFICATION.
(a) Each person who was or is made a party or is threatened to be made
a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative ("proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of this Corporation or is or was serving at the
request of the Corporation as a director or officer of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended, (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights that
said law permitted the Corporation to provide prior to such amendment) against
all expenses, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such persons in connection therewith;
provided, however, that the Corporation shall indemnify any such person seeking
indemnity in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the board of
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directors of the Corporation. Such right shall be a contract right and shall
include the right to be paid by the Corporation for expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that the payment of such expenses incurred by a director or officer in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including without limitation, service to an employee benefit plan) in advance of
the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Article TENTH
or otherwise. The Corporation may, by action of the board of directors, provide
indemnification to employees and agents of the Corporation with a lesser or the
same scope and effect as the foregoing indemnification of directors and
officers.
(b) If a claim under Paragraph (a) of this Article TENTH is not paid in
full by the Corporation within ninety days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to receive the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking has been tendered to the Corporation) that the claimant has not met
the standards of conduct which make it permissible under the General Corporation
Law of the State of Delaware for the Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in said law, nor an actual
determination by the Corporation (including its board of directors, independent
legal counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant had not met the applicable standard of conduct.
(c) The rights conferred on any person by Paragraphs (a) and (b) of
this Article shall not be exclusive of any other right which such person may
have or hereafter acquire under any statute, provision of this Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any such director or officer of the Corporation, or of another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under the
General Corporation Law of the State of Delaware.
ARTICLE TWELFTH:
A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the 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 General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law is amended
after approval by the stockholders of this Article TWELFTH to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended from time to time.
Any appeal or modification of this Article TWELFTH shall not increase
the personal liability of any director of this Corporation for any act or
occurrence taking place prior to such repeal or modification, or otherwise
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
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<PAGE> 15
The provisions of this Article TWELFTH shall not be deemed to limit or
preclude indemnification of a director by the Corporation for any liability of a
director which has not been eliminated by the provisions of this Article
TWELFTH.
ARTICLE VIII of the Amended and Restated By-Laws of the Registrant
provides as follows:
SECTION 1. Right to Indemnification. The Corporation shall to the
fullest extent permitted by applicable law as then in effect indemnify any
person (the "Indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness), or is threatened to be made so
involved, in any threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including without limitation, any action, suit or proceeding by or in the right
of the corporation to procure a judgment in its favor) (a "Proceeding") by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such Proceeding. Such indemnification shall
be a contract right and shall include the right to receive payment in advance of
any expenses incurred by the Indemnitee in connection with such Proceeding,
consistent with the provisions of applicable law as then in effect.
SECTION 2. Contracts and Funding. The Corporation may enter into
contracts with any director, officer, employee or agent of the Corporation in
furtherance of the provisions of this Article VIII and may create a trust fund,
grant a security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification as provided in this Article VIII.
SECTION 3. Employee Benefit Plans. For purposes of this Article VIII,
references to "other enterprises" shall include employee benefits plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee,
or agent, of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner not opposed to the best interests of a corporation.
SECTION 4. Indemnification Not Exclusive Right. The right of
indemnification and advancement of expenses provided in this Article VIII shall
not be exclusive of any other rights to which a person seeking indemnification
may otherwise be entitled, under any statute, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. The provisions of this Article VIII shall inure to the benefit of the
heirs and legal representatives of any person entitled to indemnity under this
Article VIII and shall be applicable to Proceedings commenced or continuing
after the adoption of this Article VIII, whether arising from acts or omissions
occurring before or after such adoption.
SECTION 5. Advancement of Expenses; Procedures. In furtherance, but not
in limitation, of the foregoing provisions, the following procedures and
remedies shall apply with respect to advancement of expenses and the right to
indemnification under this Article VIII:
(a) Advancement of Expenses. All reasonable expenses incurred by or on
behalf of the Indemnitee in connection with any Proceeding shall be advanced to
the Indemnitee by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the Indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the expenses incurred by the Indemnitee and, if required by
II-5
<PAGE> 16
law at the time of such advance, shall include or be accompanied by an
undertaking by or on behalf of the Indemnitee to repay the amounts advanced if
it should ultimately be determined that the Indemnitee is not entitled to be
indemnified against such expenses.
