-----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, WepwNw8EHVP8b+59Hae0mrNJ8BGyyg4qnVq6Z9mtLKPtGixmeIDX8mnOGomJNYEB aXA2XqDzM+Oji3UDGEBNqg== 0000910680-98-000328.txt : 19980828 0000910680-98-000328.hdr.sgml : 19980828 ACCESSION NUMBER: 0000910680-98-000328 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980827 EFFECTIVENESS DATE: 19980827 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FAY LESLIE CO INC CENTRAL INDEX KEY: 0000796226 STANDARD INDUSTRIAL CLASSIFICATION: WOMEN'S, MISSES', AND JUNIORS OUTERWEAR [2330] IRS NUMBER: 133197085 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62379 FILM NUMBER: 98699462 BUSINESS ADDRESS: STREET 1: 1412 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10018 BUSINESS PHONE: 2122214000 MAIL ADDRESS: STREET 1: 1412 BROADWAY STREET 2: 1 PASSAN DRIVE CITY: NEW YORK STATE: NY ZIP: 10018 FORMER COMPANY: FORMER CONFORMED NAME: FAY LESLIE COMPANIES INC DATE OF NAME CHANGE: 19920703 S-8 1 THE LESLIE FAY COMPSNY, INC. FORM S-8 As filed with the Securities and Exchange Commission on August 27, 1998 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- THE LESLIE FAY COMPANY, INC. (Exact name of registrant as specified in its charter) Delaware 13-3197085 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1412 Broadway, New York, New York 10018 (Address of Principal Executive Offices) (Zip Code) 1997 Non-Employee Director Stock Option and Stock Incentive Plan of The Leslie Fay Company, Inc. (Full title of the plan) John J. Pomerantz The Leslie Fay Company, Inc. 1412 Broadway New York, New York 10018 (212) 221-4000 (Name, address and telephone number, including area code, of agent for service) with a copy to: Michael J. Shef, Esq. Parker Chapin Flattau & Klimpl, LLP 1211 Avenue of the Americas New York, New York 10036 Approximate date of commencement of proposed sale to public: As soon as practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------------- Title of Proposed maximum Proposed securities Amount to be offering price per maximum aggregate Amount of to be registered registered(1) share offering price registration fee - ----------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share 140,000 $4.0910 (2) $572,750 (2) $168.96 (2) - ----------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share 60,000 $6.1875 (3) $371,250 (3) $109.52 (3) - ----------------------------------------------------------------------------------------------------------------------- Total 200,000 $4.72 $944,000 $278.48 - -----------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all additional securities resulting from anti-dilution adjustments under the Plans. (2) Estimated pursuant to Rule 457 (h), solely for the purpose of calculating the registration fee on the basis of the exercise price of presently outstanding options. (3) Estimated pursuant to Rule 457(c), solely for the purpose of calculating the registration fee on the basis of the average of the high and low ask and bid prices per share of the Registrant's Common Stock on the over-the-counter market bulletin board on August 27, 1998. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents heretofore filed by the registrant with the Securities and Exchange Commission (Commission File No. 1-9196) pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein by reference: (a) The registrant's Annual Report on Form 10-K for the year ended January 3, 1998; (b) The registrant's Quarterly Report on Form 10-Q for the quarter ended April 4, 1998; and (c) The registrant's Quarterly Report on Form 10-Q for the quarter ended July 4, 1998. All documents filed subsequent to the date of this Registration Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and 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 date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Item 4. Description of Securities. The following is a summary description of the Company's Capital Stock and certain provisions of the Company's Certificate of Incorporation and By-Laws. The following discussion is qualified in its entirety by reference to such exhibits. Common Stock The Company is authorized to issue up to 20,000,000 shares of Common Stock, par value $.01 per share. As of August 4, 1998 there were issued and outstanding 6,812,000 shares of Common Stock. II-1 Preferred Stock The Company is authorized to issue up to 500,000 shares of preferred stock, par value $.01 per share. No shares of preferred stock are outstanding and the Company has no present plans for the issuance thereof. Voting Rights Holders of Common Stock have one vote for each share held on all matters submitted to a vote of stockholders. The quorum required for an ordinary meeting of stockholders consists of at least a majority of the voting power of the outstanding shares of the Company entitled to vote generally in the election of directors, represented in person or by proxy. The shares of common stock do not have cumulative voting rights in the election of directors. Thus, the holders of more than 50% of the Common Stock have the power to elect all of the directors, to the exclusion of the remaining stockholders. The Certificate of Incorporation provides that a Business Combination with an Interested