<PAGE>
As filed with the Securities and Exchange Commission on August 4, 1998
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8 AND FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
K2 DESIGN, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3886065
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
30 Broad Street, 16th Floor
New York, NY 10004
(Address of principal executive offices) (Zip code)
K2 Design, Inc. 1996 Stock Incentive Plan
K2 Design, Inc. 1997 Stock Incentive Plan
(Full titles of the plans)
Robert W. Burke
Chief Operating Officer
K2 Design, Inc.
30 Broad Street, 16th Floor
New York, NY 10004
(212) 301-8800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------------
Copies of all communications to:
Neil S. Belloff, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
---------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Amount to maximum Proposed maximum
Title of securities to be be offering price aggregate offering Amount of
registered registered(1) per share(2) price(2) Registration Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 725,000 $3.4375 $2,492,187.50 $736.00
value $.01 per share shares
</TABLE>
(1) The maximum number of shares as to which awards may be granted under the
K2 Design, Inc. 1996 Stock Incentive Plan (the "1996 Plan") and the K2
Design, Inc. 1997 Stock Incentive Plan (the "1997 Plan" and, together
with the 1996 Plan, the "Plans"). Pursuant to Rule 416, there are also
being registered such additional indeterminate number of shares as may be
required to cover possible adjustments under such Plans.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) calculated on the basis of the high and low sale
prices of the Common Stock as reported on the NASDAQ Small Cap Market on
July 31, 1998.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 and Form S-3. The Form S-8 portion of this
Registration Statement will be used for offers of Common Stock of K2 Design,
Inc. (the "Company") pursuant to the K2 Design, Inc. 1996 Stock Incentive Plan
(the "1996 Plan") and the K2 Design, Inc. 1997 Stock Incentive Plan (the "1997
Plan", and together with the 1996 Plan, the "Plans"). The Prospectus filed as
a part of this Registration Statement has been prepared in accordance with the
requirements of Form S-3 and will be used for reofferings or resales of Common
Stock to be acquired by the person named therein pursuant to the Plans. A
Cross Reference Sheet is provided for such prospectus.
<PAGE>
K2 DESIGN, INC.
Cross Reference Sheet Showing Location in
Prospectus of Information Required by Items of Form S-3
Form S-3 Item Number and Caption Location in Prospectus
- -------------------------------- ----------------------
1. Forepart of the Registration Statement and
Outside Front Cover Page of Prospectus............ Front Cover Page
2. Inside Front and Outside Back Cover Pages Inside Front and Outside
of Prospectus..................................... Back Cover Pages
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges................ The Company
4. Use of Proceeds................................... Not Applicable
5. Determination of Offering Price................... Not Applicable
6. Dilution.......................................... Not Applicable
7. Selling Security Holders.......................... Selling Stockholders
8. Plan of Distribution.............................. Plan of Distribution
9. Description of Securities to be Registered........ Front Cover Page
10. Interests of Named Experts and Counsel............ Experts; Legal Matters
11. Material Changes.................................. Not Applicable
12. Incorporation of Certain Information by Incorporation of Certain
Reference......................................... Documents by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act Indemnification of
Liabilities....................................... Directors and Officers
<PAGE>
PROSPECTUS
K2 DESIGN, INC.
210,000 Shares of Common Stock
(par value, $.01 per share)
-------------
This Prospectus to the offer and sale of shares of common stock, par
value $.01 per share ("Common Stock"), of K2 Design, Inc. (the "Company"),
which may be offered hereby from time to time by any or all of the selling
stockholders named herein (the "Selling Stockholders") for their own benefit.
The Company will receive no part of the proceeds of sales made hereunder,
however, the Company may receive funds upon the exercise of options pursuant
to which the Selling Stockholders will acquire the shares of Common Stock
covered by this Prospectus, which funds, if any, will be used for working
capital. All expenses of registration incurred in connection with this
offering are being borne by the Company, but all selling and other expenses
incurred by the Selling Stockholders will be borne by such Selling
Stockholders. None of the shares of Common Stock offered pursuant to this
Prospectus have been registered prior to the filing of the Registration
Statement of which this Prospectus is a part.
