<PAGE> 1
As filed with the Securities and Exchange Commission on June 1, 1998
Registration No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------
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)
--------
NAUTICA ENTERPRISES, INC. 1996 STOCK INCENTIVE PLAN
(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.
132 EAB Plaza
Uniondale, New York 11556-0132
(516) 794-4600
-------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities Amount to be price offering registration
to be registered registered (1) per share (2) price(2) fee
=========================================================================================
<S> <C> <C> <C> <C>
Common Stock 4,000,000 $28.66 $114,640,000 $33,818.00
- -----------------------------------------------------------------------------------------
</TABLE>
(Cover Page Continued on Next Page)
<PAGE> 2
(Continuation of Cover Page)
(1) The Plan provides that in the event of a stock dividend, stock split,
recapitalization, etc., the total number of shares which may be optioned or
awarded, the number of shares covered by each outstanding option, commitment or
undelivered award, and the price per share of the outstanding options shall be
equitably adjusted. Accordingly, this Registration Statement covers, in addition
to the number of shares of Common Stock stated above, an indeterminate number of
shares which, by reason of any such event, may become subject to the Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) based upon the high and low prices of the Common
Stock, as reported by NASDAQ for May 28, 1998.
<PAGE> 3
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; and
(b) 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, 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
<PAGE> 4
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 who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the
II-2
<PAGE> 5
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
II-3
<PAGE> 6
person only if such proceeding (or part thereof) was authorized by the board of
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,
II-4
<PAGE> 7
or otherwise adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
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
II-5
<PAGE> 8
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
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:
4.1 Nautica Enterprises, Inc. 1996 Stock Incentive Plan.
5.1 Opinion and consent of Messrs. Elihu H. Modlin and Charles M.
Modlin.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Messrs. Elihu H. Modlin and Charles M. Modlin (included
in Exhibit 5.1).
24.1 Power of Attorney (included on signature page hereof).
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
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<PAGE> 9
the aggregate, represent a fundamental change in the information set forth in
this Registration Statement; and
(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> 10
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 June 1, 1998.
NAUTICA ENTERPRISES, INC.
(Registrant)
By: /s/ Harvey Sanders
---------------------------------
Harvey Sanders
Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Harvey Sanders and Donald Pennington or
any one of them with full authority to act without the other, his true and
lawful attorney-in-fact and agent, with full power of substitution and
revocation, for him and in his name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed 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, June 1, 1998
- -------------------------- Chief Executive Officer
Harvey Sanders (Principal Executive
Officer) and Director
/s/ Donald Pennington Chief Financial Officer June 1, 1998
- -------------------------- (Principal Financial Officer)
Donald Pennington
/s/ Neal Nackman Vice President Finance June 1, 1998
- -------------------------- (Principal Accounting Officer)
Neal Nackman
</TABLE>
<PAGE> 11
<TABLE>
<S> <C> <C>
/s/ David Chu Executive Vice President June 1, 1998
- --------------------------- and Director
David Chu
/s/ Robert B. Bank Director June 1, 1998
- ---------------------------
Robert B. Bank
/s/ Ronald G. Weiner Director June 1, 1998
- ---------------------------
Ronald G. Weiner
/s/ Israel Rosenzweig Director June 1, 1998
- ---------------------------
Israel Rosenzweig
</TABLE>
<PAGE> 1
Exhibit 4.1
NAUTICA ENTERPRISES, INC.
1996 STOCK INCENTIVE PLAN
(Amended and Restated)
SECTION 1. PURPOSES
The purpose of the Nautica Enterprises, Inc. 1996 Stock Incentive
Plan (the "Plan") are (i) to enable Nautica Enterprises, Inc. (the "Company")
and its Related Companies (as defined below) to attract, retain and reward
employees and strengthen the existing mutuality of interests between such
employees and the Company's stockholders by offering such employees an equity
interest in the Company, (ii) to enable the Company to offer incentives to
employees of entities which are acquired or established by the Company from time
to time as incentives and inducements for employment, and (iii) to enable the
Company to pay part of the compensation of its Outside Directors (as defined in
Section 5.2) in options to purchase the Company's common stock, thereby
increasing such directors' proprietary interests in the Company. For purposes of
the Plan, a "Related Company" means any corporation, partnership, joint venture
or other entity in which the Company owns, directly or indirectly, at least a
20% beneficial ownership interest.
SECTION 2. TYPES OF AWARDS
2.1 Awards under the Plan to employees may be in the form of (i)
Stock Options; (ii) Stock Appreciation Rights; (iii) Limited Stock Appreciation
Rights; (iv) Restricted Stock; (v) Deferred Stock; (vi) Bonus Stock; (vii) Cash
Bonuses; (viii) Loans; and/or (ix) Tax Offset Payments.