Stockholder (as said terms are defined therein) must be approved by the affirmative vote of the holders of at least 80% of the outstanding voting stock, including the affirmative vote of the holders of at least 80% of the voting stock not owned by the interested stockholder or any affiliate thereof. Such provisions do not apply in the event the Business Combination has been approved by a majority of the Continuing Directors (as defined in the Certificate of Incorporation) or if the consideration paid in the combination meets certain provisions which are particularly set forth in the Certificate of Incorporation. Dividend and Other Rights Subject to the prior rights of any series of preferred stock which may from time to time be outstanding, holders of Common Stock are entitled to receive dividends, when, as and if declared by the Board of Directors out of the funds legally available therefor and, upon the liquidation, dissolution or winding up of the Company, are entitled to share ratably in all assets remaining after payment of liabilities and payment of accrued dividends and at liquidation preferences on the preferred stock, if any. The financing agreement with CIT dated June 2, 1997, however, permits the Company to pay dividends and repurchase stock in the aggregate amount of $5,000,000 in each of fiscal 1998 and 1999 only if, after giving effect to such payment, there are no continuing events of default under said financing agreement and if the Company has at least $5,000,000 in undrawn availability. Holders of Common Stock have no preemptive rights and have no rights to convert their Common Stock into any other securities. Item 5. Interests of Named Experts and Counsel. Not Applicable. II-2 Item 6. Indemnification of Directors and Officers. (a) Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") provides, in general, that a corporation incorporated under the laws of the State of Delaware, such as the registrant, may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. In the case of a derivative action, a Delaware corporation may indemnify any such person against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought determines such person is fairly and reasonably entitled to indemnity for such expenses. (b) Article IX of the registrant's Amended and Restated Certificate of Incorporation provides: "A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of such director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. Any repeal or modification of this Article IX, shall not adversely affect any right or protection of a director of the Corporation existing hereunder in respect of any act or omission occurring prior to such repeal or modification." Article X of the registrant's Amended and Restated Certificate of Incorporation provides: "Each person who is or was or had agreed to become a director or officer of the Corporation, or each such person who is or was serving or who had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executor, administrators or estate of such person), shall be indemnified by the Corporation, in accordance with the By-laws of the Corporation, to the fullest II-3 extent permitted from time to time by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment) or any other applicable laws as presently or hereafter in effect. The Corporation may, by action of the Board of Directors, provide indemnification to employees and agents of the Corporation, and to persons serving as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, at the request of the Corporation, with the same scope and effect as the foregoing indemnification of directors and officers. The Corporation shall be required to indemnify any person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors or is a proceeding to enforce such person's claim to indemnification pursuant to the rights granted by this Certificate of Incorporation or otherwise by the Corporation. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person which provide for indemnification greater or different than that provided in this Article X. Any amendment or repeal of this Article X shall not adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such amendment or repeal." (c) Article VI of the registrant's By-Laws provides: "(A) Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (but, if permitted by applicable law, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in paragraph (C) of this Bylaw, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) initiated by such person was authorized by the Board of Directors. The right to indemnification conferred in this By-law shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within 20 days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, II-4 however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this By-law or otherwise. "(F) The right to Indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this By-law shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-laws, agreement, vote of stockholders or Disinterested Directors or otherwise. No repeal or modification of this By-law shall in any way diminish or adversely affect the rights of any director, officer, employee or agent of the Corporation