As Filed with the Securities and Exchange Commission on August 5, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BROWN GROUP, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 43-0197190
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8300 Maryland Avenue
St. Louis, Missouri 63105
(Address, including zip code,
of registrant's principal executive offices)
STOCK OPTION AND RESTIRCTED STOCK PLAN OF 1994
STOCK OPTION AND RESTRICTED STOCK PLAN OF 1998
(Full Title of the Plans)
Andrew M. Rosen
Vice President and Treasurer
Brown Group, Inc.
8300 Maryland Avenue
St. Louis, Missouri 63105
(314) 854-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share (1) Price (1)
==============================================================================
Common Stock, $3.75 1,575,000 $15.89 $25,027,000 $7,383
par value, shares (3)(4)
including Common
Stock Purchase
Rights (2)
==============================================================================
(1) Computed pursuant to Rule 457(c) and (h) solely for the purpose
of determining the registration fee. Proposed maximum offering
price represents (i) the weighted average price per share based
on the exercise price of stock options already granted and (ii)
the average of the high and low reported market prices per share
of Brown Group, Inc. Common Stock reported on the New York Stock
Exchange for August 3, 1998, with respect to the securities for
which options have not yet been granted.
(2) Each share of Common Stock also represents one Common Stock
Purchase Right. Value attributable to such Common Stock Purchase
Right, if any is reflected in the market price of the Common
Stock. Prior to the occurrence of certain events, the Common
Stock Purchase Rights will not be evidenced separately from the
Common Stock.
(3) This Registration Statement also covers such additional shares of
Common Stock as may be issuable pursuant to antidilution
provisions.
(4) Includes 825,000 additional shares for the Stock Option and
Restricted Stock Plan of 1994 and 750,000 shares for the Stock
Option and Restricted Stock Plan of 1998.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Brown
Group, Inc. ("the Company") with the Securities and Exchange
Commission, are incorporated by reference into this Registration
Statement:
(a) Annual Report on Form 10-K for the fiscal year ended
January 31, 1998.
(b) Quarterly Report on Form 10-Q, as amended, for the
quarterly period ended May 2, 1998.
(c) The description of the Company's Common Stock which is
contained in the Company's Registration Statement on
Form 10, as amended under cover of Form 8 on February
18, 1981.
(d) The description of the Common Stock Purchase Rights
which is contained in the Company's Form 8-K dated
March 8, 1996 and as amended on Form 8-K dated August
8, 1997.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934 (the "1934 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 by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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
document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement.
Item 4. Description of Securities.
The securities to be offered are registered under Section 12
of the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
The legality of the Common Stock offered under the Plan has
been passed upon for the Company by Robert D. Pickle, 8300 Maryland
Avenue, St. Louis, Missouri 63105, Vice President, General Counsel
and Corporate Secretary of the Company. As of August 3, 1998, Mr.
Pickle was the beneficial owner of 23,110 shares of Common Stock and
held options to acquire 18,817 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
The bylaws of the Company provide that the Company shall
indemnify any director and officer, and may indemnify any employee or
agent, of the Company, or of any other entity if requested by the
Company to serve as such, against any claim, liability or expense
incurred as a result of such service, to the maximum extent permitted
by law. To the extent that such employee or agent has been successful
in the defense of a civil or criminal proceeding arising out of such
service, such employee or agent shall be entitled to such
indemnification. The bylaws also provide that such indemnification is
not exclusive of any other indemnification to which such director,
officer, employee or agent might be entitled, and authorize the
Company to enter into agreements with any such director, officer,
employee or agent, allowing such rights of indemnification as the
Board of Directors deems appropriate, provided that any such agreement
shall not provide for indemnification of such a director or officer if
a final adjudication adverse to such director or officer establishes
that his or her acts were committed in bad faith or were the result of
active or deliberate dishonesty and were material to the cause of
action adjudicated, or that he or she personally gained a financial
profit or other advantage to which such director or officer was not
legally entitled. Finally, the Company may purchase insurance to
indemnify any such director, officer, employee or agent, to the
maximum extent allowed by law, whether or not the Company would
otherwise have the power to indemnify such person.
New York law authorizes a corporation to indemnify any
person made, or threatened to be made, a party to any action, civil or
criminal, other than a shareholders' derivative action, by reason of
being a director or officer of the corporation or serving any other
entity in any capacity (at the request of the corporation), against
judgments, fines, amounts paid in settlement and reasonable expenses,
including attorneys' fees, in connection therewith, if such director
or officer acted in good faith, for a purpose he or she reasonably
believed to be in, or, in the case of service to any other entity, not
opposed to, the best interests of the corporation. A corporation may
indemnify any person made, or threatened to be made, a party to a
shareholders' derivative action, in the circumstances and to the
extent described in the preceding sentence, except that in such case
no indemnification shall be made for a threatened action, or a pending
action which is settled or otherwise disposed of, or any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the corporation, unless and only to the extent the court
finds that such person is fairly and reasonably entitled to such
indemnification. Any person who has been successful, on the merits or
otherwise, in the defense of a civil or criminal proceeding as
described above in this paragraph, shall be entitled to
indemnification under New York law.
New York law provides that its statutory provisions relating
to indemnification shall not be exclusive of any other indemnification
to which a director or officer may be entitled by reason of the
certificate of incorporation, bylaws, or, if authorized by the
certificate or bylaws, by reason of an agreement with the corporation,
provided that no indemnification may be made to an officer or director
if a final adjudication adverse to the director or officer establishes
that his or her acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of
action adjudicated, or that such officer or director personally gained
a financial profit or other advantage to which he or she was not
legally entitled.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be
permitted to directors, officers or persons controlling the Company
pursuant to such provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in such Act and is therefore
unenforceable.
