-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OeMQeVfnWSgy87FdA3skwiIiqP37atG/XMFCu2IRBh4OxqyMccphA4ubKP67x+aE E/QQMahnBr+eHWEb83Hd3A== 0000950152-97-000124.txt : 19970109 0000950152-97-000124.hdr.sgml : 19970109 ACCESSION NUMBER: 0000950152-97-000124 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970108 EFFECTIVENESS DATE: 19970108 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: COLE NATIONAL CORP /DE/ CENTRAL INDEX KEY: 0000769644 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-RETAIL STORES, NEC [5990] IRS NUMBER: 341453189 STATE OF INCORPORATION: DE FISCAL YEAR END: 0203 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-19419 FILM NUMBER: 97502816 BUSINESS ADDRESS: STREET 1: 5915 LANDERBROOK DR CITY: MAYFIELD HEIGHTS STATE: OH ZIP: 44124 BUSINESS PHONE: 2164494100 MAIL ADDRESS: STREET 1: 5915 LANDERBROOK DRIVE STREET 2: SUITE 300 CITY: CLEVELAND STATE: OH ZIP: 44124 FORMER COMPANY: FORMER CONFORMED NAME: CNC HOLDING CORP/DE DATE OF NAME CHANGE: 19920703 S-8 1 COLE NATIONAL CORPORATION S-8 1 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) 1996 MANAGEMENT STOCK OPTION PLAN (Full Title of the Plan) Wayne L. Mosley, Vice President, Controller, Assistant Secretary and Assistant Treasurer Cole National Corporation 5915 Landerbrook Drive Mayfield Heights, Ohio 44124 (Name and Address of Agent For Service) (216) 449-4100 (Telephone Number, Including Area Code, of Agent For Service) CALCULATION OF REGISTRATION FEE
============================================================================================================================= 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 ============================================================================================================================= Class A Common 884,000 $27.56 $24,363,040 $7,382.74 Stock, par value $.001 per share (2) Preferred Share 884,000 -(3) -(3) -(3) Purchase Rights rights (3) ============================================================================================================================= (1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities Act"), this Registration Statement also covers such additional Class A Common Stock, par value $.001 per share (the "Common Stock"), as may become issuable pursuant to the anti-dilution provisions of the 1996 Management Stock Option Plan. (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 January 6, 1997, within five business days prior to filing.
Page 1 of 8 Pages 2 (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, such rights have no offering price and a fee is not required in connection therewith. Exhibit Index Appears on Page 8 Page 2 of 8 Pages 3 Part II Item 3. Incorporation of Documents by Reference --------------------------------------- The following documents previously filed by Cole National Corporation (the "Registrant") with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) the Registrant's Annual Report on Form 10-K for the fiscal year ended February 3, 1996 (the "Form 10-K"); (b) the Registrant's Quarterly Reports on Form 10-Q for the quarterly periods ended May 4, 1996, August 3, 1996 and November 2, 1996, and all other reports filed by the Registrant pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), since February 3, 1996; and (c) the description of the Common Stock contained in the Registration Statement on Form 8-A dated as of February 14, 1994, and as amended on April 6, 1994, as filed with the Commission and the Stockholders' Rights Plan contained in the Registration Statement on Form 8-A filed with the Commission on September 7, 1995; both of the Form 8-As were filed pursuant to the Exchange Act for purposes of registering such securities thereunder. All documents subsequently filed by the Registrant 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. (Class of securities to be offered is 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 Registrant's Restated Certificate of Incorporation and Article VIII of the Registrant's Amended and Restated By-laws are incorporated herein by reference respectively to Exhibits 3.1(i) and 3.2(ii) of the Registrant's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). The Registrant 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 Registrant's Form S-3 Registration Statement, No. 333-5875, is incorporated herein by reference. Item 7. Exemption from Registration Claims ---------------------------------- Not Applicable. Item 8. Exhibits -------- 4.1 Restated Certificate of Incorporation is incorporated herein by reference to Exhibit 3.1(i) of the Registrant's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). Page 3 of 8 Pages 4 4.2 Amended and Restated By-Laws are incorporated herein by reference to Exhibit 3.2(ii) of the Registrant's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). 4.3 Rights Agreement and Form of Right Certificate are incorporated by reference to Form 8-A filed with the Commission on September 7, 1995 (File No. 1-12814). 4.4 1996 Management Stock Option Plan, including forms of Nonqualified Stock Option Agreement (1996 Time Vesting), is incorporated herein by reference to Exhibit 10.10 of the Registrant's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). 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* Powers of Attorney. - ---------------- * Filed herewith 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 the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. Page 4 of 8 Pages 5 (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 the Registrant'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 bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the 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 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 6 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 the City of Mayfield Heights, State of Ohio, on January 8, 1997. COLE NATIONAL CORPORATION By: /s/ Wayne L. Mosley --------------------------------------------- Wayne L. Mosley, Vice President, Controller, Assistant Secretary and Assistant Treasurer Page 6 of 8 Pages 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.
