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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
K2 DESIGN, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
13-3886065
(I.R.S. Employer Identification No.)
30 Broad Street, 16th Floor
New York, New York 10004
(Address of Principal Executive Offices) (Zip Code)
K2 Design, Inc. 1997 Stock Incentive Plan
(Full Title of the Plan)
Sarah Hewitt, Esq.
Brown Raysman Millstein Felder & Steiner LLP
120 West 45th Street
New York, New York 10036
(Name and Address of Agent For Service)
212-944-1515
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
====================== ===================== ==================== ==================== =====================
Proposed Proposed
Title Of Maximum Maximum Amount Of
Securities Amount Offering Aggregate Registration
To Be To Be Price Per Offering Fee
Registered Registered Share (1) Price (1)
---------------------- --------------------- -------------------- -------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock, par 800,000 shares $6.021 $4,816,800 $1,271.64
value $.01 per share
====================== ===================== ==================== ==================== =====================
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(1) Estimated solely for the purpose of calculating the Registration Fee in
accordance with Rule 457(h), based on the average of the high and low
sale price as reported on the Nasdaq Stock Market on June 27, 2000.
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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 are incorporated by reference in this Registration Statement and made
a part hereof:
(a) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form SB-2, as filed on May 22,
1996 and amended on June 28, 1996 and July 17, 1996;
(b) The description of indemnification of the Registrant's officers and
directors contained in the Registrant's Registration Statement on Form
SB-2, as filed on May 22, 1996 and amended on June 28, 1996 and July
17, 1996;
(c) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999;
(d) The Registrant's Proxy Statement on Schedule 14A, as filed on April 28,
2000;
(e) The Registrant's Report on Form 8-K, as filed on April 28, 2000;
(f) The Registrant's Quarterly Report on Form 10-QSB for the quarterly
period ended March 31, 2000; and
(g) All other documents filed by the Registrant after the date of this
Registration Statement under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to the Registration Statement 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 part of this Registration
Statement from the date of filing of such documents.
Item 4. Description of Securities.
As set forth above in Item 3, the description of the Registrant's
Common Stock contained in the Registrant's Registration Statement on Form SB-2,
as filed on May 22, 1996 and amended on June 28, 1996 and July 17, 1996, is
hereby incorporated by reference in this Registration Statement and made a part
hereof.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
As set forth above in Item 3, the description of indemnification of the
Registrant's officers and directors contained in the Registrant's Registration
Statement on Form SB-2 and filed on May 22, 1996, as amended on June 28, 1996
and July 17, 1996 is hereby incorporated by reference in this Registration
Statement and made a part hereof.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibits:
Number Title
4.1.1 Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 filed with the Registrant's Registration
Statement on Form SB-2, as filed on May 22, 1996 (Registration No.
333-04319)).
4.1.2 Certificate of Amendment to the Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1(a) filed with the
Registrant's Registration Statement on Form SB-2A, as filed on July 17,
1996 (Registration No. 333-04319)).
4.2.1 By-laws of the Registrant (incorporated by reference to Exhibit 3.2
filed with the Registrant's Registration Statement on Form SB-2, as
filed on May 22, 1996 (Registration No. 333-04319)).
4.2.2 Amended By-laws of the Registrant (incorporated by reference to Exhibit
3.2(b) filed with the Registrant's Registration Statement on Form
SB-2A, as filed on July 17, 1996 (Registration No. 333-04319)).
4.3.1 K2 Design, Inc. 1997 Stock Incentive Plan (incorporated by reference to
Exhibit 10.2 filed with the Registrant's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1996 (Commission File No.
1-11873)).
4.3.2 Amendment No. 3 to the K2 Design., Inc. 1997 Stock Incentive Plan
5.1 Opinion of Brown Raysman Millstein Felder & Steiner LLP.
23.1 Consent of Brown Raysman Millstein Felder & Steiner LLP (included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on signature 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;
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(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; and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement.
(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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
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, 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.
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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, thereto
duly authorized, in the City of New York, State of New York, on June 29, 2000.
K2 DESIGN, INC.
By: /s/ MATTHEW G. DE GANON
--------------------------
Matthew G. de Ganon
Executive Chairman
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Matthew G. de Gannon as his or her true
and lawful attorney-in-fact, as agent with full power of substitution and
resubstitution for him or her and in his or her name, place and stead, in any
and all capacity, to sign any or all amendments to this Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting to
each such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as each of them might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ MATTHEW G. DE GANON
--------------------------------- Executive Chairman of the Board June 29, 2000
Matthew G. de Ganon
/s/ LYNN FANTOM
--------------------------------- Chief Executive Officer, President June 29, 2000
Lynn Fantom and Director
/s/ SETH BRESSMAN
--------------------------------- Chief Financial Officer (Principal June 29, 2000
Seth Bressman Financial and Accounting Officer)
/s/ GARY W. BROWN
--------------------------------- Executive Vice President, June 29, 2000
Gary W. Brown Chief Operating Officer and Director
/s/ DOUGLAS E. CLEEK
--------------------------------- Executive Vice President and Director June 29, 2000
Douglas E. Cleek
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<S> <C> <C>
/s/ P. SCOTT MUNRO
--------------------------------- Director June 29, 2000
P. Scott Munro
/s/ STEVEN N. GOLDSTEIN
--------------------------------- Director June 29, 2000
Steven N. Goldstein
/s/ DAVID R. SKLAVER
--------------------------------- Director June 29, 2000
David R. Sklaver
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EXHIBIT INDEX
Number Title
4.1.1 Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 filed with the Registrant's Registration
Statement on Form SB-2, as filed on May 22, 1996 (Registration No.
333-04319)).
4.1.2 Certificate of Amendment to the Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1(a) filed with the
Registrant's Registration Statement on Form SB-2A, as filed on July 17,
1996 (Registration No. 333-04319)).
4.2.1 By-laws of the Registrant (incorporated by reference to Exhibit 3.2
filed with the Registrant's Registration Statement on Form SB-2, as
filed on May 22, 1996 (Registration No. 333-04319)).
4.2.2 Amended By-laws of the Registrant (incorporated by reference to Exhibit
3.2(b) filed with the Registrant's Registration Statement on Form
SB-2A, as filed on July 17, 1996 (Registration No. 333-04319)).
4.3.1 K2 Design, Inc. 1997 Stock Incentive Plan (incorporated by reference to
Exhibit 10.2 filed with the Registrant's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1996 (Commission File No.
1-11873)).
4.3.2 Amendment No. 3 to the K2 Design, Inc. 1997 Stock Incentive Plan
5.1 Opinion of Brown Raysman Millstein Felder & Steiner LLP.
23.1 Consent of Brown Raysman Millstein Felder & Steiner LLP (included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on signature page).
