As filed with the Securities and Exchange Commission on December 18, 1995
Registration No. 33-----
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CACHE, INC.
(Exact name of registrant as specified in its charter)
Florida 59-1588181
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1460 Broadway, New York, New York 10036
(Address of Principal Executive Offices) (Zip Code)
CACHE, INC.
1994 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
(Full Title of the Plan)
Andrew M. Saul
Chairman of the Board
CACHE, INC.
1460 Broadway
New York, New York 10036
(212) 840-4242
(Name, Address and Telephone Number of Agent for Service)
Please send copies of all communications to:
Andre Weiss
Schulte Roth & Zabel
900 Third Avenue
New York, New York 10022
CALCULATION OF REGISTRATION FEE
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| | | Proposed | Proposed | |
| Title of | Amount to | Maximum | Maximum | Amount of |
| Securities | be | Offering | Aggregate | Registration |
| to be | Registered | Price per| Offering | Fee |
| Registered | | Unit (1) | Price (1) | |
| -------------------------------------------------------------------|
|Common Stock,| | | | |
|par value | 600,000 | | | |
|$.01 per | shares | $3.78 |$2,269,687.50| $782.65 |
|share | | | | |
- ----------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act"), based, in part, upon the price at which the options
granted to date may be exercised, and, in part, upon the average of the
high and low prices of the Common Stock reported in the consolidated
reporting system as of December 13, 1995.
EXPLANATORY NOTE
Pursuant to Rule 428(b)(1) under the Securities Act, an
information statement will be distributed to holders of options granted
under the 1994 Stock Option and Performance Incentive Plan (the "1994
Plan"). The information statement and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of the Securities Act.
Pursuant to General Instruction C of Form S-8, this Registration
Statement contains a prospectus meeting the requirements of Part I of Form S-3
relating to reofferings by certain persons of shares of common stock, par
value $.01 per share, of Cache, Inc. (the "Common Stock") to be acquired
pursuant to the 1994 Plan.
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CACHE, INC.
FORM S-8 CROSS REFERENCE SHEET SHOWING LOCATION OF INFORMATION REQUIRED BY
PART I OF FORM S-3
Form S-3 Item Number Location/Heading in Prospectus
1. Forepart of Registration Statement Cover Page
and Outside Front Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Available Information;
Page of Prospectus Incorporation of Certain
Information by Reference
3. Summary Information, Risk Factors Not Applicable
and Ratio of Earnings to Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Registered Stockholders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to be Not Applicable
Registered
10. Interests of Named Experts and Experts; Legal Matters
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Documents Incorporated
Information by Reference
13. Disclosure of Commission Position Indemnification
on Indemnification for Securities Act
Liabilities
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents which have been or will in the future be
filed by Cache, Inc., a Florida corporation (the "Company"), with the
Securities and Exchange Commission (the "Commission") are incorporated in this
Registration Statement by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), which contains certified
financial statements for the Company's fiscal year ended December 31, 1994.
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2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended April 1, 1995, July 1, 1995 and September 30, 1995, and the
Company's amendment to its Quarterly Report on Form 10-Q for the fiscal
quarter ended July 1, 1995 on Form 10-Q/A, dated September 26, 1995, filed
pursuant to Section 13(a) or 15(d) of the Exchange Act.
3. The Company's Current Report on Form 8-K dated September 13,
1995, filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
4. The Company's Proxy Statement for its Annual Meeting of
Shareholders held on June 13, 1995, filed pursuant to Section 14 of the
Exchange Act.
5. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A filed with the
Commission on April 15, 1982 pursuant to Section 12 of the Exchange Act,
including any amendments or reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 in and to be a part of this Registration Statement from the date
of filing of such reports and 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.
Limitation of Directors' Liability.
Article VIII of the Company's Articles of Incorporation, as
amended, provides that the Company shall, to the extent permitted by law,
(a) indemnify and hold harmless each person serving as a director or
officer of the Company or, at the request of the Company, as a director or
officer of any other corporation, against any claim or liability arising
from service in such capacity, and (b) reimburse any such person for all
costs, legal and other expenses reasonably incurred by such person in
connection with any claim or liability for which such person is adjudged
liable to the extent permitted by law. Article VIII further provides that
nothing contained therein will restrict the Company from indemnifying or
reimbursing any such person in a proper case although not specifically
provided for therein.
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Section 607.0850 of the Florida 1989 Business Corporation Act
permits a corporation to indemnify any person serving as a director,
officer, employee, or agent of such corporation or, at the request of such
corporation, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise (an
"Indemnified Person"), against liability to third parties or associated
expense arising from his service in that capacity if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of such corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 607.0850 also permits a corporation to indemnify an Indemnified
Person against liability in derivative actions if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of such corporation, except that, unless court approval is
obtained, no Indemnified Person may be indemnified in respect of a matter
to which it is adjudged to be liable. Except in cases where the
Indemnified Person has been successful on the merits or otherwise in the
defense of the action, the determination that the applicable standard for
indemnification has been met must be made by: (a) a majority vote of a
quorum of disinterested directors; (b) a majority vote of a committee
designated by the board of directors consisting of two or more
disinterested directors; (c) independent legal counsel (i) selected by the
board of directors prescribed in (a) above or the committee prescribed in
(b) above, or (ii) if a quorum of directors cannot be obtained for (a)
above and the committee cannot be designated under (b) above, selected by a
majority vote of the full board of directors; or (d) a majority vote of a
quorum of disinterested shareholders, or, if no such quorum is obtainable,
by a majority vote of disinterested shareholders. A corporation is
authorized to make such further indemnification of Indemnified Persons as
is authorized by law, by-law, agreement, vote of shareholders or
disinterested directors or otherwise, unless a judgment or other final
adjudication establishes that his actions, or omission to act, were
material to the cause of action so adjudicated and constitute: (a) a
violation of criminal law unless the Indemnified Person had reasonable
cause to believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful; (b) a transaction from which the
Indemnified Person derived an improper personal benefit; (c) in the case
of a director, a circumstance under which the liability provisions of
607.0834 (with respect to liability of directors for unlawful
distributions) are applicable; or (d) willful misconduct or a conscious
disregard for the best interests of the corporation in a proceeding by or
in the right of a corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder. A corporation may procure
insurance for Indemnified Persons against liability whether or not it would
have the power to indemnify against such liability under Section 607.0850.
Provision is also made for the advancement of expenses prior to final
disposition, subject to repayment unless the Indemnified Person is
ultimately determined to be entitled to indemnification. Provision is also
made that unless the corporation's articles of incorporation provide
otherwise, under certain circumstances, a court may order indemnification
and advancement of expenses, notwithstanding the failure of a corporation
to provide indemnification and despite any contrary determination of the
board or of the shareholders in a particular case.