Signature Title Date --------- ----- ---- * Chairman, Chief Executive Officer, January 8, 1997 - ------------------------------------------ Chief Financial Officer and Director Jeffrey A. Cole (Principal Executive Officer and Principal Financial Officer) * President, Chief Operating Officer January 8, 1997 - ------------------------------------------ and Director Brian B. Smith /s/ Wayne L. Mosley Vice President, Controller, Assistant January 8, 1997 - ------------------------------------------ Secretary and Assistant Treasurer Wayne L. Mosley (Principal Accounting Officer) * Director January 8, 1997 - ------------------------------------------ Timothy F. Finley * Director January 8, 1997 - ------------------------------------------ Irwin N. Gold * Director January 8, 1997 - ------------------------------------------ Peter V. Handal * Director January 8, 1997 - ------------------------------------------ Charles A. Ratner * 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.
January 8, 1997 By: /s/ Wayne L. Mosley -------------------- Wayne L. Mosley, Vice President, Controller, Assistant Secretary and Assistant Treasurer Page 7 of 8 Pages 8 EXHIBIT INDEX -------------
Pagination by sequential Exhibit Exhibit numbering Number Description system ------ ----------- ------ 4.1 Restated Certificate of Incorporation is incorporated herein by reference to - Exhibit 3.1(i) of the Registrant's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). 4.2 Amended and Restated By-Laws are incorporated herein by reference to - Exhibit 3.2(ii) of the Registrant's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). 4.3 Rights Agreement and Form of Right Certificate are incorporated by - reference to Form 8-A filed with the Commission on September 7, 1995 (File No. 1-12814). 4.4 1996 Management Stock Option Plan, including forms of Nonqualified Stock Option Agreement (1996 Time Vesting), is incorporated herein by reference - to Exhibit 10.10 of the Registrant's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). 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* Powers of Attorney. - - -------- * Filed herewith
Page 8 of 8 Pages EX-5.1 2 EXHIBIT 5.1 1 Exhibit 5.1 January 8, 1997 Cole National Corporation 5915 Landerbrook Drive Mayfield Heights, Ohio 44124 Re: Cole National Corporation 1996 Management Stock Option Plan --------------------------------- Ladies and Gentlemen: We have acted as counsel for Cole National Corporation, a Delaware corporation (the "Registrant"), in connection with the Cole National Corporation 1996 Management Stock Option Plan (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 the shares of Class A Common Stock, par value $.001 per share (the "Common Stock"), that may be issued or transferred and sold pursuant to the Plan (and the authorized forms of Nonqualified Stock Option Agreement (1996 Time Vesting) thereunder) will be, when issued or transferred and sold in accordance with the Plan and such Agreements, and assuming receipt of consideration at least equal to the par value of the Common Stock, duly authorized, validly issued, fully paid and nonassessable. 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 of the shares of Common Stock to be issued or transferred and sold pursuant to the Plan under the Securities Act of 1933. Very truly yours, /s/ Jones, Day, Reavis & Pogue EX-23.1 3 EXHIBIT 23.1 1 Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated March 19, 1996 included in the Cole National Corporation Form 10-K for the year ended February 3, 1996 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Arthur Andersen LLP Cleveland, Ohio, January 8, 1997 EX-24.1 4 EXHIBIT 24.1 1 Exhibit 24.1 DIRECTOR AND/OR OFFICER OF COLE NATIONAL CORPORATION REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY The undersigned director and/or officer of Cole National Corporation, a Delaware corporation (the "Corporation"), hereby constitutes and appoints Jeffrey A. Cole, Joseph Gaglioti and Wayne Mosley, or any of them, with full power of substitution and resubstitution, as attorneys or attorney of the undersigned, for him or her and in his or her name, place and stead, to sign and file under the Securities Act of 1933 one or more Registration Statement(s) on Form S-8 relating to the registration for sale of the Corporation's Class A Common Stock, and any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements, and any and all applications or other documents to be filed with the Securities and Exchange Commission pertaining to such registration(s), with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the act of said attorneys and any of them and any such substitute. EXECUTED as of June 6, 1996. /s/ Jeffrey A. Cole Chairman, Chief Executive Officer, - -------------------------- Chief Financial Officer and Director Signature ------------------------------------ Title Jeffrey A. Cole - -------------------------- Name 2 DIRECTOR AND/OR OFFICER OF COLE NATIONAL CORPORATION REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY The undersigned director and/or officer of Cole National Corporation, a Delaware corporation (the "Corporation"), hereby constitutes and appoints Jeffrey A. Cole, Joseph Gaglioti and Wayne Mosley, or any of them, with full power of substitution and resubstitution, as attorneys or attorney of the undersigned, for him or her and in his or her name, place and stead, to sign and file under the Securities