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As filed with the Securities and Exchange Commission on March 7, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
KENNETH COLE PRODUCTIONS, INC.
(Exact name of registrant as specified in its charter)
New York 13-3131650
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
152 West 57th Street
New York, New York 10019
(212) 265-1500
(Address, including zip code, and telephone number, including
area code, of principal executive offices)
Kenneth Cole Productions, Inc.
Employee Stock Purchase Plan
(Full title of the plan)
Kenneth D. Cole
President and Chief Executive Officer
152 West 57th Street
New York, New York 10019
(212) 265-1500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount of
securities be maximum maximum registration
to be registered offering aggregate fee
registered (1) price per offering
share (2) price (2)
Class A
Common
Stock, 150,000 $34.04 $5,106,249.90 $1,419.54
$0.01 par
value per
share
(1) Represents 150,000 shares of Class A common stock of Kenneth
Cole Productions, Inc., par value $0.01 per share (the
"Common Stock"), issuable pursuant to the Kenneth Cole
Productions, Inc. Employee Stock Purchase Plan (the "Plan").
In addition, this Registration Statement covers an
indeterminable number of additional shares as may hereafter
be offered or issued, pursuant to the Plan, to prevent
dilution resulting from stock splits, stock dividends or
similar transactions effected without the receipt of
consideration and, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act"), an
indeterminable amount of participation interests to be
offered or sold pursuant to the Plan.
(2) Estimated solely for calculating the amount of the
registration fee, pursuant to paragraphs (c) and (h) of Rule
457 under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by Kenneth Cole Productions,
Inc., a New York corporation (the "Company"), are incorporated by
reference into the Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ending December 31, 1998, filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1999, June 30, 1999 and September
30, 1999, filed pursuant to the Exchange Act;
(c) The Company's Current Report on Form 8-K, filed on July
29, 1999 pursuant to the Exchange Act; and
(d) The description of the Common Stock under the caption
"Description of Capital Stock" incorporated by reference
into the Company's Registration Statement on Form 8-A, filed
on May 18, 1994 pursuant to the Exchange Act and contained
in the Company's Registration Statement on Form S-1 (No. 33-
77636), filed on April 13, 1994 pursuant to the Securities
Act, as updated in Amendment No. 2 to the Company's
Registration Statement on Form S-1 (No. 33-91798) filed on
May 23, 1995 pursuant to the Securities Act.
In addition, all documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that
all the securities offered hereby 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 date of the filing of such documents with the
Commission. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for
purposes hereof to the extent that a statement contained herein (or in
any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute
a part hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 722 of the New York Business Corporation Law, as
amended, the law of the state in which the Company is incorporated,
empowers a corporation, within certain limitations, to indemnify any
person who served in any capacity at the request of the corporation,
by reason of the fact that he, his testator or intestate, was a
director or officer of the corporation, or served such other
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise in any capacity, against judgments, fines, amounts
paid in settlement and reasonable expenses, including attorney's fees
actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, if such director or officer acted,
in good faith, for a purpose which he reasonably believed to be in,
or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to, the best interests of the corporation and,
in criminal actions or proceedings, in addition, had no reasonable
cause to believe that his conduct was unlawful.
Article 7 of the Company's Restated Certificate of
Incorporation, provides:
No director of the [Company] shall be personally liable to
the [Company] or its shareholders for damages for any breach
of duty in such capacity, provided that nothing contained in
this Article 7 shall eliminate or limit the liability of any
director if a judgment or other final adjudication adverse
to him establishes that his acts or omissions were in bad
faith or involved intentional misconduct or a knowing
violation of law or that he personally gained in fact a
financial profit or other advantage to which he was not
legally entitled or that his acts violated Section 719 of
the New York Business Corporation Law. Notwithstanding the
foregoing nothing in this Article 7 shall eliminate or limit
the liability of a director for any act or omission
occurring prior to the date of filing of the Restated
Certificate of Incorporation of the [Company] that includes
this Article 7.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No. Description of Exhibits
5 Opinion of Willkie Farr & Gallagher regarding the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (included in
Exhibit 5).
24 Power of Attorney (reference is made to the
signature page).
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 the 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;
(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)(i) and (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
Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the 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 Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act and each filing of the 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 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 Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Company 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 New York, State
of New York, on this 6th day of March, 2000.
KENNETH COLE PRODUCTIONS, INC.
