As filed with the Securities and Exchange Commission on May 3, 1994.
Registration No. 33-____________
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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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OSHMAN'S SPORTING GOODS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 2302 Maxwell Lane 74-1031691
(State or other Houston, Texas 77023 (I.R.S. Employer
jurisdiction of incorporation (Address of principal Identification No.)
or organization) executive offices)
(Zip Code)
OSHMAN'S SPORTING GOODS, INC.
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
R. L. BOCKART
2302 Maxwell Lane
Houston, Texas 77023
(Name and address of agent for service)
(713) 928-3171
(Telephone number, including area code, of agent for service)
COPY TO:
Diana M. Hudson
Mayor, Day, Caldwell & Keeton, L.L.P.
1900 NCNB Center
700 Louisiana
Houston, Texas 77002
(713) 225-7100
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price per aggregate offering Registration
be registered registered share(1) price (1) fee
- ------------- ------------ ------------------ ------------------ -------------
<S> <C> <C> <C> <C>
Common Stock, 100,000 $7.5625 $756,250 $261.00
par value $1.00
per share
</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low per
share sales prices of the Company's Common Stock on April 28, 1994 as
reported on the NASDAQ National Market System.
<PAGE> 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 the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 (the "Securities Act")
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
January 29, 1994 (File No. 0-5648);
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") since
the end of the fiscal year covered by the document referred to in
(a) above; and
(c) The description of the Company's Common Stock contained in
the registration statement pursuant to which the Company's shares of
Common Stock were registered under Section 12(g) of the Exchange
Act, and any amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Company 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 hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby is being passed upon
for the Company by Mayor, Day, Caldwell & Keeton, L.L.P., 700 Louisiana, Suite
1900, Houston, Texas 77002.
The Consolidated Financial Statements in the Company's Annual Report
on Form 10-K for the fiscal year ended January 29, 1994, incorporated by
reference in this Registration Statement, have been so incorporated in reliance
on the report of Grant Thornton, independent accountants, given on the authority
of such firm as experts in accounting and auditing.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Bylaws of the Company provide that the Company shall indemnify its
directors, in their capacities as such, to the full extent permitted by law and
may so indemnify its officers, agents and employees.
Section 145 of Chapter 1 of Title 8 of the Delaware Code provides as
follows:
Section 145. Indemnification of officers, directors, employees and
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agents; insurance.
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(a) A corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the
fact that 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, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) A corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that 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, employee, or agent of
another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification
shall be made in respect of 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 that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person if fairly and
reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b), or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him
inconnection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified
by the corporation as authorized in this Section. Such expenses
(including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board
of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this
Section shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who 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, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status
as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this
Section.
(h) For purposes of this Section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Section with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of any employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses
provided by or granted pursuant to this Section shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
The Company has in effect policies of insurance indemnifying its
directors and officers against certain of the liabilities which they may incur
in acting in their capacities as such, all within specified limits.
Insofar as the indemnification for liabilities arising under the
Securities Act 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. 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 Securities
Act and will be governed by the final adjudication of such issue.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
Reference is made to the Exhibit Index which immediately precedes the
exhibits filed with 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, unless the information
required to be included in a post-effective amendment is contained
in a periodic report filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 which is
incorporated by reference in this Registration Statement;
(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,
unless the information required to be included in a post-effective
amendment is contained in a periodic report filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 which is incorporated by reference in this 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.
(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.
The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or 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 herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
See Item 6, "Indemnification of Directors and Officers," for
the undertaking pursuant to Item 512(h) of Regulation S-K.
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 City of Houston, State of Texas, on the 22nd day of
April, 1994.
OSHMAN'S SPORTING GOODS, INC.
