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As filed with the Securities and Exchange Commission on October 27, 1999
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
K2 INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 95-2077125
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4900 SOUTH EASTERN AVENUE
LOS ANGELES, CA 90040
(Address of Principal Executive Offices) (Zip Code)
RIDE, INC. 1994 STOCK OPTION PLAN
RIDE, INC. 1994 DIRECTORS' NONQUALIFIED STOCK OPTION PLAN
AS ASSUMED BY K2 INC.
(Full Title of the Plans)
JOHN J. RANGEL
4900 SOUTH EASTERN AVENUE
LOS ANGELES, CA 90040
(Name and Address of Agent for Service)
(323) 890-5830
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
BRADFORD P. WEIRICK
GIBSON, DUNN & CRUTCHER LLP
333 SOUTH GRAND AVENUE
LOS ANGELES, CA 90071
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CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE(2) PRICE(2) FEE(3)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $1.00
per share. 174,148 $8.0625 $1,404,069 $390.34
=============================================================================================================================
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(1) Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Calculated pursuant to Rule 457(c) based upon the average of the high and
low prices of the Common Stock on the New York Stock Exchange on
October 22, 1999 which was $8.0625.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by K2 Inc., a
Delaware corporation (the "Company" or "Registrant"), relating to 174,148
shares of its common stock, par value $1.00 per share (the "Common Stock"),
issuable to eligible persons under the Ride, Inc. 1994 Stock Option Plan and
the Ride, Inc. 1994 Directors' Nonqualified Stock Option Plan, as assumed by
K2 Inc. (the "Plans").
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1). Such
documents need not be 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
Form S-8, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the
Company with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(ii) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999 and June 30, 1999;
(iii) The Company's Current Reports on Forms 8-K, filed with the
Commission on July 30, 1999, August 6, 1999 and October 22, 1999;
(iv) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the fiscal year covered by the Annual Report referred to in (i) above;
and
(v) The description of the Common Stock contained in the Company's
Registration Statement on Form S-4, filed with the Commission on August 9, 1999,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment hereto, which indicates that all securities offered hereunder have
been sold or which deregisters all
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securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. 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 Delaware General Corporation Law permits a
corporation to indemnify any of its directors or officers who was or is a party
or is threatened to be made a party to any third party proceeding by reason of
the fact that such person is or was a director or officer of the corporation
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 that such person's conduct was
unlawful. In a derivative action, i.e., one by or in the right of a corporation,
the corporation is permitted to indemnify any of its directors or officers
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 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,
except that no indemnification shall be made if such person shall have been
adjudged liable to the corporation, unless and only to the extent that the court
in which such action or suit was brought shall determine upon application that
such person is fairly and reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Article 18 of the Registrant's Certificate of Incorporation, as
amended, includes a provision that eliminates the personal liability of its
officers and directors for monetary damages for breach of fiduciary duty as a
director to the fullest extent authorized by Delaware law. In addition, as
permitted by Section 145 of the Delaware General Corporation Law, the
Certificate provides that: (a) the Registrant is required to indemnify its
directors, officers and employees and persons serving in such capacities in
other business enterprises (including, for example, subsidiaries of the
Registrant) at the Registrant's request, to the fullest extent permitted by
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary; (b) the Registrant is required to advance expenses,
as incurred to such directors, officers and employees in connection with
defending a proceeding; (c) the rights conferred in the Certificate are not
exclusive and the Registrant is authorized to enter into indemnification
agreements with such directors, officers and employees; and (d) the Registrant
may maintain director and officer liability insurance.
The Registrant's policy is to enter into indemnity agreements with each
of its executive officers and directors that provide the maximum indemnity
allowed to officers and directors by Section 145 of the Delaware General
Corporation Law and the Certificate, as well as additional procedural
protections. The Registrant also maintains a limited amount of director and
officer insurance. The indemnity agreements entered into between the Registrant
and its officers or directors, may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liability arising
under the Securities Act.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
EXHIBIT NO. DESCRIPTION
4.1* Restated Certificate of Incorporation dated May 4, 1989, filed
as Exhibit (3)(a) to Form 10-K for the year ended December 31,
1989 and incorporated herein by reference.
4.2* Certificate of Amendment of Restated Certificate of
Incorporation dated May 31, 1995, filed as Exhibit 3(a)(ii) to
Form 10-K for the year ended December 31, 1995 and
incorporated herein by reference.
4.3* Certificate of Amendment of Restated Certificate of
Incorporation, filed as Exhibit 3(i) to Form 10-Q for the
quarter ended June 30, 1996 and incorporated herein by
reference.
4.4* By-Laws of K2 Inc., as amended and restated, filed as Exhibit
3 to Form 10-Q for the quarter ended March 31, 1997 and
incorporated herein by reference.
4.5* Rights Agreement dated August 10, 1989 between the Company
and Harris Trust Company, filed as Item 6, Exhibit (a) to
Form 10-Q for the quarter ended September 30, 1989 and
incorporated herein by reference.
4.6* Amendment No. 1 to Rights Agreement dated as of December 31,
1997 between K2 Inc. and Harris Trust Company of New York,
filed as Exhibit 2 to Form 8A/A dated January 23, 1998 and
incorporated herein by reference.
