<PAGE>
As filed with the Securities and Exchange Commission on February 4, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
Seth Bressman
Chief Financial 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)
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Copies of all communications to:
Neil S. Belloff, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
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<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 400,000 $6.875 $2,750,000 $726.00
value $.01 per share shares
Common Stock, par 725,000 (3) (3) (3)
value $.01 per share shares
</TABLE>
(1) This amount reflects the aggregate number of shares of Common
Stock both (i) subject to options or awards and (ii) reserved
for future issuance under the Plans. The registration fee
covering 725,000 shares under the Plans was previously paid in
connection with the Registration Statement on Form S-8 (SEC
file no. 333-60799) filed on August 6, 1998. An additional
400,000 shares are being registered hereunder as a result of
an increase under the 1997 Stock Incentive Plan pursuant to an
amendment thereto approved by stockholders.
(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 Stock Market on February 2, 2000.
(3) Registration Fee previously paid in connection with the
Registration Statement on Form S-8 (SEC file no. 333-60799)
filed on August 6, 1998.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared pursuant to Subsection E
of the General Instructions (Registration of Additional Securities) of Form S-8,
and incorporates by reference the information set forth in the Registration
Statement filed on August 6, 1998, SEC file number 333-60799 except as otherwise
indicated herein.
<PAGE>
PROSPECTUS
K2 DESIGN, INC.
1,125,000 Shares of Common Stock
(par value, $.01 per share)
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The selling stockholders are offering for sale shares of our common
stock. We will not receive any of the proceeds of sales made by the selling
stockholders, but may receive funds upon the exercise of options. Such funds, if
any, will be used for working capital. We will pay all expenses of this
offering, except selling expenses and brokers' commissions, concessions and
discounts which will be paid by the selling stockholders.
The selling stockholders and any broker executing orders may be deemed
an "underwriter" as defined in the Securities Act. Therefore, commissions
received by such broker may be deemed underwriting commissions under the
Securities Act and subject such broker to liabilities as an underwriter.
Our common stock is listed on the Nasdaq Stock Market under the symbol
"KTWO." On February 2, 2000, the last reported sale price of the Common Stock
was $6.875.
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NEITHER OUR COMMON STOCK NOR THIS PROSPECTUS
HAS BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION.
ANY STATEMENT TO THE CONTRARY IS A CRIME.
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February 4, 2000
<PAGE>
TABLE OF CONTENTS
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Page
Selling Stockholders ....................................................3
Incorporation of Certain Documents by Reference..........................4
Legal Matters............................................................5
Experts ................................................................5
2
<PAGE>
SELLING STOCKHOLDERS
Our common stock being registered for resales by the selling
stockholders will be received by them upon exercise of options granted under the
Company's 1996 Stock Incentive Plan and 1997 Stock Incentive Plan.
Certain employees who may be deemed to be our "affiliates" may be added
to the selling stockholders listed below at a later date as permitted by the
rules of the Commission.
The table shows the names of each selling stockholder, their position
with us and the number of shares of common stock owned by them as of December
31, 1999, the number of shares offered and the amount and percentage to be owned
if all offered shares are sold:
<TABLE>
<CAPTION>
Shares Owned Shares Shares Owned
Name: Prior to Offering Offered After Offering Is Sold(1)
- ----- ----------------- ------- ----------------------
Number Percent(2)
------ ----------
<S> <C> <C> <C> <C>
Matthew G. de Ganon 1,309,291 (3) (4) 17,500 1,291,791 38.0
(Executive Chairman of the Board of
Directors)
Lynn Fantom 400,000 (5) 400,000 0 0
(Chief Executive Officer, President and
Director)
Douglas E. Cleek 458,740 (3) 8,750 449,990 13.2
(Chief Creative Officer and Director)
Seth Bressman 30,400 (6) 30,000 400 *
(Chief Financial Officer)
Steven N. Goldstein 7,500 (7) 7,500 0 0
(Director)
David R. Sklaver 7,500 (7) 7,500 0 0
(Director)
Scott Munro 5,000 (7) 5,000 0 0
(Director)
</TABLE>
- --------------
(1) The figures for the number of shares and the percentage of shares
beneficially owned by the selling stockholders after the offering are
based on the assumption that all of the selling stockholders will sell
all of the shares registered for sale hereby. Upon the exercise of
options, the selling stockholders may offer all, some or none of the
shares pursuant to this prospectus, however, no estimate can be given
as to when or whether the selling stockholders will exercise their
options or the number of shares that will be offered for sale by the
selling stockholders upon such exercise. There are currently no
agreements, arrangements or understandings with respect to the exercise
of any options or the sale of any of the shares received upon such
exercise.
