<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 28, 1998
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
K.SWISS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------
<TABLE>
<S> <C>
DELAWARE 95-4265988
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
20664 BAHAMA STREET
CHATSWORTH, CALIFORNIA 91311
(818) 998-3388
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
GEORGE POWLICK
VICE PRESIDENT--FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY
K.SWISS INC.
20664 BAHAMA STREET
CHATSWORTH, CALIFORNIA 91311
(818) 998-3388
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
JONATHAN K. LAYNE DON S. DEAMICIS
GIBSON, DUNN & CRUTCHER LLP ROPES & GRAY
333 SOUTH GRAND AVENUE ONE INTERNATIONAL PLACE
LOS ANGELES, CALIFORNIA 90071 BOSTON, MASSACHUSETTS 02110
(213) 229-7000 (617) 951-7000
</TABLE>
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effectiveness of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT
AMOUNT AGGREGATE AGGREGATE OF
TO BE PRICE OFFERING REGISTRATION
TITLE OF SHARES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock--par value $.01 per
share.................................... 347,294 Shares $26 1/16 $9,051,349.88 $2,670.15
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933. The maximum
price per share information is based on the average of the high and the
low sale price on July 27, 1998.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JULY 28, 1998
PROSPECTUS
K.SWISS INC.
CLASS A COMMON STOCK
347,294 SHARES
-----------
This Prospectus relates to 347,294 shares (the "Shares") of Class A Common
Stock, par value $.01 per share ("Class A Common Stock"), of K.Swiss Inc., a
Delaware corporation (the "Company" or the "Registrant"), which may be offered
for sale hereby from time to time by the stockholder named herein under the
caption "Selling Stockholder" (the "Selling Stockholder"). The outstanding
Class A Common Stock of the Company is quoted on the Nasdaq National Market
("Nasdaq") under the symbol "KSWS". On July 27, 1998, the last reported sale
price of the Class A Common Stock on Nasdaq was $25 5/8 per share. The Company
also has authorized and issued shares of Class B Common Stock, par value $.01
per share ("Class B Common Stock" and, together with the Class A Common Stock,
"Common Stock"), which shares are not traded or quoted on any exchange or on
the over-the-counter market.
The attributes of Class A Common Stock and Class B Common Stock differ in
three significant respects. Holders of shares of Class A Common Stock are
entitled to one vote per share, and holders of shares of Class B Common Stock
are entitled to ten votes per share. Class A Common Stock is not convertible
but is freely transferable, and Class B Common Stock is transferable only to
certain transferees but is freely convertible into Class A Common Stock.
Presently, the holders of shares of Class A Common Stock are entitled to elect
two directors, and the holders of shares of Class B Common Stock are entitled
to elect five directors. In addition, certain actions may not be taken without
the approval of 80% of the aggregate number of votes eligible to be cast, which
approval is currently controlled by holders of shares of Class B Common Stock.
The Company will not receive any of the proceeds from the sale of the Shares
by the Selling Stockholder. Any or all such Shares may be sold, from time to
time, by means of ordinary brokerage transactions or otherwise. See "Plan of
Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
The Selling Stockholder named herein, or any pledgees, donees, transferees or
other successors in interest, directly, through agents to be designated from
time to time or through dealers or underwriters also to be designated, may sell
the Shares from time to time in one or more transactions on the one or more
exchanges or in the over-the-counter market or in negotiated transactions, on
terms to be determined at the time of sale. To the extent required, the
specific Shares, the name of the Selling Stockholder, the respective purchase
prices and public offering prices, the names of any agent, dealer or
underwriter and any applicable commissions or discounts with respect to a
particular offer will be set forth in a supplement to this Prospectus or, if
appropriate, a post-effective amendment to the Registration Statement of which
this Prospectus is a part. See "Plan of Distribution." By agreement, the
Company will pay all the expenses of the registration of the Shares by the
Selling Stockholder other than underwriting commissions and discounts and
transfer taxes, if any. Such expenses to be borne by the Company are estimated
at $25,000.00.