2.2 An eligible employee may be granted one or more types of awards,
which may be independent or granted in tandem. If two awards are granted in
tandem, the employee may exercise (or otherwise receive the benefit of) one
award only to the extent he or she relinquishes the tandem award.
2.3 Outside Directors may receive only Stock Options and
Limited Stock Appreciation Rights.
SECTION 3. ADMINISTRATION
3.1 The Plan shall be administered (i) by the Committee (as defined
below) in the case of awards to employees, and (ii) by the Company's Board of
Directors (the "Board") in the case of awards to Outside Directors. The
Committee shall be the Compensation Committee of the Board or such other
committee of directors as the Board shall designate, , which shall consist of
not less than two directors each of whom is (a) a nonemployee director, as such
term is defined in Rule 16b-3 under the Securities Exchange Act of 1934 or any
successor rule, and (b) an outside director satisfying the requirements of
Section 162(m) of the Internal Revenue Code of 1986, as amended, or any
successor thereto (the "Code"). The members of the Committee shall serve at the
pleasure of the Board.
3.2 The Committee shall have the following authority with respect to
awards under the Plan other than awards to Outside Directors: to grant awards to
eligible employees under the Plan; to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall
deem advisable; to interpret the terms and provisions of the Plan and any award
granted under the Plan; and to otherwise supervise the
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administration of the Plan. In particular, and without limiting its authority
and powers, the Committee shall have the authority:
(a) to determine whether and to what extent any award or
combination of awards will be granted hereunder, including whether any awards
will be granted in tandem with each other;
(b) to select the employees to whom awards will be granted;
(c) to determine the number of shares of the common stock of
the Company (the "Stock") to be covered by each award granted hereunder subject
to the limitations contained herein;
(d) to determine the terms and conditions of any award granted
hereunder, including, but not limited to, any vesting or other restrictions
based on such performance objectives (the "Performance Objectives") and such
other factors as the Committee may establish, and to determine whether the
Performance Objectives and other terms and conditions of the award are
satisfied;
(e) to determine the treatment of awards upon an employee's
retirement, disability, death, termination for cause or other termination of
employment;
(f) to determine pursuant to a formula or otherwise the fair
market value of the Stock on a given date; provided, however, that if the
Committee fails to make such a determination, fair market value of the Stock on
a given date shall be the mean between the highest and lowest quoted selling
price, regular way, of the Stock on the NASDAQ National Market (or the principal
exchange upon which the Stock is listed) on such date, or if no such sale of
Stock occurs on such date, the weighted average of the high and low prices on
the nearest trading dates before and after such date;
(g) to determine that amounts equal to the amount of any
dividends declared with respect to the number of shares covered by an award (i)
will be paid to the employee currently or (ii) will be deferred and deemed to be
reinvested or (iii) will otherwise be credited to the employee, or that the
employee has no rights with respect to such dividends;
(h) to determine whether, to what extent, and under what
circumstances Stock and other amounts payable with respect to an award will be
deferred either automatically or at the election of an employee, including
providing for and determining the amount (if any) of deemed earnings on any
deferred amount during any deferral period;
(i) to provide that the shares of Stock received as a result
of an award shall be subject to a right of first refusal, pursuant to which the
employee shall be required to offer to the Company any shares that the employee
wishes to sell, subject to such terms and conditions as the Committee may
specify;
(j) to amend the terms of any award, prospectively or
retroactively; provided, however, that no amendment shall impair the rights of
the award holder without his or her written consent; and
(k) to substitute new awards with more favorable terms and
conditions for previously granted awards under the Plan, or for stock options or
awards granted under other plans or agreements; provided, however, in no case
shall the Committee reprice "underwater" Stock Options.
3.3 The Committee shall have the right to designate awards as
"Performance Awards." Awards so designated shall be granted and administered in
a manner designed to preserve the deductibility of the compensation resulting
from such awards in accordance with Section 162(m) of the Code. The grant or
vesting of a Performance Award shall be subject to the achievement of
Performance Objectives established by the Committee
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based on one or more of the following criteria, in each case applied to the
Company on a consolidated basis and/or to a business unit, and which the
Committee may use either as an absolute measure or as a measure of comparative
performance relative to a peer group of companies: sales, operating profits,
operating profits before interest expense and taxes, net earnings, earnings per
share, return on equity, return on assets, return on invested capital, cash
flow, debt to equity ratio, market share, stock price, economic value added, and
market value added.
The Performance Objectives for a particular Performance Award
relative to a particular fiscal year of the Company shall be established by the
Committee in writing no later than 90 days after the beginning of such year. The
Committee's determination as to the achievement of Performance Objectives
relating to a Performance Award shall be made in writing. The Committee shall
have discretion to modify the Performance Objectives or vesting conditions of a
Performance Award only to the extent that the exercise of such discretion would
not cause the Performance Award to fail to quality as "performance-based
compensation" within the meaning of Section 162(m) of the Code.