5.1 Legal Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (contained on signature page hereto).
* Incorporated by reference.
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) 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
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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 and 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 a 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 paragraphs (1)(a)(i) and (1)(a)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this registration statement.
(b) 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.
(c) 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.
(2) 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 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.
(3) 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 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, the Registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Los Angeles, State of
California on October 22, 1999.
K2 INC.
By: /s/ RICHARD M. RODSTEIN
-----------------------------------
Richard M. Rodstein
Title: PRESIDENT, CHIEF EXECUTIVE
OFFICER AND DIRECTOR
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Richard M. Rodstein and John J.
Rangel, and each of them, with full power of substitution and full power to act
without the other, his true and lawful attorney-in-fact and agent to act for him
or her in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement and any subsequent registration statement the Company may
hereafter file with the Securities and Exchange Commission pursuant to Rule
462(b) under the Securities Act to register additional shares of common stock,
and to file this Registration Statement, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully, to all intents
and purposes, as they, he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated below and on the dates indicated.
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SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ RICHARD M. RODSTEIN President, Chief Executive Officer and October 22, 1999
- ------------------------------------ Director (Principal Executive Officer)
Richard M. Rodstein
/s/ JOHN J. RANGEL Senior Vice President - Finance (Principal October 22, 1999
- ------------------------------------ Financial and Accounting Officer)
John J. Rangel
/s/ B. I. FORESTER Director, Chairman of the Board October 22, 1999
- ------------------------------------
B. I. Forester
/s/ SUSAN E. ENGEL Director October 22, 1999
- ------------------------------------
Susan E. Engel
/s/ JERRY E. GOLDRESS Director October 22, 1999
- ------------------------------------
Jerry E. Goldress
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/s/ WILFORD D. GODBOLD, JR. Director October 22, 1999
- ------------------------------------
Wilford D. Godbold, Jr.
/s/ RICHARD J. HECKMAN Director October 22, 1999
- ------------------------------------
Richard J. Heckman
/s/ STEWART M. KASEN Director October 22, 1999
- ------------------------------------
Stewart M. Kasen
/s/ JOHN H. OFFERMANS Director October 22, 1999
- ------------------------------------
John H. Offermans
/s/ ALFRED E. OSBORNE, JR. Director October 22, 1999
- ------------------------------------
Alfred E. Osborne, Jr.
</TABLE>
6
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
5.1 Legal Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (contained on signature page hereto).
7
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EXHIBIT 5.1
[Letterhead of Gibson, Dunn & Crutcher LLP]
October 21, 1999
(213) 229-7000 C 03611-00019
K2 Inc.
4900 South Eastern Avenue
Los Angeles, California 90040
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to K2 Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 to be filed with the Securities and Exchange Commission (the
"Registration Statement") with respect to the registration under the Securities
Act of 1933, as amended, of 174,148 shares of Common Stock, $1.00 par value (the
"Shares"), of the Company (the "Common Stock"), subject to issuance by the
Company upon exercise of options granted under the Ride, Inc. 1994 Stock Option
Plan and the Ride, Inc. 1994 Directors' Nonqualified Stock Option Plan 1994 Plan
(the "Plans") assumed by the Company pursuant to the terms of the Amended and
Restated Agreement and Plan of Merger, dated as of July 22, 1999, among the
Company, KT Acquisition, Inc., a Washington corporation and wholly-owned
subsidiary of the Company, and Ride, Inc., a Washington corporation.
We have examined the originals or certified copies of such corporate
records, certificates of officers of the Company and/or public officials and
such other documents and have made such other factual and legal investigations
as we have deemed relevant and necessary as the basis for the opinions set forth
below. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as conformed or
photostatic copies and the authenticity of the originals of such copies.
Based on our examination mentioned above, subject to the assumptions
stated above and relying on the statements of fact contained in the documents
that we have examined, we are of the opinion that (i) the issuance by the
Company of the Shares has been duly authorized and (ii) when issued in
accordance with the terms of the Plans, the Shares will be duly and validly
issued, fully paid and non-assessable shares of Common Stock.
We are admitted to practice in the State of California, and are not
admitted to practice in the State of Delaware. However, for the limited purposes
of our opinion set forth above, we are generally familiar with the
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General Corporation Law of the State of Delaware (the "DGCL") as presently in
effect and have made such inquiries as we consider necessary to render this
opinion with respect to a Delaware corporation. This opinion letter is
limited to the laws of the State of California and, to the limited extent set
forth above, the DGCL, as such laws presently exist and to the facts as they
presently exist. We express no opinion with respect to the effect or
applicability of the laws of any other jurisdiction. We assume no obligation
to revise or supplement this opinion letter should the laws of such
jurisdictions be changed after the date hereof by legislative action,
judicial decision or otherwise.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the General Rules and Regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
GIBSON, DUNN & CRUTCHER LLP
BPW/HJH/JAL
9
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 dated October 27, 1999) pertaining to the Ride, Inc. 1994 Stock
Option Plan and the Ride, Inc. 1994 Directors' Nonqualified Stock Option Plan
assumed by K2 Inc. of our report dated February 17, 1999, with respect to the
consolidated financial statements and schedule of K2 Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Los Angeles, CA
October 21, 1999
