-----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, BU7TFfLAfHwJZxPuTm/ln+XmrQmcNxZuKr2Cy5f+FeyogRnKStoUIdyxoMuC2/Fd jrjnYWkyQvKE8Hst/lchwQ== 0000891554-97-000537.txt : 19970526 0000891554-97-000537.hdr.sgml : 19970526 ACCESSION NUMBER: 0000891554-97-000537 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970523 EFFECTIVENESS DATE: 19970523 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CANDIES INC CENTRAL INDEX KEY: 0000857737 STANDARD INDUSTRIAL CLASSIFICATION: FOOTWEAR, (NO RUBBER) [3140] IRS NUMBER: 112481930 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-27655 FILM NUMBER: 97613294 BUSINESS ADDRESS: STREET 1: 2975 WESTCHESTER AVE CITY: PURCHASE STATE: NY ZIP: 10577 BUSINESS PHONE: 9146948600 MAIL ADDRESS: STREET 1: 2975 WESTCHESTER AVE CITY: PURCHASE STATE: NY ZIP: 10577 FORMER COMPANY: FORMER CONFORMED NAME: MILLFELD TRADING CO INC DATE OF NAME CHANGE: 19920703 S-8 POS 1 AMENDMENT NO. 1 As filed with the Securities and Exchange Commission on May 22, 1997. Registration No.333-27655 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- Post-Effective Amendment No.1 to FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- CANDIE'S, INC. (Exact name of registrant as specified in its charter) New York 11-2481903 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) 2975 Westchester Avenue, Purchase, New York 10577 (Address of principal executive offices) (Zip Code) 1989 Stock Option Plan; Consultant's Stock Options (Full title of the plan) Neil Cole, President Candie's, Inc. 2975 Westchester Avenue Purchase, New York 10577 (Name and address of agent for service) (914) 694-8600 (Telephone number, including area code, of agent for service) Copy to: Robert J. Mittman, Esq. Tenzer Greenblatt LLP 405 Lexington Avenue New York, New York 10174 CALCULATION OF REGISTRATION FEE Proposed Proposed Maximum Maximum Aggregate Aggregate Amount of Title of Securities Amount to be Price Per Offering Registra- to be Registered Registered(1) Share(2) Price(2) tion Fee - ---------------- ------------- -------- -------- -------- Common Stock, par 491,833 shares $2.71 $1,332,867 $403.90 value $.001 per share (1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this registration statement also registers an indeterminate number of shares of common stock which may be issued pursuant to the anti-dilution provisions of (i) the 1989 Stock Option Plan (the "Plan") of Candie's, Inc. (the "Company" or the "Registrant") or (ii) the non-Plan options granted to certain consultants to, and an employee of, the Registrant (the "Consultant's Stock Options"). (2) Calculated solely for the purpose of determining the registration fee pursuant to Rule 457 under the Securities Act of 1933 based upon (i) as to the outstanding options to purchase 427,800 shares, the exercise prices of such options and (ii) as to the remaining 64,033 shares issuable upon exercise of options available for future issuance under the Plan, the average of the high and low sale prices of the Registrant's Common Stock, as quoted on NASDAQ on May 15, 1997. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8. I-1 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents previously filed by the Registrant with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: 1. Annual Report on Form 10-KSB for the fiscal year ended January 31, 1997; 2. The description of the Company's Common Stock contained in its Registration Statement on Form 8-A declared effective on January 19, 1990 and any amendments thereto. 3. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the respective date of filing of such documents. Any statement contained in a document incorporated by reference herein is modified or superseded for all purposes to the extent that a statement contained in this Registration Statement or in any other subsequently filed document which is incorporated by reference modifies or replaces such statement. Any reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed documents which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable Item 6. Indemnification of Directors and Officers. II-1 Section 145 of the General Corporation Law of the State of Delaware ("GCL") provides for the indemnification of officers and directors under certain circumstances against expenses incurred in successfully defending against a claim and authorizes Delaware corporations to indemnify their officers and directors under certain circumstances against expenses and liabilities incurred in legal proceedings involving such persons because of their being or having been an officer or director. Section 102(b) of the GCL permits a corporation, by so providing in its certificate of incorporation, to eliminate or limit director's liability to the corporation and its shareholders for monetary damages arising out of certain alleged breaches of their fiduciary duty. Section 102(b)(7) of the GCL provides that no such limitation of liability may affect a director's liability with respect to any of the following: (i) breaches of the director's duty of loyalty to the corporation or its shareholders; (ii) acts or omissions not made in good faith or which involve intentional misconduct of knowing violations of law; (iii) liability for dividends paid or stock repurchased or redeemed in violation of the GCL; or (iv) any transaction from which the director derived an improper personal benefit. Section 102(b)(7) does not authorize any limitation on the ability of the corporation or its shareholders to obtain injunction relief, specific performance or other equitable relief against directors. Article Nine of the Company's Certificate of Incorporation and the Company's By-laws provide that all persons who the Company is empowered to indemnify pursuant to the provisions of Section 145 of the GCL (or any similar provision or provisions of applicable law at the time in effect), shall be indemnified by the Company to the full extent permitted thereby. The forgoing right of indemnification shall not be deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of shareholders or disinterested directors, or otherwise. Article Ten of the Company's Certificate of Incorporation provides that no director of the Company shall be personally liable to the Company or its shareholders for any monetary damages for breaches of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its shareholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the GCL; or (iv) for any transaction from which the director derived an improper personal benefit. The Company's employment agreements with Messrs. Neil Cole and Lawrence O'Shaughnessy provide that the Company shall indemnify each of them for the consequences of all acts and decisions made by such person while performing services for the Company. These agreements also require the Company to use its best efforts to obtain directors' and officers' liability insurance for such persons. II-2 Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. Exhibit No. Description ----------- ----------- 4.1 Specimen Stock Certificate (filed as an exhibit to the Registrant's Registration Statement on Form S-1 (33-53878) and incorporated by reference herein) 5 Opinion of Tenzer Greenblatt LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of Tenzer Greenblatt LLP (included in Exhibit 5) 24.1 Power of Attorney (included on Page II-6 of this Registration Statement) Item 9. Undertakings. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the Prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendments thereto) which, II-3 individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and prices represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be filed with a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in II-4 the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in such Act and will be governed by the final adjudication of such issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Purchase, New York, on this 14th day of May 1997. CANDIE'S, INC. By: /s/ Neil Cole --------------------------- Neil Cole, President Each person whose signature appears below authorizes each of Neil Cole and Lawrence O'Shaughnessy, or either of them acting individually, as his true and lawful attorney-in-fact, each with full power of substitution, to sign the Registration Statement on Form S-8 of Candie's, Inc., including any and all pre-effective and post-effective amendments, in the name and on behalf of each such person, individually and in each capacity stated below, and to file the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission. In accordance with the requirements of the Securities Act of 1933, this Registration Statement was signed by the following person in the capacities and on the dates stated. Signature Title Date - --------- ----- ---- /s/ Neil Cole President and Director May 14, 1997 - ------------------------- (Principal Executive Neil Cole Officer) /s/ Lawrence O'Shaughnessy Executive Vice President, May 14, 1997 - --------------------------- and Director Lawrence O'Shaughnessy /s/ Gary Klein Vice President- Finance May 14, 1997 - --------------------------- (Principal Financial Gary Klein and Accounting Officer) /s/ Barry Emanuel Director May 14, 1997 - --------------------------- Barry Emanuel /s/ Mark Tucker Director May 14, 1997 - --------------------------- Mark Tucker II-6 Exhibit Index Exhibit No. Description Page --- ----------- ---- 4.1 Specimen Stock Certificate (filed as an exhibit to the Registrant's Registration Statement on Form S-1 (33-53878) and incorporated by reference herein) 5 Opinion of Tenzer Greenblatt LLP 12 23.1 Consent of Ernst & Young LLP 14 23.2 Consent of Tenzer Greenblatt LLP (included in Exhibit 5) 24.1 Power of Attorney (included on Page II-6 of the Registration Statement) EX-5 2 OPINION OF TENZER GREENBLATT Tenzer Greenblatt LLP The Chrysler Building 405 Lexington Avenue New York, New York 10174 (212) 885-5000 May 15, 1997 Candie's, Inc. 2975 Westchester Avenue Purchase, New York 10577 Gentlemen: You have requested our opinion with respect to the offering by you, Candie's, Inc., a Delaware corporation (the "Company"), of (i) up to 211,833 shares of the Company's common stock, $.001 par value, (the "Plan Shares") issuable upon exercise of options granted or to be granted under the Company's 1989 Stock Option Plan (the "Plan"), (ii) up to 250,000 shares of common stock (the "Consulting Shares") issuable upon exercise of options (the "Consultants Options") granted to certain individual consultants to the Company for services provided to the Company and (iii) up to 30,000 shares of Common Stock (the "Employee Shares") issuable upon exercise of non-plan options (the "Employee Options") issued to an employee of the Company, pursuant to a registration statement (the "Registration Statement") on Form S-8 to be filed with the Securities and Exchange Commission. We have examined and relied upon originals, or copies certified or otherwise identified to our satisfaction, of such documents and corporate and public records as we deemed necessary as a basis for the opinion hereinafter expressed. With respect to such examination, we have assumed the genuineness of all signatures appearing on all documents presented to us as originals, and the conformity to the originals of all documents presented to us as conformed or reproduced copies. Where factual matters relevant to such opinion were not independently established, we have relied upon representations of executive officers of the Company. Based upon the foregoing, it is our opinion that the Plan Shares, the Consulting Shares and the Employee Shares have been duly and validly authorized and, when sold, paid for and issued as contemplated by the Plan, the Consultants Options or the Employee Options, as the case may be, will be validly issued, fully paid and nonassessable. We hereby consent to the use of this opinion as Exhibit 5 to the Registration Statement, and to the use of our name as your counsel in Candie's, Inc. May 15, 1997 Page 2 connection with the Registration Statement and in the Prospectus forming a part thereof. In giving this consent, we do not thereby concede that we come within the categories of persons whose consent is required by the Securities Act of 1933 or the General Rules and Regulations promulgated thereunder. Very truly yours, /s/ TENZER GREENBLATT LLP --------------------------- EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to Candie's, Inc. 1989 Stock Option Plan; Consultant's Stock Options of our report dated April 4, 1997, except for Note 17(b), as to which the date is April 23, 1997, with respect to the consolidated financial statements of Candie's, Inc. included in its Annual Report (Form 10-KSB) for the year ended January 31, 1997, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP --------------------------- White Plains, New York May 15, 1997 -----END PRIVACY-ENHANCED MESSAGE-----