The Selling Stockholder and any broker-dealers, agents or underwriters that
participate with the Selling Stockholder in the distribution of the shares of
Class A Common Stock may be deemed to be "underwriters" within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"), and any
commissions or discounts received by them and any profit on the resale of the
Common Stock purchased by them may be deemed underwriting commissions or
discounts under the Securities Act.
-----------
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements and other
information with the Securities and Exchange Commission (the "Commission").
Such reports, proxy and information statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
DC 20549 and at its regional offices at 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York, New
York 10048. Copies of such materials can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, DC 20549, on
payment of prescribed charges. In addition, the Company is required to file
electronic versions of these documents with the Commission through the
Commission's Electronic Data Gathering, Analysis and Retrieval (EDGAR) system.
The Commission maintains a World Wide Web site at http://www.sec.gov that
contains reports, proxy and information statements and other information
regarding registrants that file electronically via EDGAR with the Commission.
Such reports, proxy and information statements and other information
concerning the Company also can be inspected at the offices of The Nasdaq
Stock Market, Inc., 1735 K Street, N.W., Washington, DC 20006.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act, with respect to
the Shares. This Prospectus does not contain all the information set forth in
the Registration Statement, certain parts of which have been omitted in
accordance with the rules and regulations of the Commission, and the exhibits
relating thereto, which have been filed with the Commission. Copies of the
Registration Statement and the exhibits are on file at the offices of the
Commission and may be obtained upon payment of the fees prescribed by the
Commission, or examined without charge at the public reference facilities of
the Commission described above.
No person is authorized in connection with the offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Company, the Selling Stockholder set forth under "Selling
Stockholder" or any underwriter. This Prospectus relates solely to the Shares
and it may not be used or relied on in connection with any other offer or sale
of securities of the Company. This Prospectus does not constitute an offer to
sell or a solicitation of any offer to buy by any person in any jurisdiction
in which it is unlawful for such person to make such an offer or solicitation.
Neither the delivery of this Prospectus at any time nor any sale made
hereunder shall under any circumstance imply that the information herein is
correct as of any date subsequent to the date hereof.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously or simultaneously filed with the
Commission by the Company are incorporated herein by reference and made a part
hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1998 and June 30, 1998.
(c) The description of the Company's Class A Common Stock, contained in
the Company's Registration Statement on Form 8-A dated June 4, 1990,
including any amendment or report filed for the purpose of updating such
description.
(d) The Company's Current Report on Form 8-K filed January 20, 1998.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering shall be deemed
incorporated herein by reference from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, or in any other subsequently filed
document that also is 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
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents that have been incorporated by reference
in this Prospectus, other than exhibits to such documents. Such documents may
be obtained by writing to K.Swiss Inc., 20664 Bahama Street, Chatsworth,
California 91311, Attention: Corporate Secretary, or by calling (818) 998-
3388.
3
<PAGE>
THE COMPANY
The Company designs, develops and markets an array of athletic footwear for
high performance sports use and casual activities. The Company was founded in
1966 by two Swiss brothers, who introduced one of the first leather tennis
shoes in the United States. The shoe, the K.Swiss "Classic," has remained
relatively unchanged from its original design, and accounts for a significant
portion of the Company's sales. The Classic has evolved from a high-
performance shoe into a casual, lifestyle shoe. Since its inception, the
Company has emphasized in its marketing the Swiss heritage of the Company,
including the commitment to produce products of high quality and enduring
style. The Company plans to continue to emphasize the high quality and classic
design of its products as it introduces new models of athletic footwear.
The Company's product strategy combines classic styling with high quality
components and technical features designed to meet performance requirements of
specific sports. Consistent with this strategy, since 1988, management has
expanded the Company's product line in a controlled manner while retaining the
Company's original commitment to quality products with classic styling. Many
of these new products incorporate technical advances to optimize the
performance aspects of the shoes.
The Company sells its products in the United States through independent
sales representatives primarily to specialty athletic footwear stores, pro
shops, sporting good stores and department stores. The Company also sells its
products to a number of foreign distributors. The Company now has sales
offices or distributorships throughout the world. The Company believes that
its overseas sales offices and foreign distributorships provide an opportunity
for future growth.
