<PAGE> 1
As filed with the Securities and Exchange Commission on August 7, 1998
Registration No. 333-
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. 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
-------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of maximum aggregate
securities Amount to be offering offering Amount of
to be registered registered(1) price per share price registration fee
---------------- ------------- --------------- ----- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.10 per share 681,964 $24.69(2) $16,837,691(2) $4,968
</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 or reorganization, the total number of options, the number of
shares covered by each option and the price per share of the 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 August 5, 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;
(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,
<PAGE> 4
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
II-2
<PAGE> 5
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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<PAGE> 6
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> 7
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
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<PAGE> 8
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).
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
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<PAGE> 9
(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 August 7, 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, August 7, 1998
------------------ Chief Executive Officer
Harvey Sanders (Principal Executive
Officer) and Director
/s/ Donald Pennington Chief Financial Officer August 7, 1998
--------------------- (Principal Financial Officer)
Donald Pennington
/s/ Neal Nackman Vice President Finance August 7, 1998
---------------------- (Principal Accounting Officer)
Neal Nackman
</TABLE>
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<PAGE> 11
<TABLE>
<S> <C> <C>
/s/ David Chu Executive Vice President August 7, 1998
-------------
David Chu and Director
/s/ Robert B. Bank Director August 7, 1998
----------------------
Robert B. Bank
/s/ George Greenberg Director August 7, 1998
----------------------
George Greenberg
/s/ Charles H. Scherer Director August 7, 1998
----------------------
Charles H. Scherer
/s/ Ronald G. Weiner Director August 7, 1998
--------------------
Ronald G. Weiner
/s/ Israel Rosenzweig Director August 7, 1998
---------------------
Israel Rosenzweig
</TABLE>
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<PAGE> 12
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).
<PAGE> 1
Exhibit 5.1
[LETTERHEAD]
August 7, 1998
Nautica Enterprises, Inc.
40 West 57th Street
New York, NY 10017
Re: Registration Statement on Form S-8
Nautica Enterprises, Inc.
Employee Stock Option
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 Employee Stock Option 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 681,964 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 Nautica Enterprises, Inc. Employee
Stock Option shall be, upon due issuance and payment therefor
in accordance with the provisions thereof, 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/
MODLIN HAFTEL & NATHAN LLP
<PAGE> 1
Exhibit 10.1
Option Agreement dated as of 1st day of July, 1987, by and
among State-O-Maine, Inc., a Delaware corporation ("SOM"), Nautica Apparel,
Inc., a Delaware corporation (the "Company" or "Nautica") and David Chu, an
individual residing at 16 West 16th Street, New York, New York 10011 ("David").
WHEREAS, SOM is the parent corporation of Nautica;
WHEREAS, David is employed by Nautica;
WHEREAS, SOM and Nautica desires to continue to employ David
to manage Nautica;
WHEREAS, SOM and Nautica desire to provide David with
incentives to insure the continued growth and well being of Nautica:
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein contained, the parties hereto hereby agree as follows:
1. Grant of Options. SOM hereby grants to David an option (the
"Option") to purchase up to an aggregate of 178,731 shares (the "Shares") of the
common stock of SOM, $0.10 par value ("Common Stock"), at the purchase price of
$11.00 per share, exercisable in cumulative installments at any time after the
date hereof and prior to the Option Termination Date (as hereinafter defined) as
follows:
(i) 44,683 shares at any time after the date hereof and prior
to the Option Termination Date but only in the event that the Company's
performance for the fiscal year ended February 28, 1988, equal or exceed the
"Profitability Milestone" as hereinafter defined;
(ii) an additional 44,683 shares at any time after the end of
the fiscal year commencing March 1, 1988, and prior to the Option Termination
Date, but only in the event that the Company's performance for such fiscal year
equal or exceed the Profitability Milestone;
(iii) an additional 44,683 shares at any time after the end of
the fiscal year commencing March 1, 1989, and prior to the Option Termination
Date, but only in the event that the Company's performance for such fiscal year
equals or exceeds the Profitability Milestone.
(iv) an additional 44,683 shares at any time after the end of
the fiscal year commencing March 1, 1990, and prior to the Option Termination
Date, but only in the event that the Company's performance for such fiscal year
equal or exceed the Profitability Milestone; and
(v) 44,683 shares (plus any shares not acquired pursuant to
clause (i), clause (ii), clause (iii) and clause (iv) above) at any time prior
to the Option Termination Date for each fiscal year commencing March 1, 1991, in
which the Company's performance for such fiscal year equals or exceeds the
Profitability Milestone.
