UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TARRANT APPAREL GROUP
(Exact Name of Registrant as Specified in Its Charter)
CALIFORNIA 95-4181026
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3151 EAST WASHINGTON BOULEVARD
LOS ANGELES, CALIFORNIA 90023
(Address of Principal Executive Offices) (Zip Code)
NON-QUALIFIED STOCK OPTION AGREEMENT BETWEEN
TARRANT APPAREL GROUP AND BARRY AVED
(Full Title of the Plans)
PATRICK CHOW
CHIEF FINANCIAL OFFICER
TARRANT APPAREL GROUP
3151 EAST WASHINGTON BOULEVARD
LOS ANGELES, CALIFORNIA 90023
(Name and Address of Agent for Service)
(323) 780-8250
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
JOHN MCILVERY, ESQ.
STUBBS ALDERTON & MARKILES, LLP
15821 VENTURA BOULEVARD, SUITE 525
ENCINO, CA 91436
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
To Be Registered Registered (1) Share (2) Price (2) Fee
------------------- ------------- --------- ----------- -------------
Common Stock....... 400,000 $3.939 $1,575,600 $200
================================================================================
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such additional
shares as may hereinafter be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions
effected without the receipt of consideration.
(2) Determined in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the Registration Fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. Such documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this Form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Commission are incorporated in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003 (File No. 000-26006);
(b) The Registrant's Current Reports on Form 8-K as filed on January
27, 2004 (File No. 000-26006);
(c) The Registrant's Current Reports on Form 8-K as filed on March 22,
2004 (File No. 000-26006); and
(d) The description of the Common Stock of the Registrant contained in
the Registrant's Registration Statement on Form 8-A as filed on
May 4, 1995 (File No. 000-26006), including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement and 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 into this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement made in a document 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 is also
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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 204 of the General Corporation Law of the State of
California (the "California Law") permits the limitation of the personal
liability of a director for monetary damages in an action brought by or in the
right of the
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corporation for breach of a director's duties to the corporation and its
shareholders under certain conditions and subject to certain limitations.
Section 317 of the California Law (i) permits indemnification of
directors, officers, employees and other agents of the corporation under certain
conditions and subject to certain limitations and (ii) provides that the
corporation has the power to purchase and maintain insurance on behalf of its
directors, officers, employees and other agents against any liability asserted
against or incurred by them in such capacity or arising out of their status as
such.
Article Seven of the Restated Articles of Incorporation of the
Registrant provides as follows:
SEVEN: The liability of the directors of this corporation for
monetary damages shall be eliminated to the fullest extent
permissible under California law.
Article Eight of the Restated Articles of Incorporation of the
Registrant provides as follows:
EIGHT: This corporation is authorized to indemnify the
directors and officers of this corporation to the fullest
extent permissible under California law.
Section 5.05 of the Bylaws of the Registrant provides as follows:
Section 5.05. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party to or is threatened to be made a party to or is
involuntarily 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 of officer of the
corporation or is or was serving (during such person's tenure
as director or officer) at the request of the corporation, any
other corporation, partnership, joint venture, trust or other
enterprise in any capacity, whether the basis of a Proceeding
is an 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 California
Law, 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), against all expenses,
liability and loss (including attorneys' fees, judgments,
fines, or penalties and amounts to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith. The right to indemnification conferred in this
Section shall be a contract right and shall include the right
to be paid by the corporation the expenses incurred in
defending a Proceeding in advance of the final disposition;
provided, however, that, if California Law requires the
payment of such expenses in advance of the final disposition
of a Proceeding shall be made only upon receipt by 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 Section or otherwise. No
amendment to or repeal of this Section 5.05 shall apply to or
have any effect on any right to indemnification provided
hereunder with respect to any acts or omissions occurring
prior to such amendment or repeal.