3.4 With respect to awards to Outside Directors, the Board shall
have authority to grant and amend awards subject to the limitations of Sections
2.3, 6, and 7.2; to interpret the Plan and grants to Outside Directors pursuant
to the Plan; to adopt, amend, and rescind administrative regulations to further
the purposes of the Plan; and to take any other action necessary to the proper
operation of the Plan. Subject to any express limitations set forth in the Plan,
the Board shall have the same powers with respect to awards to Outside Directors
as are set forth for the Committee with respect to awards to employees. However,
the Board shall have no discretion to vary the terms of awards granted pursuant
to Section 15, except as provided in Section 4.4.
3.5 All determinations made by the Committee or the Board pursuant
to the provisions of the Plan shall be final and binding on all persons,
including the Company and Plan participants.
3.6 The Committee may from time to time delegate to one or more
officers of the Company any or all of its authorities granted hereunder except
with respect to awards granted to persons subject to Section 16 of the
Securities Exchange Act of 1934 or Performance Awards. The Committee shall
specify the maximum number of shares that the officer or officers to whom such
authority is delegated may award.
SECTION 4. STOCK SUBJECT TO PLAN
4.1 The total number of shares of Stock reserved and available for
distribution under the Plan shall be 4,000,000 (subject to adjustment as
provided below). Such shares may consist of authorized but unissued shares or
treasury shares. The exercise of a Stock Appreciation Right for cash or the
payment of any other award in cash shall not count against this share limit.
4.2 To the extent a Stock Option terminates without having been
exercised, or an award terminates without the employee having received payment
of the award, or shares awarded are forfeited, the shares subject to such award
shall again be available for distribution in connection with future awards under
the Plan. If the exercise price of an option is paid in Stock or if shares of
Stock are withheld from payment of an award to satisfy tax obligations with
respect to such award, such shares will also not count against the Plan limits
and shall again be available for distribution in connection with future awards
under the Plan.
4.3 No employee shall be granted Stock Options, Stock Appreciation
Rights, Restricted Stock, Deferred Stock and/or Bonus Stock, or any combination
of the foregoing with respect to more than 600,000 shares of Stock in any fiscal
year of the Company (subject to adjustment as provided in Section 4.4). No
employee shall be granted Tax Offset Payments with respect to more than the
number of shares of Stock covered by awards held by such employee. No employee
shall be paid a Cash Bonus in any fiscal year in excess of (i) 5% of the
Company's operating profit for the Company's fiscal year, if the Cash Bonus
relates to a single fiscal year, or (ii) 2% of the Company's cumulative
operating profit for each fiscal year to which the Cash Bonus relates, if the
Cash
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Bonus relates to more than one fiscal year. An employee's Cash Bonus permitted
under the preceding sentence shall be in addition to the employee's Stock awards
and Tax Offset Payments permitted under this Section 4.3.
4.4 In the event of any merger, reorganization, consolidation, sale
of substantially all assets, recapitalization, Stock dividend, Stock split,
spin-off, split-up, split-off, distribution of assets or other change in
corporate structure affecting the Stock, a substitution or adjustment, as may be
determined to be appropriate by the Committee or the Board in its sole
discretion, shall be made in the aggregate number of shares reserved for
issuance under the Plan, the number of shares as to which awards may be granted
to any individual in any fiscal year, the number of shares subject to
outstanding awards and the amounts to be paid by award holders or the Company,
as the case may be, with respect to outstanding awards; provided, however, that
no such adjustment shall increase the aggregate value of any outstanding award.
In the event any change described in this Section 4.4 occurs and an adjustment
is made in the outstanding Stock Options granted to participants other than
Outside Directors, a similar adjustment shall be made in the number and terms of
Stock Options (and related Limited Stock Appreciation Rights) previously granted
to Outside Directors and to be granted under Section 15, provided that any such
adjustment shall be equitable and shall not increase the aggregate benefits of
such Stock Options to Outside Directors.
SECTION 5. ELIGIBILITY
5.1 Employees of the Company or a Related Company, including
employees who are officers and/or directors of the Company, are eligible to be
granted awards under the Plan, other than under Section 15. The employee
participants under the Plan shall be selected from time to time by the
Committee, in its sole discretion, from among those eligible.
5.2 Initial grants to Outside Directors shall be made automatically
pursuant to Section 15. Subsequent grants to Outside Directors shall be made by
the Board, in its discretion, in accordance with the provisions of Sections 2.3,
6 and 7.2. For purposes of the Plan, the term "Outside Director" shall mean any
director of the Company other than one who is an employee of the Company or a
Related Company.
SECTION 6. STOCK OPTIONS
6.1 The Stock Options awarded to employees under the Plan may be of
two types: (i) Incentive Stock Options within the meaning of Section 422 of the
Code or any successor provision thereto; and (ii) Non-Qualified Stock Options.
