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Securities and Exchange Commission on August 11, 1998
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
1-800 CONTACTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 87-0571643
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
66 East Wadsworth Park Drive, 3rd Floor 84020
Draper, Utah (Zip Code)
(Address of Principal Executive Offices)
1-800 CONTACTS, INC. 1998 INCENTIVE STOCK OPTION PLAN
OPTION AGREEMENTS WITH CERTAIN OFFICERS AND DIRECTORS
(Full Title of the Plan)
Jonathan C. Coon
President and Chief Executive Officer
1-800 CONTACTS, INC.
66 East Wadsworth Park Drive, 3rd Floor
Draper, Utah 84020
(Name and Address of Agent for Service)
(801) 924-9800
(Telephone Number, including Area Code of Agent for Service)
Copy to:
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Dennis M. Myers
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
Proposed Proposed Maximum Amount of
Title of Securities to be Amount to be Maximum Offering Aggregate Registration
Registered Registered (1) Price Per Share (2) Offering Price Fee
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Common Stock,
par value $.01 per share.. 521,140 shares (3) $11.25 $5,862,825 $1,730
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</TABLE>
(1) Pursuant to Rule 416 of the Securities Act, this Registration Statement
also covers such additional shares of Common Stock as may become issuable
pursuant to anti-dilution provisions of the employee benefit plan described
herein.
(2) Estimated pursuant to Rule 457(h) based on the average of the high and low
prices of the shares reported on the Nasdaq National Market on August 7,
1998.
(3) 310,000 shares reserved for issuance under 1-800 CONTACTS, INC. 1998
Incentive Stock Option Plan and 211,140 shares issuable pursuant to stock
option agreements with certain officers and directors.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
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Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by 1-800 CONTACTS, INC., a Delaware
corporation, (the "Corporation") with the Securities and Exchange Commission
-----------
(the "Commission") are incorporated herein by reference except to the extent any
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statement or information therein is modified, superseded or replaced by a
statement or information contained in this document or in any other subsequently
filed document incorporated herein by reference:
(a) The Corporation's Prospectus filed pursuant to Rule 424(b)(4) on
February 10, 1998.
(b) The Corporation's Quarterly Report on Form 10-Q for the quarter ended
April 4, 1998 (File No. 0-23633).
(c) The description of the Corporation's Common Stock, par value $.01 per
share (the "Common Stock") contained in Item 1 of the Corporation's Registration
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Statement on Form 8-A, filed with the Commission pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on January 20,
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1998.
(d) All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such reports and 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 Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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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 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
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permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any transaction from which the director
derives an improper personal benefit, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for improper payment of dividends or redemptions of shares or (iv) for any
breach of a director's duty of loyalty to the company or its stockholders.
Article X, Part A, of the Corporation's Restated Certificate of Incorporation
(the "Restated Certificate") includes such a provision.
--------------------
The Corporation's Restated Certificate provides that each person who was
or is made a party or is threatened to be made a party to or is otherwise
involved (including involvement as a witness) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding"), by
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reason of the fact that he or she is or was a Director or officer of the
Corporation or, while a Director or officer of the Corporation, is or was
serving at the request of the Corporation as a Director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (an
"indemnitee"), whether the basis of such proceeding is alleged action in an
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official capacity as a Director of officer or in any other capacity while
serving as a Director or officer, will be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights then permitted prior thereto), against all expense,
liability and loss (including attorneys' fees, judgments, fines, excise exercise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnity in connection therewith and such indemnification will
continue as to an indemnitee who has ceased to be a Director, officer, employee
or agent and shall inure to the benefit of the indemnitee's heirs, executors and
administrators under the Restated Certificate. This right of indemnification is
a contractual right and includes the obligation of the Corporation to pay the
expenses incurred in defending any such proceeding in advance of its final
disposition (an "advance of expenses"); provided, however, that, if and to the
------- ----------- -------- -------
extent that the DGCL requires, an advance of expenses incurred by indemnitee in
his or her capacity as a Director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) will be made only upon delivery
to the Corporation of an undertaking (an "undertaking"), by or on behalf of such
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indemnitee, to repay all amounts so advanced if it will ultimately be determined
by final judicial decision from which there is no further right to appeal (a
"final adjudication") that such indemnitee is not entitled to be indemnified for
------------------
such
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expenses. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same or
lesser scope and effect as the foregoing indemnification of Directors and
officers.
The Restated Certificate authorizes the Corporation purchase and
maintain insurance on its own behalf and on behalf of any person who is or was a
Director, officer, employee or agent of the Corporation 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 any
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power to
indemnify such person against such expenses, liability or loss under the
Delaware General Corporation Law.
The Restated Certificate provides that persons who after the date of the
adoption of the foregoing provision become or remain Directors or officers of
the Corporation or who, while a Director or officer of the Corporation, become
or remain a Director, officer, employee or agent of a subsidiary, shall be
conclusively presumed to have relied on the rights to indemnity, advance of
expenses and other rights contained in the Restated Certificate in entering into
or continuing such service. The rights to indemnification and to the advance of
expenses conferred in the Restated Certificate apply to claims made against an
indemnitee arising out of acts or omissions which occurred or occur both prior
and subsequent to the adoption hereof.