Act of 1933 one or more Registration Statement(s) on Form S-8 relating to the registration for sale of the Corporation's Class A Common Stock, and any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements, and any and all applications or other documents to be filed with the Securities and Exchange Commission pertaining to such registration(s), with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the act of said attorneys and any of them and any such substitute. EXECUTED as of June 6, 1996. President, Chief Operating Officer, /s/ Brian Smith and Director - ---------------------------- ----------------------------------- Signature Title Brian Smith - ---------------------------- Name 3 DIRECTOR AND/OR OFFICER OF COLE NATIONAL CORPORATION REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY The undersigned director and/or officer of Cole National Corporation, a Delaware corporation (the "Corporation"), hereby constitutes and appoints Jeffrey A. Cole, Joseph Gaglioti and Wayne Mosley, or any of them, with full power of substitution and resubstitution, as attorneys or attorney of the undersigned, for him or her and in his or her name, place and stead, to sign and file under the Securities Act of 1933 one or more Registration Statement(s) on Form S-8 relating to the registration for sale of the Corporation's Class A Common Stock, and any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements, and any and all applications or other documents to be filed with the Securities and Exchange Commission pertaining to such registration(s), with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the act of said attorneys and any of them and any such substitute. EXECUTED as of June 6, 1996. /s/ Timothy F. Finley Director - --------------------------- --------------------------------- Signature Title Timothy F. Finley - --------------------------- Name 4 DIRECTOR AND/OR OFFICER OF COLE NATIONAL CORPORATION REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY The undersigned director and/or officer of Cole National Corporation, a Delaware corporation (the "Corporation"), hereby constitutes and appoints Jeffrey A. Cole, Joseph Gaglioti and Wayne Mosley, or any of them, with full power of substitution and resubstitution, as attorneys or attorney of the undersigned, for him or her and in his or her name, place and stead, to sign and file under the Securities Act of 1933 one or more Registration Statement(s) on Form S-8 relating to the registration for sale of the Corporation's Class A Common Stock, and any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements, and any and all applications or other documents to be filed with the Securities and Exchange Commission pertaining to such registration(s), with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the act of said attorneys and any of them and any such substitute. EXECUTED as of June 6, 1996. /s/ Irwin N. Gold Director - -------------------------- -------------------------------- Signature Title Irwin N. Gold - -------------------------- Name 5 DIRECTOR AND/OR OFFICER OF COLE NATIONAL CORPORATION REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY The undersigned director and/or officer of Cole National Corporation, a Delaware corporation (the "Corporation"), hereby constitutes and appoints Jeffrey A. Cole, Joseph Gaglioti and Wayne Mosley, or any of them, with full power of substitution and resubstitution, as attorneys or attorney of the undersigned, for him or her and in his or her name, place and stead, to sign and file under the Securities Act of 1933 one or more Registration Statement(s) on Form S-8 relating to the registration for sale of the Corporation's Class A Common Stock, and any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements, and any and all applications or other documents to be filed with the Securities and Exchange Commission pertaining to such registration(s), with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the act of said attorneys and any of them and any such substitute. EXECUTED as of June 6, 1996. /s/ Peter V. Handal Director - --------------------------- --------------------------------- Signature Title Peter V. Handal - --------------------------- Name 6 DIRECTOR AND/OR OFFICER OF COLE NATIONAL CORPORATION REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY The undersigned director and/or officer of Cole National Corporation, a Delaware corporation (the "Corporation"), hereby constitutes and appoints Jeffrey A. Cole, Joseph Gaglioti and Wayne Mosley, or any of them, with full power of substitution and resubstitution, as attorneys or attorney of the undersigned, for him or her and in his or her name, place and stead, to sign and file under the Securities Act of 1933 one or more Registration Statement(s) on Form S-8 relating to the registration for sale of the Corporation's Class A Common Stock, and any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements, and any and all applications or other documents to be filed with the Securities and Exchange Commission pertaining to such registration(s), with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the act of said attorneys and any of them and any such substitute. EXECUTED as of June 6, 1996. /s/ Charles A. Ratner Director - ------------------------- ----------------------------- Signature Title Charles A. Ratner - ------------------------- Name -----END PRIVACY-ENHANCED MESSAGE-----