The Florida 1989 Business Corporation Act provides that a director is
not personally liable for monetary damages to the corporation or any other
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person for any statement, vote, decision, or failure to act, regarding
corporate management or policy, by a director, unless (a) the director
breached or failed to perform his duties as a director; and (b) the
director's breach of, or failure to perform, those duties constitutes (1) a
violation of the criminal law, unless the director had reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe his
conduct was unlawful; (2) a transaction from which the director derived an
improper personal benefit, either directly or indirectly; (3) a circumstance
under which the liability provisions of Section 607.0834 (with respect to
liability of directors for unlawful distribution) are applicable; (4) in a
proceeding by or in the right of the corporation to procure a judgment in
its favor or by or in the right of a shareholder, conscious disregard for
the best interest of the corporation, or willful misconduct; or (5) in a
proceeding by or in the right of someone other than the corporation or a
shareholder, recklessness or an act or omission which was committed in bad
faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.
The Company maintains a standard form of directors and officers'
liability insurance policy which provides coverage to the directors and
officers of the Company for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of
this Registration Statement:
Exhibit No. Document
4.1 Cache, Inc. 1994
Stock Option and Performance Incentive Plan.
5 Opinion of
Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A. regarding the legality of
original issuance of shares of Common Stock
being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of
Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A. (included in Exhibit 5)
24 Powers of Attorney
(see pages II-1 and II-2 of this Registration
Statement)
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Item 9. Undertakings.
A. To Update Annually.
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 the 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
the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the 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 with
or furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. Incorporation of Subsequent Exchange Act Documents
by Reference.
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 Exchange Act that is incorporated by reference in the 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. Indemnification of Officers and Directors.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
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persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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REOFFER
PROSPECTUS
CACHE, INC.
1460 Broadway
New York, New York 10036
Telephone No. (212) 840-4242
Common Stock, par value $.01 per share
600,000 Shares
This Prospectus relates to the subsequent resale or offer for
sale in the NASDAQ National Market System, or otherwise, of shares of
common stock, par value $.01 per share ("Common Stock"), of Cache, Inc.,
a Florida corporation (the "Company"), which may be acquired by certain
persons who may be deemed affiliates of the Company pursuant to the
purchase by them of shares of Common Stock upon the exercise of options
and other awards granted to them under the Company's 1994 Stock Option
and Performance Incentive Plan (the "1994 Plan"). In connection with
such resales or offers for sale, such persons and the brokers through
whom such shares may be sold may be deemed to be "underwriters" as that
term is defined in Section 2(11) of the Securities Act of 1933, as
amended (the "Securities Act"). The Company will not receive any of the
proceeds from the sale of the shares offered hereby. All expenses of
registration incurred in connection with the registration under the
Securities Act and the offering of the securities hereby will be borne
by the Company, but all selling and other expenses incurred by an
individual Registered Stockholder (as defined, herein) will be borne by
such Registered Selling Stockholder.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS
THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to
make any representations, other than as contained herein, in connection
with the offer contained in this Reoffer Prospectus, and, if given or
made, such information or representations must not be relied upon. This
Reoffer Prospectus does not constitute an offer to sell or solicitation
of an offer to buy any of the securities offered hereby in any state to
any person to whom it is unlawful to make such offer or solicitation.
The date of this Prospectus is December 18, 1995.
A-1
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission") which may be inspected and copied
at the public reference facilities maintained by the Commission located at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C., 20549,
and at the public reference facilities located at the regional offices of the
Commission at 7 World Trade Center, 13th Floor, New York, New York 10048, and
at the Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60651. Copies of such material can be obtained from the
Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Common Stock
of the Company is quoted on the NASDAQ National Market System. Reports, proxy
statements, informational statements and other information concerning the
Company can be inspected at the offices of the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
A copy of any document incorporated by reference in the
Registration Statement (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically
incorporated by reference into the information that the Registration
Statement incorporates) of which this Reoffer Prospectus forms a part but
which is not delivered with this Reoffer Prospectus will be provided by the
Company without charge to any person (including any beneficial owner)to
whom this Reoffer Prospectus has been delivered, upon the oral or written
request of such person. Such requests should be directed to Victor J.
Coster, Secretary, Cache, Inc., 1460 Broadway, New York, New York 10036.
THE COMPANY
The Company owns and operates 151 women's apparel specialty
stores (as of November 2 1995), all of which operate under the trade name
"Cache". The Company specializes in the sale of high fashion women's
apparel and accessories in the better to expensive price range focusing on
social occasion dressing from informal get-togethers to formal black-tie
affairs.
The Company's stores currently operate in 33 states, as well as
in Puerto Rico and the District of Columbia. Stores are concentrated in
large metropolitan and suburban areas and are located in the finest
shopping malls in the country. The typical store averages 2,000 square
feet and sells better sportswear, evening wear and upscale accessories.
The Company was incorporated in the state of Florida on April 25,
1975. The Company's principal executive offices are located at 1460
Broadway, New York, New York 10036 and its telephone number is (212) 840-4242.
A-2
PLAN OF DISTRIBUTION
The shares of Common Stock covered by this Reoffer Prospectus are
being registered by the Company for the account of the Registered
Stockholders. The Company understands that none of such shares will be
offered through underwriters.
Shares of Common Stock covered by this Reoffer Prospectus may be
offered and sold from time to time by the Registered Stockholders through
the NASDAQ National Market System, the over-the-counter market, negotiated
transactions or otherwise, at the prices prevailing at the time of such
sales, at prices relating to such prevailing market prices or at prices
otherwise negotiated. To the Company's knowledge, no specific brokers or
dealers have been designated by the Registered Stockholders nor has any
agreement been entered into in respect of brokerage commissions or for the
exclusive or coordinated sale of any securities which may be offered
pursuant to this Reoffer Prospectus. The Registered Stockholders and any
broker dealer through whom sales are made by the Selling Stockholders may
be regarded as "underwriters" within the meaning of the Securities Act
although the Registered Stockholders disclaim such status, and their
compensation may be regarded as underwriters' compensation.
The Company will not receive any of the proceeds from the
offering hereunder. All expenses of registration incurred in connection
with this offering are being borne by the Company, but all selling and
other expenses incurred by an individual Registered Stockholder will be
borne by such Registered Stockholder.
On December 13, 1995, the closing sales price of the Common Stock, as
reported in the NASDAQ National Market System, was $ 3.50.
REGISTERED STOCKHOLDERS
This Reoffer Prospectus relates to shares of Common Stock which may
be acquired by certain key employees (the "Registered Stockholders") of the
Company, each of whom may be deemed to be "affiliates" of the Company,
pursuant to the exercise of options and other awards granted to such persons
under the 1994 Plan. The address of each Registered Stockholder is c/o Cache,
Inc., 1460 Broadway, New York, New York 10036.
A-3
The following table sets forth certain information with respect
to the Registered Stockholders as of December 1 1995:
Number of Number of Percentage
Shares Shares to be Number of of Shares
Beneficially Acquired Under Shares Bene- Bene-
Owned as of the 1994 Plan ficially ficially
Registered Position with December and Offered Owned After Owned After
Stockholder the Company 1, 1995(1) Hereby(2) Offering Offering (3)
- -------------------------------------------------------------------------------
Roy C. Smith Executive 85,000 147,500 232,500 2.5%
Vice
President and
Director
Thomas E. Executive 41,500 125,000 166,500 1.8%
Reinckens Vice
President,
Chief
Financial
Officer and
Director
Mae Soo Hoo Executive 41,731 153,750 195,481 2.1%
Vice
President -
General
Merchandise
Manager and
Director
(1) Includes shares of Common Stock underlying options and other awards
granted to each Registered Stockholder under the 1994 Plan only to the
extent that such options and other awards are exercisable as of, or
within 60 days of, December 1, 1995.
