As filed with the Securities and Exchange Commission on August 11, 2005.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ICONIX BRAND GROUP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 11-2481903
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(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) No.)
215 West 40th Street, New York, New York 10018
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(Address of principal executive offices) (Zip Code)
Iconix Brand Group, Inc. 2002 Stock Option Plan; Non-plan Options
Granted to an Employee
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(Full title of the plan)
Neil Cole, President
Iconix Brand Group, Inc.
215 West 40th Street
New York, New York 10018
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(Name and address of agent for service)
(212) 730-0030
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(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Ethan Seer, Esq.
Blank Rome LLP
405 Lexington Avenue
New York, New York 10174
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Proposed
Maximum Proposed
Aggregate Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price per Offering Registration
be Registered Registered (1) Share (3) Price (3) Fee
------------- -------------- --------- ------------ -------------
Common Stock, 3,425,000 $ 7.12 $24,386,000 $2,870.23
par value $.001 shares
per share(2)
(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 the
Registrant's 2002 Stock Option Plan or the anti-dilution
provisions contained in the non-plan options.
(2) Includes preferred share purchase rights. Prior to the
occurrence of certain events, the preferred share purchase
rights will not be evidenced separately from the Common Stock.
(3) Calculated solely for the purpose of determining the
registration fee pursuant to Rule 457 under the Securities Act
of 1933 and based upon (a) as to the 2,910,500 shares of
common stock issuable upon exercise of options previously
granted under the 2002 Stock Option Plan or the non-plan
options that were previously granted to a new employee, upon
the prices at which such options may be exercised, (b) as to
the remaining 514,500 shares issuable upon exercise of options
reserved for issuance under the 2002 Stock Option Plan, the
basis of the average of the high and low prices for the common
stock as quoted on Nasdaq on August 9, 2005.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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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-K for the eleven-month fiscal year
ended December 31, 2004.
2. Current Report on Form 8-K filed with the Commission on
January 31, 2005.
3. Current Report on Form 8-K filed with the Commission on March
11, 2005.
4. Quarterly Report on Form 10-Q for the Quarter Ended March 31,
2005.
5. Current Report on Form 8-K filed with the Commission on June
10, 2005.
6. Current Report on Form 8-K filed with the Commission on July
28, 2005.
7. Quarterly Report on Form 10-Q for the Quarter Ended June 30,
2005.
8. The description of the registrant's common stock contained in
its Registration Statement on Form 8-A declared effective on
January 19, 1990 and the description of the registrant's
preferred share purchase rights contained in the registrant's
Registration Statement on Form 8-A filed with the Commission
on February 2, 2000 and any amendments thereto.
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9. 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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable
Item 6. Indemnification of Directors and Officers.
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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
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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 Ninth of the registrant's Certificate of Incorporation
and the registrant's By-laws provide that all persons who the registrant 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 registrant 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 Tenth of the registrant's Certificate of Incorporation
provides that no director of the registrant shall be personally liable to the
registrant or its stockholders 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 registrant 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 GCL; or (iv) for any
transaction from which the director derived an improper personal benefit.
The registrant's employment agreements with Mr. Neil Cole and
Ms. Deborah Sorell Stehr provide that the registrant shall indemnify each of
them for the consequences of all acts and decisions made by such person while
performing services for the registrant. These agreements also require the
registrant to use its best efforts to obtain directors' and officers' liability
insurance for such persons.
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 the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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Exhibit No. Description
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5 Opinion of Blank Rome LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Blank Rome LLP (included in
Exhibit 5)
24 Power of Attorney (included on the
Signature Page of this Registration
Statement)
Item 9. Undertakings.
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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 Registration Statement any facts or events
arising after the effective date of the prospectus (or the
most recent post-effective amendments thereto) 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 volume of securities offered (if the total
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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.
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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 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.
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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 10th day of August 2005.
ICONIX BRAND GROUP, INC.
By: /s/ Neil Cole
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Neil Cole, President
Each person whose signature appears below authorizes each of
Neil Cole and Warren Clamen, 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 Iconix Brand Group, 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.
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 stated.
Signature Title Date
--------- ----- ----
/s/ Neil Cole Chief Executive Officer, President and August 10, 2005
----------------------- Director (Principal Executive Officer)
Neil Cole
/s/ Warren Clamen Chief Financial Officer (Principal August 10, 2005
----------------------- Financial and Accounting Officer)
Warren Clamen
/s/ Barry Emanuel Director August 10, 2005
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Barry Emanuel
/s/ Steven Mendelow Director August 10, 2005
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Steven Mendelow
/s/ Michael Caruso Director August 10, 2005
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Michael Caruso
/s/ Michael Groveman Director August 10, 2005
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Michael Groveman
/s/ Drew Cohen Director August 10, 2005
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Drew Cohen
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Exhibit Index
Exhibit No. Description Page
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5 Opinion of Blank Rome LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Blank Rome LLP (included in Exhibit 5)
24 Power of Attorney (included on Signature Page of
the Registration Statement)