AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 29, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JENNA LANE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3351399
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1407 BROADWAY
NEW YORK, NEW YORK 10018
(212) 704-0002
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JENNA LANE, INC.
1996 INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
MITCHELL DOBIES, PRESIDENT
JENNA LANE, INC.
1407 BROADWAY
NEW YORK, NEW YORK 10018
(212) 704-0002
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
David N. Feldman, Esq.
Law Offices of David N. Feldman
36 West 44th Street, Suite 1201
New York, New York 10036
Telephone: (212) 869-7000 Facsimile: (212) 997-4242
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CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price per unit(2) aggregate offering price(2) registration fee
<S> <C> <C> <C> <C>
Common Stock 600,000 shares $10.4375 $6,262,500 $1,897.54
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(1) Pursuant to Rule 416 promulgated under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated, in accordance with 17 CFR 230.457 (c), solely for the purpose of
calculating the registration fee. The Proposed Maximum Offering Price per Share
is based on the average of the high and low prices reported by the NASDAQ
National Market System as of January 26, 1998 which is within five (5) business
days prior to the date of this registration statement.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The information required by Items 1 and 2 of Form S-8 is not filed as a part
of this registration statement in accordance with the Note to Part I of Form S-8
and Rule 428 (b)(1) under the Securities Act of 1933, as amended ("Securities
Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's latest annual report on Form 10-K, filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the
Registrant's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above.
All documents subsequently filed by the Registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 145 of the General Corporation Law of Delaware
(the "Delaware Corporation Law"), Article 9 of the Registrant's Certificate of
Incorporation, a copy of which is filed as Exhibit 4.1 to this Registration
Statement, provides that the Registrant shall indemnify, to the fullest extent
permitted by Section 145 of the Delaware Corporation Law, as amended from time
to time, each person that such section grants the Registrant the power to
indemnify. Section 145 of the Delaware Corporation Law permits the Registrant to
indemnify any person in connection with the defense or settlement of any
threatened, pending or completed legal proceeding (other than a legal proceeding
by or in the right of the Registrant) by reason of the fact that he is or was a
director or officer of the Registrant or is or was a director or officer of the
Registrant serving at the request of the Registrant as a director, officer,
employee or agent of another corporation, partnership or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with the defense or
settlement of such legal proceeding if he acted in good faith and in a manner
that he reasonably believes to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, if he had no
reasonable cause to believe that his conduct was unlawful. If the legal
proceeding, however, is by or in the right of the Registrant, the director or
officer may be indemnified by the Registrant against expense (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of
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such legal proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant and except that he may not be indemnified in respect of any claim,
issue or matter as to which he shall have been adjudged to be liable to the
Registrant unless a court determines otherwise.
Pursuant to Section 102(b)(7) of the Delaware Corporation Law, Article
8 of the Certificate of Incorporation of the Registrant, a copy of which is
filed as Exhibit 4.1 to this Registration Statement, provides that no director
of the Registrant shall be personally liable to the Registrant or its
stockholders for monetary damages for any breach of his fiduciary duty as a
director; provided, however, that such clause shall not apply to any liability
of a director (i) for breach of his duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions that are not in good faith or involve
intentional misconduct or a knowing violation of the law, (iii) under Section
174 of the Delaware Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. The aforesaid provision also
eliminates the liability of any stockholder for managerial acts or omissions,
pursuant to Section 350 of the Delaware Corporation Law or any other provision
of Delaware law, to the same extent that such liability is limited for a
director.
The Company intends to enter into Indemnification Agreements with its
officers and directors. Each such Indemnification Agreement will provide that
the Company will indemnify the indemnitee against expenses, including reasonable
attorney's fees, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any civil or criminal
action or administrative proceeding arising out of the performance of his duties
as an officer, director, employee or agent of the Company. Indemnification is
available if the acts of the indemnitee were in good faith, if the indemnitee
acted in a manner he reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal proceeding, the
indemnitee had no reasonable cause to believe his conduct was unlawful.