hereunder in respect of any occurrence or matter arising prior to any such repeal or modification. "(G) The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. To the extent that the Corporation maintains any policy or policies providing such insurance, each such director or officer, and each such agent or employee to which rights to Indemnification have been granted as provided in paragraph (H) of this By-law, shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent. "(H) The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to Indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent of the Corporation, and to persons serving as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, at the request of the Corporation, to the fullest extent of the provisions of this By-law with respect to the Indemnification and advancement of expenses of directors and officers of the Corporation." Sections (B) - (E) and Sections (I) - (K) of Article VI of the registrant's By-laws set forth the procedures for obtaining indemnification. Item 7. Exemption from Registration Claimed. Not Applicable. II-5 Item 8. Exhibits. Exhibit Number Description - ------ ----------- 4.01 Amended and Restated Certificate of Incorporation of the registrant. Incorporated by reference to Exhibit 1 to the registrant's Current Report on Form 8-K for an event dated June 4, 1997. 4.02 Amendment to the Certificate of Incorporation of the registrant. Incorporated by reference to Exhibit 4.02 to the registrant's Registration Statement on Form S-8 filed on August 27, 1998. 4.03 Amended and Restated By-Laws of the registrant. Incorporated by reference to Exhibit 2 to the registrant's Current Report on Form 8-K for an event dated June 4, 1997. *4.04 Form of Stock Option Contract. *4.05 1997 Non-Employee Director Stock Option and Stock Incentive Plan. *5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP as to the legality of the Common Stock being offered. *23.01 Consent of Arthur Andersen LLP. *23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in Exhibit 5.01). *24.01 Power of attorney of certain officers and directors of the registrant (contained in the signature page). - -------------- * Filed herewith. 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: (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) II-6 which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (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 (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3, Form 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 15(d) of the Securities Exchange Act of 1934 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. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, 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 of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions described in Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-7 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 the 26th day of August, 1998. THE LESLIE FAY COMPANY, INC. By: /s/ John J. Pomerantz ------------------------------------ John J. Pomerantz Chief Executive Officer and Chairman of the Board of Directors KNOW ALL MEN BY THESE PRESENTS, that each person whose signature is below constitutes and appoints each of John J. Pomerantz, John A. Ward and Warren T. Wishart his true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or either of them or their 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 below by the following persons in the capacities indicated on the 26th day of August, 1998.
Signature Title --------- ----- /s/ John J. Pomerantz Chairman, Chief Executive Officer and Director - -------------------------- John J. Pomerantz /s/ John A. Ward President and Director - -------------------------- John A. Ward /s/ Warren T. Wishart Chief Financial Officer, Senior Vice President - - -------------------------- Administration and Finance, Secretary and Treasurer Warren T. Wishart II-8 /s/ Clifford B. Cohn Director - -------------------------- Clifford B. Cohn /s/ Mark B. Dickstein Director - -------------------------- Mark B. Dickstein /s/ Chaim Y. Edelstein Director - -------------------------- Chaim Y. Edelstein /s/ Mark Kaufman Director - -------------------------- Mark Kaufman /s/ Bernard Olsoff Director - -------------------------- Bernard Olsoff /s/ Robert L. Sind Director - -------------------------- Robert L. Sind
II-9 EXHIBIT INDEX Exhibit Number Description - ------ ----------- 4.01 Amended and Restated Certificate of Incorporation of the registrant. Incorporated by reference to Exhibit 1 to the registrant's Current Report on Form 8-K for an event dated June 4, 1997. 4.02 Amendment to the Certificate of Incorporation of the registrant. Incorporated by reference to Exhibit 4.02 to the registrant's Registration Statement on Form S-8 filed on August 27, 1998. 