(2) Represents all shares of Common Stock underlying options and other awards
granted under the 1994 Plan to each Registered Stockholder, whether or
not exercisable as of, or within 60 days of, December 1, 1995.
(3) Based on approximately 9,091,338 shares of Cache Common Stock outstanding
as of December 1, 1995. Since the shares being reoffered hereby have
been registered pursuant to Rule 415 under the Securities Act and not
pursuant to an underwritten public offering, the number of registered
shares to be sold pursuant hereto and the dates of such sale are not
presently determinable.
Shares of Common Stock covered by this Reoffer Prospectus may be
offered and sold from time to time by the Registered Stockholders through
brokers through the NASDAQ National Market System or otherwise, at the prices
A-4
prevailing at the time of such sales. To the Company's knowledge, no
specific brokers or dealers have been designated by the Registered
Stockholders nor has any agreement been entered into in respect of brokerage
commissions or for the exclusive or coordinated sale of any securities which
may be offered pursuant to this Reoffer Prospectus. The Company will pay all
expenses of preparing and reproducing this Reoffer Prospectus, but will not
receive any of the proceeds from sales by any of the Registered Stockholders.
On December 13, 1995, the closing sales price per share of the Common Stock
as reported on the NASDAQ National Market System was $3.50.
DOCUMENTS INCORPORATED BY REFERENCE
Incorporated herein by reference and made a part hereof are:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act").
2. The Company's Quarterly Reports on Form 10-Q for the quarter
ended April 1, 1995, July 1, 1995 and September 30, 1995, and the Company's
amendment to its Quarterly Report on Form 10-Q for the fiscal quarter ended
July 1, 1995 on Form 10-Q/A, dated September 26, 1995, filed pursuant to
Section 13(a) or 15(d) of the Exchange Act.
3. The Company's Current Report on Form 8-K dated September 13,
1995, filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
4. The Company's Proxy Statement for its Annual Meeting of
Shareholders held on June 13, 1995, filed pursuant to Section 14 of the
Exchange Act.
5. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A filed with the
Commission on April 15, 1982 pursuant to Section 12 of the Exchange Act,
including any amendments or reports filed for the purpose of updating such
description.
All of such documents are on file with the Commission. All documents
subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities to be offered pursuant hereto have been
sold or which deregisters all such securities then remaining unsold shall
be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of the filing of such documents.
EXPERTS
The consolidated financial statements and financial statement
schedules of the Company as of December 31, 1994 and January 1, 1994, and
for each of the years in the three-year period ended December 31, 1994,
incorporated by reference herein, have been incorporated by reference
herein in reliance upon the reports of Arthur Andersen LLP, independent
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certified accountants, incorporated by referenece herein, and upon the
authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters with respect to the Common Stock being offered
hereby are being passed upon by Greenberg, Traurig, Hoffman, Lipoff, Rosen
& Quentel, P.A., 1221 Brickell Avenue, Miami, Florida 33131, special
counsel for the Company.
INDEMNIFICATION
Article VIII of the Company's Articles of Incorporation, as amended,
provides that the Company shall, to the extent permitted by law, (a) indemnify
and hold harmless each person serving as a director or officer of the Company
or, at the request of the Company, as a director or officer of any other
corporation, against any claim or liability arising from service in such
capacity, and (b) reimburse any such person for all costs, legal and other
expenses reasonably incurred by such person in connection with any claim or
liability for which an such person is adjudged liable to the extent permitted
by law. Article VIII further provides that nothing contained therein will
restrict the Company from indemnifying or reimbursing any such person in a
proper case although not specifically provided for therein.
Section 607.0850 of the Florida 1989 Business Corporation Act permits a
corporation to indemnify any person serving as a director, officer, employee,
or agent of such corporation or, at the request of such corporation, as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (an "Indemnified Person"), against
liability to third parties or associated expense arising from his service in
that capacity if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of such corporation, and with
respect to any criminal action or proceeding had no reasonable cause to
believe his conduct was unlawful. Section 607.0850 also permits a corporation
to indemnify an Indemnified Person against liability in derivative actions if
he acted in good faith and in a manner he reasonably believes to be in or not
opposed to the best interests of such corporation, except that, unless court
approval is obtained, no Indemnified Person may be indemnified in respect of a
matter as to which he is adjudged to be liable. Except in cases where the
Indemnified Person has been successful on the merits or otherwise in the
defense of the action, the determination that the applicable standard for
indemnification has been met must be made by: (a) a majority vote of a quorum
of disinterested directors; (b) a majority vote of a committee designated by
the board of directors consisting of two or more disinterested directors; (c)
independent legal counsel (i) selected by the board of directors prescribed in
(a) above or the committee prescribed in (b) above, or (ii) if a quorum of
directors cannot be obtained for (a) above and the committee cannot be
designated under (b) above, selected by a majority vote of the full board of
directors; or (d) a majority vote of a quorum of disinterested shareholders,
or, if no such quorum is obtainable, by a majority vote of disinterested
shareholders. A corporation is authorized to make such further
indemnification of Indemnified Persons as is authorized by law, by-law,
A-6
agreement, vote of shareholders or disinterested directors or otherwise,
unless a judgment or other final adjudication establishes that his actions, or
omission to act, were material to the cause of action so adjudicated and
constitute: (a) a violation of criminal law unless the Indemnified Person had
reasonable cause to believe his conduct was lawful or had no reasonable cause
to believe his conduct was unlawful; (b) a transaction from which the
Indemnified Person derived an improper personal benefit; (c) in the case of a
director, a circumstance under which the liability provisions of 607.0834
(with respect to liability of directors for unlawful distributions) are
applicable; or (d) willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of a
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder. A corporation may procure insurance for Indemnified
Persons against liability whether or not it would have the power to indemnify
against such liability under Section 607.0850. Provision is also made for the
advancement of expenses prior to final disposition, subject to repayment
unless the Indemnified Person is ultimately determined to be entitled to
indemnification. Provision is also made that unless the corporation's
articles of incorporation provide otherwise, under certain circumstances, a
court may order indemnification and advancement of expenses, notwithstanding
the failure of a corporation to provide indemnification and despite any
contrary determination of the board or of the shareholders in a particular
case.
