As filed with the Securities and Exchange Commission on May 22, 1997.
Registration No.333-27655
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
Post-Effective Amendment
No.1 to
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CANDIE'S, INC.
(Exact name of registrant as specified in its charter)
New York 11-2481903
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
2975 Westchester Avenue, Purchase, New York 10577
(Address of principal executive offices) (Zip Code)
1989 Stock Option Plan; Consultant's Stock Options
(Full title of the plan)
Neil Cole, President
Candie's, Inc.
2975 Westchester Avenue
Purchase, New York 10577
(Name and address of agent for service)
(914) 694-8600
(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Aggregate Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registra-
to be Registered Registered(1) Share(2) Price(2) tion Fee
- ---------------- ------------- -------- -------- --------
Common Stock, par 491,833 shares $2.71 $1,332,867 $403.90
value $.001
per share
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this registration statement also registers an indeterminate number of
shares of common stock which may be issued pursuant to the anti-dilution
provisions of (i) the 1989 Stock Option Plan (the "Plan") of Candie's, Inc.
(the "Company" or the "Registrant") or (ii) the non-Plan options granted to
certain consultants to, and an employee of, the Registrant (the
"Consultant's Stock Options").
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act of 1933 based upon (i) as to
the outstanding options to purchase 427,800 shares, the exercise prices of
such options and (ii) as to the remaining 64,033 shares issuable upon
exercise of options available for future issuance under the Plan, the
average of the high and low sale prices of the Registrant's Common Stock,
as quoted on NASDAQ on May 15, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee
Plan Annual Information.*
* 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 and the Note to Part I of Form S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference in this Registration Statement:
1. Annual Report on Form 10-KSB for the fiscal year ended January 31,
1997;
2. The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A declared effective on January 19,
1990 and any amendments thereto.
3. All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 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
a part hereof from the respective date of filing of such documents.
Any statement contained in a document incorporated by reference herein
is modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any other
subsequently filed document which is incorporated by reference
modifies or replaces such statement.
Any 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 documents 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers.
II-1
<PAGE>
Section 145 of the General Corporation Law of the State of Delaware ("GCL")
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the GCL permits a corporation, by so providing in its
certificate of incorporation, to eliminate or limit director's liability to the
corporation and its shareholders for monetary damages arising out of certain
alleged breaches of their fiduciary duty. Section 102(b)(7) of the GCL provides
that no such limitation of liability may affect a director's liability with
respect to any of the following: (i) breaches of the director's duty of loyalty
to the corporation or its shareholders; (ii) acts or omissions not made in good
faith or which involve intentional misconduct of knowing violations of law;
(iii) liability for dividends paid or stock repurchased or redeemed in violation
of the GCL; or (iv) any transaction from which the director derived an improper
personal benefit. Section 102(b)(7) does not authorize any limitation on the
ability of the corporation or its shareholders to obtain injunction relief,
specific performance or other equitable relief against directors.
Article Nine of the Company's Certificate of Incorporation and the
Company's By-laws provide that all persons who the Company is empowered to
indemnify pursuant to the provisions of Section 145 of the GCL (or any similar
provision or provisions of applicable law at the time in effect), shall be
indemnified by the Company to the full extent permitted thereby. The forgoing
right of indemnification shall not be deemed to be exclusive of any other rights
to which those seeking indemnification may be entitled under any by-law,
agreement, vote of shareholders or disinterested directors, or otherwise.
Article Ten of the Company's Certificate of Incorporation provides that no
director of the Company shall be personally liable to the Company or its
shareholders for any monetary damages for breaches of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders; (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the GCL; or (iv) for any transaction from which
the director derived an improper personal benefit.
The Company's employment agreements with Messrs. Neil Cole and Lawrence
O'Shaughnessy provide that the Company shall indemnify each of them for the
consequences of all acts and decisions made by such person while performing
services for the Company. These agreements also require the Company to use its
best efforts to obtain directors' and officers' liability insurance for such
persons.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
4.1 Specimen Stock Certificate
(filed as an exhibit to the
Registrant's Registration
Statement on Form S-1 (33-53878)
and incorporated by reference
herein)
5 Opinion of Tenzer Greenblatt LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Tenzer Greenblatt LLP
(included in Exhibit 5)
24.1 Power of Attorney (included on
Page II-6 of this Registration
Statement)
Item 9. Undertakings.