2. Profitability Milestone. As used in this Agreement, the
Company's performance shall equal or exceed the "Profitability Milestone" if
either (i) Nautica's pretax profits equal or exceed 10% or (ii) SOM's return on
cash equity investment in Nautica equal or exceed 25%, in each case, as
determined by Nautica's independent auditors in accordance with generally
accepted accounting principles consistently applied. David shall be entitled, at
SOM's expense, to engage auditors of his choice to verify the determination of
the independent auditors selected by Nautica. Notwithstanding anything to the
contrary contained in this Agreement, however, should Nautica's performance for
any fiscal year not equal or exceed the Profitability Milestone for such year
but Nautica's cumulative performance averaged over all prior fiscal years would
equal or exceed the Profitability Milestone for each such year, then Nautica's
performance for such fiscal year will be deemed to have equaled or exceeded the
Profitability Milestone for each such year and David will be
1
<PAGE> 2
entitled to exercise the Options in respect of such years.
3. Adjustments for Splits, etc. If SOM shall, at any time or
from time to time after the date hereof, (i) pay a dividend in Common Stock or
(ii)subdivide its outstanding shares of Common Stock into a greater or lesser
number of shares, then the number of shares of Common Stock subject to purchase
pursuant to the Options granted hereunder, and the exercise price per share,
shall be proportionately increased or decreased, as the case may be, so that the
ratio of the total number of shares owned by David, assuming that any option
provided for in this Agreement is fully exercised, would remain the same as the
ratio on the date hereof for an aggregate exercise price equal to that as
provided herein.
As used herein, Common Stock shall include any class of stock into which the
Common Stock is converted.
4. Option Termination Date. As used herein, the Option
Termination Date shall mean 60 days after the earlier of (i) ten years from the
date hereof or (ii) the date of a final judicial determination that David have
been properly terminated for "cause."
5. Exercise of Option. The Option, or any part thereof, shall
be exercised by the giving of written notice of exercise to the President of SOM
specifying the number of whole shares to be purchased and accompanied by payment
of the aggregate price of the number of shares purchased in exercising the
Option together with a copy of this Agreement and such investment declarations
as may be required, from time to time, by SOM; such exercise shall be effective
upon receipt by the President of SOM of such written notice, payment, copy of
the Agreement and investment declaration. As used in this Section 5, the term
"payment" shall mean payment in cash, by check or by promissory note.
6. Automatic Exercise. Notwithstanding anything to the
contrary contained in this Agreement, David shall be entitled to exercise the
Option to acquire the full number of the Shares at any time after a breach by
the Company or SOM of any obligation of the Company, SOM or of Harvey Sanders to
David contained in this Agreement or in any other agreement, instrument or
document delivered to David as of the date hereof.
7. No Reorganization. The Company and SOM jointly and
severally agree that neither the Company nor SOM will take any action, without
David's prior written consent, to reorganize the Company in any manner which
would materially alter David's ability to achieve the Profitability Milestone.
8. Changes in Stock. Without loss of generality to the
prohibition contained in Section 7 above, in the event that, prior to the
issuance by SOM of all shares of the stock in respect of which the Option is
granted, SOM shall take any action involving recapitalization, or a
reorganization, including a merger or consolidation, in which SOM is the
surviving corporation (other than a merger in which the stock of SOM is
exchanged for stock of another corporation), that results in the
reclassification of, or the increase, decrease or change in or in the number of,
the outstanding shares of the Common Stock of SOM or the issuance of Common
Stock otherwise than for cash or property, then an appropriate adjustment shall
be made in the number of shares then subject to this Agreement and the price
thereof so that during the remainder of the life of this Agreement David shall
have an option to purchase under similar terms and conditions such new stock or
other securities, if any, as shall be the equivalent of the stock, as presently
constituted, still covered by the Option and not theretofore taken up and paid
for by David. Subject to any required action by the stockholders, if SOM is
involved in a merger or consolidation in which it is not the surviving
corporation, or any other merger in which the Common Stock of SOM is exchanged
for stock or another corporation, or in the event of a complete liquidation of
SOM, the Board of Directors of SOM (the "Board") shall at least 20 days prior to
the effective date of any such merger, consolidation or liquidation, either (i)
make all outstanding options immediately exercisable or (ii) arrange to have the
surviving corporation grant to David replacement options on fair and reasonable
terms acceptable to David.
9. Equitable Performance. In the event of a breach or
threatened breach by SOM or the Company of any of its obligations hereunder, SOM
and the Company individually and jointly acknowledge
2
<PAGE> 3
that David will have no adequate remedies at law and that David will be
irreparable damaged in the event that the provisions of this Agreement are not
specifically enforced. Accordingly, SOM and the Company jointly and severally
agree that (a) an action for specific performance of its obligations created by
this Agreement is a proper remedy for such breach or threatened breach and (b)
SOM and the Company will not assert as a defense or otherwise in any such action
an allegation or claim that would contravene the agreement of the parties set
forth in this Section 9. Such equitable remedy shall, however, be cumulative and
not exclusive and shall be in addition to any other remedies available to David
for a breach or threatened breach of this Agreement, including the recovery of
damages.