The Company maintains directors and officers liability insurance in
such amounts as it deems appropriate.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS.
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4.1 Certificate of Incorporation of Registrant
4.2 Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock
4.3 Amended Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock
4.4 By-laws of Registrant
5.1 Opinion of the Law Offices of David N. Feldman
23.1 Consent of Edward Isaacs, independent certified public accountants
23.2 Consent of the Law Offices of David N. Feldman (included in Exhibit 5.1)
24.1 Power of Attorney (contained on page 5 herein)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(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) that, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously
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disclosed in this Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities and Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities 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 Common Stock
being registered, the Registrant will, unless in the opinion of counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Mitchell Dobies his true and lawful attorney-in-fact and agent, with full powers
of substitution and resubstitution, 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 or any related registration statement
filed pursuant to Rule 462(b) under the Securities Act, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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 December 30, 1997.
JENNA LANE, INC.
By: /s/ Mitchell Dobies
Name: Mitchell Dobies
Title: President, Co-Chief Executive Officer
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Mitchell Dobies President, Co-Chief Executive December 30, 1997
Mitchell Dobies Officer and Director
(Principal Executive
Officer)
/s/ Charles Sobel Co-Chief Executive Officer, December 30, 1997
Charles Sobel Executive Vice President,
Director
/s/ Mitchell Herman Director December 30, 1997
Mitchell Herman
/s/ Gerald Kanter Director December 30, 1997
Gerald Kanter
/s/ Gerald Cohen Director December 30, 1997
Gerald Cohen
/s/ Jeffrey Marcus Chief Financial Officer December 30, 1997
Jeffrey Marcus (Principal Financial and
Accounting Officer)
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have 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 December 30, 1997.
1996 Incentive Stock Option Plan of Jenna Lane, Inc.
By: /s/ Mitchell Dobies
Name: Mitchell Dobies
Title : President
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Certificate of Incorporation of Registrant*
4.2 Certificate of Designation, Preferences and Rights of Series A
Convertible Preferred Stock*
4.3 Amended Certificate of Designation, Preferences and Rights
of Series A Convertible Preferred Stock
4.4 By-laws of Registrant*
5.1 Opinion of the Law Offices of David N. Feldman
23.1 Consent of Edward Isaacs, independent certified public accountants
23.2 Consent of the Law Offices of David N. Feldman (included in
Exhibit 5.1)
24.1 Power of Attorney (contained on page 5 herein)
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* Incorporated by reference to the Registrant's Registration Statement on Form
S-1, registration number 333-11979.
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EXHIBIT 4.3
JENNA LANE, INC.
Amended Certificate of Designation, Preferences and Rights of
Series A Convertible Preferred Stock
Pursuant to Section 151 (g) of the General Corporation Law of the
State of Delaware
We, being, respectively, the President and Secretary of JENNA LANE,
INC., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the "Corporation"), DO HEREBY CERTIFY:
FIRST: That, pursuant to authority expressly granted and vested in the
Board of Directors of said Corporation by the provisions of its Certificate of
Incorporation, as amended, said Board of Directors duly adopted, upon unanimous
written consent, the following resolution:
RESOLVED, that the Board of Directors, pursuant to authority granted
and expressly vested in it by the provisions of the Certificate of Incorporation
of the Corporation, as amended, hereby amends the Certificate of Designation
which authorized the issue from time to time of a series of Preferred Stock of
the Corporation and hereby declares that this series no longer has any
authorized and issued shares of such series outstanding and none shall be issued
in any event and in particular none shall be issued pursuant to that Certificate
of Designation previously filed which fixes the designation, preferences and
relative, participating, optional or other rights, and the qualifications,
limitations or restrictions thereof.