The Company was organized under the laws of the State of Delaware on April
16, 1990. The Company is successor in interest to K.Swiss Inc., a
Massachusetts corporation, which in turn was successor in interest to K.Swiss
Inc., a California corporation. The Company's principal executive offices are
located at 20664 Bahama Street, Chatsworth, California 91311, and its
telephone number is (818) 998-3388. Unless the context otherwise requires, the
term the "Company" as used herein refers to K.Swiss Inc. and its consolidated
subsidiaries.
4
<PAGE>
USE OF PROCEEDS
The Company will not receive any of the proceeds from any sales by the
Selling Stockholder of the Shares.
SELLING STOCKHOLDER
The following table sets forth certain information regarding ownership of
shares of Common Stock by the Selling Stockholder as of the close of business
on July 27, 1998. Because the Selling Stockholder may offer all or part of the
shares of Common Stock which it holds pursuant to the offering contemplated by
this Prospectus and because the offering is not being underwritten on a firm
commitment basis, no estimate can be given as to the number of shares of
Common Stock that will be held by the Selling Stockholder upon termination of
any such sales. The information contained in the following table may be
amended or supplemented from time to time.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF NUMBER OF
NUMBER OF NUMBER OF SHARES OF SHARES OF PERCENTAGE SHARES OF
SHARES OF SHARES OF CLASS A CLASS A OF CLASS A CLASS B
CLASS A PERCENTAGE CLASS B PERCENTAGE COMMON COMMON COMMON COMMON
COMMON STOCK OF CLASS A COMMON STOCK OF CLASS B STOCK STOCK HELD STOCK HELD STOCK HELD
SELLING BENEFICIALLY COMMON STOCK BENEFICIALLY COMMON STOCK OFFERED AFTER AFTER AFTER
STOCKHOLDER OWNED OUTSTANDING(1) OWNED OUTSTANDING(1) HEREBY OFFERING(2) OFFERING(2) OFFERING(2)
----------- ------------ -------------- ------------- -------------- ---------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
The Biltrite
Corporation.... 10,000(3)(4) 0.3 364,894(3)(4) 15.6 347,294(2) -- -- --
<CAPTION>
PERCENTAGE
OF CLASS B
COMMON
STOCK HELD
SELLING AFTER
STOCKHOLDER OFFERING(2)
----------- -----------
<S> <C>
The Biltrite
Corporation.... --
</TABLE>
- --------
(1) Percentage of shares of Class A Common Stock and Class B Common Stock
owned prior to the conversion of shares of Class B Common Stock and prior
to this offering.
(2) Pursuant to a currently effective registration statement on Form S-3 (Reg.
No. 333-37895) filed with the Commission on October 15, 1997, the Company
registered 300,000 shares of Class A Common Stock on behalf of The
Biltrite Corporation ("Biltrite"). Provided that Biltrite sells the
remaining 27,600 shares of Common Stock registered under such currently
effective registration statement as well as all shares of Common Stock
registered under this registration statement, Biltrite will no longer own
any shares of Common Stock.
(3) Biltrite owns 10,000 shares of Class A Common Stock and 364,894 shares of
Class B Common Stock. Biltrite has indicated to the Company that in the
event it sells in excess of such 10,000 shares of Class A Common Stock, it
will convert the necessary number of shares of its Class B Common Stock to
shares of Class A Common Stock. The address of Biltrite is Two University
Office Park, 51 Sawyer Road, P.O. Box 9045, Waltham, Massachusetts 02257.
(4) Such shares are owned of record by Biltrite, of which Stanley Bernstein is
Chairman of the Board and Chief Executive Officer and of which Stephen
Fine is a Director, President and Chief Operating Officer.
Messrs. Bernstein and Fine also are the sole shareholders of Biltrite.