(b) Written Request for Indemnification. To obtain indemnification
under this Article VIII, an Indemnitee shall submit to the Secretary of the
Corporation a written request, including such documentation and information as
is reasonably available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The determination of the Indemnitee's entitlement
to indemnification shall be made within a reasonable time after receipt by the
Corporation of the written request for indemnification together with the
Supporting Documentation. The Secretary of the Corporation shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in
writing that the Indemnitee has requested indemnification.
(c) Procedure for Determination. The Indemnitee's entitlement to
indemnification under this Article VIII shall be determined (i) by the Board of
Directors by a majority vote of a quorum (as defined in Article II of these
By-Laws) consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders, but only if a majority of the
disinterested directors, if they constitute a quorum of the Board of Directors,
presents the issue of entitlement to indemnification to the stockholders for
their determination.
The Company has purchased Directors' and Officers' Liability Insurance.
Subject to the policy conditions, the insurance provides coverage for amounts
payable by the Company to its directors and officers pursuant to the
Registrant's Certificate of Incorporation and By-Laws.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
*5.1 Opinion and consent of Modlin Haftel & Nathan LLP.
*10.1 Nautica Enterprises, Inc. Employee Stock Option, as amended.
23.1 Consent of Grant Thornton LLP.
*23.2 Consent of Modlin Haftel & Nathan LLP (included in Exhibit
5.1).
*24.1 Power of Attorney (included on signature page hereof).
_________
* Previously filed.
Item 9. Undertakings.
The 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 (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement; and
II-6
<PAGE> 17
(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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act 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 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 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 Act 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 of 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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<PAGE> 18
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
Post-effective Amendment to the 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 August 12, 1998.
NAUTICA ENTERPRISES, INC.
(Registrant)
By: /s/ Harvey Sanders
-----------------------------
Harvey Sanders
Chairman
Pursuant to the requirements of the Securities Act of 1933, this
Post-effective Amendment to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Harvey Sanders Chairman, President, August 12, 1998
------------------ Chief Executive Officer
Harvey Sanders (Principal Executive
Officer) and Director
/s/ Donald Pennington Chief Financial Officer August 12, 1998
--------------------- (Principal Financial Officer)
Donald Pennington
/s/ Neal Nackman Vice President Finance August 12, 1998
---------------- (Principal Accounting Officer)
Neal Nackman
</TABLE>
II-8
<PAGE> 19
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ David Chu Executive Vice President August 12, 1998
- ------------------------------------ and Director
David Chu
* Director August 12, 1998
- ------------------------------------
Robert B. Bank
* Director August 12, 1998
- ------------------------------------
George Greenberg
* Director August 12, 1998
- ------------------------------------
Charles H. Scherer
* Director August 12, 1998
- ------------------------------------
Ronald G. Weiner
* Director August 12, 1998
- ------------------------------------
Israel Rosenzweig
*By:/s/ Harvey Sanders August 12, 1998
--------------------------------
Attorney-in-Fact
</TABLE>
II-9
<PAGE> 20
EXHIBIT INDEX
*5.1 Opinion and consent of Modlin Haftel & Nathan LLP.
*10.1 Nautica Enterprises, Inc. Employee Stock Option, as amended.
**23.1 Consent of Grant Thornton LLP.
*23.2 Consent of Modlin Haftel & Nathan LLP (included in Exhibit 5.1).
*24.1 Power of Attorney (included on signature page hereof).
- --------------------
* previously filed
** filed herein
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 17, 1998, accompanying the consolidated
financial statements and schedule of Nautica Enterprises, Inc. appearing in the
Annual Report on Form 10-K for the year ended February 28, 1998, which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report and to the use of our name as it appears under the caption "Experts."
/s/
GRANT THORNTON
New York, New York
August 5, 1998