Section 1. Designation. The series of Preferred Stock to be canceled
was designated and known as "Series A Convertible Preferred Stock" and is
sometimes referred to herein as the "Preferred Stock". The number of shares
constituting such series was five hundred thousand (500,000).
Section 2. Conversion. The holders of those shares of the Preferred
Stock had conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Preferred Stock was convertible,
without the payment of any additional consideration by the holder thereof and at
the option of the holder thereof, at any time after the date of issuance of such
share, at the office of the Corporation or any transfer agent for the Preferred
Stock, into that number of fully paid and nonassessable shares of Common Stock
(calculated to the nearest one-one-hundredth (1/100) of a share) determined by
dividing two dollars ($2.00) by the conversion price, later determined, in
effect at the time of conversion. The conversion price at which shares of Common
Stock were deliverable upon conversion of Preferred Stock without the payment of
any additional consideration by the holder thereof (the "Conversion Price") was
initially two dollars ($2.00) per share of Common Stock.
(b) Automatic Conversion. Each share of Preferred Stock was
automatically convertible into shares of Common Stock at the then effective
Conversion Price upon the closing of a public offering pursuant to an effective
underwritten registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of Common Stock for the account of the
Corporation to the public at a public offering price of at least six dollars
($6.00), subject to adjustment for stock splits, stock dividends,
recapitalizations and other similar transactions, and having an aggregate
offering price resulting in net proceeds to the Corporation of not less than
Four Million Dollars ($4,000,000). Said public offering was closed on March 26,
1997 and each person who held of record Preferred Stock immediately prior to
such automatic conversion was entitled to all dividends which had accrued to the
time of the automatic conversion, but not paid on the Preferred Stock, although
no such accrued but unpaid dividends were applicable.
(c) Common Stock Reserved. The Corporation reserved and kept available
out of its authorized but unissued Common Stock such number of shares of Common
Stock as was sufficient to effect conversion of the Preferred Stock. As a
result, there remain no outstanding issued shares of Series A Convertible
Preferred Stock.
SECOND: That said determination that there were no longer any
authorized shares of Series A Convertible Preferred Stock outstanding, and that
as of the date set forth herein, none shall be issued subject to the Certificate
of Designation previously filed with respect to this series of Preferred Stock,
was duly made by the Board of Directors pursuant to the provisions of the
Certificate of Incorporation of the Corporation, as amended, and in accordance
with the provisions of Section 151(g) of the
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General Corporation Law of the State of Delaware. Also in accordance with the
provisions of Section 151(g) of the General Corporation Law of the State of
Delaware, once this Amended Certificate becomes effective, it shall have the
effect of eliminating from the certificate of incorporation all matters set
forth in the certificate of designation with respect to such series of
Preferred Stock.
IN WITNESS WHEREOF, this Amended Certificate has been signed by the
President of JENNA LANE, INC. and said Corporation has caused its corporate seal
to be hereunder affixed and attested by its Secretary, all as of the 26th day of
March, 1997.
JENNA LANE, INC. ATTEST:
By: /s/ [SEAL] /s/
Mitchell Dobies, President Secretary
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EXHIBIT 5.1
Law Offices of David N. Feldman
36 West 44th Street, Suite 1201
New York, New York 10036
January , 1998
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by Jenna Lane, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, on or about the date hereof. The
Registration relates to the registration of 600,000 shares ("Shares") of Common
Stock, par value $.01 per share issuable upon exercise of stock options
("Options") to be granted pursuant to the Company's 1996 Incentive Stock Option
Plan.
We are counsel to the Company and are familiar with the proceedings of
its stockholders and Board of Directors. For purposes of this opinion, we have
examined and relied upon such documents as we consider necessary to enable us to
render this opinion.
Based upon the foregoing, we are of the opinion that when issued in
accordance with the terms of the Options, the Shares will be duly authorize,
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this option as a part of the
Registration Statement and to the use of our name therein and in the related
prospectus.
Very truly yours,
/s/ Law Offices of David N. Feldman
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