(b) Right of Claimant to Bring Suit. If a claim for indemnity
under paragraph (a) of this Section is not paid in full by the
corporation within ninety (90) days after a written claim has
been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall also be entitled to be paid the
expense of prosecuting such claim including reasonable
attorneys' fees incurred in connection therewith. It shall be
a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending a
Proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to
the corporation) that the claimant has not met the standards
of conduct which make it permissible under California Law for
the corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on
the
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corporation. Neither the failure of the corporation (including
its Board of Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the
commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in California
Law, nor an actual determination by the corporation (including
its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the
applicable standard of conduct.
(c) Non-Exclusivity of Rights. The rights conferred in this
Section shall not be exclusive of any other rights which any
director, officer, employee or agent may have or hereafter
acquire under any statute, provision of the Restated Articles
of Incorporation, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, to the extent the
additional rights to indemnification are authorized in the
Restated Articles of Incorporation of the corporation.
(d) Insurance. In furtherance and not in limitation of the
powers conferred by statute:
(1) the corporation may purchase and maintain insurance
on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is
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 any expense, liability or loss, whether or not
the corporation would have the power to indemnify the
person against that expense, liability or loss under
California Law.
(2) the corporation may create a trust fund, grant a
security interest and/or use other means (including,
without limitation, letters of credit, surety bonds
and/or other similar arrangements), as well as enter into
contracts providing indemnification to the full extent
authorized or permitted by law and including as part
thereof provisions with respect to any or all of the
foregoing to ensure the payment of such amounts as may
become necessary to effect indemnification as provided
therein, or elsewhere.
(e) Indemnification of Employees and Agents of the
Corporation. The corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to
indemnification, including the right to be paid by the
corporation the expenses incurred in defending a Proceeding in
advance of its final disposition, to any employee or agent of
the corporation to the fullest extent of the provisions of
this Section or otherwise with respect to the indemnification
and advancement of expenses of directors and officers of the
corporation.
(f) Amendment by Shareholders. Any action by the shareholders
with respect to any amendment to or the elimination of all or
any part of this Article V, Section 5.05, shall require
approval by the holders of 66-2/3% of the outstanding shares
of the corporation.
The Registrant has entered into indemnification agreements with
certain of its directors and executive officers which require the Registrant to
indemnify such persons to the fullest extent permitted by applicable law.
The Registrant maintains an insurance policy pursuant to which the
directors and officers of the Registrant are insured, within the limits and
subject to the limitations of the policy, against certain expenses in connection
with the defense of certain claims, actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such claims, actions, suits or
proceedings, which may be brought against them by reason of their being or
having been such directors and officers.
ITEM 7: EXEMPTION FROM REGISTRATION.
Not applicable.
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ITEM 8: EXHIBITS.
THE FOLLOWING EXHIBITS ARE FILED AS PART OF THIS REGISTRATION
STATEMENT:
3.1 Restated Articles of Incorporation of the Registrant
(incorporated by reference to the Registrant's Registration
Statement on Form S-1 filed with the Securities and Exchange
Commission on May 4, 1995).
3.1.1 Certificate of Amendment of Restated Articles of Incorporation
(incorporated by reference to the Registrant's Quarterly Report
on Form 10Q for the quarter ending June 30, 2002).
3.1.2 Certificate of Amendment of Restated Articles of Incorporation
(incorporated by reference to the Registrant's Quarterly Report
on Form 10Q for the quarter ending June 30, 2002).
3.1.3 Certificate of Amendment of Restated Articles of Incorporation
(incorporated by reference to the Registrant's Current Report
on Form 8-K filed with the Securities and Exchange Commission
on December 10, 2003).
3.2 Restated Bylaws of the Registrant (incorporated by reference to
the Registrant's Registration Statement on Form S-1 filed with
the Securities and Exchange Commission on May 4, 1995).
4.1 Specimen of Registrant's Common Stock Certificate
(incorporated by Reference to the Registrant's Amendment No. 1
to Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on July 15, 1995).
4.2 Certificate of Determination of Preferences, Rights and
Limitations of Series B Convertible Preferred Stock
(incorporated by reference to the Registrant's Amendment to
Current Report on Form 8-K/A filed with the Securities and
Exchange Commission on December 12, 2003).