Messrs. Bernstein and Fine are Directors of the Company. In addition,
Biltrite is a party to a stockholders agreement (the "Stockholders Agreement")
relating to the manner in which certain shares of Common Stock are voted. The
holders of all outstanding shares of Class B Common Stock other than Kenneth
Zises are parties to the Stockholders Agreement which provides in part as
follows: so long as the number of shares of Class B Common Stock held by
Biltrite and its affiliates (collectively, the "Biltrite Group") exceeds 15%
of the total number of shares of Class B Common Stock outstanding, Steven
Nichols and his affiliates (collectively, the "Nichols Group") will vote their
shares of Class B Common Stock in favor of the election of two nominees of
Biltrite as directors of the Company. The Nichols Group and the Biltrite Group
also will vote their shares in connection with a merger or consolidation of
the Company or a sale or lease of substantially all of its assets
(collectively, a "Sale"), as Mr. Nichols and Biltrite shall mutually direct.
So long as the aggregate number of shares of Class B Common Stock held by the
Biltrite Group is greater than or equal to 15% of the total number of
outstanding shares of all classes of the Company's Common Stock (the "Biltrite
Threshold") and the aggregate number of shares of Class B Common Stock held by
the Nichols Group is greater than or equal to 10% of the total number of
outstanding shares of all classes of the Company's Common Stock (the "Nichols
Threshold"), Biltrite and Mr. Nichols shall direct the Biltrite Group and the
Nichols Group to vote their shares in favor of a Sale only if both Biltrite
and Mr. Nichols shall so agree. If Biltrite and Mr. Nichols do not agree,
5
<PAGE>
they shall mutually direct the Biltrite Group and the Nichols Group to vote
their shares of Class B Common Stock against such Sale. If the number of
shares of Class B Common Stock held by the Biltrite Group falls below the
Biltrite Threshold, Biltrite and Mr. Nichols shall mutually direct the voting
of the shares of Class B Common Stock in connection with a Sale as Mr. Nichols
shall determine. If the number of shares of Class B Common Stock held by the
Nichols Group falls below the Nichols Threshold, Biltrite and Mr. Nichols
shall mutually direct the voting of the shares of Class B Common Stock in
connection with a Sale as Biltrite shall direct. If the number of shares of
Class B Common Stock held by each of the Biltrite Group and the Nichols Group
falls below the Biltrite Threshold and the Nichols Threshold, respectively,
members of each group are free to vote their shares with respect to a Sale as
they see fit. During 1993, the number of shares of Class B Common Stock held
by the Biltrite Group fell below the Biltrite Threshold.
Pursuant to a Purchase Agreement, dated December 29, 1986 (the "Purchase
Agreement"), between the Company, under its former name "324 Corp." and
Biltrite, Biltrite acquired certain "demand", "piggyback" and Form S-3
registration rights with respect to shares of Class A Common Stock issuable
upon conversion of shares of Class B Common Stock held by Biltrite. The shares
of Class A Common Stock being registered on behalf of Biltrite pursuant to the
Registration Statement of which this Prospectus forms a part are being
registered pursuant to such registration rights. Pursuant to the Purchase
Agreement, the Company will pay all the expenses of such registration,
including, among others, expenses for counsel of Biltrite.
The Company may from time to time supplement or amend this Prospectus, as
required, to provide other information with respect to the Selling
Stockholder.
PLAN OF DISTRIBUTION
The Company will not receive any of the proceeds from the sale by the
Selling Stockholder of the Shares. Any or all of such Shares may be sold from
time to time (a) to or through underwriters or dealers, (b) directly to one or
more other purchasers, (c) through agents on a best-efforts basis or (d)
through a combination of any such methods of sale.
The Shares may be sold from time to time by the Selling Stockholder, or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on one or more exchanges or in the over-the-counter market, or
otherwise at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The Shares may be
sold by one or more of the following: (a) a block trade in which the broker or
dealer so engaged will attempt to sell the Shares as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
(b) purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus; (c) an exchange
distribution in accordance with the rules of such exchange; and (d) ordinary
brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the Selling
Stockholder may arrange for other brokers or dealers to participate. Brokers
or dealers will receive commissions or discounts from the Selling Stockholder
in amounts to be negotiated prior to the sale. In addition, any securities
covered by this Prospectus which qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this Prospectus.