All or a portion of the shares of Common Stock offered hereby may be
offered for sale, from time to time, on the Nasdaq Small Cap Market, or
otherwise, at prices and terms then obtainable. All brokers' commissions,
concessions or discounts will be paid by the Selling Stockholders.
The Selling Stockholders and any broker executing selling orders on
behalf of the Selling Stockholders may be deemed to be an "underwriter" within
the meaning of the Securities Act of 1933, as amended (the "Securities Act"),
in which event commissions received by such broker may be deemed to be
underwriting commissions under the Securities Act.
The Common Stock of the Company is listed on the Nasdaq Small Cap
Market under the symbol "KTWO". On July 31, 1998, the last reported sale price
of the Company's Common Stock on the Nasdaq Small Cap Market was $3.4375.
-------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------
The date of this Prospectus is August 4, 1998
<PAGE>
TABLE OF CONTENTS
Page
Available Information...................................................... 3
The Company................................................................ 4
Selling Stockholders ...................................................... 4
Plan of Distribution....................................................... 5
Incorporation of Certain Documents by Reference............................ 6
Legal Matters.............................................................. 6
Experts .................................................................. 7
Indemnification of Directors and Officers.................................. 7
2
<PAGE>
No person is authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering described herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or the Selling Stockholders. This Prospectus does not constitute an
offer to sell, or a solicitation of an offer to buy, nor shall there be any
sale of these securities by any person in any jurisdiction in which it is
unlawful for such person to make such offer, solicitation or sale. Neither the
deliver of this Prospectus nor any sale made hereunder shall under any
circumstances create an implication that the information contained herein is
correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Section at the Commission's principal office, 450 5th Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549, and at the Northeast Regional Office,
Room 1028, 7 World Trade Center, New York, New York 10048 and the Chicago
Regional Office, Suite 1400, 500 West Madison Street, Chicago, Illinois
60661-2511. Copies may be obtained from the Commission's principal office upon
payment of the fees prescribed by the Commission. The Commission maintains a
World Wide Web site that contains the Company's Registration Statement and
other information filed electronically with the Commission. The address of the
Commission's World Wide Web site is http://www.sec.gov.
This Prospectus does not contain all of the information set forth in
the Registration Statement of which this Prospectus is a part and which the
Company has filed with the Commission. For further information with respect to
the Company and the securities offered hereby, reference is made to the
Registration Statement, including the exhibits filed as a part thereof, copies
of which can be inspected at, or obtained at prescribed rates from, the Public
Reference Section of the Commission at the address set forth above. Additional
updating information with respect to the Company may be provided in the future
by means of appendices or supplements to this Prospectus.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
or may be incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
such documents). Requests should be directed to K2 Design, Inc., Attention:
Investor Relations Department, 30 Broad Street, 16th Floor, New York, N.Y.
10004, telephone number (212) 301-8800.
THE COMPANY
The Company was founded in 1993 as a general partnership. In January
1995, the Company was reorganized as a New York corporation that elected to be
treated as an S corporation for tax purposes. In January 1996, the Company was
reorganized as a Delaware holding company and the New York corporation became
a wholly-owned operating subsidiary thereof and ceased to be an S corporation
for tax purposes. The executive offices of the Company are located at 30 Broad
Street, 16th Floor, New York, N.Y. 10004, telephone number (212) 301-8800.
3
<PAGE>
SELLING STOCKHOLDERS
The shares of Common Stock covered by this Prospectus are being
registered for reoffers and resales by Selling Stockholders of the Company who
may acquire such shares pursuant to the exercise of options granted under the
Company's 1996 Stock Incentive Plan and 1997 Stock Incentive Plan
(collectively, the "Plans"). The Selling Stockholders named below may resell
all, a portion, or none of the shares that they acquire pursuant to the
exercise of options under the Plans.
Key employees deemed to be "affiliates" of the Company who acquire
registered Common Stock under the Plans may be added to the Selling
Stockholders listed below from time to time, either by means of a
post-effective amendment hereto or by use of a prospectus filed pursuant to
Rule 424(c) under the Securities Act. An "affiliate" is defined in Rule 405
under the Securities Act as a "person that directly, or indirectly, through
one or more intermediaries, controls or is controlled by, or is under common
control with," the Company.