10. Governing Law, Entire Agreement, Amendments, etc. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, supersedes all prior agreements and understandings among the
parties hereto, and contain the entire agreement among the parties with respect
to the matters covered hereby. The provisions of this Agreement may not be
modified, terminated or amended except in a writing signed by the parties
hereto.
11. Binding Nature. This Agreement and the rights, powers and
duties set forth herein shall, except as set forth herein, bind and inure to the
benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties hereto. The Company and SOM hereby jointly
and severally agree to execute any further instruments and shall perform any
acts which are or may become necessary to effectuate the terms of this
Agreement. SOM hereby unconditionally guarantees the prompt and punctual payment
to David of all of the monetary obligations of Nautica contained in this
Agreement.
IN WITNESS WHEREOF, the parties hereto set their hand and seal
as of the date first above written.
STATE-O-MAINE, INC.
By: /s/ Harvey Sanders
-------------------------
NAUTICA APPAREL, INC.
By: /s/ Harvey Sanders
-------------------------
/s/ David Chu
-------------------------
David Chu
<PAGE> 4
STATE-O-MAINE, INC.
10 West 33rd Street
New York, NY 10001
Nautica Apparel, Inc.
40 West 57th Street
New York, NY 10019
Attention: Mr. David Chu, President
Nautica International, Inc.
40 West 57th Street
New York, NY 10019
Attention: Mr. David Chu, President
Mr. David Chu
340 West 57th Street
New York, NY 10019
Dear Sirs:
Reference is made to the agreements listed on Schedule A annexed hereto
(such agreements, as they may from time to time be amended, collectively, the
"Relevant Agreements").
As you know, effective March 1, 1990, all of the business of Nautica
Apparel, Inc. ("NAI"), except for activities in the maintenance and management
of the intellectual properties of NAI and the collection and disbursement of
income therefrom, were transferred to Nautica International, Inc. ("NII"), a
newly created entity, which is the operating company for the business that was
conducted by NAI prior to March 1, 1990 (the "Nautica Business"). This
restructuring was planned to achieve certain tax advantages with minimal impact
on the Nautica Business. NAI and NII together function collectively in the same
manner as NAI functioned before the restructuring, that is, NAI and NII
constitute the Nautica Business.
In order to accurately reflect the restructuring, each of the signatories
hereto hereby agree that each of the Relevant Agreements shall be amended so
that all references to "Nautica Apparel, Inc.", "Nautica" or the "Company" in
each of the Relevant Agreement shall, effective as of March 1, 1990, mean NAI
and NII as a single consolidated entity notwithstanding the restructuring.
Without loss of generality to the foregoing, and by way of illustration
only, references to pre-tax profits in the definitions of "Profitability
Milestone" in the Reorganization Agreement (as defined in Schedule A) and in
the Option Agreement (as defined in Schedule A) shall mean the consolidated
pre-tax profits of NAI and NII as a single consolidated entity. Moreover,
without any loss of generality, the definition of "Company" or "Nautica" in the
Employment Agreement (as defined in Schedule A) shall mean both NAI and NII,
individually and severally, and David Chu shall be employed as the President of
both NAI and NII.
In furtherance of the intent and purposes of the foregoing, each of the
signatories hereto hereby further agree to take all such further action, and
execute and deliver all such other documents, instruments or agreements as any
of the signatories hereto may request to implement the intent and purposes of
this letter agreement and of the aforedescribed restructuring.
Please evidence your agreement to the foregoing by signing below.
Sincerely yours,
STATE-O-MAINE, INC.
By /s/
----------------------------------
Agreed to and Accepted
as of March 1, 1990:
NAUTICA INTERNATIONAL, INC.
By /s/
-----------------------------
STATE-O-MAINE, INC.
By /s/
-----------------------------
NAUTICA APPAREL, INC.
By /s/
-----------------------------
/s/
-----------------------------
Harvey Sanders
/s/
-----------------------------
David Chu
<PAGE> 5
AMENDMENT NO. 2 dated as of November 26, 1990, to Option
Agreement dated as of July 1, 1987 (the "1987 Agreement"), by and among
State-O-Maine, Inc., a Delaware corporation ("SOM"), Nautica Apparel, Inc., a
Delaware corporation ("NAI"), and David Chu ("David") (the 1987 Agreement, as
amended by the First Amendment (defined below and by this Amendment No. 2,
collectively, the "Agreement").
Capitalized terms used in this Amendment No. 2, unless
otherwise defined or unless the context otherwise requires, shall have the
meaning assigned to them in the 1987 Agreement.
