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As filed with the Securities and Exchange Commission on August 7, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
DONNA KARAN INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 13-3882426
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
</TABLE>
550 Seventh Avenue
New York, New York 10018
(212) 789-1500
(Address of principal executive offices) (Zip code)
DONNA KARAN INTERNATIONAL INC. 1996 STOCK INCENTIVE PLAN
(Full title of the plan)
Stephan Weiss
Donna Karan International Inc.
550 Seventh Avenue
New York, New York 10018
(212) 789-1500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________________
Copies to:
Arnold S. Jacobs
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
_________________________________
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered(1) offering price aggregate offering registration
per unit price fee
<S> <C> <C> <C> <C>
Common Stock, par 1,389,500 shares $ 24.00 (2) $33,348,000 (2) $11,500
value $.01 per share
Common Stock, par 210,500 shares $24.4375 (3) $ 5,144,094 (3) $ 1,774
value $.01 per share
======================================================================================================
</TABLE>
(1) Represents the maximum number of shares as to which awards may be granted
under the Donna Karan International Inc. 1996 Stock Incentive Plan (the
"Plan"). 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 Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $24.00 per share
with respect to outstanding options to purchase 1,389,500 shares of Common
Stock.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on a price per share of $24.4375
(the average of the high and low sale prices of the Common Stock as
reported on the New York Stock Exchange on August 5, 1996) with
respect to 105,100 shares of Common Stock awarded under the Plan and
105,400 shares of Common Stock issuable upon exercise of options that
may be granted under the Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
by Donna Karan International Inc., a Delaware corporation (the "Company" or the
"Registrant"), are incorporated herein by reference:
(1) the Company's Prospectus, dated June 27, 1996, filed with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933; and
(2) the description of the Company'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.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, 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
part thereof from the date of filing such documents. 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 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the General Corporation Law of the State of Delaware
("Section 145") permits a Delaware corporation to 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, whether civil, criminal, administrative,
or investigative (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
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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 an action by or in the right of the corporation, Section 145
permits the corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor 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) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if he 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. No indemnification may 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 or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonable entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
To the extent that a director, officer, employee, or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit,
or proceeding referred to in the preceding two paragraphs, Section 145 requires
that such person be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
Section 145 provides that expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative, or
investigative action, suit, or proceeding may be paid by the corporation in
advance of the final disposition of such action, suits or proceeding upon
receipt of an undertaking by or an behalf of such director or officer to repay
such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the corporation as authorized in Section 145.
Article Eighth of the Company's Certificate of Incorporation eliminates the
personal liability of the directors of the Company to the Company or its
stockholders for monetary damages for breach of their fiduciary duty as
directors, with certain exceptions. Article Ninth requires indemnification of
directors and officers of the Company and provides for advancement of litigation
expenses to the fullest extent permitted by Section 145.
In addition, in the Agreement and Plan of Contribution among the Company
and certain principal stockholders of the Company (the "Principals") relating to
the organization of the Company (the "Reorganization"), the Company has agreed
to indemnify the Principals for (i) acts or omissions taken or made by any of
them (a) at or prior to the date of closing under the Contribution Agreement
based on an allegation that such person was acting as an officer or director of
the Company or its predecessors with respect to acts or omissions that are of a
nature customarily performed by officers or directors of a Company, and (b)
after the date of closing under the Contribution Agreement based on an
allegation that such person was a director of the Company, whether or not he or
she was in fact a director of the Company at the time of the alleged act or
omission, in each case assuming such person seeking indemnification had acted
properly, (ii) any breach of representations or warranties made by it in the
Contribution Agreement, and (iii) any New York State and New York City real
estate transfer taxes and
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New York State real estate gains taxes incurred inn connection with the
Reorganization. In addition, the Principals have agreed to indemnify the Company
for any breaches of representations and warranties made by them in the
Contribution Agreement; provided, however, that the indemnification obligations
of the Principals to the Company are limited in the case of breaches of certain
tax-related warranties.
Each of the employment agreements between the Company and Ms. Karan and Mr.