To the extent that any Stock Option does not qualify as an Incentive Stock
Option, it shall constitute a Non-Qualified Stock Option. All Stock Options
awarded to Outside Directors shall be Non-Qualified Stock Options.
6.2 Subject to the following provisions, Stock Options awarded to
employees by the Committee and Stock Options awarded to Outside Directors by the
Board shall be in such form and shall have such terms and conditions as the
Committee or Board, as the case may be, may determine. All references to the
Committee in the following paragraphs of this Section 6.2 shall be deemed to
refer to the Board with respect to awards to Outside Directors.
(a) Option Price. The option price per share of Stock
purchasable under a Stock Option shall be determined by the Committee, and may
be less than the fair market value of the Stock on the date of the award of the
Stock Option.
(b) Option Term. The term of each Stock Option shall be fixed
by the Committee.
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(c) Exercisability. Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined by
the Committee. The Committee may waive such exercise provisions or accelerate
the exercisability of the Stock Option at any time in whole or in part.
(d) Method of Exercise. Stock Options may be exercised in
whole or in part at any time during the option period by giving written notice
of exercise to the Company specifying the number of shares to be purchased,
accompanied by payment of the purchase price. Payment of the purchase price
shall be made in such manner as the Committee may provide in the award, which
may include cash (including cash equivalents), delivery of shares of Stock
already owned by the optionee or subject to awards hereunder, "cashless
exercise", any other manner permitted by law determined by the Committee, or any
combination of the foregoing. If the Committee determines that a Stock Option
may be exercised using shares of Restricted Stock, then unless the Committee
provides otherwise, the shares received upon the exercise of a Stock Option
which are paid for using Restricted Stock shall be restricted in accordance with
the original terms of the Restricted Stock award.
(e) No Stockholder Rights. An optionee shall have neither
rights to dividends or other rights of a stockholder with respect to shares
subject to a Stock Option until the optionee has given written notice of
exercise and has paid for such shares.
(f) Surrender Rights. The Committee may provide that options
may be surrendered for cash upon any terms and conditions set by the Committee.
(g) Transferability. Stock Options shall not be transferable
by the optionee other than by will or by the laws of descent and distribution,
and during the optionee's lifetime, all Stock Options shall be exercisable only
by the optionee or by his or her guardian or legal representative; provided,
however, the Committee may, in its discretion, authorize all or a portion of the
Stock Options to be granted to an optionee to be on terms which permit transfer
by such optionee to (i) the spouse, children, stepchildren or grandchildren
(including relationships arising from legal adoption) of the optionee
("Immediate Family Members"), (ii) a trust or trusts for the exclusive benefit
of such Immediate Family Members, or (iii) a partnership in which such Immediate
Family Members are the only partners, provided that (x) there shall be no
consideration for any such transfer (other than interests in the transferee
partnership), (y) the instrument pursuant to which such options are transferred
must be approved by the Committee, and must expressly provide for
transferability in a manner consistent with this Section as well as any
additional conditions on transfer and restrictions on the rights of the
transferee, as may be required by the Committee, and (z) subsequent transfers of
transferred options shall be prohibited except those by will or the laws of
descent and distribution. Following any such transfer, the Stock Options shall
continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer.
(h) Termination of Employment. Following the termination of an
optionee's employment (or Board service) with the Company or a Related Company,
the Stock Option shall be exercisable to the extent determined by the Committee.
The Committee may provide different post-termination exercise provisions with
respect to termination of employment or service for different reasons. The
Committee may provide that, notwithstanding the option term fixed pursuant to
Section 6.2(b), a Stock Option which is outstanding on the date of an optionee's
death shall remain outstanding for an additional period after the date of such
death.
6.3 Notwithstanding the provisions of Section 6.2, no Incentive
Stock Option shall (i) have an option price which is less than 100% of the fair
market value of the Stock on the date of the award of the Incentive Stock
Option, (ii) be exercisable more than ten years after the date such Incentive
Stock Option is awarded, or (iii) be awarded after March 31, 2006. No Incentive
Stock Option granted to an employee who owns more than 10% of the total combined
voting power of all classes of stock of the Company or any of its parent or
subsidiary corporations, as defined in Section 424 of the Code, shall (A) have
an option price which is less than 110% of the fair market value of the Stock on
the date of award of the Incentive Stock Option or (B) be exercisable more than
five years after the date such Incentive Stock Option is awarded.
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SECTION 7. STOCK APPRECIATION RIGHTS AND LIMITED STOCK APPRECIATION RIGHTS
7.1 A Stock Appreciation Right awarded to an employee shall entitle
the holder thereof to receive payment of an amount, in cash, shares of Stock or
a combination thereof, as determined by the Committee, equal in value to the
excess of the fair market value of the number of shares of Stock as to which the
award is granted on the date of exercise over an amount specified by the
Committee. Any such award shall be in such form and shall have such terms and
conditions as the Committee may determine. The grant shall specify the number of
shares of Stock as to which the Stock Appreciation Right is granted.