4.03 Amended and Restated By-Laws of the registrant. Incorporated by reference to Exhibit 2 to the registrant's Report on Form 8-K for an event dated June 4, 1997. *4.04 Form of Stock Option Contract. *4.05 1997 Non-Employee Director Stock Option and Stock Incentive Plan. *5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP, as to the legality of the Common Stock being offered. *23.01 Consent of Arthur Andersen LLP. *23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in Exhibit 5.01). *24.01 Power of attorney of certain officers and directors of the registrant (contained in the signature page). - -------------- * Filed herewith E-1 EX-4.04 2 FORM OF STOCK OPTION CONTRACT EXHIBIT 4.04 THE LESLIE FAY COMPANY, INC. --------------------------- 1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN NONQUALIFIED STOCK OPTION CONTRACT ---------------------------------- THIS NONQUALIFIED STOCK OPTION CONTRACT entered into as of June 10, 1997 between THE LESLIE FAY COMPANY, INC., a Delaware corporation (the "Company"), and _________________ ("Optionee"). W I T N E S S E T H: ------------------- 1. The Company, in accordance with the terms and conditions of the 1997 Non-Employee Director Stock Option Plan of the Company (the "Plan"), hereby grants to the Optionee an option to purchase an aggregate of 10,000 shares of Common Stock (the "Option Shares") at an exercise price of $6.18 per share, being equal to the fair market value of such shares on the date hereof. This option is not intended to constitute an incentive stock option within the meaning of section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. The term of this option shall be 10 years from the date hereof, subject to earlier termination as provided in the Plan. This option shall vest and become exercisable as follows: (a) General. This option shall become exercisable (i) with respect to 3,333 of the shares of Common Stock subject thereto on the first anniversary of the date of grant; (ii) with respect to an additional 3,333 of the shares of Common Stock subject thereto on the second anniversary of the date of grant; and (iii) with respect to an additional 3,334 shares of Common Stock subject thereto on the third anniversary of the date of grant. (b) Change of Control. This option shall become fully exercisable upon the occurrence of a Change of Control. (c) Termination of Directorship. This option shall become fully exercisable upon the Optionee's ceasing to be a director for any reason other than his resignation or his refusal in writing to stand for re-election or for Cause. The right to purchase Option Shares under this option shall be cumulative, so that if the full number of Option Shares purchasable in a period shall not be purchased, the balance may be purchased at any time or from time to time thereafter, but not after the expiration of the option. 3. This option shall be exercised by giving five business days' written notice to the Company at its then principal office stating that the Optionee is exercising the option hereunder, specifying the number of shares being purchased and accompanied by payment in full of the aggregate purchase price therefor (a) in cash or by certified check, (b) with previously acquired shares of Common Stock which have been held by the Optionee for the applicable period required by any Company plan or agreement with the Company pursuant to which such shares were issued and if not so restricted, which have been held for at least six months, or (c) a combination of the foregoing. Notwithstanding the foregoing, the purchase price may be paid by delivery by the Optionee of a properly executed notice, together with a copy of his irrevocable instructions to a broker acceptable to the Board, to deliver promptly to the Company the amount of sale or loan proceeds sufficient to pay such purchase price. 4. The Company may withhold cash or shares of Common Stock to be issued to the Optionee in the amount that the Company determines is necessary to satisfy its obligation to withhold taxes or other amounts incurred by reason of the grant or exercise of this option or the disposition of the underlying shares of Common Stock. Alternatively, the Company may require the Optionee to pay the Company such amount in cash promptly upon demand. 5. Notwithstanding the foregoing, this option shall not be exercisable by the Optionee unless (a) a Registration Statement under the Securities Act of 1933, as amended (the "Securities Act") with respect to the shares of Common Stock to be received upon the exercise of this option shall be effective and current at the time of exercise or (b) there is an exemption from registration under the Securities Act for the issuance of the shares of Common Stock upon such exercise. The Optionee hereby represents and warrants to the Company that, unless such a Registration Statement is effective and current at the time of exercise of this option, the shares of Common Stock to be issued upon the exercise of this option will be acquired by the Optionee for his or her own account, for investment only and not with a view to the resale or distribution thereof. 6. Notwithstanding anything herein to the contrary, if at any time the Board shall determine, in its discretion, that the listing or qualification of the shares of Common Stock subject to this option on any securities exchange or under any applicable law, or the consent or approval of any governmental agency or regulatory body, is necessary or desirable as a condition to, or in connection with, the granting of an option or the issue of shares of Common Stock hereunder, this option may not be exercised in whole or in part unless such listing, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board. 