As filed with the Securities and Exchange Commission on May 16, 2000
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
KASPER A.S.L., LTD.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 22-3497645
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
77 METRO WAY
SECAUCUS, NEW JERSEY 07094
(201) 864-0328
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
KASPER A.S.L., LTD.
1999 SHARE INCENTIVE PLAN
(Full Title of Plan)
MARY ANN DOMURACKI
EXECUTIVE VICE PRESIDENT - FINANCE AND ADMINISTRATION
KASPER A.S.L., LTD.
77 METRO WAY
SECAUCUS, NEW JERSEY 07094
(201) 864-0328
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
JEFFREY J. WEINBERG, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share 2,500,000 shares $2.81 $7,025,000 $1,854.60
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</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933, as amended.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, as amended, based upon the average of the high and low sales price of
the Registrant's Common Stock as reported on the National Association of
Securities Dealers, Inc. Automated Quotation System National Market on May 10,
2000.
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NY2:\894504\07\J67C07!.DOC\55745.0005
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part
I of this Registration Statement will be sent or given to employees as specified
by Rule 428(b)(1). Such documents are not required to be and are not filed with
the Securities and Exchange Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended.
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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 (the "Commission") by Kasper A.S.L., Ltd. (the "Company")
are incorporated herein by reference as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 1, 2000;
(b) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 1, 2000 (the "10-Q");
(c) all other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since January 1, 2000, the end
of the Company's fiscal year covered by the annual report
referred to in (a) above; and
(d) Item 1, "Description of Registrant's Securities," contained in
the Company's Registration Statement on Form 8-A filed with
the Commission on May 1, 1998 (File No. 0-24179).
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment to this 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 to be a part hereof from the date
of filing of such documents.
Any statement contained in a document incorporated or
deemed incorporated by reference in this Registration Statement shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supercedes 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.
The Company is incorporated under the laws of the State of
Delaware. Section 145 of the General Corporation Law of the State of Delaware
("DGCL") provides that a Delaware corporation may indemnify any person who was
or is, 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 such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
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partnership, joint venture, trust or other enterprise. The indemnity may include
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, provided such person acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
unlawful. A Delaware corporation may indemnify any person who was or is, 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 such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may include
expenses (including attorneys fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit,
provided such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation's best interests, except
that no indemnification is permitted without judicial approval if such person is
adjudged to be liable to the corporation. Where a present or former officer or
director is successful on the merits or otherwise in the defense of any action,
suit or proceeding referred to above or in the defense of any claim, issue or
matter therein, the corporation must indemnify him or her against the expenses
(including attorneys' fees) which such officer or director has actually and
reasonably incurred.
Section 145 further provides that the indemnification and
advancement of expenses provided by the provisions of Section 145 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
The Company's Amended and Restated Certificate of
Incorporation, as amended, and Amended and Restated By-laws provide for
indemnification of its directors and officers to the fullest extent permitted by
law.
The directors and officers of the Company are covered by
insurance policies indemnifying against certain liabilities, including certain
liabilities arising under the Securities Act or 1933, as amended (the
"Securities Act") which might be incurred by them in such capacities and against
which they cannot be indemnified by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) - Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit No. 4 to the Company's
Report on Form 8-K, filed with the Commission on July 14, 1997
(the "Form 8-K").
4(b) - Amendment to the Company's Amended and Restated Certificate of
Incorporation (incorporated by reference to the Company's
Registration Statement on Form S-1, filed with the Commission
on December 5, 1997 (File No. 333-41629) (the "1997
Registration Statement")).
4(c) - Amendment to the Company's Amended and Restated Certificate of
Incorporation, as amended (incorporated by reference to the
Company's Proxy Statement for the 1999 Annual Meeting of
Stockholders, filed with the Commission on August 13, 1999).
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4(d) - Amended and Restated By-laws (incorporated by reference to
Exhibit No. 3.1 to the 10-Q).
4(e) - Kasper A.S.L., Ltd. 1999 Share Incentive Plan (incorporated by
reference to the Company's Proxy Statement for the
Re-Adjournment of the 1999 Annual Meeting of Stockholders,
filed with the Commission on January 28, 2000).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 - Power of Attorney (included as part of the signature pages to
this Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The Company 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;
(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 volume of
securities offered (if the total 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 and
price represent no more than 20 percent
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 paragraph (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in
a post-effective amendment by the foregoing paragraphs is
contained in periodic reports filed with or furnished to
the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, 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.