The following table shows the name of the Selling Stockholders, their
position with the Company and the number of shares of Common Stock known by
the Company to be beneficially owned by them as of July 31, 1998, the number
of shares covered by this Prospectus and the amount and (if one percent or
more) the percentage of the class to be owned by each Selling Stockholder if
such Selling Stockholder were to sell all of the shares of Common Stock
covered by this Prospectus:
<TABLE>
<CAPTION>
Shares Owned
Name: Prior to Offering Shares Offered Shares Owned After Offering
- ----- ----------------- -------------- ---------------------------
Number Percent
------ -------
<S> <C> <C> <C> <C>
Matthew G. de Ganon 500,120 18,750 481,370 13.3
(President, Chief Executive Officer
and Director)
David J. Centner 500,120 18,750 481,370 13.3
(Executive Vice President - New
Business Development and
Chairman of the Board)
Douglas E. Cleek 500,120 18,750 481,370 13.3
(Chief Creative Officer)
Robert W. Burke 400,000 125,000 275,000 7.4
(Chief Operating Officer)
Bradley K. Szollose 300,120 18,750 281,370 7.8
(Director)
James A. Favia 6,000 5,000 1,000 *
(Director)
Steven N. Goldstein 5,000 5,000 0 0
(Director)
</TABLE>
- -------------
* Less than 1%.
4
<PAGE>
PLAN OF DISTRIBUTION
Any shares of Common Stock sold pursuant to this Prospectus will be
sold by the Selling Stockholders for their own accounts and they will receive
all proceeds from any such sales. The Company will receive none of the
proceeds from the sale of shares of Common Stock which may be offered hereby
but may receive funds upon the exercise of the options pursuant to which the
Selling Stockholders will acquire the shares of Common Stock covered by this
Prospectus, which funds, if any, will be used for working capital. The Selling
Stockholders have not advised the Company of any specific plans for the
distribution of the shares of Common Stock covered by this Prospectus, but, if
and when such shares of Common Stock are sold, it is anticipated that the
shares of Common Stock will be sold from time to time primarily in
transactions on the Nasdaq Small Cap Market at the market price then
prevailing, although sales may also be made in negotiated transactions or
otherwise, at prices related to such prevailing market price or otherwise. If
shares of Common Stock are sold through brokers, the Selling Stockholders may
pay customary brokerage commissions and charges. The Selling Stockholders may
effect such transactions by selling shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders and/or the purchasers
of shares of Common Stock for whom such broker-dealers may act as agent or to
whom they may sell as principal, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions). The
Selling Stockholders and any broker-dealers that act in connection with the
sale of the shares of Common Stock hereunder might be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any commissions received by them and any profit on the resale of such shares
of Common Stock as principal might be deemed to be underwriting discounts and
commissions under the Securities Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with the
Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997.
b. The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended March 31, 1998.
c. The Company's Proxy Statement on Schedule 14A filed on April
30, 1998.
d. The Company's Current Report on Form 8-K filed on June 17,
1998.
e. All other reports filed by the Company pursuant to Section
13(a) and 15(d) of the Exchange Act since the end of the
Company's fiscal year ended December 31, 1997.
f. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on June 26,
1996 pursuant to Section 12 of the Exchange Act.
5
<PAGE>
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Prospectus 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 Prospectus and
to be part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein, or in any other subsequently filed document that also is or is deemed
to be incorporated by reference herein, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be
passed upon for the Company by Proskauer Rose LLP, New York, New York.
EXPERTS
The consolidated balance sheet as of December 31, 1997 and the
consolidated statements of operations, changes in stockholders' equity and
cash flows for each of the two years in the period ended December 31, 1997 are
incorporated herein by reference, have been incorporated herein in reliance
upon the reports, also incorporated by reference herein, of Arthur Andersen
LLP, independent public accountants, and upon the authority of said firm as
experts in accounting and auditing in giving said reports.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that the Company
shall, to the full extent permitted by law, indemnify any person who is or was
a director, officer, incorporator, employee or agent of the Company against
liability arising by reason of the fact that such person is or was a director,
officer, incorporator, employee or agent of the Company, provided that such
person acted in good faith and in a manner he or she reasonably believed was
not opposed to the best interests of the Company.