7.2 The Committee (or the Board with respect to Outside Directors),
may grant a Stock Appreciation Right which may be exercised only within the
60-day period following occurrence of a Change of Control (as defined in Section
17.2) (such Stock Appreciation Right being referred to herein as a Limited Stock
Appreciation Right). Unless the Committee (or the Board with respect to Outside
Directors) provides otherwise, in the event of a Change of Control the amount to
be paid upon exercise of a Stock Appreciation Right or Limited Stock
Appreciation Right shall be based on the Change of Control Price (as defined in
Section 17.3).
SECTION 8. RESTRICTED STOCK
Subject to the following provisions, all awards of Restricted Stock
to employees shall be in such form and shall have such terms and conditions as
the Committee may determine:
(a) The Restricted Stock award shall specify the number of
shares of Restricted Stock to be awarded, the price, if any, to be paid by the
recipient of the Restricted Stock and the date or dates on which, or the
conditions upon the satisfaction of which, the restricted Stock will vest. The
grant and/or the vesting of Restricted Stock may be conditioned upon the
completion of a specified period of service with the Company or a Related
Company, upon the attainment of specified Performance Objectives or upon such
other criteria as the Committee may determine.
(b) Stock certificates representing the Restricted Stock
awarded to an employee shall be registered in the employee's name, but the
Committee may direct that such certificates be held by the Company on behalf of
the employee. Except as may be permitted by the Committee, no share of
Restricted Stock may be sold, transferred, assigned, pledged or otherwise
encumbered by the employee until such share has vested in accordance with the
terms of the Restricted Stock award. At the time Restricted Stock vests, a
certificate for such vested shares shall be delivered to the employee (or his or
her designated beneficiary in the event of death), free of all restrictions.
(c) The Committee may provide that the employee shall have the
right to vote or receive dividends on Restricted Stock. Unless the Committee
provides otherwise, Stock received as a dividend on, or in connection with a
stock split of, Restricted Stock shall be subject to the same restrictions as
the Restricted Stock.
(d) Except as may be provided by the Committee, in the event
of an employee's termination of employment before all of his or her Restricted
Stock has vested, or in the event any conditions to the vesting of Restricted
Stock have not been satisfied prior to any deadline for the satisfaction of such
conditions set forth in the award, the shares of Restricted Stock which have not
vested shall be forfeited, and the Committee may provide that (i) any purchase
price paid by the employee shall be returned to the employee or (ii) a cash
payment equal to the Restricted Stock's fair market value on the date of
forfeiture, if lower, shall be paid to the employee.
(e) The Committee may waive, in whole or in part, any or all
of the conditions to receipt of, or restrictions with respect to, any or all of
the employee's Restricted Stock, other than Performance Awards whose vesting was
made subject to satisfaction of one or more Performance Objectives (except that
the
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Committee may waive conditions or restrictions with respect to Performance
Awards if such waiver would not cause the Performance Award to fail to qualify
as "performance-based compensation" within the meaning of Section 162(m) of the
Code).
SECTION 9. DEFERRED STOCK AWARDS
Subject to the following provisions, all awards of Deferred Stock to
employees shall be in such form and shall have such terms and conditions as the
Committee may determine:
(a) The Deferred Stock award shall specify the number of
shares of Deferred Stock to be awarded to any employee and the duration of the
period (the "Deferral Period") during which, and the conditions under which,
receipt of the Stock will be deferred. The Committee may condition the grant or
vesting of Deferred Stock, or receipt of Stock or cash at the end of the
Deferral Period, upon the attainment of specified Performance Objectives or such
other criteria as the Committee may determine.
(b) Except as may be provided by the Committee, Deferred Stock
awards may not be sold, assigned, transferred, pledged or otherwise encumbered
during the Deferral Period.
(c) At the expiration of the Deferral Period, the employee (or
his or her designated beneficiary in the event of death) shall receive (i)
certificates for the number of shares of Stock equal to the number of shares
covered by the Deferred Stock award, (ii) cash equal to the fair market value of
such Stock, or (iii) a combination of shares and cash, as the Committee may
determine.
(d) Except as may be provided by the Committee, in the event
of an employee's termination of employment before the Deferred Stock has vested,
his or her Deferred Stock award shall be forfeited.
(e) The Committee may waive, in whole or in part, any or all
of the conditions to receipt of, or restrictions with respect to, Stock or cash
under a Deferred Stock award, other than with respect to Performance Awards
(except that the Committee may waive conditions or restrictions with respect to
Performance Awards if such waiver would not cause the Performance Award to fail
to qualify as "performance-based compensation" within the meaning of Section
162(m) of the Code).
