<PAGE> 1
As filed with the Securities and Exchange Commission on July 2, 1999
Registration No. 333-
------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COLE NATIONAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 34-1453189
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
5915 Landerbrook Drive, Mayfield Heights, Ohio 44124
(Address of Principal Executive Offices, Including Zip Code)
1998 EQUITY AND PERFORMANCE INCENTIVE PLAN
(AMENDED AND RESTATED JUNE 10, 1999)
(Full Title of the Plan)
Wayne L. Mosley, Vice President,
Controller, Assistant Secretary and Assistant Treasurer
5915 Landerbrook Drive
Mayfield Heights, Ohio 44124
(Name and Address of Agent For Service)
(440) 449-4100
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
Title of Proposed Maxi- Proposed Maxi- Amount of
Securities to Amount to be mum Offering mum Aggregate Registration
be Registered Registered (1) Price Per Share (2) Offering Price (2) Fee
======================================================================================================
<S> <C> <C> <C> <C>
Common 884,000 $7.84 $6,930,560 $ 1,927
Stock, par value $.001 shares
per share (2)
Preferred Share 884,000 -- (3) --(3) --(3)
Purchase Rights rights(3)
======================================================================================================
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, this Registration
Statement also covers additional shares of common stock as may become
issuable pursuant to the anti-dilution provisions of the 1998 Equity
and Performance Incentive Plan (Amended and Restated June 10, 1999).
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules
and Regulations under the Securities Act, on the basis of the average
of the high and low sale prices of such securities on the New York
Stock Exchange on June 29, 1999, within five business days prior to
filing.
(3) These securities, which were created pursuant to the Rights Agreement,
dated as of August 22, 1995, by and between the Company and National
City Bank, as Rights Agent, may be transferred with and only with the
shares of common stock (unless events specified in the Company's Rights
Agreement occur). Therefore, these rights have no offering price and no
fee is required.
Exhibit Index Appears on Page 8
Page 1 of 8 Pages
<PAGE> 2
Part II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by Cole National Corporation
with the Securities and Exchange Commission are incorporated herein by
reference:
o Quarterly Report on Form 10-Q for the quarter ended May 1, 1999;
o Annual Report on Form 10-K for the fiscal year ended
January 30, 1999;
o Quarterly Report on Form 10-Q for the quarterly periods ended
May 1, 1999;
o all other reports filed by Cole National pursuant to
Sections 13(a) and 15(d) of the Securities Exchange Act of 1934
since January 30, 1999;
o the description of the Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission
as of February 14, 1994, and amended on April 6, 1994; and
o the Stockholders' Rights Plan contained in the Registration
Statement on Form 8-A filed with the Commission on September
7, 1995 and amended on August 27, 1997. Both Form 8-As were
filed pursuant to the Exchange Act for the purpose of
registering Cole National's common stock.
All documents subsequently filed by Cole National 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 have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated herein by reference and to be part hereof from the date of
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable. The common stock and the associated preferred share
purchase rights to be offered are registered under Section 12 of the Exchange
Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Articles Seventh and Eighth of Cole National's Restated Certificate of
Incorporation and Article VIII of Cole National's Amended and Restated By-laws
are incorporated herein by reference to Exhibits 3.1(i) and 3.2(ii),
respectively, of Cole National's Annual Report on Form 10-K for the period ended
February 3, 1996 (File No. 1-12814).
Cole National has entered into indemnity agreements with its current
directors and officers, and maintains directors and officers liability insurance
for its directors and executive officers. Item 15 in Part II of Cole National's
Form S-3 Registration Statement, No. 333-5875, is incorporated herein by
reference.
Page 2 of 8 Pages
<PAGE> 3
Item 7. EXEMPTION FROM REGISTRATION CLAIMS
Not Applicable.
Item 8. EXHIBITS
4.1 Restated Certificate of Incorporation, incorporated herein by
reference to Exhibit 3.1(i) of Cole National's Annual Report
on Form 10-K for the period ended February 3, 1996 (File No.
1-12814).
4.27 Certificate of Amendment of the Restated Certificate
of Incorporation, incorporated herein by reference to Exhibit
3.1(ii) of Cole National's Annual Report on Form 10-K for the
year ended January 31, 1998 (File No. 1-12814).
4.3 Amended and Restated By-Laws, incorporated herein by
reference to Exhibit 3.2(ii) of Cole National's Annual Report
on Form 10-K for the year ended February 3, 1996 (File
No. 1-12814).