The Selling Stockholder and any such underwriters, dealers or agents which
participate in the distribution of the Shares may be deemed to be underwriters
within the meaning of the Securities Act, and any profit on the sale of the
Shares by them and any discounts, commissions or concessions received by them
may be deemed to be underwriting discounts and commissions under the
Securities Act. The Shares may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. Such prices
will be determined by the Selling Stockholder or by an agreement between the
Selling Stockholder and any such underwriters or dealers. Brokers or dealers
acting in connection with the sale of the Shares contemplated by this
Prospectus may receive fees or commissions in connection therewith.
6
<PAGE>
At the time a particular offer of Shares is made, to the extent required, a
supplement to this Prospectus (each, a "Prospectus Supplement") will be
distributed which will identify and set forth the aggregate number of Shares
being offered and the terms of the offering, including the name or names of
any underwriters, dealers or agents, the purchase price paid by any
underwriter for Shares purchased from the Selling Stockholder, any discounts,
commissions and other items constituting compensation from the Selling
Stockholder and/or the Company and any discounts, commissions or concessions
allowed or reallowed or paid to dealers, including the proposed selling price
to the public. Such Prospectus Supplement and, if necessary, a post-effective
amendment to the Registration Statement of which this Prospectus is a part,
will be filed with the Commission to reflect the disclosure of additional
information with respect to the distribution of the Shares.
The Company has advised the Selling Shareholder that the anti-manipulation
rules under the Exchange Act may apply to sales of Shares in the market and to
the activities of the Selling Shareholder and its affiliates. The Selling
Shareholder has advised the Company that during such time as the Selling
Shareholder may be engaged in the attempt to sell Shares registered hereunder,
it will: (a) not engage in any stabilization activity in connection with any
of the Company's securities; (b) not bid for or purchase any of the Company's
securities or any rights to acquire the Company's securities, or attempt to
induce any person to purchase any of the Company's securities or rights to
acquire the Company's securities other than as permitted under the Exchange
Act; (c) not effect any sale or distribution of Shares until after a
Prospectus Supplement, if required, is filed with the Commission to set forth
the terms thereof; and (d) effect all sales of Shares in broker's transactions
through broker-dealers acting as agents, in transactions directly with market
makers or in privately negotiated transactions where no broker or other third
party (other than the purchaser) is involved.
In order to comply with certain states' securities laws, if applicable, the
Shares will be sold in such jurisdictions only through registered or licensed
brokers or dealers. In certain states the Shares may not be sold unless it has
been registered or qualified for sale in such state, or unless an exemption
from registration or qualification is available.
The Company has agreed to indemnify the Selling Stockholder and certain
other persons against certain liabilities, including liabilities arising under
the Securities Act.
7
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR IN ANY PROSPECTUS SUPPLEMENT. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY, ANY UNDERWRITER OR THEIR RESPECTIVE AFFILIATES.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH HEREIN OR
THEREIN OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS
PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 3
The Company................................................................ 4
Use of Proceeds............................................................ 5
Selling Stockholder........................................................ 5
Plan of Distribution....................................................... 6
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[LOGO OF K-SWISS INC.]
K.SWISS INC.
347,294 SHARES
CLASS A
COMMON STOCK
-----------------
PROSPECTUS
-----------------
, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF DISTRIBUTION
<TABLE>
<S> <C>
Registration fee................................................. $ 2,670.15
Blue Sky fees and expenses....................................... $ 0.00
Legal fees and expenses*......................................... $12,000.00
Printing expenses*............................................... $ 5,000.00
Accounting fees and expenses*.................................... $ 5,000.00
Miscellaneous*................................................... $ 329.85
----------
Total expenses................................................. $25,000.00
==========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal or investigative (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is 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 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 such
person's conduct was unlawful. Section 145 further provides that a corporation
similarly may indemnify any such person serving in any such capacity who was
or is a party 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, against expenses actually and reasonably incurred 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 in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such
other court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (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 DGCL (relating to unlawful payment of dividends and unlawful stock
purchase and redemption) or (iv) for any transaction from which the director
derived an improper personal benefit.
The Registrant's Amended and Restated Certificate of Incorporation provides
for the indemnification by the Registrant of each director, officer and
employee of the Registrant to the fullest extent permitted by the DGCL.