WHEREAS, effective March 1, 1990, all of the business of NAI,
except for activities in the maintenance and management of the intellectual
properties of NAI and the collection and disbursement of income therefrom, were
transferred to Nautica International, Inc. ("NII"), a newly created Delaware
corporation which is the operating company for the business conducted by NAI
prior to March 1, 1990 (NAI and NII individually and collectively hereinafter
"Nautica" or the "Company");
WHEREAS, by letter agreement dated as of March 1, 1990, the
1987 Agreement, among other agreements, was amended so that all references to
NAI shall mean NAI and NII as a single consolidated entity (such letter
agreement, the "First Amendment");
WHEREAS, under the 1987 Agreement, David has been granted the
Option to purchase up to an aggregate of 178,731 shares of Common Stock, at the
purchase price of $11.00 per share, subject to adjustments both in the number of
shares covered by the Option as well as the purchase price per share in the
event of a stock split or stock dividend payable in Common Stock;
WHEREAS, on August 6, 1987, SOM effected a five-for-four stock
split in the form of a Common Stock dividend of 25%;
WHEREAS, on February 23, 1989, SOM effected a six-for-five
stock split in the form of a Common Stock dividend of 20%;
WHEREAS, on December 14, 1989, SOM effected a five-for-four
stock split in the form of a Common Stock dividend of 25%;
WHEREAS, the Option, as so adjusted, would entitle David to
purchase up to an aggregate of 335,121 shares of Common Stock at the purchase
price of $5.87 per share;
WHEREAS, the closing bid price for a share of Common Stock, as
quoted by the National Market System of the National Association of Securities
Dealers Automated Quotation System on November 23, 1990, was $4.50;
WHEREAS, SOM and Nautica continue to desire to provide David
with incentive to manage Nautica for the benefit of SOM and its shareholders;
NOW, THEREFORE, the parties hereto, for good and valuable
consideration, hereby agree as follows:
1. Section 4 of the 1987 Agreement is hereby amended by
deleting the words "ten years" contained therein and substituting in place
therefor the words "twenty years."
2. Except as amended hereby, all terms of the Agreement are
hereby ratified, approved and confirmed in all respects.
3. This Amendment No. 2 is subject to and conditioned upon
approval of the Board of Directors of SOM. In the event that the Board of
Directors of SOM disapproves of this Amendment No.
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<PAGE> 6
2, this Amendment No. 2 shall be null and void.
4. This Amendment No. 2 may be signed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto have caused
this Amendment No. 2 to be duly executed as of the date first above written.
STATE-O-MAINE, INC.
By: /s/ Harvey Sanders
-----------------------------
Harvey Sanders, President
NAUTICA INTERNATIONAL, INC.
By: /s/ David Chu
-----------------------------
David Chu, President
NAUTICA APPAREL, INC.
By: /s/ David Chu
-----------------------------
David Chu, President
/s/ David Chu
-----------------------------
David Chu
2
<PAGE> 7
May 8, 1991
Mr. David Chu, President
Nautica International, Inc.
40 West 57th Street
New York, New York 10019
Dear David:
Reference is made to Amendment No. 2 dated as of November 26,
1990 to your Option Agreement dated as of July 1, 1987 by and among
State-O-Maine, Inc., Nautica Apparel, Inc. and yourself.
We are pleased to report that the Board of Directors approved
Amendment No. 2 on February 26, 1991 subject to clarification of paragraph 1 of
said Amendment, and confirmed such approval on May 7, 1991. Accordingly,
paragraph 1 of Amendment No. 2 is hereby clarified by inserting in its place the
following:
"1. Section 4 of the 1987 Agreement is hereby deleted
in its entirety and the following paragraph inserted in lieu thereof:
4. Option Termination Date. As used herein, the
Option Termination Date shall mean 60 days after the earlier of (i)
July 1, 1997 or (ii) the date of a final judicial determination that
David has been properly terminated for "cause." Notwithstanding the
above, in the event David is employed by the Company on July 1, 1997,
the Option Termination Date shall mean 60 days after the earlier of (A)
July 1, 2007 or (B) ten months following the date that David ceases to
be employed by the Company for any reason whatsoever."
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<PAGE> 8
Except as otherwise specifically amended herein, all of the
terms and provisions of the Option Agreement, as amended, shall remain in full
force and effect.
Kindly countersign three copies of this letter, retain one for
your file and return two copies to the undersigned.
Many thanks.
Sincerely,
STATE-O-MAINE, INC.
By: /s/ Harvey Sanders
-----------------------------
Harvey Sanders, President
Agreed to and Accepted:
NAUTICA INTERNATIONAL, INC.
By: /s/ David Chu
-----------------------
David Chu
NAUTICA APPAREL, INC.
By: /s/ David Chu
-----------------------
David Chu
/s/ David Chu
-----------------------
David Chu
2
<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.
/s/
GRANT THORNTON
New York, New York
August 5, 1998