4.4 Rights Agreement and Form of Right Certificate,
incorporated by reference to Form 8-A filed with the
Commission on September 7, 1995 (File No. 1-12814).
4.5 Amendment No. 1 to the Rights Agreement, incorporated by
reference to Form 8-A/A filed with the Commission on August
22, 1997.
4.6 Cole National Corporation 1998 Equity and Performance
Incentive Plan (Amended and Restated as of June 10, 1999),
incorporated by reference to Annex B of Cole National's
definitive Proxy Statement dated May 3, 1999.
4.7 Form of Nonqualified Stock Option Agreement,
incorporated by reference to Exhibit 10.46 of Cole National's
Annual Report on Form 10-K for the year ended January 30,
1999.
5.1* Opinion and Consent of Jones, Day, Reavis & Pogue.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Jones, Day, Reavis & Pogue (included in
Exhibit 5.1).
24.1* Power of Attorney.
- ----------------
* Filed herewith
Page 3 of 8 Pages
<PAGE> 4
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;
(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 the
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 a 20%
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 (a)(1)(i)
and (a)(1)(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
Cole National 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.
(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 Cole National'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 therein, and the offering of such
securities at that time shall be deemed to be in the initial
on a fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of Cole National pursuant to the foregoing
provisions, or otherwise, Cole National has been advised that
in the opinion of
Page 4 of 8 Pages
<PAGE> 5
the 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 Cole National of
expenses incurred or paid by a director, officer or
controlling person of Cole National 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, Cole National 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 of 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.
Page 5 of 8 Pages
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cole
National 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 Mayfield Heights, State of Ohio, on July 2, 1999.
COLE NATIONAL CORPORATION
By: /s/Wayne L. Mosley
-----------------------------------
Wayne L. Mosley, Vice President,
Controller, Assistant Secretary and
Assistant Treasurer
Page 6 of 8 Pages
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
*
- --------------------- Chairman, Chief Executive Officer and July 2, 1999
Jeffrey A. Cole Director (Principal Executive Officer)
*
- --------------------- President, Chief Operating Officer and July 2, 1999
Brian B. Smith Director
*
- --------------------- Executive Vice President, Strategic July 2, 1999
George H. Bernstein Planning and Chief Financial Officer
(Principal Financial Officer)
/s/Wayne L. Mosley Vice President, Controller, Assistant July 2, 1999
- --------------------- Secretary and Assistant Treasurer
Wayne L. Mosley (Principal Accounting Officer)
*
- --------------------- Director July 2, 1999
Timothy F. Finley
*
- --------------------- Director July 2, 1999
Irwin N. Gold
*
- --------------------- Director July 2, 1999
Peter V. Handal
*
- --------------------- Director July 2, 1999
June 29, 1999
Charles A. Ratner
*
- --------------------- Director July 2, 1999
Walter J. Salmon
</TABLE>
* Wayne L. Mosley, the undersigned attorney-in-fact, by signing his
name hereto, does hereby sign and execute this Registration Statement on behalf
of the above indicated Registrant and officers and directors thereof
(constituting a majority of the directors) pursuant to a power of attorney filed
with the Securities and Exchange Commission.
July 2, 1999 By: /s/ Wayne L. Mosley
------------------------------------
Wayne L. Mosley, Vice President,
Controller, Assistant Secretary and
Assistant Treasurer
Page 7 of 8 Pages
<PAGE> 8
EXHIBIT INDEX
Exhibit
Number Exhibit Description
- ------- --------------------
4.1 Restated Certificate of Incorporation, incorporated herein by reference
to Exhibit 3.1(i) of Cole National's Annual Report on Form 10-K for the
year ended February 3, 1996 (File No. 1-12814).
4.2 Certificate of Amendment of the Restated Certificate of Incorporation,
incorporated herein by reference to Exhibit 3.1(ii) of Cole National's
Annual Report on Form 10- K for the period ended January 31, 1998 (File
No. 1-12814).
4.3 Amended and Restated By-Laws, incorporated herein by reference to
Exhibit 3.2(ii) of Cole National's Annual Report on Form 10-K for the
year ended February 3, 1996 (File No. 1-12814).
4.4 Rights Agreement and Form of Right Certificate, incorporated by
reference to Form 8-A filed with the Commission on September 7, 1995
(File No. 1-12814).
4.5 Amendment No. 1 to the Rights Agreement, incorporated by reference to
Form 8- A/A filed with the Commission on August 22, 1997.