Article Seventh of the Company's Certificate of Incorporation
provides that a director of the Company shall not be liable to the Company for
breach of fiduciary duty as a director except (i) for breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or involving intentional misconduct or knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derives an improper personal
benefit.
Section 145 of the General Corporation Law of the State of Delaware,
the law of the state in which the Company is incorporated, empowers a
corporation within certain limitations to indemnify any person for all amounts
(including, without limitation, judgements, fines, settlement payments,
expenses and
6
<PAGE>
attorney's fees) incurred or paid in connection with any action, suit,
investigation or proceeding arising out of or relating to the performance of
services by such person for, or acting as a director, officer or employee of,
the corporation or any other person or enterprise at the Company's request,
and empowers a corporation to advance all expenses incurred or paid by such
person in connection with, and until disposition of any action, suit,
investigation or proceeding arising out of or relating to the performance of
services by such person for, or acting as a director, officer or employee of,
the corporation or any other person or enterprise at the Company's request.
7
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities and Exchange
Commission by K2 Design, Inc., a Delaware corporation (the "Corporation" or
the "Registrant"), are incorporated herein by reference:
(1) The Corporation's Annual Report filed on Form 10-KSB for
the fiscal year ended December 31, 1997;
(2) The Corporation's Quarterly Report on Form 10-QSB for
the quarter ended March 31, 1998;
(3) The Corporation's Current Report on Form 8-K filed on
June 17, 1998;
(4) All documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicated that all remaining
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 part thereof from
the date of filing such documents; and
(5) The description of the Corporation's Common Stock, par
value $.01 per share, contained in the Company's Registration
Statement filed on Form 8-A pursuant to Section 12 of the Securities
Exchange Act of 1934.
Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the 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. Any statement
so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 5. Interest of Named Experts and Counsel.
The validity of the Common Stock offered hereby is being passed upon
for the Corporation by Proskauer Rose LLP.
The consolidated balance sheet as of December 31, 1997 and the
consolidated statements of operations, changes in stockholders' equity and
cash flows for each of the two years in the period ended December 31, 1997 are
incorporated herein by reference, have been incorporated herein in reliance
upon the reports, also incorporated by reference herein, of Arthur Andersen
LLP, independent certified public accountants, and upon the authority of said
firm as experts in accounting and auditing in giving said reports.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Corporation's Certificate of Incorporation provides that the
Corporation shall, to the full extent permitted by law, indemnify any person
who is or was a director, officer, incorporator, employee or agent of the
Corporation against liability arising by reason of the fact that such person
is or was a director, officer, incorporator, employee or agent of the
Corporation, provided that such person acted in good faith and in a manner he
or she reasonably believed was not opposed to the best interests of the
Corporation.
Article Seventh of the Corporation's Certificate of Incorporation
provides that a director of the Corporation shall not be liable to the
Corporation for breach of fiduciary duty as a director except (i) for breach
of the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or involving intentional misconduct or
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derives
an improper personal benefit.