7. The Company may affix appropriate legends upon the certificates for shares of Common Stock issued upon exercise of this option and may issue such "stop transfer" instructions to its transfer agent in respect of such shares as it determines, in its discretion, to be necessary or appropriate to (a) prevent a violation of, or to perfect an exemption from, the registration requirements of the Securities Act, or (b) implement the provisions of the Plan or this Contract or any other agreement between the Company and the Optionee with respect to such shares of Common Stock. 8. Nothing in the Plan or herein shall confer upon the Optionee any right to continue in the service of the Company or any Affiliate, or interfere in any way with any right of the Company or any Affiliate to terminate such service at any time. -2- 9. The Company and the Optionee (by his acceptance of this option) agree that they will both be subject to and bound by all of the terms and conditions of the Plan, a copy of which is attached hereto and made a part hereof. Any capitalized term not defined herein shall have the meaning ascribed to it in the Plan. In the event of a conflict between the terms of this Contract and the terms of the Plan, the terms of the Plan shall govern. 10. The Optionee (by his acceptance of this option) represents and agrees that he will comply with all applicable laws relating to the Plan and the grant and exercise of this option and the disposition of the shares of Common Stock acquired upon exercise of the option, including, without limitation, federal and state securities and "blue sky" laws. 11. This option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee or the Optionee's legal representatives. 12. This Contract shall be binding upon and inure to the benefit of any successor or assign of the Company and to any heir, distributee, executor, administrator or legal representative entitled to the Optionee's rights hereunder. 13. This Contract shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to the conflicts of law rules thereof. 14. The invalidity, illegality or unenforceability of any provision herein shall not affect the validity, legality or enforceability of any other provision. 15. The Optionee (by his or her acceptance of this option) agrees that the Company may amend the Plan and the option granted to the Optionee under the Plan, subject to the limitations contained in the Plan. IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the day and year first above written. THE LESLIE FAY COMPANY, INC. ------------------------------- Name: John J. Pomerantz Title: Chairman of the Board ------------------------------- [Optionee] -3- EX-4.05 3 1997 NON-EMPLOYEE DIRECTOR STOCK OPTION EXHIBIT 4.05 THE LESLIE FAY COMPANY, INC. 1997 NON-EMPLOYEE DIRECTOR STOCK OPTION AND STOCK INCENTIVE PLAN (as amended through April 14, 1998) Section 1: Purpose The Leslie Fay Company, Inc. 1997 Non-Employee Director Stock Option and Stock Incentive Plan (the "Plan") has been adopted to promote the long-term growth and financial success of The Leslie Fay Company, Inc. (the "Company") by attracting and retaining non-employee directors of outstanding ability and assisting the Company in promoting a greater identity of interest between the Company's non-employee directors and its stockholders. Section 2: Definitions As used in the Plan, the following terms have the respective meanings as set forth below. (a) "Affiliate" means (i) any Person directly or indirectly controlling, or controlled by, or under direct or indirect common control with, the Company, (ii) any spouse, immediate family member or other relative who has the same principal residence of any Person described in (i) above, (iii) any trust in which any Persons described in clause (i) or (ii) above has a beneficial interest and (iv) any corporation or other organization of which any Persons described in clause (i), (ii) or (iii) above collectively own more than 50% of the equity of such entity. For purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. The terms "controlled" and "controlling" have meanings correlative to the foregoing. (b) "Award" means any Stock Option or Stock Incentive Grant made under the Plan. (c) "Board" means the Company's Board of Directors. (d) "Capital Stock" means, with respect to any Person, any and all shares, interests, participations, rights in or other equivalents (however designated and whether voting ) of such Person's capital stock and any and all rights, warrants or options exchangeable for or convertible into such capital stock. (e) "Cause" means (unless otherwise defined in a written agreement with a Participant) (i) conviction of the Participant for committing a felony under federal law or the law of the state in which such action occurred, (ii) perpetration by the Participant of an illegal act which causes significant economic injury to the Company or any of its Affiliates or of a common law fraud against the Company or any of its Affiliates, or (iii) continuing willful and deliberate failure on the part of the Participant to