-----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, TVfRkVSWP8X5QtpBF9kYqdVGBDtOmoG8Pw+4QIvUAbGPUuRgdqJ6qfil8jRbFOf6 3d/M+1ocMvFB7lcM/bsXyQ== 0000950152-99-005884.txt : 19990705 0000950152-99-005884.hdr.sgml : 19990705 ACCESSION NUMBER: 0000950152-99-005884 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990702 EFFECTIVENESS DATE: 19990702 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: 0130 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-82271 FILM NUMBER: 99659090 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 As filed with the Securities and Exchange Commission on July 2, 1999 Registration No. 333-____________ - -------------------------------------------------------------------------------- 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 (State or other jurisdiction of 34-1453189 incorporation or organization) (IRS Employer Identification Number) 5915 Landerbrook Drive, Mayfield Heights, Ohio 44124 (Address of Principal Executive Offices Including Zip Code) COLE NATIONAL CORPORATION 1999 BROAD BASED EMPLOYEE STOCK OPTION PLAN (Full title of the plan) Wayne L. Mosley Vice President, Controller, Assistant Treasurer and Assistant Secretary 5915 Landerbrook Drive Mayfield Heights, Ohio 44124 (Name and address of agent for service) (440) 449-4100 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
======================================================================================================================== Proposed Proposed maximum Title of securities Amount to be maximum offering aggregate offering Amount of to be registered (1) registered (1) price per share (2) price (2) registration fee - ----------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.001 per share 276,000 $7.84 $2,163,840 $601 shares Preferred Share Purchase Rights (3) --(3) --(3) --(3) ========================================================================================================================
(1) Pursuant to Rule 416 of the Securities Act of 1933, this Registration Statement also covers any additional shares of common stock as may become issuable under the anti-dilution provisions of the Cole National Corporation 1999 Employee Stock Purchase 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 the common stock on the New York Stock Exchange on June 29, 1999, within five business days prior to filing. (3) These preferred share purchase rights, which were created in a Rights Agreement, dated August 22, 1995 between Cole National and National City Bank, as rights agent, may be transferred only with the shares of common stock, unless specific events specified in the Rights Agreement occur. Therefore, the preferred share purchase rights have no offering price and no fee is required. Exhibit Index Appears on Page 8 Page 1 of 8 Pages 2 Part II Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents previously filed by Cole National Corporation with the Securities and Exchange Commission are incorporated in this registration statement by reference: - Quarterly Report on Form 10-Q for the quarterly period ended May 1, 1999; - Annual Report on Form 10-K for the fiscal year ended January 30, 1999; - all other reports filed by Cole National to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934 since January 30, 1999; - the description of the Common Stock contained in the Registration Statement on Form 8-A filed with the Commission as of February 14, 1994, and amended on April 6, 1994; and - the Stockholders' Rights Plan contained in the Registration Statement on Form 8-A filed with the Commission on September 7, 1995 and amended on August 27, 1997. Both Form 8-As were filed pursuant to the Exchange Act for the purpose of registering Cole National's common stock. All documents subsequently filed by Cole National pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold, or which deregisters all securities then remaining unsold, will be deemed to be incorporated to this registration statement by reference and to be part of this registration statement from the date of filing of those documents. Item 4. DESCRIPTION OF SECURITIES Not applicable. The common stock and the associated preferred share purchase rights to be offered are registered under Section 12 of the Exchange Act. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Articles Seventh and Eighth of Cole National's Restated Certificate of Incorporation and Article VIII of its Amended and Restated By-laws are incorporated herein by reference to Exhibits 3.1(i) and 3.2(ii), respectively, of Cole National's Annual Report on Form 10-K for the period ended February 3, 1996 (File No. 1-12814). Cole National has entered into indemnity agreements with its current directors and officers, and maintains directors and officers liability insurance for its directors and executive officers. Item 15 in Part II of Cole National's Form S-3 Registration Statement, No. 333-5875, is incorporated into this registration statement by reference. Page 2 of 8 Pages 3 Item 7. EXEMPTION FROM REGISTRATION CLAIMS Not Applicable. Item 8. EXHIBITS 4.1 Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.1(i) of Cole National's Annual Report on Form 10-K for the year ended February 3, 1996 (File No. 1-12814). 4.2 Certificate of Amendment of the Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.1(ii)of Cole National's Annual Report on Form 10-K for the period ended January 31, 1998 (File No. 1-12814). 