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As filed with the Securities and Exchange Commission on January 13, 1994
Registration No. __________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under
the Securities Act of 1933
NS GROUP, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Kentucky 61-0985936
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
Ninth & Lowell Streets Newport Kentucky 41072
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(Address of Principal Executive Offices) (Zip Code)
NS GROUP, INC., 1993 INCENTIVE STOCK OPTION PLAN
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(Full Title of the Plan)
John R. Parker, Ninth & Lowell Streets Newport, Kentucky 41072
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(Name and Address of Agent For Service)
(606) 292-6809
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(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee (1)
- ---------------- ---------- ---------------- ---------------- -------------
Common Stock, 1,000,000 $7.38 $7,380,000 $2,545
par value $.01 Shares (2)
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Preferred Stock 1,000,000 (3) (3) (3)
Purchase Rights
===============================================================================
(1) Computed pursuant to Rule 457(h) and (c) solely for the purpose of
determining the registration fee on the basis of the high and low prices of
the Common Stock as reported on the New York Stock Exchange on January 7,
1993.
(2) This Registration Statement also covers such additional shares of Common
Stock and Rights as may be issuable pursuant to antidilution provisions.
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(3) Each share of Common Stock issued also represents one Preferred Stock
Purchase Right. Preferred Stock Purchase Rights cannot trade separately
from the underlying Common Stock and, therefore, do not carry a separate
price, or necessitate an additional registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
Registration Statement:
(1) The Company's annual report on Form 10-K for the fiscal year ended
September 25, 1993.
(2) The Company's Current Report on Form 8-K dated October 6, 1993.
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated November 17, 1988, as
amended, filed under the Securities Exchange Act of 1934, as amended (the "1934
Act") (which incorporates by reference the description contained in the
Company's prospectus dated March 4, 1988).
(4) The description of the Company's Preferred Stock Purchase Rights which
is also contained in the Company's Registration Statement on Form 8-A dated
November 17, 1988.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of 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 such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for the purpose 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. Any statement or data so superseded or modified shall not be
deemed, except as so superseded or modified, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
The securities to be offered are registered under Section 12(b) of the
1934 Act.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The following is a summary of Sections 271B.8-500 to 271B.8-580 of the
Kentucky Business Corporation Act ("KBCA").
Subject to restrictions contained in the statute or in the
corporation's articles of incorporation, a corporation may indemnify any person
made a party to a proceeding because he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise or
employee benefit plan. A director who has been wholly successful on the merits
or otherwise in the defense of any proceeding to which he was a party because
he is or was a director shall be indemnified against reasonable expenses
(including attorneys' fees incurred by him in connection therewith). No
indemnification may be paid pursuant to the statute (i) to a director adjudged
liable to the corporation in a shareholder derivative suit or (ii) to a
director adjudged to have received an improper personal benefit. The
corporation shall indemnify any officer, and may indemnify any employee or
agent, who is wholly successful on the merits or otherwise to the same extent
as a director. The statute otherwise authorizes indemnification upon a
determination that the person to be indemnified has met the applicable standard
of conduct required. Such determination shall be made by the board of
directors by a majority vote of a quorum consisting of directors who are not
parties to the proceeding; if such a quorum cannot be obtained, by a majority
vote of a committee of the board, consisting solely of two or more directors
who are not parties to the proceeding; by special legal counsel selected by the
board or a committee thereof; or by the shareholders (excluding the vote of
shares owned by any director who is a party to the proceeding). A court may
also order the indemnification of an officer upon application by the officer
and finding by court of eligibility. Expenses incurred in defense may be paid
in advance upon receipt by the corporation of a written affirmation by the
person to be indemnified of his good faith belief that he has met the
applicable standard of conduct required and a written undertaking by or on
behalf of the person to repay such amount if it is ultimately determined that
he did not meet the standard of conduct required. No advancement of expenses
may be made if it is ultimately determined that the facts then known to those
making the determination would not preclude indemnification. The
indemnification and advancement of expenses provided by statute shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise. Insurance may be purchased on behalf of
any person entitled to indemnification by the corporation against any liability
incurred in an official capacity regardless of whether the person could be
indemnified under the statute. As defined by the statute, a corporation
includes any predecessor entity of the corporation in a merger or other
transaction in which the predecessor's existence ceased upon consummation of
the transaction, and anyone seeking indemnification by virtue of acting in some
capacity with a predecessor entity would stand in the same position as if he
had served the resulting or surviving corporation in the same capacity.
The bylaws of the Company contain provisions indemnifying its
directors and officers to the fullest extent permitted by the KBCA. The bylaws
also provide for indemnification of employees serving as employee benefit plan
fiduciaries at the request of the Company. As authorized by the bylaws, the
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Company maintains directors' and officers' insurance insuring directors and
officers against liability they may incur in their capacities as such.
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 1933, provided that this will not apply if such information
is contained in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference herein;
(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, provided that this will not apply if such information is contained
in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference herein;
(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.
(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 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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(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.
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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 multiple counterparts with the effect of one original, in the
City of Newport, Commonwealth of Kentucky on January 13, 1994.
NS GROUP, INC.