As of May 3, 1990, the Registrant entered into, and the stockholders of the
Registrant ratified, separate but identical indemnity agreements (the
"Indemnity Agreements") with each director of the Registrant and certain
II-1
<PAGE>
officers of the Registrant. Pursuant to the terms and conditions of the
Indemnity Agreements, the Registrant indemnified each indemnitee against any
amounts which the indemnitee becomes legally obligated to pay in connection
with any claim against the indemnitee based upon any act, omission, neglect or
breach of duty which the indemnitee may commit, omit or suffer while acting in
his capacity as a director and/or officer of the Registrant; provided,
however, that such claim: (i) is not based upon the indemnitee's gaining in
fact any personal profit or advantage to which the indemnitee is not legally
entitled; (ii) is not for an accounting of profits in fact made from the
purchase or sale by the indemnitee of securities of the Registrant within the
meaning of Section 16(b) of the Exchange Act or similar provisions of any
state law; and (iii) is not based upon the indemnitee's knowingly fraudulent,
deliberately dishonest or willful misconduct.
The Indemnity Agreements provide that all costs and expenses incurred by the
indemnitee in defending or investigating such claim shall be paid by the
Registrant in advance of the final disposition thereof unless a determination
is made by the disinterested directors of the Registrant, independent legal
counsel, the stockholders of the Registrant or a court of competent
jurisdiction that: (i) the indemnitee did not act in good faith and in a
manner that he reasonably believed to be in or not opposed to the best
interests of the Registrant; (ii) in the case of any criminal action or
proceeding, the indemnitee had reasonable cause to believe his conduct was
unlawful; or (iii) the indemnitee intentionally breached his duty to the
Registrant or its stockholders. Each indemnitee has undertaken to repay the
Registrant for any costs or expenses so advanced if it shall ultimately be
determined by a court of competent jurisdiction in a final, nonappealable
adjudication that the indemnitee is not entitled to indemnification under the
Indemnity Agreement.
The Registrant has a liability insurance policy in effect which covers
certain claims against any officer or director of the Registrant by reason of
certain breaches of duty, neglect, errors or omissions committed by such
person in his or her capacity as an officer or director.
For the undertaking with respect to indemnification, see Item 17 herein.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
TITLE OF EXHIBIT
----------------
<C> <S>
4.1 Amended and Restated Certificate of Incorporation of K.Swiss Inc.
(incorporated by reference to Exhibit 3.4 to the Company's Registration
Statement on Form S-1 (Registration No. 33-34369))
4.2 Amended and Restated Bylaws of K.Swiss Inc. (incorporated by reference to
Exhibit 3.4 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1991)
4.3 Certificate of Designations of Class A Common Stock (incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on Form
S-1 (Registration No. 33-34369))
4.4 Certificate of Designations of Class B Common Stock (incorporated by
reference to Exhibit 3.3 to the Company's Registration Statement on Form
S-1 (Registration No. 33-34369))
4.5 Specimen K.Swiss Inc. Class A Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement on Form
S-1 (Registration No. 33-34369))
4.6 Specimen K.Swiss Inc. Class B Common Stock Certificate (incorporated by
reference to Exhibit 4.2 to the Company's Registration Statement on Form
S-1 (Registration No. 33-34369))
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature page filed herewith)
</TABLE>
ITEM 17. UNDERTAKINGS
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 provisions set forth in Item 15 above,
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<PAGE>
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.
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.
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 amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the 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 registration statement is on Form S-3, Form S-8 or Form F-3, 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 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.
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any
delayed offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not
be furnished, provided, that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial
statements and information are 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 Form F-3.
II-3
<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-3 and has duly caused this registration
statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chatsworth, State of California, on the 28th
day of July, 1998.
K.SWISS INC.