By /s/ ALVIN N. LUBETKIN
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Alvin N. Lubetkin
Vice Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
The undersigned directors and officers of Oshman's Sporting Goods,
Inc. do hereby constitute and appoint Alvin N. Lubetkin and Edward R. Carlin or
either of them, our true and lawful attorneys-in-fact and agents to do any and
all acts and things in our name and behalf in our capacities as directors and
officers, and to execute any and all instruments for us and in our names in the
capacities indicated below which such person or persons may deem necessary or
advisable to enable Oshman's Sporting Goods, Inc. to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for us, or any of us, in the capacities indicated below any and all
amendments (including post-effective amendments) hereto and we do hereby ratify
and confirm all that such person or persons shall 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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ MARILYN OSHMAN
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Marilyn Oshman Chairman of the Board of Directors April 22, 1994
/s/ ALVIN N. LUBETKIN
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Alvin N. Lubetkin Vice Chairman of the Board, President,
Chief Executive Officer (Principal
Executive Officer) and Director April 22, 1994
/s/ EDWARD R. CARLIN
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Edward R. Carlin Executive Vice President, Chief
Financial Officer (Principal Financial
and Accounting Officer) and Director April 22, 1994
/s/ MARVIN ARONOWITZ
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Marvin Aronowitz Director April 22, 1994
/s/ FRED M. GERSON
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Fred M. Gerson Director April 22, 1994
/s/ STEWART ORTON
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Stewart Orton Director April 22, 1994
/s/ DOLPH B.H. SIMON
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Dolph B.H. Simon Director April 22, 1994
</TABLE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
OSHMAN'S SPORTING GOODS, INC.
2302 Maxwell Lane
Houston, Texas 77023
<PAGE>
E X H I B I T S
OSHMAN'S SPORTING GOODS, INC.
INDEX TO EXHIBITS
Exhibit No. Description
4 Oshman's Sporting Goods, Inc. 1993 Non-Employee
Director Stock Option Plan. (Filed as
Exhibit 10.14 to the Company's Form 10-K for the
fiscal year ended January 29, 1994 and
incorporated herein by reference.)
5 Opinion of Mayor, Day, Caldwell & Keeton, L.L.P.
23.1 Consent of Grant Thornton.
23.2 Consent of Mayor, Day, Caldwell & Keeton (included in
Exhibit 5).
24 Powers of Attorney (included on page 6 of this
Registration Statement).
Exhibit 5
MAYOR, DAY, CALDWELL & KEETON, L.L.P.
700 LOUISIANA, SUITE 1900
HOUSTON, TEXAS 77002-2778
(713)225-7000
TELECOPIER (713)225-7047
May 3, 1994
Oshman's Sporting Goods, Inc.
2302 Maxwell Lane
Houston, Texas 77023
Dear Sirs:
We have acted as counsel for Oshman's Sporting Goods, Inc., a Delaware
corporation (the "Company"), in connection with the proposed offering of up to
100,000 shares of Common Stock, $1.00 par value (the "Common Stock"), of the
Company pursuant to the Company's 1993 Non-Employee Director Stock Option
Plan (the "Plan").
In connection therewith, we have examined among other things, the
Certificate of Incorporation and the Bylaws of the Company, and the relevant
corporate proceedings with respect to the registration on Form S-8 to be
filed by the Company with the Securities and Exchange Commission for the
registration of the Common Stock under the Securities Act of 1933, as amended
(the "Registration Statement").
Based on the foregoing, and having regard for such legal considerations as
we have deemed relevant, we are of the opinion that the shares of Common Stock
to be issued by the Company, when issued in accordance with the Plan, subject to
the Registration Statement becoming effective under the Securities Act of
1933, as amended, and to compliance with applicable Blue Sky laws, will be
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under "Legal Opinion"
in the Prospectus forming a part of the Registration Statement.
Very truly yours,
MAYOR, DAY, CALDWELL & KEETON, L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 18, 1994, accompanying the
consolidated financial statements and schedules of Oshman's Sporting Goods, Inc.
and subsidiaries included in the Annual Report on Form 10-K for the year ended
January 29, 1994, which is incorporated by reference in this Registration
Statement. We consent to this incorporation by reference in the
Registration Statement of the aforementioned report and to the use of
under the caption "Experts" in the Prospectus, which is part of this
Registration Statement.
GRANT THORNTON
Houston, Texas
April 27, 1994