The Florida 1989 Business Corporation Act provides that a director is not
personally liable for monetary damages to the corporation or any other person
for any statement, vote, decision, or failure to act, regarding corporate
management or policy, by a director, unless (a) the director breached or
failed to perform his duties as a director; and (b) the director's breach of,
or failure to perform, those duties constitutes (1) a violation of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (2)
a transaction from which the director derived an improper personal benefit,
either directly or indirectly; (3) a circumstance under which the liability
provisions of Section 607.0834 (with respect to liability of directors for
unlawful distribution) are applicable; (4) in a proceeding by or in the right
of the corporation to procure a judgment in its favor or by or in the right of
a shareholder, conscious disregard for the best interest of the corporation,
or willful misconduct; or (5) in a proceeding by or in the right of someone
other than the corporation or a shareholder, recklessness or an act or
omission which was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property.
The Company maintains a standard form of directors and officers'
liability insurance policy which provides coverage to the directors and
officers of the Company for certain liabilities.
A-7
TABLE OF CONTENTS Page CACHE, INC.
Available Information.... A-2
The Company.............. A-2
Plan of Distribution...... A-3
600,000 Shares
Registered Stockholders... A-3
Documents Incorporated
by Reference............. A-5 ____________
Experts.................. A-5
Legal Matters............ A-6 COMMON STOCK,
PAR VALUE
Indemnification.......... A-6 $.01 PER SHARE
_________________________________
__ ____________
Cache, Inc. has filed with the
Securities and Exchange
Commission, Washington, D.C., a PROSPECTUS
Registration Statement under the
Securities Act of 1933 with
respect to this Offering. This December 18, 1995
Prospectus omits certain
information contained in the
Registration Statement. The
information omitted may be
obtained from the Securities and
Exchange Commission upon payment
of the regular charge therefor.
A-8
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
this 18th day of December, 1995.
CACHE, INC.
By: /s/ Andrew M. Saul
Andrew M. Saul
Chairman of the Board
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoint Andrew M. Saul and Thomas E. Reinckens, and each of them, as
their attorneys-in-fact, with full power of substitution, to execute in
their names and on behalf of the Registrant and each such person,
individually and in each capacity stated below, one or more amendments
(including post-effective amendments) to this Registration Statement as the
attorney-in-fact acting on the premise shall from time to time deem
appropriate and to file any such amendment to this Registration Statement
with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated, on the 18th day of December, 1995.
Name and Signature Title Date
/s/ Andrew M. Saul Chairman of the Board December 18,1995
Andrew M. Saul (principal executive
officer)
/s/ Thomas E. Reinckens Chief Financial Officer December 18, 1995
Thomas E. Reinckens and Director (principal
financial officer and
principal accounting officer)
II-1
Name and Signature Title Date
/s/ Joseph E. Saul Director December 18, 1995
Joseph E. Saul
/s/ Roy C. Smith Director December 18, 1995
Roy C. Smith
/s/ Mark E. Goldberg Director December 18, 1995
Mark E. Goldberg
/s/ Morton J. Schrader Director December 18, 1995
Morton J. Schrader
/s/ Mae Soo Hoo Director December 18, 1995
Mae Soo Hoo
II-2
EXHIBIT INDEX
Exhibit Exhibit No.
No.
4.1 Cache, Inc. 1994 Stock Option and
Performance Incentive Plan.
5 Opinion of Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A. regarding
the legality of original issuance of
shares of Common Stock being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A. (included in
Exhibit 5)
24 Powers of Attorney (see pages II-1 and II-
2 of this Registration Statement)
Exhibit 4.1
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
CACHE, INC. COMMON STOCK
Par Value $.01 Per Share
CACHE, INC.
1994 STOCK OPTION AND
PERFORMANCE INCENTIVE
PLAN
This Information Statement relates to the issuance of shares of
common stock, $.01 par value per share ("Common Stock"), of Cache, Inc., a
Florida corporation (the "Company"), upon exercise of options and other awards
granted or to be granted under the Cache, Inc. 1994 Stock Option and
Performance Incentive Plan (the "1994 Plan"). The shares are or will be quoted
on the NASDAQ National Market System, subject to official notice of issuance in
the case of authorized but unissued shares.
Common Stock so acquired by affiliates of the Company may only be
reoffered or resold pursuant to a separate prospectus prepared for that
purpose, pursuant to an exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or pursuant to the
requirements of Rule 144 (except the holding period of paragraph (d))
promulgated thereunder. An affiliate of the Company is defined as a person
that directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under common control with, the Company.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS
THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS INFORMATION STATEMENT. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE
No person has been authorized to give any information or to make any
representations, other than as contained herein, or in the Registration
Statement on Form S-8 (No. ___) filed with the Securities and Exchange
Commission, and, if given or made, such information or representations must
not be relied upon. The delivery of this Information Statement at any time
does not imply that the information herein is correct as of any time subsequent
to its date.
THIS INFORMATION STATEMENT SUMMARIZES THE MATERIAL PROVISIONS OF
THE CACHE, INC. 1994 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN.
THE SPECIFIC TERMS OF A PARTICIPANT'S PARTICULAR AWARD ARE
CONTAINED IN HIS STOCK OPTION OR OTHER AWARD AGREEMENT AND ARE NOT
NECESSARILY SUMMARIZED HEREIN; EACH PARTICIPANT SHOULD REVIEW HIS
AGREEMENT FOR THE PERTINENT TERMS AND CONDITIONS OF HIS AWARD.
Additional information about the 1994 Plan its administrators may be
obtained from:
CACHE, INC.
1460 Broadway
New York, New York 10036
Telephone No. (212) 840-4242
The date of this Information Statement is December 18, 1995.
Available Information about the Company
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy and information
statements, and other information filed by the Company with the Commission
can be inspected and copied at the public reference facilities maintained by
the Commission located at Judiciary Plaza, 450 Fifth Street, NW, Room 1024,
Washington, D.C. 20546, and at the regional offices of the Commission at
7 World Trade Center, 13th Floor, New York, New York 10048 and Northwester
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60651.
Copies of such documents can also be obtained at prescribed rates from the
public reference section of the Commission. The Company's Common Stock is
quoted on the NASDAQ National Market System. Reports, proxy statements,
information statements, and other information concerning the Company may be
inspected at the offices of the National Association of Securities Dealers,
Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
Documents Incorporated by Reference
The material features of the 1994 Plan are set forth below. The
Company has incorporated by reference into the Registration Statement of which
this Information Statement is a part certain documents which it is not
delivering with this Information Statement. (See "Incorporation of Certain
Documents by Reference".) The Company will provide to any person to whom this
Information Statement has been delivered, upon written or oral request of such
person, a copy of any and all of the information that either has been
incorporated by reference in the registration statement (not including exhibits
to the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that the
registration statement incorporates) or is otherwise required to be delivered
pursuant to Rule 428(b) of the Securities Act of 1933, as amended
(the "Securities Act"). Requests for such documents should be directed to:
Cache, Inc.