By: /s/ KENNETH D. COLE
Kenneth D. Cole
President and Chief Executive Officer
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POWER OF ATTORNEY
Each of the undersigned officers and directors of Kenneth
Cole Productions, Inc. hereby severally constitutes and appoints
Kenneth D. Cole and Stanley A. Mayer, or either of them, as the
attorney-in-fact for the undersigned, in any and all capacities, each
with full power of substitution, to sign any and all pre- or post-
effective amendments to this Registration Statement, any subsequent
Registration Statement for the same offering which may be filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
and any and all pre- or post-effective amendments thereto, and to file
the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said 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 he might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated:
Name Title Date
By: /s/ KENNETH D. COLE President, Chief March 6, 2000
Kenneth D. Cole Executive Officer and
Chairman of the Board
By: /s/ STANLEY A. MAYER Executive Vice March 6, 2000
Stanley A. Mayer President, Chief
Financial Officer,
Treasurer, Secretary
and Director
By: /s/ PAUL BLUM Executive Vice March 6, 2000
Paul Blum President, Chief
Operating Officer and
Director
By: /s/ ROBERT C. GRAYSON Director March 6, 2000
Robert C. Grayson
By: /s/ DENIS F. KELLY Director March 6, 2000
Denis F. Kelly
By: /s/ JEFFREY G. LYNN Director March 6, 2000
Jeffrey G. Lynn
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
5 Opinion of Willkie Farr & Gallagher regarding the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (included in
Exhibit 5).
24 Power of Attorney (reference is made to the
signature page).
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EXHIBIT 5
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WILLKIE FARR & GALLAGHER
787 Seventh Avenue
New York, NY 10019-6099
March 6, 2000
Kenneth Cole Productions, Inc.
152 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
We have acted as counsel to Kenneth Cole Productions, Inc. (the
"Company"), a corporation organized under the laws of the State of New
York, with respect to the Company's Registration Statement on Form S-8
(the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission on or about March 7, 2000, in
connection with the registration under the Securities Act of 1933, as
amended (the "Act"), by the Company of an aggregate of 150,000 shares
(the "Company Shares") of the Company's Class A common stock, par
value $0.01 per share, issuable under the Kenneth Cole Productions,
Inc. Employee Stock Purchase Plan (the "Plan").
As counsel for the Company, we have examined, among other things,
originals and/or copies of such documents, certificates and records as
we deemed necessary and appropriate to form a basis for the opinion
hereinafter expressed. In our examination, we have assumed the
genuineness of all signatures and the conformity to original documents
of all copies submitted to us. As to various questions of fact
material to our opinion, we have relied on statements and certificates
of officers and representatives of the Company.
Based on the foregoing, we are of the opinion that, when the
Registration Statement has become effective under the Act, the Company
Shares, when duly issued, sold and paid for in accordance with the
terms of the Plan, will be legally issued, fully paid and non-
assessable.
We are qualified to practice law in the State of New York and do not
purport to be experts on, or to express any opinion herein, concerning
any law, other than the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the
United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required
under Section 7 of the Act.
Very truly yours,
/s/ Willkie Farr & Gallagher
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EXHIBIT 23.1
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Kenneth Cole Productions, Inc.
Employee Stock Purchase Plan of our report dated February 25, 1999 with
respect to the consolidated financial statements and schedules of
Kenneth Cole Productions, Inc. included in the Annual Report (Form 10-
K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG
New York, New York
March 6, 2000
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EXHIBIT 23.2
(Contained in Exhibit 5)
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EXHIBIT 24
(Reference is made to the signature page)
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KENNETH COLE PRODUCTIONS, INC.
152 West 57th Street
New York, NY 10019
March 7, 2000
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Kenneth Cole Productions, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
In connection with the registration of 150,000 shares of Class A
common stock of Kenneth Cole Productions, Inc. (the "Company"), par
value $0.01 per share, to be issued under the Kenneth Cole
Productions, Inc. Employee Stock Purchase Plan, enclosed for filing is
the Company's Registration Statement on Form S-8 (the "Registration
Statement"). A fee payable to the Securities and Exchange Commission
(the "Commission") in the amount of $1,419.54 in payment of the
applicable filing fee has been wired to the Commission's lockbox at
Mellon Bank in Pittsburgh, Pennsylvania.
The Registration Statement is being submitted electronically pursuant
to Item 101(a)(1)(i) of Regulation S-T. The filing fee is being
submitted electronically pursuant to Item 13(c) of Regulation S-T.
Any questions regarding the Registration Statement should be directed
to the undersigned at (201) 583-8508.
Very truly yours,
/s/ David Edelman
David Edelman
