-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Qisqx/Pmqz3dP5O+avNiv4XlwFY+HoYaeK3E7FS632EhUadu7+vQ+9+B9q7mRNHh qX5Rm3qyDRN+OEC9FAZdIQ== 0000922423-97-000657.txt : 19970812 0000922423-97-000657.hdr.sgml : 19970812 ACCESSION NUMBER: 0000922423-97-000657 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970811 EFFECTIVENESS DATE: 19970811 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: FAB INDUSTRIES INC CENTRAL INDEX KEY: 0000034136 STANDARD INDUSTRIAL CLASSIFICATION: KNITTING MILLS [2250] IRS NUMBER: 132581181 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-33349 FILM NUMBER: 97655771 BUSINESS ADDRESS: STREET 1: 200 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10016 BUSINESS PHONE: 2122799000 MAIL ADDRESS: STREET 1: 200 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10016 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 11, 1997 Registration No. 333-___ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- FAB INDUSTRIES, INC. (Exact name of registrant as specified in its charter) DELAWARE 13-2581181 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 200 MADISON AVENUE NEW YORK, NEW YORK 10016 (Address of Principal Executive Offices) --------------- FAB INDUSTRIES, INC. 1997 STOCK INCENTIVE PLAN (Full Title of the Plan) DAVID A. MILLER, VICE PRESIDENT C/O FAB INDUSTRIES, INC. 200 MADISON AVENUE NEW YORK, NEW YORK 10016 (Name and Address of Agent for Service) (212) 592-2700 (Telephone Number, Including Area Code, of Agent for Service) COPIES TO: Richard Marlin, Esq. Kramer, Levin, Naftalis & Frankel 919 Third Avenue New York, New York 10022 (212) 715-9100 CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Proposed Proposed Title of Maximum Maximum Amount of Securities to be Amount to be Offering Price Aggregate Registration Registered Registered Per Share(1) Offering Price Fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, 175,000 shares $32.3125 $5,654,687.50 $1,720 par value $.20 per share ====================================================================================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933 (the "Securities Act"), as amended, based upon the average of the high and low sales prices for the Common Stock reported on the American Stock Exchange on August 8, 1997. 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 Annual Report on Form 10-K for the fiscal year ended November 30, 1996 (File No. 1-5901), filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 1, 1997, filed pursuant to Section 13(a) of the Exchange Act; (c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 1997, filed pursuant to Section 13(a) of the Exchange Act; and (d) The Registrant's Registration Statement on Form S-8 (Registration No. 33-29219) , filed pursuant to the Securities Act, which contains a description of the Registrant's Common Stock, including any amendment or report filed for the purpose of updating such description. 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 to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interest of Named Experts and Counsel. The Consolidated Financial Statements and schedule of the Registrant for each of the three fiscal years in the period ended November 30, 1996, incorporated by reference herein, have been audited by BDO Seidman, LLP, independent certified public accountants, as indicated in their report with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in accounting and auditing in giving such report. The validity of the shares of Common Stock offered hereby has been passed upon for the Registrant by Kramer, Levin, Naftalis & Frankel. Richard Marlin, a director of the Registrant, is a member of Kramer, Levin, Naftalis & Frankel and owns 500 shares of Common Stock of the Registrant. Item 6. Indemnification of Directors and Officers. Reference is made to Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which permits a corporation in its certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty, except (i) for any breach of the director's fiduciary duty of loyalty to the corporation or its stockholders (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing -2- for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant's Restated Certificate of Incorporation, as amended, contains provisions permitted by Section 102(b)(7) of the DGCL. Reference is made to Section 145 of the DGCL which provides that a corporation may indemnify any persons, including directors and officers, who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such director, officer, employee or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify directors and/or officers in an action or suit by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the director or officer is adjudged to be liable to the corporation. Where a director or officer is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such director or officer actually and reasonably incurred. The Registrant's Restated Certificate of Incorporation, as amended, provides for indemnification of directors and officers of the Registrant to the fullest extent permitted by the DGCL. The Registrant also maintains liability insurance for each director and officer for certain losses arising from claims or charges made against them while acting in their capacities as directors or officers of the Registrant. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number Description -------------- ----------- 4.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 filed as part of the Registrant's Annual Report on Form 10-K for the fiscal year ended November 27, 1993). 4.2 Certificate of Amendment of Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.3 filed as part of the Registrant's Annual Report on Form 10-K for the fiscal year ended December 3, 1994). 4.3 Amended and Restated By-laws of the Registrant (incorporated by reference to Exhibit 3.2 filed as part filed as part of the Registrant's Annual Report on Form 10-K for the fiscal year ended November 27, 1993). 5 Opinion of Kramer, Levin, Naftalis & Frankel. 23.1 Consent of BDO Seidman, LLP. 23.3 Consent of Kramer, Levin, Naftalis & Frankel (contained in the opinion filed as Exhibit 5 hereto). -3- 24 Power of Attorney (included on the signature page of this Registration Statement). Item 9. Undertakings. 