1460 Broadway
New York, New York 10036
Attn: Victor J. Coster,
Secretary
Telephone No. (212) 840-4242
-2-
Cache, Inc. 1994 Stock Option and Performance Incentive Plan
General Information
The Company has filed with the Securities and Exchange
Commission in Washington, D.C. a Registration Statement
(No.________) on Form S-8 (the "Registration Statement") relating
to the Common Stock offered pursuant to awards made under the
1994 Plan. For further information reference is made to the
Registration Statement, including the exhibits filed as a part
thereof or incorporated by reference therein. Statements
contained in this Information Statement as to provisions of the
1994 Plan are not intended to be complete and reference is made
to the provisions of the 1994 Plan on file and available for
examination at the Securities and Exchange Commission and at the
principal office of the Company, each such statement being
qualified in all respects by such reference. A copy of the 1994
Plan will also be furnished upon oral or written request as set
forth under the heading "Documents Incorporated by Reference."
The 1994 Plan was adopted by the Board of Directors of
the Company on December 16, 1994 and approved by the shareholders
of the Company on June 13, 1995. It was intended to replace the
Cache, Inc. 1993 Stock Option Plan originally adopted on May 4,
1993 and terminated on December 16, 1994.
The 1994 Plan provides that the Committee (as defined
below) may grant awards to employees in any of the following
forms, subject to such terms, conditions and provisions as the
Committee (as defined below) may determine to be necessary or
desirable: (i) incentive stock options ("ISOs"), (ii)
nonstatutory stock options ("NSOs"), (iii) stock appreciation
rights ("SARs"), (iv) shares of Common Stock subject to certain
restrictions ("Restricted Shares"), (v) units representing shares
of Common Stock ("Performance Shares"), (vi) units which do not
represent shares of Common Stock but which may be paid in Common
Stock ("Performance Units"), (vii) shares of unrestricted Common
Stock ("Unrestricted Shares") and (viii) tax offset payments
("Tax Offset Payments") (collectively, "Awards"). ISOs and NSOs
are collectively referred to herein as "Options".
The purpose of the 1994 Plan is to encourage and enable
all employees of the Company to acquire a proprietary interest in
the Company through the ownership of the Company's Common Stock,
and other rights with respect to the Common Stock. Such
ownership will provide such employees with a more direct stake in
the future welfare of the Company and encourage them to remain
with the Company. It is also expected that the 1994 Plan will
encourage qualified persons to seek and accept employment with
the Company.
The maximum aggregate number of shares of Common Stock
available for award under the Plan to employees of the Company
and its subsidiaries is 600,000; provided, however, that no
employee may receive awards of or relating to more than 300,000
shares of Common Stock in the aggregate in any fiscal year of the
Company. Corresponding Tax Offset Payments (as defined below)
also may be awarded at the discretion of the Committee (as
defined below). The shares of Common Stock available under the
1994 Plan and all awards are subject to adjustment in certain
circumstances as hereinafter described. Shares of Common Stock
attributable to lapsed or forfeited awards may become available
for subsequent awards under the 1994 Plan.
-3-
As of December 18, 1995, Options exercisable for
173,750 shares of Common Stock were available for future grants
under the 1994 Plan and Options exercisable for 426,250 shares of
Common Stock had been granted none of which become exercisable
until December 31, 1995 at the earliest. As of December 18,
1995, all outstanding Options expire at dates ranging from
December 31, 2002 to October 13, 2005.
The 1994 Plan is not subject to the requirements of the
Employee Retirement Income Security Act of 1974. The 1994 Plan
is not, nor is it intended to be, qualified under Section 401(a)
of the Internal Revenue Code of 1986, as amended (the "Code").
Federal Income Tax Consequences
The following summary of the principal federal income
tax consequences to the Company and its employees of the grant of
Awards is based upon an analysis of the Code as currently in
effect, existing laws, judicial decisions, administrative
rulings, regulations and proposed regulations, all of which are
subject to change. Moreover, the following is only a summary of
federal income tax consequences and the federal income tax
consequences to any individual employee may be either more or
less favorable than those described below depending on his or her
particular circumstances.
Incentive Stock Options
The 1994 Plan provides for the grant of Options that
qualify as "incentive options" under the rules of Section 422 of
the Code. In general, neither the grant nor the exercise of an
ISO granted under the 1994 Plan will result in taxable income to
the employee or a deduction to the Company. However, the excess
of the fair market value of the Common Stock acquired upon
exercise of an ISO over the option price is included in the
"alternative minimum taxable income" of the optionee for the year
in which the ISO is exercised and may subject the optionee to
increased taxes under the "alternative minimum tax." To receive
incentive option treatment, generally, the optionee must not
dispose (a "disqualifying disposition") of the Common Stock
within two years after the Option is granted and must hold the
Common Stock itself for at least one year after the transfer of
such Common Stock to such optionee.
If Common Stock acquired pursuant to the exercise of an
ISO is disposed of in a disqualifying disposition, any gain
realized by the optionee generally will be taxable at the time of
such disqualifying disposition as (i) ordinary income to the
extent of the difference between the exercise price and the
lesser of (a) the fair market value of the Common Stock on the
date the ISO is exercised or (b) the amount realized on such
disqualifying disposition and (ii) short-term or long-term
capital gain to the extent of any excess of the amount realized
on the disposition over the fair market value of the Common Stock
on the date the ISO is exercised. Upon a disqualifying
disposition, the Company will be entitled to a deduction equal to
the amount of ordinary income included by the optionee in his
income.
Payment for Common Stock upon the exercise of an ISO
may, at the discretion of the Committee (as defined below), be
made in whole or in part with other shares of Common Stock. An
optionee that uses stock acquired pursuant to the exercise of any
ISO to acquire other stock in connection with the exercise of an
ISO will recognize gain (or loss) on the transfer of such other
-4-
shares. Such gain may be treated as ordinary income if the other
shares so used have not met the minimum statutory holding period
necessary to receive incentive stock option treatment.
Nonstatutory Stock Options
Generally, an optionee will not recognize taxable
income and the Company will not be allowed any deduction upon the
grant of a NSO. Upon exercise of a NSO, an optionee generally
will recognize ordinary income and the Company will be entitled
to a corresponding tax deduction equal to the amount by which the
fair market value of the shares on the exercise date exceeds the
exercise price.
Stock Appreciation Rights, Performance Shares and
Performance Units
There will be no federal income tax consequences to
either the employee or the Company upon the grant of an SAR,
Performance Share or Performance Unit. Generally, the employee
will recognize ordinary income upon the receipt of payment
pursuant to an SAR, Performance Share or Performance Unit in an
amount equal to the fair market value of the Common Stock and the
aggregate amount of cash received. The Company generally will be
entitled to a corresponding tax deduction equal to the amount
includible in the employee's income.
Restricted Shares
Generally, absent an election to be taxed currently
under Section 83(b) of the Code (a "Section 83(b) Election"),
there will be no federal income tax consequences to either the
employee or the Company upon the grant of Restricted Shares. At
the expiration of the restricted period and the satisfaction of
any other restrictions applicable to the Restricted Shares, the
employee will recognize ordinary income and the Company will be
entitled to a corresponding deduction equal to the fair market
value of the Common Stock at that time. If a Section 83(b)
Election is made within 30 days after the date the Restricted
Shares are received, the employee will recognize an amount of
ordinary income at the time of the receipt of the Restricted
Shares and the Company will be entitled to a corresponding
deduction equal to the fair market value (determined without
regard to applicable restrictions) of the shares at such time.