Section 145 of the General Corporation Law of the State of Delaware,
the law of the state in which the Corporation is incorporated, empowers a
corporation within certain limitations to indemnify any person for all amounts
(including, without limitation, judgements, fines, settlement payments,
expenses and attorney's fees) incurred or paid in connection with any action,
suit, investigation or proceeding arising out of or relating to the
performance of services by such person for, or acting as a director, officer
or employee of, the corporation or any other person or enterprise at the
corporation's request, and empowers a corporation to advance all expenses
incurred or paid by such person in connection with, and until disposition of
any action, suit, investigation or proceeding arising out of or relating to
the performance of services by such person for, or acting as a director,
officer or employee of, the corporation or any other person or enterprise at
the corporation's request.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Corporation (incorporated
by reference to Exhibit 3.1 to the Corporation's Registration
Statement on Form SB-2 (Registration No. 333-04319))
4.2 By-Laws of the Corporation (incorporated by reference to
Exhibit 3.2 to the Corporation's Registration Statement on Form
SB-2 (Registration No. 333-04319))
4.3 K2 Design, Inc. 1996 Stock Incentive Plan (incorporated by
reference to Exhibit 10.1 to the Corporation's Registration
Statement on Form SB-2 (Registration No. 333-04319))
4.4 K2 Design, Inc. 1997 Stock Incentive Plan (incorporated by
reference to Exhibit 10.2 to the Corporation's Annual Report on
Form 10-KSB (Commission File No. 1-11873))
5 Opinion of Proskauer Rose LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5)
24 Powers of Attorney: included on Page II-5.
II-2
<PAGE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement;
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in value of securities offered (if just
the dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
or price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "calculation of
Registration Fee" table in the effective registration
statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the 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 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.
(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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the
II-3
<PAGE>
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-4
<PAGE>
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 New York, State of New
York, on July 30, 1998.
K2 DESIGN, INC.
By: /s/Robert W. Burke
----------------------------
Robert W. Burke
Chief Operating Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Matthew G. de Ganon and Robert W.
Burke, or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act, without the other, for
him and in his name, place, and stead, in any and all capacities, to sign a
Registration Statement on Form S-8 of K2 Design, Inc. and any or all
amendments (including post-effective amendments) thereto, relating to the
registration, under the Securities Act of 1933, as amended, of shares of
Common Stock of the Corporation to be issued pursuant to the Corporation's
1996 Stock Incentive Plan and 1997 Stock Incentive Plan 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 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 full 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 any of them,
their substitute or 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 dates indicated.
II-5
<PAGE>
Signatures Title Date
---------- ----- ----
/s/Matthew G. de Ganon Chief Executive Officer, July 30, 1998
- -------------------------- President and Director
Matthew G. de Ganon
/s/Robert W. Burke Chief Operating Officer July 30, 1998
- -------------------------- (Principal Financial and
Robert W. Burke Accounting Officer)
/s/David J. Centner Director July 30, 1998
- --------------------------
David J. Centner
/s/Douglas E. Cleek Director July 30, 1998
- --------------------------
Douglas E. Cleek
/s/Bradley K. Szollose Director July 30, 1998
- --------------------------
Bradley K. Szollose
Director
- --------------------------
Jack Favia
Director
- --------------------------
Steven Goldstein
II-6
<PAGE>
EXHIBIT 5
July 22, 1998
Board of Directors
K2 Design, Inc.
30 Broad Street, 16th Floor
New York, NY 10004
Dear Sirs:
We are acting as counsel to K2 Design, Inc, a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8
with exhibits thereto (the "Registration Statement") filed by the Company
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder, relating to the registration of 725,000 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company. The Shares are to be
issued by the Company upon grant of certain stock options (the "Options")
granted and to be granted to certain employees or directors of the Company
pursuant to the Company's 1996 Stock Incentive Plan (the "1996 Plan") and/or
the Company's 1997 Stock Incentive Plan (the "1997 Plan" and, together with
the 1996 Plan, the "Plans").
As such counsel, we have participated in the preparation of the
Registration Statement, and have reviewed the corporate proceedings in
connection with the adoption of the Plans and have also examined and relied
upon originals or copies, certified or otherwise authenticated to our
satisfaction, of all such corporate records, documents, agreements, and
instruments relating to the Company, and certificates of public officials and
of representatives of the Company, and have made such investigations of law,
and have discussed with representatives of the Company and such other persons
such questions of fact, as we have deemed proper and necessary as a basis for
rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that
the Shares are duly authorized and, upon exercise or grant of the Options in
accordance with the terms of the Plans against payment of the exercise price
therefor (as applicable), will be, assuming no change in the applicable law or
pertinent facts, validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ PROSKAUER ROSE LLP
II-7
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants we hereby consent to the use of our reports
(and to all references to our Firm) included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Roseland, New Jersey
July 22, 1998