The Restated Certificate provides that the rights to indemnification and
to the advance of expenses conferred in the Restated Certificate are not
exclusive of any other right which any person may have or hereafter acquire
under the Restated Certificate or under any statute, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Kirkland & Ellis with respect to the legality of the
shares of the Common Stock being registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkland & Ellis (included in opinion filed as Exhibit
5.1).
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; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a
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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 this Registration Statement or any
material change to such information in this Registration Statement; provided,
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however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
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Registration Statement is on Form S-8 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 Section 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, 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; and
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 herein, 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 Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, 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 Draper, State of Utah, on August 10, 1998.
1-800 CONTACTS, INC.
By: /s/ Jonathan C. Coon
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Jonathan C. Coon
President and Chief Executive Officer
* * * *
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and as of
the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Jonathan C. Coon President and Chief Executive August 10, 1998
- ------------------------------------ Officer and Director (Principal
Jonathan C. Coon Executive Officer)
/s/ Scott S. Tanner Chief Financial Officer and August 10, 1998
- ------------------------------------ Director (Principal Financial
Scott S. Tanner Officer)
/s/ Robert G. Hunter Controller (Principal August 10, 1998
- ------------------------------------ Accounting Officer)
Robert G. Hunter
/s/ John F. Nichols Vice President and Director August 10, 1998
- ------------------------------------
John F. Nichols
August 5, 1998
- ------------------------------------ Director
E. Dean Butler
/s/ Donald A. Yacktman Director August 5, 1998
- ------------------------------------
Donald A. Yacktman
</TABLE>
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/s/ Stephen A. Yacktman Director August 5, 1998
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Stephen A. Yacktman
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EXHIBIT INDEX
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EXHIBIT
No. Description of Document
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5.1 Opinion of Kirkland & Ellis with respect to the legality of
the shares of the Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kirkland & Ellis (included in opinion filed as Exhibit 5.1).
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KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
200 East Randolph Drive Exhibit 5.1
Chicago, Illinois 60601 -----------
To Call Writer Direct: 312 861-2000 Facsimile:
312 861-2000 312 861-2200
August 11, 1998
Re: 1-800 CONTACTS, INC.
66 East Wadsworth Park Drive, 3rd Floor
Draper, UT 84020
Re: 1-800 CONTACTS, INC.
Registration Statement on Form S-8
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Ladies and Gentlemen:
We are acting as special counsel to 1-800 CONTACTS, INC., a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company of up to 521,140 shares (the "Shares") of its Common Stock, par value
$.01 per share, to be issued and sold by the Company under a Registration
Statement on Form S-8, filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred to
as the "Registration Statement"). The Shares are to be issued upon the exercise
of outstanding awards granted to eligible participants under the Company's 1998
Incentive Stock Option Plan (the "Plan") and pursuant to stock option agreements
with certain of its officers and directors (the "Agreements").
In that connection, we have examined such corporate proceedings,
documents, records and matters of law as we have deemed necessary to enable us
to render this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the legal capacity of
all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of
such persons signing on behalf of the parties thereto other than the Company and
the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. As to any facts material to the opinions
expressed herein, we have relied upon the statements and representations of
officers and other representations of the Company and others. For purposes of
numbered paragraph 1, we have relied exclusively upon certificates issued by
governmental authorities in the relevant jurisdictions and such opinion is not
intended to provide any conclusion or assurance beyond that conveyed by such
certificates.
<PAGE>
KIRKLAND & ELLIS
1-800 CONTACTS, INC.
AUGUST 11, 1998
Page 2
Our opinion expressed below is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of any
laws except the internal laws of the State of Illinois, the General Corporation
Law of the State of Delaware and the federal law of the United States of
America.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, we hereby advise
you that in our opinion:
(1) The Company is a corporation existing and in good standing under
the laws of the State of Delaware.
(2) The Shares are duly authorized and reserved for issuance under the
Plan and the Agreements, and, when (i) the Registration Statement becomes
effective under the Act, (ii) the Shares have been duly executed and delivered
on behalf of the Company countersigned by the Company's transfer agent/registrar
and (iii) the Shares are issued in accordance with the terms of the Plan and the
Agreements upon receipt of the consideration to be paid therefor of at least
$0.01 per share, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission. This
opinion and consent may be incorporated by reference in a subsequent
registration statement on Form S-8 filed pursuant to Rule 462(b) under the Act
with respect to the registration of additional securities issuable under the
Plan.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of Illinois, the General Corporation Law of the State of
Delaware or the federal law of the United States be changed by legislative
action, judicial decision or otherwise.
<PAGE>
KIRKLAND & ELLIS
1-800 CONTACTS, INC.
August 11,1998
Page 3
This opinion is furnished to you pursuant to the applicable rules and
regulations promulgated under the Act in connection with the filing of the
Registration Statement.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
<PAGE>
Exhibit 23.1
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 our report dated January
14, 1998 included in 1-800 CONTACT, INC.'s prospectus dated February 10, 1998
filed pursuant to Rule 424(b)(4) and to all references to our Firm included in
this Registration Statement.
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
August 11, 1998