perform his or her duties as a director of the Company in any material respect. The Committee shall have the sole discretion to determine whether "Cause" exists, and its determination shall be final. (f) "Change of Control" means the happening of either of the following events: (i) An acquisition by any Person (other than Dickstein Partners Inc. or any of its Affiliates) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 50% or more of either (A) the then outstanding shares of Common Stock (the "Outstanding Company Common Stock") or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); excluding, however, the following: (1) any acquisition directly from the Company, other than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from the Company, (2) any acquisition by the Company or (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Affiliate; or (ii) The approval by the stockholders of the Company of the complete liquidation or dissolution of the Company. (g) "Common Stock" means the common stock, $.01 par value, of the Company. (h) "Company" means The Leslie Fay Company, Inc., a Delaware corporation. (i) "Fair Market Value" means, as of any given date, the mean between the highest and lowest reported sale prices of a share of Common Stock on the New York Stock Exchange, Inc. Composite Tape or, if not listed on such exchange, on any other national securities exchange on which the Common Stock is then listed or admitted to unlisted trading privileges or on the National Association of Securities Dealers, Inc. Automated Quotation System. If there is no regular public trading market for such Common Stock, the Fair Market Value of the Common Stock shall be determined by the Board in good faith. (j) "Grant Date" means the conclusion of each annual meeting of stockholders of the Company. 2 (k) "1934 Act" means the Securities Exchange Act of 1934, as amended from time to time. (l) "Non-Employee Director" means a member of the Board who, as of the close of business on the date as of which a determination is made, is not an employee of the Company or any Subsidiary. (m) "Participant" means a Person holding an Award.. (n) "Person" means any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act). (o) "Stock Incentive Grant" means an Award in the form of a grant of a specified number of shares of Common Stock in accordance with Section 7 of the Plan. (p) "Stock Option" means an Award in the form of the right to purchase a specified number of shares of Common Stock at a specified price during a specified period granted under Section 6 of the Plan. (q) "Subsidiary" means any corporation, partnership or other entity in which the Company owns, directly or indirectly, an equity interest of 50% or more. Section 3: Effective Date The Plan became effective as of June 4, 1997. The Plan, as amended, shall become effective on the date it is approved by the stockholders of the Company entitled to vote at the annual meeting of stockholders of the Company to be held in 1998, or any adjournment thereof. No Awards may be made under the Plan after 10 years after June 3, 2007 or the earlier termination of the Plan by the Board. Section 4: Plan Operation The Plan is intended to be a "formula plan" and, accordingly, is generally intended to be self-governing. To this end, the Plan requires no discretionary action by any administrative body with regard to any transaction under the Plan, except as otherwise provided in the Plan. To the extent, if any, that any question of interpretation arises, such question shall be resolved by the Board. Section 5: Stock Available for Awards (a) Common Shares Available. The maximum number of Shares available for Awards under the Plan may not exceed 100,000 shares of Common Stock. 3 (b) Adjustments and Reorganizations. Adjustments shall be made to meet the intent of the Plan. Such appropriate adjustments shall be made to (i) the number of shares of Common Stock available under the Plan and which thereafter may be made the subject of Awards under the Plan, and (ii) the number and type and exercise price of shares of Common Stock, securities or other property subject to outstanding Stock Options, provided such adjustments are consistent with the effect on other stockholders arising from any corporate transaction. Such actions may include, but are not limited to, any stock dividend, stock split, combination or exchange of shares of Common Stock, merger, consolidation, spin-off, recapitalization or other distributions (other than normal cash dividends) of Company assets to stockholders, or any other change affecting shares of Common Stock. Adjustments shall be made in the calculation of Fair Market Value as necessary to preserve the Participants' rights under the Plan. (c) Common Stock Usage. The number of shares of Common Stock underlying any Award granted under the Plan which is forfeited, canceled, reacquired by the Company, satisfied without issuance of Common Stock or otherwise terminated (other than by exercise) shall again become available for granting of additional Awards under the Plan. Section 6: Stock Option Awards Each Non-Employee Director who was such on June 4, 1997 shall automatically be granted a non-qualified Stock Option