(2) As of December 31, 1999, there were 3,392,732 shares of Common Stock
outstanding.
(3) Includes 8,750 shares underlying presently exercisable stock options.
(4) Includes 816,240 shares held by Douglas Cleek, Bradley Szollose and
David Centner which Mr. de Ganon has the right to vote pursuant to a
Voting Agreement dated July 26, 1996 and 59,648 shares held by Robert
Burke which Mr. de Ganon has the right to vote pursuant to an
irrevocable proxy executed by Mr. Burke.
(5) Represents 200,000 shares of Common Stock subject to currently
exercisable options and 200,000 shares of Common Stock subject to stock
options which vest on October 22, 2000.
(6) Includes 30,000 shares of Common Stock subject to currently exercisable
stock options.
(7) Represents shares of Common Stock subject to currently exercisable
stock options.
* Less than one percent.
3
<PAGE>
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 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.
b. The Company's Registration Statement on Form S-8 filed on August 6,
1998.
c. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998.
d. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended March 31, 1999.
e. The Company's Proxy Statement on Schedule 14A filed on April 29, 1999.
f. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended June 30, 1999.
g. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended September 30, 1999.
h. 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, 1998.
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.
4
<PAGE>
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, 1998 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, 1998 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.
5
<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 "Company" or the
"Registrant"), are incorporated herein by reference:
i. 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.
ii. The Company's Registration Statement on Form S-8 filed on August 6,
1998.
iii. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998.
iv. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended March 31, 1999.
v. The Company's Proxy Statement on Schedule 14A filed on April 29, 1999.
vi. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended June 30, 1999.
vii. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended September 30, 1999.
viii. 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, 1998.
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 8. Exhibits.
4.1 Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form SB-2 (Registration No. 333-04319))
4.2 By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the Company'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 Company'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 Company's Annual Report on
Form 10-KSB for the fiscal year ended December 31, 1996
(Commission File No. 1-11873))
4.5 Amendment No. 2 to 1997 Stock Incentive Plan
5 Opinion of Proskauer Rose LLP
II-1
<PAGE>
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-3.
II-2
<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 February 4,
2000.
K2 DESIGN, INC.
By: /s/ Seth Bressman
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Seth Bressman
Chief Financial 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 Seth Bressman, 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 Company to
be issued pursuant to the Company'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-3
<PAGE>
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/Matthew G. de Ganon Executive Chairman of the Board of February 4, 2000
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Matthew G. de Ganon Directors
/s/Lynn Fantom Chief Executive Officer, President February 4, 2000
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Lynn Fantom and Director
/s/Douglas E. Cleek Executive Vice President, Chief February 4, 2000
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Douglas E. Cleek Creative Officer and Director
/s/Seth Bressman Chief Financial Officer February 4, 2000
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Seth Bressman
Director
- ---------------------------
Steven N. Goldstein
Director
- ---------------------------
Scott Munro
/s/David R. Sklaver Director January 17, 2000
- ---------------------------
David R. Sklaver
</TABLE>
II-4
<PAGE>
EXHIBIT 4.5
AMENDMENT NO. 2 TO
1997 STOCK INCENTIVE PLAN
See attached.
<PAGE>
Exhibit 4.5
AMENDMENT NO. 2
TO
K2 DESIGN, INC.
1997 STOCK INCENTIVE PLAN
Section 4.1 of the K2 Design, Inc. 1997 Stock Incentive Plan (the
"Plan") is amended and restated in its entirety to read as follows:
"4.1 Number of Shares. Subject to the provisions of this Article IV,
the maximum number of shares of Common Stock with respect to which Awards may be
granted during the term of the Plan shall be 900,000 shares. Shares of Common
Stock will be made available from the authorized but unissued shares of the
Company. The shares of Common Stock subject to (i) any Award granted under the
Plan that shall expire, terminate or be annulled for any reason without having
been exercised (or considered to have been exercised as provided in Section 7)
and (ii) any Award of Restricted Shares that shall be forfeited prior to
becoming vested (provided that the Holder received no benefits of ownership of
such Restricted Shares other than voting rights and the accumulation of Retained
Distributions and unpaid Dividend Equivalents that are likewise forfeited),
shall again be available for purposes of the Plan."
<PAGE>
EXHIBIT 5
February 3, 2000
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 an additional 400,000 shares (the "Shares") of
Common Stock, par value $.01 per share, of the Company to be issued by the
Company upon exercise 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 and the Company's 1997 Stock Incentive Plan
(collectively, 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 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
<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
January 17, 2000