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 the most
recent post-effective amendments thereto) which,
II-3
<PAGE>
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 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 prices
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; and
(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)(i) and (1)(ii) do not apply if the
information required to be filed with 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.
(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 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.
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 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
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
II-4
<PAGE>
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 such Act and
will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Purchase, New York, on this 14th day of May 1997.
CANDIE'S, INC.
By: /s/ Neil Cole
---------------------------
Neil Cole, President
Each person whose signature appears below authorizes each of Neil Cole and
Lawrence O'Shaughnessy, or either of them acting individually, as his true and
lawful attorney-in-fact, each with full power of substitution, to sign the
Registration Statement on Form S-8 of Candie's, Inc., including any and all
pre-effective and post-effective amendments, in the name and on behalf of each
such person, individually and in each capacity stated below, and to file the
same, with exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following person in the capacities and
on the dates stated.
Signature Title Date
- --------- ----- ----
/s/ Neil Cole President and Director May 14, 1997
- ------------------------- (Principal Executive
Neil Cole Officer)
/s/ Lawrence O'Shaughnessy Executive Vice President, May 14, 1997
- --------------------------- and Director
Lawrence O'Shaughnessy
/s/ Gary Klein Vice President- Finance May 14, 1997
- --------------------------- (Principal Financial
Gary Klein and Accounting Officer)
/s/ Barry Emanuel Director May 14, 1997
- ---------------------------
Barry Emanuel
/s/ Mark Tucker Director May 14, 1997
- ---------------------------
Mark Tucker
II-6
<PAGE>
Exhibit Index
Exhibit
No. Description Page
--- ----------- ----
4.1 Specimen Stock Certificate (filed as an exhibit to
the Registrant's Registration Statement on Form S-1
(33-53878) and incorporated by reference herein)
5 Opinion of Tenzer Greenblatt LLP 12
23.1 Consent of Ernst & Young LLP 14
23.2 Consent of Tenzer Greenblatt LLP (included in
Exhibit 5)
24.1 Power of Attorney (included on Page II-6 of the
Registration Statement)
Tenzer Greenblatt LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
(212) 885-5000
May 15, 1997
Candie's, Inc.
2975 Westchester Avenue
Purchase, New York 10577
Gentlemen:
You have requested our opinion with respect to the offering by you,
Candie's, Inc., a Delaware corporation (the "Company"), of (i) up to 211,833
shares of the Company's common stock, $.001 par value, (the "Plan Shares")
issuable upon exercise of options granted or to be granted under the Company's
1989 Stock Option Plan (the "Plan"), (ii) up to 250,000 shares of common stock
(the "Consulting Shares") issuable upon exercise of options (the "Consultants
Options") granted to certain individual consultants to the Company for services
provided to the Company and (iii) up to 30,000 shares of Common Stock (the
"Employee Shares") issuable upon exercise of non-plan options (the "Employee
Options") issued to an employee of the Company, pursuant to a registration
statement (the "Registration Statement") on Form S-8 to be filed with the
Securities and Exchange Commission.
We have examined and relied upon originals, or copies certified or
otherwise identified to our satisfaction, of such documents and corporate and
public records as we deemed necessary as a basis for the opinion hereinafter
expressed. With respect to such examination, we have assumed the genuineness of
all signatures appearing on all documents presented to us as originals, and the
conformity to the originals of all documents presented to us as conformed or
reproduced copies. Where factual matters relevant to such opinion were not
independently established, we have relied upon representations of executive
officers of the Company.
Based upon the foregoing, it is our opinion that the Plan Shares, the
Consulting Shares and the Employee Shares have been duly and validly authorized
and, when sold, paid for and issued as contemplated by the Plan, the Consultants
Options or the Employee Options, as the case may be, will be validly issued,
fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement, and to the use of our name as your counsel in
<PAGE>
Candie's, Inc.
May 15, 1997
Page 2
connection with the Registration Statement and in the Prospectus forming a part
thereof. In giving this consent, we do not thereby concede that we come within
the categories of persons whose consent is required by the Securities Act of
1933 or the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ TENZER GREENBLATT LLP
---------------------------
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to Candie's, Inc. 1989 Stock Option Plan; Consultant's Stock
Options of our report dated April 4, 1997, except for Note 17(b), as to which
the date is April 23, 1997, with respect to the consolidated financial
statements of Candie's, Inc. included in its Annual Report (Form 10-KSB) for the
year ended January 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
---------------------------
White Plains, New York
May 15, 1997