4.6 Cole National Corporation 1998 Equity and Performance Incentive Plan
(Amended and Restated as of June 10, 1999), incorporated by reference to
Annex B to Cole National's definitive Proxy Statement dated May 3, 1999.
4.7 Form of Nonqualified Stock Option Agreement, incorporated by reference
to Exhibit 10.46 of Cole National's Annual Report on Form 10-K for the
year ended January 30, 1999.
5.1* Opinion and Consent of Jones, Day, Reavis & Pogue.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1).
24.1* Power of Attorney.
- ----------------
*Filed herewith
Page 8 of 8 Pages
<PAGE> 1
Exhibit 5.1
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, OH 44113
July 2, 1999
Cole National Corporation
5915 Landerbrook Drive
Mayfield Heights, Ohio 44124
Re: Cole National Corporation 1998 Equity and Performance
Incentive Plan (Amended and Restated as of June 10, 1999)
---------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Cole National Corporation, a
Delaware corporation (the "Registrant"), in connection with the Cole National
Corporation 1998 Equity and Performance Incentive Plan (Amended and Restated as
of June 10, 1999) (the "Plan"). We have examined such documents, records and
matters of law as we have deemed necessary for purposes of this opinion, and
based thereupon, we are of the opinion that
1. The shares of the Registrant's common stock, par value $.001 per
share (the "Common Stock"), that may be issued or transferred and sold
pursuant to the Plan will be, when issued or transferred and sold in
accordance with the Plan and, with respect to options granted under the
Plan, the related option agreements, assuming receipt of consideration at
least equal to the par value of the Common Stock, duly authorized,
validly issued, fully paid and nonassessable.
2. When issued in accordance with the terms of the Rights Agreement,
dated August 22, 1995 (amended August 27, 1997) between the Registrant
and National City Bank, as rights agent (the "Rights Agreement"), the
preferred share purchase rights (the "Rights") will be validly issued.
The opinion set forth in paragraph 2 is limited to the valid
issuance of the Rights under the corporation laws of the State of Delaware. We
do not express any opinion herein with respect to any other aspect of the
Rights, the effect of equitable principles or fiduciary considerations relating
to the adoption of the Rights Agreement or the issuance of the Rights or the
enforceability of any particular provisions of the Rights Agreement.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement on Form S-8 filed by the Registrant to effect
registration under the Securities Act of 1933 of the shares of Common Stock to
be issued or transferred and sold pursuant to the Plan.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 23.1
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 17, 1999,
included in Cole National Corporation's Form 10-K for the year ended
January 30, 1999, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Cleveland, Ohio,
July 1, 1999
<PAGE> 1
Exhibit 24.1
COLE NATIONAL CORPORATION
POWER OF ATTORNEY
------------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and/or directors of Cole National Corporation, a Delaware corporation (the
"Corporation"), hereby constitutes and appoints Joseph Gaglioti, Wayne L. Mosley
and Leslie D. Dunn, and each of them, as the true and lawful attorney or
attorneys-in-fact, with full power of substitution and revocation, for the
undersigned and in the name, place and stead of the undersigned, to sign on
behalf of the undersigned, the Corporation's Registration Statement on Form S-8
pursuant to the Securities Act of 1933 concerning the Common Shares of the
Company to be offered in connection with the Corporation's 1999 Employee Stock
Purchase Plan, the 1998 Equity and Performance Incentive Plan and the 1999
Broad-Based Employee Stock Option Plan and to sign any and all amendments or
post-effective amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission or any state regulatory authority, granting
unto said attorney or attorneys-in-fact, 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 and about the premises, as fully to all intents and purposes as
they might or could do in person, hereby ratifying and confirming all that said
attorney or attorneys-in-fact or any of them or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the 10th day of June, 1999.
/s/Jeffrey A. Cole /s/Brian B. Smith
- --------------------------------- ---------------------------------
Jeffrey A. Cole Brian B. Smith
/s/Timothy F. Finley /s/Irwin N. Gold
- --------------------------------- ---------------------------------
Timothy F. Finley Irwin N. Gold
/s/Peter V. Handal /s/Charles A. Ratner
- --------------------------------- ---------------------------------
Peter V. Handal Charles A. Ratner
/s/Walter J. Salmon /s/George H. Bernstein
- --------------------------------- ---------------------------------
Walter J. Salmon George H. Bernstein