Weiss, the Chairman of the Board and the Vice Chairman of the Board,
respectively, provides that the Company will indemnify Ms. Karan or Mr. Weiss
(as the case may be) against all charges and expenses in connection with any act
or proceeding to which he or she is made a party by reason of being an employee,
officer, or director of the Company. The Company has also entered into an
agreement with a director and executive officer providing for his
indemnification in his capacity as a director and executive officer, including
liabilities under the Federal securities laws.
The license agreement between the Company and Gabrielle Studio, Inc. (an
affiliate of Ms. Karan and Mr. Weiss) provides that the Company will indemnify
Gabrielle Studio, Inc. and Ms. Karan against losses arising out of the Company's
use of the licensed marks other than in accordance with the terms of such
license agreement.
The license agreement between the Company and Stephan Weiss pursuant to
which Mr. Weiss granted to the Company a license to use designs and utility and
mechanical patents for the bottles in which the Company's beauty division
products are packaged provides that the Company will indemnify Mr. Weiss from
losses arising out of claims by third parties relations to the use by the
Company of the bottles or patents.
Item 7. Exemption from Registration Claimed.
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On June 27, 1996, the Company awarded to certain of its employees an
aggregate of 105,100 shares of Common Stock under the Company's 1996 Stock
Incentive Plan, which awards did not constitute "sales" within the meaning of
Section 2(3) of the Securities Act, and accordingly, such awards were exempt
from registration pursuant to Section 4(2) of the Securities Act.
Item 8. Exhibits.
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5.1 Opinion of Proskauer Rose Goetz & Mendelsohn LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP (included in Exhibit
5.1).
24.1 Power of Attorney
Item 9. Undertakings.
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(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:
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(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;
(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 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, thereunto duly
authorized, in the City of New York, State of New York, on July 31, 1996.
DONNA KARAN INTERNATIONAL INC.
By /s/ Donna Karan
----------------------------------------------
Chairman of the Board and Chief
Executive Officer
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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ----------------------- ----------------------------- -------------
<S> <C> <C>
/s/ Donna Karan Chairman of the Board and July 31, 1996
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Donna Karan Chief Executive Officer
(principal executive
officer)
/s/ Stephan Weiss Vice Chairman and Director July 31, 1996
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Stephan Weiss
/s/ Stephen L. Ruzow President, Chief Operating July 31, 1996
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Stephen L. Ruzow Officer, and Director
/s/ Joseph B. Parsons Executive Vice President and July 31, 1996
- -----------------------
Joseph B. Parsons Chief Financial Officer
(principal accounting and
financial officer)
</TABLE>
The foregoing constitute a majority of the Board of Directors of the Company.
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Exhibit Index
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Exhibit Description of Exhibits Page No.
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5.1 Opinion of Proskauer Rose Goetz & Mendelsohn LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP
(included in Exhibit 5.1).
24.1 Power of Attorney
<PAGE>
EXHIBIT 5.1
August 6, 1996
Donna Karan International Inc.
550 Seventh Avenue
New York, New York 10018
Dear Sirs:
We are acting as counsel to Donna Karan International 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 1,600,000 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 restricted stock awards or
upon exercise of certain stock options and other awards (collectively, the "Plan
Awards") granted, or to be granted, to certain employees of, or consultants or
advisors to, the Company and its subsidiaries pursuant to the Company's 1996
Stock Incentive Plan (the "Plan").
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 Plan. We have also examined and relied upon originals
or copies, certified or otherwise authenticated to our satisfaction, of all such
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 Plan Awards in
accordance with the terms of the Plan against payment of the exercise price
therefor (as applicable), and upon compliance with applicable securities laws,
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 5.1 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 Goetz & Mendelsohn LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Form S-8 Registration
Statement pertaining to the 1996 Stock Incentive Plan of Donna Karan
International Inc. of our report dated April 16, 1996 with respect to the
predecessor combined financial statements and schedule of Donna Karan
International Inc. included in its Registration Statement (Form S-1 No. 333-
3600) filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
New York, New York
August 2, 1996
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Stephan Weiss and David L. Bressman, and each 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 Donna Karan International Inc. (the "Company") 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 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.
/s/ Donna Karan
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Donna Karan
July 31, 1996
/s/ Stephan Weiss
---------------------
Stephan Weiss
/s/ Stephen L. Ruzow
---------------------
Stephen L. Ruzow
/s/ Joseph B. Parsons
---------------------
Joseph B. Parsons