/s/ George Powlick
By: _________________________________
George Powlick
Vice President--Finance, Chief
Financial
Officer and Secretary
POWER OF ATTORNEY
We, the undersigned officers and directors of K.Swiss Inc., hereby severally
constitute Steven Nichols and George Powlick, and each of them singly, our
true and lawful attorneys with full power to them, and each of them singly, to
sign for us and in our names in the capacities indicated below, the
Registration Statement filed herewith and any and all amendments to said
Registration Statement (including post-effective amendments), and generally to
do all such things in our name and behalf in our capacities as officers and
directors to enable K.Swiss Inc. to comply with the provisions of the
Securities Act of 1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Witness our hands on the date set forth below.
Pursuant to the requirement of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Steven Nichols Chairman of the Board, July 28, 1998
____________________________________ President and Chief
Steven Nichols Executive Officer and
Director
/s/ George Powlick Vice President--Finance, July 28, 1998
____________________________________ Chief Financial Officer,
George Powlick Secretary and Director
(Principal Financial and
Accounting Officer)
/s/ Stanley Bernstein Director July 28, 1998
____________________________________
Stanley Bernstein
/s/ Lawrence Feldman Director July 28, 1998
____________________________________
Lawrence Feldman
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Stephen Fine Director July 28, 1998
____________________________________
Stephen Fine
/s/ Jonathan Layne Director July 28, 1998
____________________________________
Jonathan Layne
/s/ Martyn Wilford Director July 28, 1998
____________________________________
Martyn Wilford
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE*
------- ----------- ------------
<C> <S> <C>
4.1 Amended and Restated Certificate of Incorporation of
K.Swiss Inc. (incorporated by reference to Exhibit 3.4
to the Company's Registration Statement on Form S-1
(Registration No. 33-34369))
4.2 Amended and Restated Bylaws of K.Swiss Inc.
(incorporated by reference to Exhibit 3.4 to the
Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1991)
4.3 Certificate of Designations of Class A Common Stock
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1
(Registration No. 33-34369))
4.4 Certificate of Designations of Class B Common Stock
(incorporated by reference to Exhibit 3.3 to the
Company's Registration Statement on Form S-1
(Registration No. 33-34369))
4.5 Specimen K.Swiss Inc. Class A Common Stock Certificate
(incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-1
(Registration No. 33-34369))
4.6 Specimen K.Swiss Inc. Class B Common Stock Certificate
(incorporated by reference to Exhibit 4.2 to the
Company's Registration Statement on Form S-1
(Registration No. 33-34369))
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature
page filed herewith)
</TABLE>
- --------
* Only contained in manually executed version
<PAGE>
EXHIBIT 5.1
[Letterhead of Gibson, Dunn & Crutcher LLP]
July 28, 1998
K.Swiss Inc.
20664 Bahama Street
Chatsworth, California 91311
Ladies and Gentlemen:
This opinion is rendered in connection with the Registration Statement on
Form S-3 (the "Registration Statement") of K.Swiss Inc. (the "Company") to be
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act"), covering the offering and possible
future sale by a certain holder of 347,294 shares of Class A Common Stock, par
value $.01 per share ("Class A Common Stock"), of the Company.
We have acted as counsel to the Company in connection with the preparation
and filing of the Registration Statement. For purposes of our opinion, we have
examined and relied upon the information set forth in the Registration
Statement and such documents, records, certificates and other instruments as
we have deemed necessary. We have assumed the genuineness and authenticity of
all documents submitted to us as originals and the conformity to originals of
all documents submitted to us as copies.
Based on and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
2. The shares of Class A Common Stock have been duly authorized and, upon
conversion from shares of Class B Common Stock of the Company to shares of
Class A Common Stock, if necessary, the shares of Class A Common Stock will be
validly issued, fully paid and nonassessable.
The Company is a Delaware corporation. We are not admitted to practice in
Delaware. However, we are generally familiar with the Delaware General
Corporation Law and have made such review thereof as we consider necessary for
the purpose of this opinion. Subject to the foregoing, this opinion is limited
to Delaware, California and federal law.
We consent to the filing of this opinion with and as a part of the
Registration Statement and to the use of our name therein.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
Gibson, Dunn & Crutcher LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus constituting
part of this Registration Statement on Form S-3 of our report dated January 30,
1998 included in K.Swiss Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
Grant Thornton LLP
Los Angeles, California
July 24, 1998