The directors and officers of the Company are insured under
a policy of directors' and officers' liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
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 of 1993;
(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 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 price 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;
(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 registration statement is on Form S-3 or Form S-
8, and 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 1934 Act 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.
(b) 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 15(d) of the 1934 Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the 1934 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.
(c) 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 the Act and will be
governed by the final adjudication of such issue.
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 County of St.
Louis, State of Missouri, on August 5, 1998.
Brown Group, Inc.
By: /s/ Harry E. Rich
-------------------------------
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints Harry E. Rich, Robert D. Pickle, and Andrew M. Rosen and
each of them (with full power to each of them to act alone), his or
her true and lawful attorneys in fact and agents for him or her and on
his or her behalf and in his or her name, place and stead, in any and
all capacities to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the
same, with exhibits and any and all other documents filed with respect
thereto, with the Securities and Exchange Commission (or any other
governmental or regulatory authority), granting unto said attorneys,
and each of them, full power and authority to do and to perform each
and every act and thing requisite and necessary to be done in and
about the premises in order to effectuate the same as fully to all
intents and purposes as he or she might or could do if personally
present, hereby ratifying and confirming all that said attorneys in
fact and agents, or any of them, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons
in the capacities indicated on August 5, 1998.
Name Title
---- -----
/s/ B.A. Bridgewater, Jr. Chairman of the Board, President,
B.A. Bridgewater, Jr. Chief Executive Officer and Director
/s/ Harry E. Rich Executive Vice President, Chief
Harry E. Rich Financial Officer and Director
Name Title
---- -----
/s/ Richard C. Schumacher Vice President and Controller
Richard C. Schumacher
Director
Joseph L. Bower
Director
Julie C. Esrey
Director
Richard A. Liddy
Director
John Peters MacCarthy
Director
John D. Macomber
/s/ William E. Maritz Director
William E. Maritz
/s/ General Edward C. Meyer, Retired Director
General Edward C. Meyer, Retired
/s/ Jerry E. Ritter Director
Jerry E. Ritter
Brown Group, Inc.
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Certificate of Incorporation of the Company as amended
through February 16, 1984, incorporated herein by reference
to Exhibit 3 to the Company's Report on Form 10-K for the
fiscal year ended November 1, 1986.
4.2 Amendment of Certificate of Incorporation of the Company
filed February 20, 1987, incorporated herein by reference to
Exhibit 3 to the Company's Report on Form 10-K for the fiscal
year ended January 30, 1988.
4.3 Bylaws of the Company as amended through March 5, 1998,
incorporated herein by reference to Exhibit 3(ii) to the
Company's Report on Form 10-K for the fiscal year ended
January 31, 1998.
4.4 Rights Agreement dated as of March 7, 1996, between the
Company and First Chicago Trust Company of New York, which
includes as Exhibit A the form of Rights Certificate evidencing
the Company's Common Stock Purchase Rights, incorporated
herein by reference to the Company's Form 8-K dated March 8, 1996.
4.5 Amendment to Rights Agreement between Brown Group, Inc. and
First Chicago Trust Company of New York, dated as of July 8, 1997,
effective August 11, 1997, incorporated herein by reference to the
Company's Form 8-K dated August 8, 1997.
5.1 Legal Opinion of Counsel
23.1 Consent of Ernst & Young LLP
23.2 Consent of Robert D. Pickle, Esq. (Included in Exhibit 5.1)
24.1 Power of Attorney (Included on Signature Page)
Exhibit 5.1
August 5, 1998
Brown Group, Inc.
8300 Maryland Avenue
St. Louis, Missouri 63105
Ladies and Gentlemen:
I am Vice President, General Counsel and Corporate Secretary
of Brown Group, Inc. (the "Company") and, in such capacity am familiar
with the Registration Statement on Form S-8 to which this opinion is
filed as an exhibit (the "Registration Statement") which registers
under the Securities Act of 1933, as amended, 1,575,000 shares of the
Company's Common Stock, $3.75 par value per share (the "Shares")
including 1,575,000 Common Stock Purchase Rights, which may be
purchased pursuant to the Company's Stock Option and Restricted Stock
Plan of 1994 (the "1994 Plan") and the Company's Stock Option and
Restricted Stock Plan of 1998 (the "1998 Plan").
In rendering this opinion, I have examined such corporate
records and other documents and made such legal investigation as I
have deemed appropriate.
Based on the foregoing, I am of the opinion that, when
issued in accordance with the provisions of the 1994 Plan and the 1998
Plan, the Shares (including the Common Stock Purchase Rights) will be
legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and with such agencies of such states as
you deem necessary in the course of complying with the laws of such
states regarding the offering and sale of the Shares. In giving this
consent, I do not admit that I am in the category of person whose
consent is required under Section 7 of the Securities Act or the rules
and regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Robert D. Pickle
Vice President - General Counsel
Corporate Secretary
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to Stock Option and
Restricted Stock Plan of 1994 and Stock Option and Restricted Stock
Plan of 1998 of Brown Group, Inc. of our reports dated March 5, 1998
with respect to the consolidated financial statements of Brown Group,
Inc. incorporated by reference in its Annual Report (Form 10-K) for
the fiscal year ended January 31, 1998 and the related financial
statement schedule included therein, as filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
St. Louis, Missouri
August 3, 1998