SECTION 10. BONUS STOCK AND CASH BONUSES
The Committee may award Bonus Stock and/or a Cash Bonus to any
eligible employee subject to such terms and conditions as the Committee shall
determine. The grant of Bonus Stock and /or a Cash Bonus may be conditioned upon
the attainment of specified Performance Objectives or upon such other criteria
as the Committee may determine. The Committee may waive such conditions in whole
or in part other than with respect to Performance Awards (except that the
Committee may waive conditions or restrictions with respect to Performance
Awards if such waiver would not cause the Performance Award to fail to qualify
as "performance-based compensation" within the meaning of Section 162(m) of the
Code). The Committee shall also have the right to eliminate or reduce the amount
of Cash Bonus otherwise payable under an award. Unless otherwise specified by
the Committee, no money shall be paid by the recipient for the Bonus Stock.
Alternatively, the Committee may offer eligible employees the opportunity to
purchase Bonus Stock at a discount from its fair market value. The Bonus Stock
award shall be satisfied by the delivery of the designated number of shares of
Stock which are not subject to restriction. Cash Bonus awards shall be paid in
cash.
SECTION 11. LOANS
The Committee may provide that the Company shall make, or arrange
for, a loan or loans to an employee with respect to the exercise of any Stock
Option awarded under the Plan, with respect to the payment of
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the purchase price, if any, of any Restricted Stock awarded hereunder or with
respect to any taxes arising from an award hereunder; provided, however, that
the Company shall not loan to an employee more than the sum of (i) the excess of
the purchase or exercise price of an award over the par value of any shares of
Stock awarded plus (ii) the amount of any taxes arising from such award. The
Committee shall have full authority to decide whether a loan will be made
hereunder and to determine the amount, term and provisions of any such loan,
including the interest rate to be charged, whether the loan will be with or
without recourse against the borrower, any security for the loan, the terms on
which the loan is to be repaid and the conditions, if any, under which the loan
may be forgiven.
SECTION 12. TAX OFFSET PAYMENTS
The Committee may provide for a Tax Offset Payment by the Company to
an employee with respect to one or more awards granted under the Plan. The Tax
Offset Payment shall be in an amount specified by the Committee, which shall not
exceed the amount necessary to pay the federal, state, local and other taxes
payable with respect to the applicable award and the receipt of the Tax Offset
Payment, assuming that the employee is taxed at the maximum tax rate applicable
to such income. The Tax Offset Payment shall be paid solely in cash.
SECTION 13. ELECTION TO DEFER AWARDS
The Committee may permit an employee to elect to defer receipt of an
award for a specified period or until a specified event, upon such terms as are
determined by the Committee.
SECTION 14. TAX WITHHOLDING
14.1 Each employee shall, no later than the date as of which the
value of an award first becomes includible in such person's gross income for
applicable tax purposes, pay to the Company, or make arrangements satisfactory
to the Committee regarding payment of, any federal, state, local or other taxes
of any kind required by law to be withheld with respect to the award. The
obligations of the Company under the Plan shall be conditional on such payment
or arrangements, and the Company (and, where applicable, any Related Company),
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the employee.
14.2 To the extent permitted by the Committee, and subject to such
terms and conditions as the Committee may provide, an employee may elect to have
the withholding tax obligation, or any additional tax obligation with respect to
any awards hereunder, satisfied by (i) having the Company withhold shares of
Stock otherwise deliverable to such person with respect to the award or (ii)
delivering to the Company shares of unrestricted Stock. Alternatively, the
Committee may require that a portion of the shares of Stock otherwise
deliverable be applied to satisfy the withholding tax obligations with respect
to the award.
SECTION 15. STOCK OPTIONS AND LIMITED STOCK APPRECIATION RIGHTS TO OUTSIDE
DIRECTORS
15.1 Each person who first becomes an Outside Director on or after
April 1, 1996, shall be granted, on the first trading day coincident with or
immediately following the date of his or her initial election as an Outside
Director, a Stock Option to purchase 2,000 shares of Stock. For purposes of this
Section, the term trading day shall mean a day on which the Stock is traded on a
National Securities Exchange, on the NASDAQ National Market, or in the
over-the-counter market.
15.2 Stock Options granted to Outside Directors pursuant to Section
15 shall be Non-Qualified Stock Options, and shall have the following terms and
conditions:
(a) Option Price. The option price per share of Stock
purchasable under the Stock Option shall be equal to the mean between the
highest and lowest quoted selling price, regular way, of the Stock on
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the NASDAQ National Market (or the principal exchange upon which the Stock is
listed) on the date of grant, or if no such sale of Stock occurs on such date,
the weighted average of the high and low prices on the nearest trading dates
before and after such date.