to purchase 10,000 shares. Upon election or appointment to the Board, thereafter, each new Non-Employee Director shall automatically be granted a non-qualified Stock Option to purchase 5,000 shares. The option exercise price per share of Common Stock shall be equal to the Fair Market Value on the date of grant. Each Stock Option shall have a term of 10 years and shall become exercisable as follows: options with respect to one-third of the shares of Common Stock subject thereto one year after election to the Board; options with respect to an additional one-third of the shares of Common Stock subject thereto two years after election to the Board; options with respect to an additional one-third of the shares of Common Stock subject thereto three years after election to the Board (upon which date the Stock Option shall become fully exercisable). Notwithstanding the foregoing, the Board may accelerate the vesting of any Stock Option. Participants will receive credit for prior service on the Board in satisfying this vesting requirement. Such Stock Options shall continue to be granted to new Non-Employee Directors until the Plan is terminated or amended to eliminate or change such grants. Notwithstanding the foregoing, in the event of a Change of Control or in the event that a Participant ceases to be a Non-Employee Director for any reason other than his resignation or his refusal in writing to stand for re-election, each outstanding Stock Option of the Participant shall become fully exercisable, provided the Participant has served continuously as a director of the Company during the preceding six-month period. 4 Section 7: Stock Incentive Grants (a) Each Non-Employee Director shall automatically be granted an Award for 1,000 Shares under the Plan, as of each Grant Date, commencing with the annual meeting to be held in 1998. An individual who shall become an Non-Employee Director subsequent to the date of the annual meeting of stockholders of the Company for any year shall first become eligible to participate in the Plan commencing on the date of the next annual meeting of stockholders of the Company. (b) Shares, when issued, will be represented by a stock certificate or certificates registered in the name of the Non-Employee Director to whom such Shares shall have been granted. Shares shall constitute issued and outstanding shares of Common Stock for all corporate purposes. The Non-Employee Director will have all rights, powers and privileges of a holder of Common Stock with respect to such Shares. Section 8: General Provisions Applicable to Awards (a) Non-Transferability of Stock Options. Stock Options granted under Section 6 hereof may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or under the laws of descent and distribution. The designation of a beneficiary shall not constitute a transfer. A Stock Option may be exercised, during the lifetime of the Participant, only by such Participant or his legal representative. (b) No Right to Nomination. Nothing contained in the Plan shall confer upon any Non-Employee Director the right to be nominated for reelection to the Board. (c) Termination of Directorship. If a Participant ceases to be a director of the Company while holding a Stock Option granted under this Plan, any Stock Option which has vested shall continue to be exercisable for a period of three years or the remainder of the option term whichever is shorter. Notwithstanding the foregoing, if a Participant ceases to be a director of the Company for Cause, any Stock Option awarded under the Plan and held by the Participant shall be canceled as of the date of such termination. (d) Documentation of Grants. Awards made under the Plan shall be evidenced by written agreements or such other appropriate documentation as the Board shall prescribe. (e) Nonalienation of Benefits. No right or benefit under the Plan shall be subject to anticipation, alienation, sale, assignment, hypothecation, pledge, exchange, transfer, encumbrance or charge, and any attempt to anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer, encumber or charge the same shall be void. No right or benefit hereunder shall in any manner be liable for or subject to the debts, contracts, liabilities or torts of the person entitled to such benefit. If any Non-Employee Director or beneficiary hereunder should become bankrupt or attempt to anticipate, alienate, sell, assign, hypothecate, pledge, 5 exchange, transfer, encumber or charge any right or benefit hereunder, then such right or benefit shall, in the discretion of the Board, cease and terminate, and in such event, the Board in its discretion may hold or apply the same or any part thereof for the benefit of the Non- Employee Director, his or her beneficiary, spouse, children or other dependents, or any of them, in such manner and in such proportion as the Board may deem proper. (f) Withholding Taxes. At the time any Shares are issued, each Non-Employee Director shall pay to the Company the amount of any Federal, state or local taxes of any kind required by law to be withheld with respect thereto. If a Non-Employee Director shall fail to make the payments required hereunder, the Company shall, to the extent permitted by