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 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. (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 the 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 which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 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. 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 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. -4- 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 11 day of August, 1997. FAB INDUSTRIES, INC. By: /s/ Samson Bitensky --------------------------- Name: Samson Bitensky Title: Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Samson Bitensky and David A. Miller his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said 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 for 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. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons on August 11, 1997 in the capacities indicated. Signature Title(s) --------- -------- /s/ Samson Bitensky - ------------------------- Samson Bitensky Chairman of the Board, Chief Executive Officer, and Director (Principal Executive Officer) /s/ David A. Miller - ------------------------- David A. Miller Vice President - Finance and Treasurer (Principal Financial and Accounting Officer) /s/ Sherman S. Lawrence - ------------------------- Sherman S. Lawrence Secretary and Director /s/ Lawrence Bober - ------------------------- Lawrence Bober Director /s/ Richard Marlin - ------------------------- Richard Marlin Director /s/ Louis Feil - ------------------------- Louis Feil Director - ------------------------- Oscar Kunreuther Director /s/ Susan B. Lerner - ------------------------- Susan B. Lerner Director EX-5 2 OPINION OF KRAMER, LEVIN, NAFTALIS & FRANKEL EXHIBIT 5 Kramer, Levin, Naftalis & Frankel 919 THIRD AVENUE NEW YORK, N.Y. 10022 - 3852 (212) 715 - 9100 Arthur H. Aufses III Monica C. Lord Sherwin Kamin Thomas D. Balliett Richard Marlin Arthur B. Kramer Jay G. Baris Thomas E. Molner Maurice N. Nessen Philip Bentley Thomas H. Moreland Founding Partners Saul E. Burian Ellen R. Nadler Counsel Barry Michael Cass Gary P. Naftalis _____ Thomas E. Constance Michael J. Nassau Michael J. Dell Michael S. Nelson Martin Balsam Kenneth H. Eckstein Jay A. Neveloff Joshua M. Berman Charlotte M. Fischman Michael S. Oberman Jules Buchwald David S. Frankel Paul S. Pearlman Rudolph de Winter Marvin E. Frankel Susan J. Penry-Williams Meyer Eisenberg Alan R. Friedman Bruce Rabb Arthur D. Emil Carl Frischling Allan E. Reznick Maria T. Jones Mark J. Headley Scott S. Rosenblum Maxwell M. Rabb Robert M. Heller Michele D. Ross James Schreiber Philip S. Kaufman Howard J. Rothman Counsel Peter S. Kolevzon Max J. Schwartz _____ Kenneth P. Kopelman Mark B. Segall Michael Paul Korotkin Judith Singer M. Frances Buchinsky Shari K. Krouner Howard A. Sobel Abbe L. Dienstag Kevin B. Leblang Jeffrey S. Trachtman Ronald S. Greenberg David P. Levin Jonathan M. Wagner Debora K. Grobman Ezra G. Levin Harold P. Weinberger Christian S. Herzeca Larry M. Loeb E. Lisk Wyckoff, Jr. Jane Lee Pinchas Mendelson Lynn R. Saidenberg Special Counsel ----- FAX (212) 715-8000 --- WRITER'S DIRECT NUMBER (212)715-9100 ------------- August 11, 1997 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We have acted as counsel to Fab Industries, Inc., a Delaware corporation (the "Registrant"), in connection with the preparation and filing of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission"), with respect to the registration under the Securities Act of 1933, as amended (the "Act"), of an aggregate of 175,000 shares (the "Shares") of common stock, par value $.20 per share, to be issued pursuant to the Registrant's 1997 Stock Incentive Plan (the "Plan"). In connection with the registration of the Shares, we have reviewed copies of the Registration Statement, the Plan, the Restated Certificate of Incorporation and the Bylaws, as amended, of the Registrant, and such other documents and records as we have deemed necessary to enable us to express an opinion on the matters covered hereby. In KRAMER, LEVIN, NAFTALIS & FRANKEL Securities and Exchange Commission August 11, 1997 Page 2 rendering this opinion, we have (a) assumed (i) the genuineness of all signatures on all documents examined by us, (ii) the authenticity of all documents submitted to us as originals, and (iii) the conformity to original documents of all documents submitted to us as photostatic or conformed copies and the authenticity of the originals of such copies; and (b) relied on (i) certificates of public officials and (ii) as to matters of fact, statements and certificates of officers and representatives of the Registrant. Based upon the foregoing, we are of the opinion that the Shares covered by the Registration Statement, following the granting of the options and restricted stock described in the Plan and upon delivery of such Shares and payment therefor at the prices and in accordance with the terms stated in the Plan, will be validly issued, fully paid and non-assessable. Richard Marlin, a member of this firm, is a director of the Registrant and owns 500 shares of Common Stock of the Registrant. Such information is also disclosed in Item 5 of Part II of the Registration Statement. We hereby consent to the use of this opinion as an exhibit to the Registration Statement and to the use of our name in Item 5 of Part II in the Registration Statement. In giving the foregoing consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. We are delivering this opinion to the Registrant, and no person other than the Registrant may rely upon it. Very truly yours, /s/ KRAMER, LEVIN, NAFTALIS & FRANKEL ------------------------------------- KRAMER, LEVIN, NAFTALIS & FRANKEL EX-23.1 3 CONSENT OF BDO SEIDMAN, LLP. EXHIBIT 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS Fab Industries, Inc. New York, New York We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 6, 1997 relating to the consolidated financial statements and schedule of Fab Industries, Inc. and subsidiaries appearing in the Company's Annual Report on Form 10-K for the year ended November 30, 1996. We also consent to the reference to us under the caption "Experts" in the Registration Statement. BDO SEIDMAN, LLP New York, New York August 11, 1997 -----END PRIVACY-ENHANCED MESSAGE-----