(b) Option Term. Except as provided in Section 15.2(e), the
term of the Stock Option shall be ten years. To the extent it has become
exercisable pursuant to Section 15.2(c), the Stock Options shall remain
exercisable for the remainder of its term following the termination of the
optionee's status as an Outside Director.
(c) Exercisability. Each Stock Option shall become exercisable
with respect to 50% of the underlying shares on the first anniversary of the
date of grant, and the remaining 50% on the second anniversary of the date of
grant, provided that the optionee is a director of the Company on the respective
date. Notwithstanding the preceding sentence, in the event of a Change of
Control (as defined in Section 17), each Stock Option shall become fully
exercisable and vested.
(d) Method of Exercise. The Stock Options may be exercised in
whole or in part at any time during the option period by giving written notice
of exercise to the Company specifying the number of shares to be purchased,
accompanied by payment of the purchase price. Payment of the purchase price
shall be made in cash (including cash equivalents) or by delivery of shares of
Stock already owned by the optionee for at least six months, by "cashless
exercise" or by any combination of the foregoing. Shares delivered as payment of
the exercise price shall be valued at the mean between the highest and lowest
quoted selling price, regular way, of the Stock on the NASDAQ National Market
(or the principal exchange upon which the Stock is listed) on the day before the
date of exercise, or if no such sale of Stock occurs on such date, the weighted
average of the high and low prices on the nearest trading date before such date.
(e) Death of Director. If the optionee's service as a director
of the Company is terminated by reason of death, such optionee's Stock Options
shall become immediately exercisable, and may be exercised for the remaining
term of the Stock Option, or for one year after the optionee's death, if longer.
(f) Non-transferability. No Stock Option award shall be
transferable by the optionee other than by will or by the laws of descent and
distribution. During the optionee's lifetime, all Stock Options shall be
exercisable only by the optionee or by his or her guardian or legal
representative.
(g) No Stockholder Rights. An optionee shall have neither
rights to dividends nor other rights of a stockholder with respect to shares
subject to a Stock Option until the optionee has given written notice of
exercise and has paid for such shares.
15.3 Limited Stock Appreciation Rights in Tandem
with Options. Each Stock Option granted to an Outside Director under this
Section 15 shall be granted in tandem with a Limited Stock Appreciation Right
which may be exercised only within the 60-day period following a Change of
Control (as defined in Section 17.2). Upon exercise of the Limited Stock
Appreciation Right, the holder shall receive, for each share with respect to
which the Limited Stock Appreciation Right is exercised, an amount in cash equal
to the excess of the Change of Control Price (as defined in Section 17.3) over
the exercise price of the related Stock Option. The Limited Stock Appreciation
Right shall be paid within 30 days of the exercise of the Limited Stock
Appreciation Right.
SECTION 16. AMENDMENTS AND TERMINATION
The Board may discontinue the Plan at any time and may amend it from
time to time. No amendment or discontinuation of the Plan shall adversely affect
any award previously granted without the award
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holder's written consent. Amendments may be made without stockholder approval
except as required to satisfy Rule 16b-3, Section 162(m) of the Code, or other
regulatory requirements.
SECTION 17. CHANGE OF CONTROL
17.1 In the event of a Change of Control, unless otherwise provided
in the grant or by amendment (with the holder's consent) of such grant:
(a) all outstanding Stock Options and all outstanding Stock
Appreciation Rights (including Limited Stock Appreciation Rights) awarded under
the Plan shall become fully exercisable and vested;
(b) the restrictions and deferral limitations applicable to
any outstanding Restricted Stock and Deferred Stock awards under the Plan shall
lapse and such shares and awards shall be deemed fully vested; and
(c) to the extent the cash payment of any award is based on
the fair market value of Stock, such fair market value shall be the Change of
Control Price.
17.2 A "Change of Control" means the happening of any of the
following:
(a) When any "person," as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934 (the "Exchange Act") and as used in Sections
13(d) and 14(d) thereof, including a "group" as defined in Section 13(d) of the
Exchange Act, but excluding the Company and any Subsidiary and any employee
benefit plan sponsored or maintained by the Company or any Subsidiary (including
any trustee of such plan acting as trustee), or any person, entity or group
specifically excluded by the Board, directly or indirectly, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act, as amended
from time to time) of Securities of the Company representing 20 percent or more
of the combined voting power of the Company's then outstanding securities;
(b) When, during any period of 24 consecutive months during
the existence of the Plan, the individuals who, at the beginning of such period,
constitute the Board (the "Incumbent Directors") cease for any reason other than
death to constitute at least a majority thereof, provided, however, that a
director who was not a director at the beginning of such 24-month period shall
be deemed to have satisfied such 24-month requirement (and be an Incumbent
Director) if such director was elected by, or on the recommendation of, or with
the approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors, either actually (because they were directors at the
beginning of such 24-month period) or by prior operation of this Section
17.2(b);
(c) the date of approval by the stockholders of the Company of
an agreement providing for the merger or consolidation of the Company with
another corporation where (i) the stockholders of the Company, immediately prior
to the merger or consolidation, would not beneficially own, immediately after
the merger or consolidation, shares entitling such stockholders to 50% or more
of all votes (without consideration of the rights of any class of stock to elect
directors by a separate class vote) to which all stockholders of the corporation
issuing cash or securities in the merger or consolidation would be entitled in
the election of directors, or (ii) where the members of the Board, immediately
prior to the merger or consolidation, would not, immediately after the merger or
consolidation, constitute a majority of the board of directors of the
corporation issuing cash or securities in the merger; or
(d) the date of approval by the stockholders of the Company of
the liquidation of the Company or the sale or other disposition of all or
substantially all of the assets of the Company.