law, have the right to deduct from any payment of any kind otherwise due to such Non-Employee Director any Federal, state or local taxes of any kind required by law to be withheld with respect to such Shares. (g) Plan Amendment. The Board may suspend the Plan or any portion of the Plan. The Board may also amend the Plan if deemed to be in the best interests of the Company and its stockholders; provided, however, that no such amendment may impair any Participant's right regarding any outstanding grants, elections or other right to receive shares of Common Stock under the Plan without his or her consent; and further provided, that the Board may not, without approval by the holders of a majority of the voting securities of the Company, (i) increase the maximum number of Shares which may be granted hereunder in the aggregate (except for adjustments by the Board as hereinabove provided in Section 5(b)) or (ii) modify the provisions of the Plan as to eligibility for participation in the Plan. (h) Government and Other Regulations. Notwithstanding any other provisions of the Plan, the obligations of the Company with respect to Shares shall be subject to all applicable laws, rules and regulations, and such approvals by any governmental agencies as may be required or deemed appropriate by the Company. The Company reserves the right to delay or restrict, in whole or in part, the issuance or delivery of Common Stock pursuant to any grants of Shares or exercise of Stock Options under the Plan until such time as: (i) any legal requirements or regulations shall have been met relating to the issuance of such Shares or to their registration, qualification or exemption from registration or qualification under the Securities Act of 1933, as amended from time to time, or any applicable state securities laws; and (ii) satisfactory assurances shall have been received that such Shares when delivered will be duly listed on any applicable securities exchange. (i) Nonexclusivity of Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the awarding of stock or Stock Options 6 otherwise than under the Plan, and such arrangements may be either generally applicable or applicable only in specific cases. (j) Governing Law. The validity, construction and effect of the Plan and any such actions taken under or relating to the Plan shall be determined in accordance with the laws of the State of New York and applicable federal law. 7 EX-5.01 4 OPINION OF PARKER CHAPIN FLATTAU & KLIMPL, LLP EXHIBIT 5.01 PARKER CHAPIN FLATTAU & KLIMPL, LLP COUNSELLORS AT LAW 1211 AVENUE OF THE AMERICAS NEW YORK, NY 10036-8735 (212) 704-6000 CABLE LAWPARK FAX (212) 704-6288 TELEX 640347 August 27, 1998 The Leslie Fay Company, Inc. 1412 Broadway New York, New York 10018 Gentlemen: We have acted as counsel to The Leslie Fay Company, Inc. (the "Registrant") in connection with its Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission relating to 200,000 shares of Common Stock, par value $.01 per share, of the Registrant (the "Common Stock"), issuable upon exercise of options granted or to be granted under the Registrant's 1997 Non-Employee Director Stock Option and Stock Incentive Plan (the "Plan") or upon automatic annual grants of shares of Common Stock under the Plan. In connection with the foregoing, we have examined, among other things, the Plan, the Registration Statement and originals or copies, satisfactory to us, of all such corporate records and of all such agreements, certificates and other documents as we have deemed relevant and necessary as a basis for the opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original documents of documents submitted to us as copies. As to any facts material to such opinion, we have, to the extent that relevant facts were not independently established by us, relied on certificates of public officials and certificates, oaths and declarations of officers or other representatives of the Registrant. Based upon and subject to the foregoing, we are of the opinion that the shares of Common Stock to be issued pursuant to the exercise of options granted or to be granted under the Plan and pursuant to automatic annual grants of shares of Common Stock under the Plan will be, when issued pursuant to the provisions of the Plan, validly issued, fully paid and non-assessable. The Leslie Fay Company, Inc. August 27, 1998 Page 2 We hereby consent to the filing of a copy of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Parker Chapin Flattau & Klimpl, LLP --------------------------------------- Parker Chapin Flattau & Klimpl, LLP EX-23.01 5 INDEPENDENT ACCOUNTANTS' CONSENT EXHIBIT 23.01 INDEPENDENT ACCOUNTANTS' CONSENT As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 relating to the 1997 Non-Employee Director Stock Option and Stock Incentive Plan of The Leslie Fay Company, Inc. of our report dated February 27, 1998, except with respect to Note 6 as to which the date is March 31, 1998, included in The Leslie Fay Company, Inc.'s Form 10-K for the year ended January 3, 1998 and to all references to our Firm included in this Registration Statement. /s/ Arthur Andersen LLP Arthur Andersen LLP New York, New York August 25, 1998 -----END PRIVACY-ENHANCED MESSAGE-----