If a Section 83(b) Election is made, no additional income will be
recognized by the employee upon the lapse of restrictions on the
shares, but, if the shares are subsequently forfeited, the
employee may not deduct the income that was recognized pursuant
to the Section 83(b) Election at the time of the receipt of the
shares.
Unrestricted Shares
Generally, the employee will recognize ordinary income
upon the receipt of Unrestricted Shares in an amount equal to the
fair market value of the Common Stock when received. The Company
generally will be entitled to a corresponding tax deduction equal
to the amount includible in the employee's income.
-5-
Tax Offset Payments
Tax Offset Payments will constitute additional ordinary
income to an employee when received by an employee or when used
by the Company to satisfy its withholding obligations with
respect to an employee. The Company will be entitled to a tax
deduction equal to the amount of the Tax Offset Payment included
in an employee's income.
Persons Subject to Liability Under Section 16(b) of the
Exchange Act
Special rules apply under the Code which may delay the
timing and alter the amount of income recognized with respect to
awards granted to persons subject to liability under the short-
swing profits recapture rules of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Such
persons include directors, "officers" for purposes of Section 16
of the Exchange Act and holders of more than 10% of the
outstanding Common Stock ("16(b) Insiders"). Generally, 16(b)
Insiders are subject to such liability for the six-month period
after the grant of stock-based awards. Unless a Section 83(b)
Election is made, the computation and the recognition of income
by a 16(b) Insider with respect to an award not otherwise subject
to restrictions is deferred until he is no longer subject to suit
under Section 16(b) of the Exchange Act.
Limitations on the Company's Compensation Deduction
Section 162(m) of the Code limits the deduction which
the Company may take for otherwise deductible compensation paid
to certain executive officers of the Company to the extent that
compensation paid to such officers for such year exceeds $1
million, unless such compensation is performance-based, is
approved by the Company's stockholders and meets certain other
criteria. To date, only proposed, and not final, Treasury
Regulations have been issued with respect to Section 162(m) of
the Code. Although the Company intends that Awards under the
1994 Plan will satisfy the requirements to be considered
performance-based for purposes of Section 162(m) of the Code,
there is no assurance such awards will satisfy such requirements,
and, accordingly, the Company may be limited by Section 162(m) of
the Code in the amount of deductions it would otherwise be
entitled to take (as described in the foregoing summary) with
respect to Awards under the 1994 Plan. In addition, because the
grant of Unrestricted Shares and the payment of Tax Offset
Payments will not be conditioned upon the achievement of
performance goals, the deduction attributable to the grant of
Unrestricted Shares and the payment of Tax Offset Payments may be
limited under Section 162(m) of the Code.
Tax Withholding
The Committee (as defined below) may require payment,
or withhold payments made by the 1994 Plan, in order to satisfy
applicable withholding tax requirements.
-6-
Designation of Participants and Administration of the Plan
The 1994 Plan is administered by a committee of two or
more disinterested directors (the "Committee"). The
determination of which members of the Board may serve on the
Committee will be made in accordance with the requirements of
Rule 16b-3 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). The Committee has the full power in its
discretion to grant Awards under the 1994 Plan, to determine the
terms thereof, to interpret the provisions of the 1994 Plan and
to take such action as it deems necessary or advisable for the
administration of the 1994 Plan. The Board of Directors has
authorized its Compensation and Plan Administration Committee to
function as the Committee. The Compensation and Plan
Administration Committee currently consists of three Board
members, Messrs. Andrew M. Saul, Mark E. Goldberg and Morton J.
Schrader, appointed by the Board of Directors and who may be
removed from their Committee positions by the Board. Each member
of the Company's Board of Directors (including the Committee
members) has been elected by the Company's stockholders for a
term to expire at the next annual meeting of stockholders and
until his respective successor shall have been duly elected and
qualified. Directors may be removed from office with or without
cause by the vote of holders holding a majority of the Company's
shares entitled to vote at an election of directors. As of
December 1, 1995, Messrs. Andrew and Joseph Saul and certain Saul
family trusts owned an aggregate of approximately 60.90% of the
outstanding shares of Common Stock. The address of each member
of the Committee is c/o Cache, Inc., 1460 Broadway, New York, New
York 10036.
All employees of the Company and its subsidiaries are
generally eligible to receive Awards under the 1994 Plan.
However, no employee may receive awards of or relating to more
than 300,000 shares of Common Stock in the aggregate in any
fiscal year of the Company. Awards may be made to a director of
the Company who is not also a member of the Committee, provided
that the director is also an employee. Approximately 1,000
employees of the Company and its subsidiaries are eligible to
participate in the 1994 Plan; however, the Committee currently
expects to select as participants certain members of senior
management (which currently consists of approximately 3
employees). Currently, 3 employees participate in the 1994 Plan.
Participation in the 1994 Plan is at the discretion of the
Committee and shall be based upon the employee's present and
potential contributions to the success of the Company and its
subsidiaries and such other factors as the Committee deems
relevant.
The Committee has the power and authority (a) to grant
ISOs and/or NSOs and to determine the purchase price of the
Common Stock covered by each Option, the term of each Option, the
number of shares of Common Stock to be covered by each Option and
any performance objectives or vesting standards applicable to
each Option; (b) to designate Options as ISOs or NSOs and to
determine which Options, if any, shall be accompanied by Tandem
SARs; (c) to grant Tandem and Nontandem SARs (each as defined
below) and to determine the terms and conditions of such rights;
(d) to grant Restricted Shares and to determine the term of the
restricted period and other conditions and restrictions
applicable to such shares; (e) to grant Performance Shares and
Performance Units and to determine the performance objectives,
performance periods and other conditions applicable to such
shares or units; (f) to grant Unrestricted Shares; (g) to
determine the amount of, and to make, Tax Offset Payments; and
(h) to determine the employees to whom, and the time or times at
which, Options, SARs, Restricted Shares, Performance Shares,
Performance Units and Unrestricted Shares shall be granted.
-7-
In addition, the Committee has the sole discretion and
authority to interpret the terms of the 1994 Plan, to adopt and
revise the rules and policies and to administer the 1994 Plan and
make any other factual determinations which it believes to be
necessary or advisable for the administration of the 1994 Plan.
All actions taken and interpretations and determinations made by
the Committee in good faith are final and binding upon the
Company, all employees who have received awards under the 1994
Plan and all other interested persons.
Grant of Options and SARs
The Committee may award Options to employees. SARs may
be awarded either in tandem with Options ("Tandem SARs") or on a
stand-alone basis ("Nontandem SARs").
Option Price
The 1994 Plan provides that the option price is
determined by the Committee at the time of grant. The option
price determined with respect to an Option shall also be
applicable in connection with the exercise of any Tandem SAR
granted with respect to such Option. At the time of grant of a
Nontandem SAR, the Committee will specify the base price of the
shares of Common Stock to be used for determining the amount of
cash or number of shares of Common Stock to be distributed upon
the exercise of such Nontandem SAR. Neither the option price per
share of Common Stock nor the base price of Nontandem SARs will
be less than 100% of the market price of the Common Stock on the
date of such grant. The last sales price of the Common Stock, as
reported on the NASDAQ National Market System on December 13,1995,
was $3.50 per share.