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(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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each
filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act 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 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company
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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act, the
Company 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 Secaucus, State of New Jersey, on this 9th day of May,
2000.
KASPER A.S.L., LTD.
By: /s/ Mary Ann Domuracki
----------------------------------------
Name: Mary Ann Domuracki
Title: Executive Vice President -
Finance and Administration
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Arthur S. Levine,
Lester E. Schreiber, Mary Ann Domuracki and Gwen J. Gepfert, acting
individually, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said 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 to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or such
person's substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Arthur S. Levine Chairman of the Board of Directors and Chief May 9, 2000
- ------------------------------- Executive Officer (principal executive officer)
Arthur S. Levine
/s/ H. Sean Mathis Director May 9, 2000
- -------------------------------
H. Sean Mathis
/s/ William J. Nightingale Director May 9, 2000
- -------------------------------
William J. Nightingale
/s/ Salvatore M. Salibello Director May 9, 2000
- -------------------------------
Salvatore M. Salibello
/s/ Denis J. Taura Director May 9, 2000
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Denis J. Taura
/s/ Olivier L. Trouveroy Director May 9, 2000
- -------------------------------
Olivier L. Trouveroy
/s/ Lester E. Schreiber Chief Operating Officer and May 9, 2000
- ------------------------------- Director
Lester E. Schreiber
/s/ Mary Ann Domuracki Executive Vice President-- May 9, 2000
- ------------------------------- Finance & Administration (principal financial
Mary Ann Domuracki officer)
/s/ Gwen J. Gepfert Chief Financial Officer (principal accounting May 9, 2000
- ------------------------------- officer)
Gwen J. Gepfert
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4(a) - Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit No. 4 to the Form 8-K).
4(b) - Amendment to the Company's Amended and Restated Certificate of
Incorporation (incorporated by reference to the 1997
Registration Statement).
4(c) - Amendment to the Company's Amended and Restated Certificate of
Incorporation, as amended (incorporated by reference to the
Company's Proxy Statement for the 1999 Annual Meeting of
Stockholders, filed with the Commission on August 13, 1999).
4(d) - Amended and Restated By-laws (incorporated by reference to
Exhibit No. 3.1 to the 10-Q).
4(e) - Kasper A.S.L., Ltd. 1999 Share Incentive Plan (incorporated by
reference to the Company's Proxy Statement for the
Re-Adjournment of the 1999 Annual Meeting of Stockholders,
filed with the Commission on January 28, 2000).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 - Power of Attorney (included as part of the signature pages to
this Registration Statement).
II-7
Exhibit 5
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue, New York, NY 10153-0119
(212) 310-8000
Fax: (212) 310-8007
May 9, 2000
Kasper A.S.L., Ltd.
77 Metro Way
Secaucus, New Jersey 07094
Ladies and Gentlemen:
We have acted as counsel to Kasper A.S.L., Ltd., a Delaware
corporation (the "Company"), in connection with the preparation, authorization,
execution and filing with the Securities and Exchange Commission of the
Registration Statement of the Company on Form S-8 (the "Registration Statement")
for registration under the Securities Act of 1933, as amended, of 2,500,000
shares of common stock, par value $0.01 per share, of the Company (the "Common
Stock") to be issued pursuant to the 1999 Share Incentive Plan of the Company
(the "Plan").
In so acting, we have examined originals or copies
(certified or otherwise identified to our satisfaction) of the Registration
Statement, the Plan, and such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made such inquiries
of such officers and representatives, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to these opinions that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company and upon the representations and warranties of
the Company contained in the Agreement.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the 2,500,000 shares of Common Stock
to be issued by the Company pursuant to the Plan have been duly authorized and,
when issued as contemplated by the Registration Statement and the Plan, will be
validly issued, fully paid and non-assessable.
The opinions expressed herein are limited to the corporate
laws of the State of Delaware and the federal laws of the United States, and we
express no opinion as to the effect on the matters covered by this letter of the
laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those opinions may
not be used or relied upon by any other person, nor may this letter or any
copies thereof be furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without our prior written consent.
We hereby consent to the use of this letter as an exhibit
to the Registration Statement and to any and all references to our firm in the
prospectus which is a part of the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of Kasper
A.S.L., Ltd. (the "Company") of our report dated March 3, 2000 included in the
Company's Form 10-K for the year ended January 1, 2000 and to all references to
our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
May 12, 2000