4.3 Amended and Restated By-Laws, incorporated herein by reference to Exhibit 3.2(ii) of Cole National's Annual Report on Form 10-K for the year ended February 3, 1996 (File No.1-12814). 4.4 Rights Agreement and Form of Right Certificate, incorporated by reference to Form 8-A filed with the Commission on September 7, 1995 (File No. 1-12814). 4.5 Amendment No. 1 to the Rights Agreement, incorporated by reference to Form 8-A/A filed with the Commission on August 22, 1997. 4.6* Cole National Corporation 1999 Broad Based Employee Stock Option Plan, dated June 10, 1999. 4.7 Form of Nonqualified Stock Option Agreement, incorporated herein by reference to Exhibit 10.46 of Cole National's Annual Report on Form 10- K for the year ended January 30, 1999. 5.1* Opinion and Consent of Jones, Day, Reavis & Pogue. 23.1* Consent of Arthur Andersen LLP. 23.2* Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1). 24.1* Power of Attorney. - ---------------- * Filed herewith Page 3 of 8 Pages 4 Item 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof)which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by Cole National pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of Cole National's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, Page 4 of 8 Pages 5 where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be in the initial on a fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Cole National pursuant to the foregoing provisions, or otherwise, Cole National has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Cole National of expenses incurred or paid by a director, officer or controlling person of Cole National in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, Cole National will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. Page 5 of 8 Pages 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Cole National certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mayfield Heights, State of Ohio, on July 2, 1999. COLE NATIONAL CORPORATION By: /s/ Wayne L. Mosley ---------------------------------- Wayne L. Mosley, Vice President, Controller, Assistant Secretary and Assistant Treasurer Page 6 of 8 Pages 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 July 2, 1999 - -------------------------------------- and Director (Principal Executive Jeffrey A. Cole Officer) * President, Chief Operating Officer July 2, 1999 - -------------------------------------- and Director Brian B. Smith * Executive Vice President, Strategic July 2, 1999 - -------------------------------------- Planning and Chief Financial Officer George H. Bernstein (Principal Financial Officer) /S/WAYNE L. MOSLEY Vice President, Controller, Assistant July 2, 1999 - -------------------------------------- Secretary and Assistant Treasurer Wayne L. Mosley (Principal Accounting Officer) * Director July 2, 1999 - -------------------------------------- Timothy F. Finley * Director July 2, 1999 - -------------------------------------- Irwin N. Gold * Director July 2, 1999 - -------------------------------------- Peter V. Handal * Director July 2, 1999 - -------------------------------------- Charles A. Ratner * Director July 2, 1999 - -------------------------------------- Walter J. Salmon
* Wayne L. Mosley, the undersigned attorney-in-fact, by signing his name hereto, does hereby sign and execute this Registration Statement on behalf of the above indicated Registrant and officers and directors thereof (constituting a majority of the directors) pursuant to a power of attorney filed with the Securities and Exchange Commission. July 2, 1999 By: /s Wayne L. Mosley ------------------- Wayne L. Mosley, Vice President, Controller, Assistant Secretary and Assistant Treasurer Page 7 of 8 Pages 8 EXHIBIT INDEX ------------- Exhibit Number Exhibit Description - ------ ------------------- 4.1 Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.1(i) of Cole National's Annual Report on Form 10-K for the year ended February 3, 1996 (File No. 1-12814). 4.2 Certificate of Amendment of the Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.1(ii) of Cole National's Annual Report on Form 10-K for the period ended January 31, 1998 (File No. 1-12814). 4.3 Amended and Restated By-Laws, incorporated herein by reference to Exhibit 3.2(ii) of Cole National's Annual Report on Form 10-K for the year ended February 3, 1996 (File No. 1-12814). 4.4 Rights Agreement and Form of Right Certificate, incorporated by reference to Form 8-A filed with the Commission on September 7, 1995 (File No. 1- 12814). 4.5 Amendment No. 1 to the Rights Agreement, incorporated by reference to Form 8-A/A filed with the Commission on August 22, 1997. 4.6* Cole National Corporation 1999 Broad Based Employee Stock Option Plan, dated June 10, 1999. 4.7 Form of Nonqualified Stock Option Agreement, incorporated herein by reference to Exhibit 10.46 of Cole National's Annual Report on Form 10-K for the year ended January 30, 1999. 5.1* Opinion and Consent of Jones, Day, Reavis & Pogue. 23.1* Consent of Arthur Andersen LLP. 23.2* Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1). 