4.3 Rights Agreement, dated as of November 21, 2003, by and between
the Company and Computershare Trust Company, as Rights Agent
(incorporated by reference to the Registrant's Current Report
on Form 8-K filed with the Securities and Exchange Commission
on December 10, 2003).
4.4 Non-Qualified Stock Option Agreement dated December 4, 2003
between the Registrant and Barry Aved.
5.1 Opinion of Stubbs Alderton & Markiles, LLP.
23.1 Consent of Grant Thornton, LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Stubbs Alderton & Markiles, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included as part of the Signature Page of
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
to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement.
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(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.
(b) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Los Angeles, State of California, on this 9th
day of April, 2004.
TARRANT APPAREL GROUP
(Registrant)
By: /S/ PATRICK CHOW
---------------------------------
Patrick Chow
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
each of Gerard Guez and Patrick Chow as his true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him and his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement and to file
a new registration statement under Rule 461 or Instruction E of Form S-8 of the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ GERARD GUEZ Chief Executive Officer and April 9, 2004
------------------------- Chairman of the Board of
Gerard Guez Directors
/S/ TODD KAY President and Vice Chairman April 9, 2004
------------------------- of the Board of Directors
Todd Kay
/S/ PATRICK CHOW Chief Financial Officer, April 9, 2004
------------------------- Treasurer and Director
Patrick Chow
/S/ LARRY RUSS Director April 9, 2004
-------------------------
Larry Russ
/S/ STEPHANE FAROUZE Director April 9, 2004
-------------------------
Stephane Farouze
/S/ MITCHELL SIMBAL Director April 9, 2004
-------------------------
Mitchell Simbal
/S/ BARRY AVED Director April 9, 2004
-------------------------
Barry Aved
/S/ JOSEPH MIZRACHI Director April 9, 2004
-------------------------
Joseph Mizrachi
/S/ MILTON KOFFMAN Director April 9, 2004
-------------------------
Milton Koffman
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT DESCRIPTION
----------- -------------------------------------------------------
3.1 Restated Articles of Incorporation of the Registrant
(incorporated by reference to the Registrant's
Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on May 4, 1995).
3.1.1 Certificate of Amendment of Restated Articles of
Incorporation (incorporated by reference to the
Registrant's Quarterly Report on Form 10Q for the
quarter ending June 30, 2002).
3.1.2 Certificate of Amendment of Restated Articles of
Incorporation (incorporated by reference to the
Registrant's Quarterly Report on Form 10Q for the
quarter ending June 30, 2002).
3.1.3 Certificate of Amendment of Restated Articles of
Incorporation (incorporated by reference to the
Registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 10,
2003).
3.2 Restated Bylaws of the Registrant (incorporated by
reference to the Registrant's Registration Statement on
Form S-1 filed with the Securities and Exchange
Commission on May 4, 1995).
4.1 Specimen of Registrant's Common Stock Certificate
(incorporated by Reference to the Registrant's
Amendment No. 1 to Registration Statement on Form S-1
filed with the Securities and Exchange Commission on
July 15, 1995).
4.2 Certificate of Determination of Preferences, Rights and
Limitations of Series B Convertible Preferred Stock
(incorporated by reference to the Registrant's
Amendment to Current Report on Form 8-K/A filed with
the Securities and Exchange Commission on December 12,
2003).
4.3 Rights Agreement, dated as of November 21, 2003, by and
between the Company and Computershare Trust Company, as
Rights Agent (incorporated by reference to the
Registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on November 21
2003).
4.4 Non-Qualified Stock Option Agreement dated December 4,
2003 between the Registrant and Barry Aved.
5.1 Opinion of Stubbs Alderton & Markiles, LLP.
23.1 Consent of Grant Thornton, LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Stubbs Alderton & Markiles, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included as part of the Signature
Page of this Registration Statement).
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