Vesting
The Committee will determine at the time of grant the
terms under which Options and SARs shall vest and become
exercisable.
Special Limitations on ISOs
No ISO may be granted to an employee who owns, at the
time of the grant, stock representing more than 10% of the total
voting power of all classes of stock of the Company or its
subsidiaries (a "10% Stockholder") unless the option price for
the shares subject to such ISO is at least 110% of the market
price on the date of grant and such ISO award is not exercisable
more than five years after its date of grant. In addition, the
total fair market value of shares subject to ISOs which are
exercisable for the first time by an employee in a given calendar
year shall not exceed $100,000, valued as of the date of the
ISO's grant. ISOs may not be granted more than ten years after
the date the 1994 Plan is approved by the Company's shareholders.
Exercise of Options and SARs
An Option may be exercised in whole or in part in
accordance with procedures to be established by the Committee.
Common Stock purchased upon the exercise of the Option shall be
paid for at the time of purchase. Such payment shall be made in
cash or, in the discretion of the Committee, (i) through delivery
of shares of Common Stock already owned by the employee (valued
at the market price on the date of exercise), (ii) by having the
Company withhold from shares of Common Stock
-8-
otherwise deliverable to the employee (valued at the market price on the
date of exercise), (iii) by delivery of the employee's promissory
note, or (iv) by a combination of any of the foregoing. If the
exercise price is paid in whole or in part with an employee's
promissory note, the note must provide for full recourse to the
maker, be collateralized by the pledge of the shares of Common
Stock purchased upon exercise of the Option, and bear interest at
a rate no less than the then applicable federal rate (within the
meaning of Section 1274 of the Code) for debt instruments with a
term equal to the term of the note.
Tandem SARs are exercisable only to the extent that the
related Option is exercisable and only for the period determined
by the Committee. Upon exercise of all or a portion of Tandem
SARs, the related Option shall be canceled with respect to an
equal number of shares of Common Stock. Similarly, upon exercise
of all or a portion of an Option, the related Tandem SARs shall
be canceled with respect to an equal number of shares of Common
Stock. Nontandem SARs shall be exercisable for the period
determined by the Committee.
Surrender or Exchange of SARs
Upon surrender of a Tandem SAR and the related
unexercised Option, the employee will be entitled to receive
shares of Common Stock having an aggregate market price equal to
(i) the market price of the shares subject to the unexercised
Option, less (ii) the aggregate option price specified in the
Option. Upon surrender of a Nontandem SAR, the employee will be
entitled to receive shares of Common Stock having an aggregate
market price equal to (i) the market price of the shares covered
by the Nontandem SAR, less (ii) the aggregate base price of such
shares specified by the Committee. The Committee, at its
discretion, shall cause all or any portion of the payment to be
made in cash in lieu of Common Stock. Any fractional shares
resulting from the exercise of an SAR will be paid in cash.
Nontransferability of Options and SARs
Options and SARs may not be transferred, assigned,
pledged or hypothecated (whether by operation of law or
otherwise), are not transferable except by will or applicable
laws of descent and distribution; however, the Committee may
authorize certain transfers to the extent allowable under
applicable law.
Expiration of Options
Options will expire at such time as the Committee
determines; however, an ISO may not be exercised more than ten
years from the date of grant, unless held by a 10% Stockholder,
in which case such ISO may not be exercised more than five years
from the date of grant.
Effect of Termination of Employment, Disability, Death
or Change in Control on Options and SARs
If an employee ceases to be employed by the Company for
any reason (other than death or Disability), such employee has
the right to exercise any vested Options or SARs within three
months after termination of employment or such longer period as
the Committee shall determine. All Options and SARs that have
been granted to an employee which have not vested as of the date
of the employee's termination of employment (other than by death
or Disability) shall terminate as of such date.
-9-
The Committee in its sole discretion may cause an Option or SAR to
be forfeited upon an employee's termination of employment for any of the
following reasons: (i) the employee's conviction or plea of
guilty or nolo contendere to the commission of a felony, (ii) the
employee's commission of any fraud, misappropriation or
misconduct which causes demonstrable injury to the Company, (iii)
any act of dishonesty resulting or intended to result in gain or
personal enrichment at the Company's expense, or (iv) any breach
of the employee's fiduciary duties to the Company as an employee
or officer.
In the event the employee's employment is terminated by
his death, the designated beneficiary or the employee's personal
representatives, heirs or legatees, as applicable, may exercise
any Options or SARs (whether or not vested) within three years
after the date of the employee's death; provided that any ISO
shall no longer be treated as an ISO unless exercised within 3
months of the employee's death.
In the event of the Disability (as defined in the 1994
Plan) of an employee, the employee may exercise any Options or
SARs (whether or not vested) then held by him until the
expiration date of such Options or SARs, provided that any ISO
shall no longer be treated as an ISO unless exercised within 3
months of the date of such Disability (or within one year in the
case of an employee who is "disabled" within the meaning of
Section 22(e)(3) of the Code).
If so determined by the Committee at the time of grant,
any Options or SARs may provide that they become immediately
exercisable upon a "Change in Control'' (defined below) of the
Company. The 1994 Plan defines a "Change in Control" as the
occurrence of any of the following events: (i) if less than 25%
of the outstanding Common Stock in the aggregate is beneficially
owned (as defined in Rule 13d-3 under the Exchange Act) by Andrew
M. Saul and Joseph E. Saul, members of their immediate families
and one or more trusts established for the benefit of such
individuals or members, (ii) the sale of the Company
substantially as an entirety (whether by sale of stock, sale of
assets, merger, consolidation or otherwise), (iii) any tender
offer or exchange offer for shares of Common Stock in which all
holders of Common Stock are entitled to participate and in
connection with which the Sauls have agreed to sell such a number
of shares of Common Stock as will result in the Sauls
beneficially owning less than 25% of the Common Stock
outstanding, or (iv) if twenty percent or more of the directors
elected by shareholders to the Board of Directors are persons who
were not nominated by management in the most recent proxy
statement of the Company.
Restricted Shares
Restricted Shares granted under the l994 Plan may not
be sold, transferred, pledged or otherwise encumbered or disposed
of during the restricted period established by the Committee.
The Committee may also impose additional restrictions on an
employee's right to dispose of or encumber Restricted Shares.
Holders of Restricted Shares may not exercise the
rights of a shareholder, such as the right to vote the shares or
receive dividends and other distributions.
Upon termination of an employee's employment,
Restricted Shares granted to such employee shall be forfeited;
however, in the event such employee's employment is terminated as
a result of his death, Disability or a Change in Control of the
Company, the Committee shall have the discretion to determine
otherwise.
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Performance Shares and Performance Units
The Committee may award Performance Shares equivalent
to one share of Common Stock and Performance Units which will
have a specified value or formula-based value at the end of a
performance period. The Committee shall determine performance
periods and performance objectives in connection with each grant
of Performance Shares or Performance Units.
