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As filed with the Securities and Exchange Commission on June 30, 1998
Registration No. 333-
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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DONNA KARAN INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3882426
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
550 Seventh Avenue
New York, New York 10018
(212) 789-1500
(Address of principal executive offices) (Zip code)
Donna Karan International Inc. 1996 Non-Employee Director Stock Option Plan
Donna Karan International Inc. 1998 Non-Employee Director Restricted Stock Plan
(Full title of the plan)
David Bressman
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)
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Copies to:
Arnold S. Jacobs
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
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CALCULATION OF REGISTRATION FEE
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Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price aggregate offering Registration
per unit price fee
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<S> <C> <C> <C> <C>
Common Stock, par 76,500 shares(1) $14.875(2) $1,137,937(2) $336
value $.01 per share
Common Stock, par 23,500 shares(1) $17.98(3) $422,530(3) $124
value $.01 per share
Common Stock, par
value $.01 per share 20,000 shares(4) $14.875(2) $297,500(2) $88
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TOTAL.............................. $548
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(1) Represents the aggregate number of shares as to which awards may be granted
under the Donna Karan International Inc. 1996 Non-Employee Director Stock
Option Plan (the "Director Option 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 the Director Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h).
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h).
(4) Represents the maximum number of shares as to which awards may be granted
under the Donna Karan International Inc. 1998 Non-Employee Director
Restricted Stock Plan (the "Director Restricted Stock 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 the
Director Restricted Stock Plan.
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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 by
Donna Karan International Inc., a Delaware corporation (the "Company" or the
"Registrant"), are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 28, 1997;
(2) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 29, 1998; and
(3) 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
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
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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 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 connection with the reorganization of the Company
concurrently with its initial public offering, the Company agreed to
indemnify certain principal stockholders of the Company against certain
obligations arising prior to or as a result of such reorganization.
Each of the employment agreements between the Company and the executive
officers of the Company provides that the Company will indemnify each executive
officer against all charges and expenses
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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. Additionally,
the Company has entered into indemnification agreements with the executive
officers and directors of the Company providing indemnification for such
officers and directors 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 license agreement between the Company and Gabrielle Studio, Inc. (an
affiliate of Donna Karan and Stephan Weiss, Chairman of the Board and Vice
Chairman of the Board, respectively) 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.
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Item 7. Exemption from Registration Claimed.
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Not applicable.
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Item 8. Exhibits.
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5.1 Opinion of Proskauer Rose LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5.1).
24.1 Power of Attorney
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Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
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(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;
(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.
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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 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 June 30, 1998.
DONNA KARAN INTERNATIONAL INC.
By /s/ John D. Idol
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John D. Idol
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.
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Signatures Title Date
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<S> <C> <C>
/s/ Donna Karan Chairman of the Board June 30, 1998
- ----------------------------- and Chief Designer
Donna Karan
/s/ Stephan Weiss Vice Chairman of the Board June 30, 1998
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Stephan Weiss
/s/ John D. Idol Chief Executive Officer and June 30, 1998
- ------------------------------- Director (principal executive
John D. Idol officer)
/s/ M. William Benedetto Director June 30, 1998
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M. William Benedetto
/s/ Andrea Jung Director June 30, 1998
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Andrea Jung
/s/ Ann McLaughlin Director June 30, 1998
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Ann McLaughlin
/s/ Joseph B. Parsons Executive Vice President and June 30, 1998
- ------------------------------- Chief Financial Officer
Joseph B. Parsons (principal financial officer and
principal accounting officer)
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EXHIBIT 5.1
June 30, 1998
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 an aggregate of 120,000
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 (collectively, the "Plan
Awards") granted, or to be granted, to certain directors of the Company pursuant
to the Company's 1996 Non-Employee Director Stock Option Plan and the Company's
1998 Non-Employee Director Restricted Stock 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. 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 respective Plan under which the Plan Awards
were granted, 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 5.1 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 LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Donna Karan International Inc.:
We consent to the incorporation by reference herein of our report dated March
26, 1998, relating to the consolidated balance sheets of Donna Karan
International Inc. and its subsidiaries as of December 28, 1997 and December 29,
1996, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 28, 1997, and all related schedules.
/s/ Ernst & Young LLP
New York, New York
June 30, 1998
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EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints John D. Idol, Joseph B. Parsons, and David
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 Non-Employee Director Stock Option Plan and
the 1998 Non-Employee Director Restricted Stock 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.
June 30, 1998 /s/ Donna Karan
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Donna Karan
/s/ Stephan Weiss
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Stephan Weiss
/s/ John D. Idol
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John D. Idol
/s/ M. William Benedetto
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M. William Benedetto
/s/ Andrea Jung
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Andrea Jung
/s/ Ann McLaughlin
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Ann McLaughlin