24.1* Power of Attorney. - ---------------- * Filed herewith Page 8 of 8 Pages EX-4.6 2 EXHIBIT 4.6 1 Exhibit 4.6 COLE NATIONAL CORPORATION 1999 BROAD-BASED EMPLOYEE STOCK OPTION PLAN 1. This Plan is established to consolidate the stock option grants made from time to time by Cole National Corporation (the "Company") to individuals who are not then serving as officers or directors of the Company, in order to facilitate registration under the Securities Act of 1933 and listing with The New York Stock Exchange of the shares of Common Stock of the Company underlying those stock option grants. The stock option grants made under this Plan are not intended to qualify under particular sections of the Internal Revenue Code. 2. The aggregate number of shares of Common Stock that may be issued under this Plan is not fixed. The Board of Directors of the Company (the "Board") or the Compensation Committee of the Board (the "Committee") previously has authorized stock option grants, outside the Company's existing stock option plans, to individuals who are not then serving as officers or directors of the Company, for the issuance in the aggregate of 276,000 shares of Common Stock of the Company pursuant to option agreements as summarized on ANNEX 1 to this Plan (the "Existing Grants"). The Existing Grants are hereby combined for administrative ease and consolidated within this Plan. It is anticipated that the Board or the Committee will authorize additional stock option grants, designated as being issued under this Plan, to individuals who are not then serving as officers or directors of the Company (the "Future Awards"). The Company may consolidate the Existing Awards and, from time to time, the Future Awards for registration and listing purposes. 3. No option will run for more than ten years from the date granted. The other terms and conditions of a particular stock option grant are or will be as provided in the stock option agreement authorized by the Board or Committee with respect to that grant. 4. Shares may be treasury shares or newly issued, or a combination of the foregoing. 5. This Plan may be amended by the Board, but no amendment will adversely change the terms of any then-existing stock option grant. EX-5.1 3 EXHIBIT 5.1 1 Exhibit 5.1 Jones, Day, Reavis & Pogue 901 Lakeside Avenue Cleveland, OH 44113 July 2, 1999 Cole National Corporation 5915 Landerbrook Drive Mayfield Heights, Ohio 44124 Re: Cole National Corporation 1999 Broad Based Employee 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 1999 Broad Based Employee 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 1. The shares of the Registrant's common stock, par value $.001 per share (the "Common Stock"), that may be issued or transferred and sold pursuant to the Plan upon the exercise of the 276,000 options granted under the Plan will be, when issued or transferred and sold in accordance with the Plan and the related option agreements, duly authorized, validly issued, fully paid and nonassessable. 2. When issued in accordance with the terms of the Rights Agreement, dated August 22, 1995 (amended August 27, 1997) between the Registrant and National City Bank, as rights agent (the "Rights Agreement"), the preferred share purchase rights (the "Rights") will be validly issued. The opinion set forth in paragraph 2 is limited to the valid issuance of the Rights under the corporation laws of the State of Delaware. We do not express any opinion herein with respect to any other aspect of the Rights, the effect of equitable principles or fiduciary considerations relating to the adoption of the Rights Agreement or the issuance of the Rights or the enforceability of any particular provisions of the Rights Agreement. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Registrant to effect registration under the Securities Act of 1933 of the shares of Common Stock to be issued or transferred and sold pursuant to the Plan. Very truly yours, /s/ Jones, Day, Reavis & Pogue EX-23.1 4 EXHIBIT 23.1 1 Exhibit 23.1 As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated March 17, 1999, included in Cole National Corporation's Form 10-K for the year ended January 30, 1999, and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Cleveland, Ohio July 1, 1999 EX-24.1 5 EXHIBIT 24.1 1 Exhibit 24.1 COLE NATIONAL CORPORATION POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and/or directors of Cole National Corporation, a Delaware corporation (the "Corporation"), hereby constitutes and appoints Joseph Gaglioti, Wayne L. Mosley and Leslie D. Dunn, and each of them, as the true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for the undersigned and in the name, place and stead of the undersigned, to sign on behalf of the undersigned, the Corporation's Registration Statement on Form S-8 pursuant to the Securities Act of 1933 concerning the Common Shares of the Company to be offered in connection with the Corporation's 1999 Employee Stock Purchase Plan, the 1998 Equity and Performance Incentive Plan and the 1999 Broad-Based Employee Stock Option Plan and to sign any and all amendments or post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission or any state regulatory authority, granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 10th day of June, 1999. /s/ Jeffrey A. Cole /s/ Brian B. Smith - ----------------------------- ------------------------- Jeffrey A. Cole Brian B. Smith /s/ Timothy F. Finley /s/ Irwin N. Gold - ----------------------------- ------------------------- Timothy F. Finley Irwin N. Gold /s/ Peter V. Handal /s/ Charles A. Ratner - ----------------------------- ------------------------- Peter V. Handal Charles A. Ratner /s/ Walter J. Salmon /s/ George H. Bernstein - ----------------------------- ------------------------- Walter J. Salmon George H. Bernstein -----END PRIVACY-ENHANCED MESSAGE-----