Vesting of awards of Performance Shares and Performance
Units will occur upon achievement of the applicable objectives
within the applicable performance period. The Committee may, at
its discretion, permit vesting in the event performance
objectives are partially met or grant additional vested
Performance Shares or Performance Units in the event performance
objectives are surpassed. Payment for vested Performance Shares
and Performance Units may be in cash, Common Stock or any
combination thereof, as determined by the Committee.
No voting or dividend rights attach to the Performance
Shares; however, the Committee may credit an employee's
Performance Share account with additional shares equivalent to
the fair market value of any dividends on an equivalent number of
shares of Common Stock.
Unrestricted Shares
Unrestricted Shares may also be granted at the
discretion of the Committee. No payment shall be required for
Unrestricted Shares.
Tax Offset Payments
The Committee may make Tax Offset Payments to assist
employees in paying income taxes incurred as a result of their
participation in the 1994 Plan. The number of shares with
respect to which Tax Offset Payments may be awarded will not
exceed the number of shares available for issuance under the 1994
Plan. The amount of the Tax Offset Payments will be determined
by multiplying a percentage (established by the Committee) times
all or a portion of the taxable income recognized by an employee
upon (i) the exercise of a NSO or SAR; (ii) the disposition of
shares received upon exercise of an ISO; (iii) the lapse of
restrictions on Restricted Shares; (iv) the award of Unrestricted
Shares or (v) payments of Performance Shares or Performance
Units.
Adjustment Upon Changes in Capitalization
The number and class of shares available under the 1994
Plan may be adjusted by the Committee to prevent dilution or
enlargement of rights in the event of various changes in the
capitalization of the Company. At the time of grant of any
Options, SARs, Restricted Shares or Performance Shares, the
Committee may provide for such adjustments as the Committee shall
deem appropriate to prevent dilution or enlargement of rights in
the event of various changes in the capitalization of the
Company.
Amendment and Termination
The Board of Directors may suspend, amend, modify or
terminate the 1994 Plan; however, the Company's shareholders must
approve any amendment that would (i) materially increase the
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aggregate number of shares issuable under the 1994 Plan, (ii)
materially increase the benefits accruing to employees under the
1994 Plan, or (iii) materially modify the requirements for
eligibility to participate in the 1994 Plan.
Restrictions on Shares Received Under the 1994 Plan
Employees receiving Common Stock upon the exercise of
Options granted under the 1994 Plan will be free to resell such
shares publicly without restriction under the exemption from
registration provided by Section 4(1) of the Securities Act of
1933, as amended (the "Securities Act"), except for employees who
may be deemed to be "affiliates" of the Company, who will either
have to sell Common Stock received under the 1994 Plan pursuant
to an appropriate effective registration statement under the
Securities Act or pursuant to an available exemption from
registration. "Affiliate" is defined under the Securities Act
as a person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with the Company. In general, persons with power to
manage and direct the policies of the Company, certain relatives
of any of the foregoing persons and trusts, estates, corporations
or other organizations controlled by any of the foregoing persons
may be deemed to be affiliates of the Company.
With respect to an employee who may be deemed an
affiliate, if at the time such person wishes to sell Common Stock
received under the 1994 Plan there is not in effect a current
registration statement filed for the purpose of registering
shares to be reoffered by such affiliate or which covers as part
of the shares to be registered such shares to be reoffered, such
person would be obligated as a precondition to any proposed offer
or sale either (i) to comply with Rule 144 promulgated under the
Securities Act, which among other restrictions, limits the manner
of sales and the amount of Common Stock which may be sold in any
three-month period, or Rule 144A promulgated under the Securities
Act; or (ii) to effect a "private placement" of such shares in
accordance with the Securities Act. This Information Statement
may not be utilized in connection with such reoffers by
affiliates. In addition, directors and officers of the Company
and beneficial owners of more than 10% of the Company's Common
Stock acquiring Common Stock should note the applicable
provisions of Section 16(a) and 16(b) of the Exchange Act. It is
recommended that each officer and key employee who may be an
affiliate consult counsel as to whether he or she would be
subject to any of the foregoing restrictions or provisions on
resale.
Incorporation of Certain Documents by Reference
As of any time, the following documents filed with the
Commission are incorporated in this Prospectus by reference:
(a) The then latest annual report on Form 10-K filed by
the Company pursuant to Section 13 of the Exchange Act;
(b) All other reports filed by the Company pursuant to
Section 13(a) or (c) of the Exchange Act since the end of
the fiscal year covered by its annual report referred to in
(a) above;
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(c) The definitive proxy statement most recently
filed by the Company pursuant to Section 14 of the Exchange
Act in connection with an Annual Meeting of Stockholders,
and any definitive proxy statements so filed in connection
with any subsequent special meetings of stockholders and all
other then current documents so filed by the Company; and
(d) The then latest appendix or supplement to this
Prospectus, if any, filed by the Company pursuant to Rule
424(c) under the Securities Act (unless the information
contained in such appendix or supplement has been updated
and included in the definitive proxy statement referred to
in (c) above).
All such documents shall be deemed to be incorporated
in this Prospectus by reference from the date of the filing of
such documents.
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EXHIBIT 5
[Letterhead of Greenberg, Traurig]
December 18, 1995
Cache, Inc.
1460 Broadway
New York, New York 10036
Dear Sirs:
We have acted as special counsel to Cache, Inc., a Florida
corporation (the "Company"), in connection with the preparation and filing
by the Company with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1993, as amended (the "Securities
Act"), relating to the offer and sale of an aggregate of up to 600,000
shares (the "Shares") of Common Stock, par value $.01 per share, of the
Company to certain key employees of the Company and its subsidiaries
pursuant to the exercise of stock options and other awards (the "Options")
granted to such persons under the Company's 1994 Stock Option and
Performance and Incentive Plan (the "1994 Plan").
In that connection, we have reviewed the Company's Articles of
Incorporation as amended, its By-laws, copies of actions of the Board of
Directors, and the shareholders relating to the adoption of the 1994 Plan,
the 1994 Plan and an officers certificate (the "Officer's Certificate"),
containing representations to us, executed by an officer of the Company.
We have made no independent investigation of any factual matters
relevant to our opinion, and have relied solely on the representations
as to such matters contained in the Officers Certificate. We
have assumed, but have not independently verified, that the signature on the
documents examined by us are genuine.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that when issued
and delivered to and paid for by the purchasers thereof in accordance with
the terms of the Options, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to this firm under the
heading "Legal Matters" in the Prospectuses which form a part thereof.
In giving such consent, we do not thereby admit that we are in the catagory
of person whose consent is required under Section 7 of the Securities Act
or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
/s/ Kenneth C. Hoffman
Kenneth C. Hoffman
EXHIBIT 23.1
CONSENT OF PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 15, 1995
included in Cache, Inc.'s Form 10-K for the year ended December 31, 1994
and to all references to our firm included in this registration statement.
December 18, 1995
Arthur Andersen LLP