By /S/ JOHN R. PARKER
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John R. Parker
Vice President and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Clifford R. Borland, Ronald R. Noel and John R. Parker, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-
effective amendments) and supplements to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and hereby grants to
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitutes or substitute, 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 and on the date indicated.
Signature Title Date
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/S/ CLIFFORD R. BORLAND President, Chief January 13, 1994
- ---------------------------- Executive Officer and
Clifford R. Borland Director
/S/ JOHN R. PARKER Vice President and January 13, 1994
- ---------------------------- Treasurer, Principal Financing
John R. Parker Officer
/S/ RONALD R. NOEL Director January 13, 1994
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Ronald R. Noel
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/S/ R. GLEN MAYFIELD Director January 13, 1994
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R. Glen Mayfield
/S/ JOHN B. LALLY Director January 13, 1994
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John B. Lally
/S/ PATRICK J. B. DONNELLY Director January 13, 1994
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Patrick J. B. Donnelly
/S/ THOMAS J. DEPENBROCK Corporate Controller January 13, 1994
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Thomas J. Depenbrock
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EXHIBIT INDEX
Exhibit
Number Description
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4(a) NS Group, Inc. 1993 Incentive Stock Option Plan, filed as Exhibit 1
to the Registrant's Proxy Statement for its annual meeting of
shareholders held on February 18, 1993 and incorporated herein by
this reference.
4(b) Amended and Restated Articles of Incorporation of NS Group, Inc.
dated February 23, 1989, filed as Exhibit 3(a) to Registrant's Form
10-K for the fiscal year ended September 30, 1989, File No. 1-9838,
and incorporated herein by this reference.
4(c) Bylaws of NS Group, Inc., amended as of November 14, 1991, filed as
exhibit 3(b) to Registrant's Form 10-K for the fiscal year ended
September 28, 1991, File No. 1-9838, and incorporated herein by this
reference.
4(d) Form of Rights Agreement between NS Group Inc., and Pittsburg
National Bank, as Rights Agent filed as Exhibit 1 to Registrants Form
8-A dated November 17, 1988 File No. 1-9838, and incorporated herein
by this reference.
5 Opinion of Bryan Cave.
23(a) Consent of Bryan Cave (incorporated in Exhibit 5).
23(b) Consent of Arthur Andersen & Co.
24 Power of Attorney (included on signature page).
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EXHIBIT 23(a)
BRYAN CAVE
ONE METROPOLITAN SQUARE
211 NORTH BROADWAY, SUITE 3600
ST. LOUIS, MISSOURI 63102-2750
(314) 259-2000
FACSIMILE: (314) 259-2020
Washington, D.C. Irvine, California
Los Angeles, California Santa Monica, California
New York, New York Overland Park, Kansas
Phoenix, Arizona London, England
Kansas City, Missouri Riyadh, Saudi Arabia
Frankfurt Am Main, Germany
January 13, 1994
Board of Directors
NS Group, Inc.
Ninth and Lowell Streets,
Newport, KY 41072
To the Board of Directors of NS Group, Inc.:
We have acted as special counsel for NS Group, Inc., a
Kentucky corporation (the "Company"), in connection with various legal matters
relating to the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), covering the offering of up to 1,000,000 shares of the Company's Common
Stock, without par value (the "Shares"), together with such preferred stock
purchase rights (as may be attached to the Shares pursuant to the Company's
Rights Agreement dated as of November 17, 1988) pursuant to the Company's 1993
Incentive Stock Option Plan.
In connection therewith, we have examined and relied without
independent investigation as to matters of fact upon such certificates of
public officials, such statements and certificates of officers of the Company
and originals or copies certified to our satisfaction of the Restated Articles
of Incorporation and Bylaws of the Company, as amended, proceedings of the
Board of Directors of the Company and such other corporate records, documents,
certificates and instruments as we have deemed necessary or appropriate in
order to enable us to render the opinion expressed below.
In rendering this opinion, we have assumed the genuineness of
all signatures on all documents examined by us, the authenticity of all
documents submitted to us as originals and the conformity to authentic
originals of all documents submitted to us as certified or photostatted copies.
Based on the foregoing and in reliance thereon, we are of the
opinion that the Shares when issued sold in accordance with the terms set forth
in the Registration Statement, will be legally issued, fully paid and non-
assessable.
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Board of Directors
NS Group, Inc.
January 13, 1994
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This opinion is not rendered with respect to any laws other
than the laws of the United States of America and the laws of the State of
Missouri. In rendering our opinion, we have assumed that the substantive laws
of Kentucky are identical to the substantive laws of the State of Missouri in
all respects relevant to such opinion.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. We also consent to your filing copies of this
opinion as an exhibit to the Registration Statement with 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,
we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission.
Very truly yours,
/S/ BRYAN CAVE
BRYAN CAVE
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EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the
incorporation by reference into this registration statement of our reports
dated November 5, 1993 included in or incorporated by reference in NS Group,
Inc.'s Form 10-K for the year ended September 25, 1993 and to all references to
our Firm included in this registration statement.
/S/ ARTHUR ANDERSEN & CO.
ARTHUR ANDERSEN & CO.
Cincinnati, Ohio,
January 13, 1994