10
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17.3 "Change of Control Price" means the highest price per share
paid in any transaction reported in the NASDAQ National Market or on any
national securities exchange where the Stock is traded, or paid or offered in
any transaction related to a Change of Control at any time during the 90-day
period ending with the Change of Control. Notwithstanding the foregoing
sentence, in the case of Stock Appreciation Rights granted in tandem with
Incentive Stock Options, the Change of Control Price shall be the highest price
paid on the date on which the Stock Appreciation Right is exercised.
SECTION 18. GENERAL PROVISIONS
18.1 Each award under the Plan shall be subject to the requirement
that, if at any time the Committee shall determine that (i) the listing,
registration or qualification of the Stock subject or related thereto upon any
securities exchange or under any state or federal law, or (ii) the consent or
approval of any government regulatory body or (iii) an agreement by the
recipient of an award with respect to the disposition of Stock is necessary or
desirable (in connection with any requirement or interpretation of any federal
or state securities law, rule or regulation) as a condition of, or in connection
with, the granting of such award or the issuance, purchase or delivery of Stock
thereunder, such award shall not be granted or exercised, in whole or in part,
unless such listing, registration, qualification, consent, approval or agreement
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
18.2 Nothing set forth in this Plan shall prevent the Board from
adopting other or additional compensation arrangements. Neither the adoption of
the Plan nor any award hereunder shall confer upon any employee of the Company,
or of a Related Company, any right to continued employment, and no award under
the Plan shall confer upon any Outside Director any right to continued service
as a director.
18.3 Determinations by the Committee or the Board under the Plan
relating to the form, amount, and terms and conditions of awards need not be
uniform, and may be made selectively among persons who receive or are eligible
to receive awards under the Plan, whether or not such persons are similarly
situated.
18.4 No member of the Board or the Committee, nor any officer or
employee of the Company acting on behalf of the Board or the Committee, shall be
personally liable for any action, determination or interpretation taken or made
with respect to the Plan, and all members of the Board or the Committee and all
officers or employees of the Company acting on their behalf shall, to the extent
permitted by law, be fully indemnified and protected by the Company in respect
of any such action, determination or interpretation.
SECTION 19. EFFECTIVE DATE OF PLAN
The Plan shall be effective on April 1, 1996, subject to approval by
the Company's stockholders at the 1996 Annual Meeting of Stockholders. Any
grants made under the Plan before shareholder approval of the Plan shall be made
subject to such shareholder approval. The Plan was adjusted effective May 28,
1996 to reflect the Company's two-for-one stock split effective as of such date,
and amended and restated on January 9, 1997.
11
<PAGE> 1
Exhibit 5.1
[LETTERHEAD]
June 1, 1998
Nautica Enterprises, Inc.
40 West 57th Street
New York, NY 10017
Re: Registration Statement on Form S-8
Nautica Enterprises, Inc.
1996 Stock Incentive Plan
Dear Sirs:
We have acted as counsel to you (the "Company") and, as such, are familiar
with the corporate proceedings taken and to be taken with respect to the
adoption of the Company's 1996 Stock Incentive Plan and the sale of shares
pursuant thereto. We have acted as counsel to the Company with respect to the
preparation of a Registration Statement on Form S-8 relating to 4,000,000 shares
of the Common Stock of the Company, par value $.10 per share (the "Common
Stock") issuable pursuant to the aforesaid Plan.
It is our opinion that:
(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) Shares of Common Stock issuable in accordance with the
provisions of the 1996 Stock Incentive Plan shall be, upon due
issuance and payment therefor in accordance with the provisions of
said Plan, validly and legally issued, fully paid and
non-assessable.
The undersigned consents to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement and to all
references to us in the said Registration Statement.
Very truly yours,
/s/ Charles M. Modlin
CHARLES M. MODLIN
<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. and subsidiaries
appearing in the 1998 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.
/s/ GRANT THORNTON LLP
GRANT THORNTON LLP
New York, New York
May 27, 1998
