As filed with the Securities and Exchange Commission on June 8, 1998.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BERNARD CHAUS, INC.
(Exact name of registrant as specified in its charter)
New York 13-2807386
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
1410 Broadway
New York, New York 10018
(Address of Principal Executive Offices) (Zip Code)
BERNARD CHAUS, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
Josephine Chaus
Chairwoman of the Board and Office of the Chairman
Bernard Chaus, Inc.
1410 Broadway
New York, New York 10018
(212) 354-1280
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
Richard A. Goldberg, Esq.
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Maximum Proposed Maximum
Securities Amount Offering Price Per Aggregate Amount of
to be Registered to be Registered(1) Share Offering Price Registration Fee
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Common Stock,
par value $.01 per share 2,711,591 shares $4.3125(2) $11,693,736(2) $3,449.65
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(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The Proposed Maximum Offering Price Per Share
represents the average of the high and low sale prices reported on the New
York Stock Exchange, Inc. on June 4, 1998.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by Bernard Chaus,
Inc., a New York corporation (the "Registrant"), with the Securities and
Exchange Commission (the "Commission"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the period ended
June 30, 1997, as amended by the Registrant's Annual Report on Form 10-K/A
filed with the Commission on November 7, 1997.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1997, December 31, 1997 and March 31, 1998.
(c) The description of the Registrant's common stock, par value $.01
per share ("Common Stock"), which is contained in a registration statement
filed under Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Registrant
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 have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the time of filing of such documents.
Any statement contained in the documents incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this registration statement.
Item 4. Description of Securities.
Not applicable.
2
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 722 and 726 of the New York Business Corporation Law (the
"BCL") grant the Registrant broad powers to indemnify and insure its directors
and officers against liabilities they may incur in such capacities. In
accordance therewith, the Registrant's Restated Certificate of Incorporation,
as amended (the "Charter"), and By-Laws provide for the fullest indemnification
of an officer or a director of the Company under the BCL. The Charter also
eliminates personal liability for any breach of directors' duty to the
Registrant and its stockholders, provided that such breach does not result from
(a)(i) an act or omission in bad faith, (ii) intentional misconduct or (iii) a
knowing violation of law, (b) a transaction from which a director derived a
personal benefit or financial gain to which the director was not entitled, or
(c) the approval of dividends, stock repurchases, asset distributions or loans
to directors in violation of the BCL.
The Registrant has entered into agreements with its directors and
certain of its officers that require the Registrant to indemnify such persons
against expenses, including attorneys' fees, judgments, fines, settlements and
other amounts incurred directly or indirectly in connection with any
proceeding, whether actual or threatened, to which any such person may be made
a party by reason of the fact that such person served as a director or officer
of the Registrant or any of its affiliated enterprises, provided that such
indemnification is consistent with the BCL. The agreements also require the
Registrant to carry directors' and officers' liability insurance for as long as
such person serves in a capacity that exposes such person to liability unless
and until the Registrant's Board of Directors decides that the cost of the
insurance does not justify the benefit. The Company has purchased such
directors' and officers' liability insurance covering certain liabilities which
may be incurred by its directors and officers in the performance of their
services for the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this registration
statement:
4.1 Bernard Chaus, Inc. 1998 Stock Option Plan.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Deloitte & Touche, LLP.
3
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included
in Exhibit 5.1).
24 Power of Attorney (included in signature page to this
registration statement).
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 of 1933;
(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. Notwithstanding
the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value
of securities offered would not exceed that which
was registered) and any deviation from the low or
high end of the estimated maximum offering range
may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if,
in the aggregate, the change in volume and price
represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective 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 registration statement is on Form S-3 or S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
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(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) The undersigned Registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such
issue.
5
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 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 27th day
of May, 1998.
BERNARD CHAUS, INC.
By: /s/ Josephine Chaus
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Josephine Chaus
Chairwoman of the Board and Office of the Chairman
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Josephine Chaus and Barton
Heminover, and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact, with full power of substitution and
resubstitution for him and on his behalf, and in his name, place and stead, in
any all capacities to execute and sign any and all amendments or post-effective
amendments to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that said attorneys-in-fact or
any of them or their or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof and the Registrant hereby confers like
authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Josephine Chaus Chairwoman of the Board and Office of May 27, 1998
- ------------------------------------ the Chairman
Josephine Chaus
/s/ Andrew Grossman Chief Executive Officer and Office of May 27, 1998
- ------------------------------------ the Chairman
Andrew Grossman
/s/ Harvey M. Krueger Director May 27, 1998
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Harvey M. Krueger
/s/ S. Lee Kling Director May 27, 1998
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S. Lee Kling
/s/ Philip G. Barach Director May 27, 1998
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Philip G. Barach
/s/ Barton Heminover Vice President - Corporate Controller May 27, 1998
- ------------------------------------ (principal accounting officer)
Barton Heminover
BERNARD CHAUS, INC.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
EXHIBIT
4.1 Bernard Chaus, Inc. 1998 Stock Option Plan.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Deloitte & Touche, LLP.