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REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JUMBOSPORTS INC.
(Exact name of registrant as specified in its charter)
FLORIDA 52-1643157
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4701 W. HILLSBOROUGH AVE.
TAMPA, FLORIDA 33614
(813) 886-9688
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive officers)
1989 STOCK INCENTIVE PLAN
(Full title of the plan)
LOUIS TIMCHAK, JR.
GENERAL COUNSEL
4701 W. HILLSBOROUGH AVENUE
TAMPA, FLORIDA 33614
(813) 886-9688
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE PRICE(3) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 1,000,000 shares (2) $1,190,000.00 $351.00
Rights to Purchase
Common Stock 1,000,000 rights (4) (4) (4)
================================================================================================================================
</TABLE>
(1) Does not include a total of 2,313,905 shares (as adjusted for the
3-for-2 stock split in the form of a stock dividend effected in September 1994)
which were previously registered on Forms S-8, Registration Nos. 333-04829,
33-61192 and 33-66960 filed May 30, 1996, April 14, 1993 and August 3, 1993,
respectively, with the Securities and Exchange Commission (and for which the
registration fee has already been paid). Pursuant to Rule 416(a), this
registration statement also registers such indeterminate number of additional
shares as may become issuable under the Plan in connection with share splits,
share dividends, and similar transactions.
(2) In accordance with Rule 457(h), and solely for the purpose of
calculating the registration fee, computed with respect to 1,000,000 shares at
an aggregate offering price of $1,190,000 ($1.19 per share, which is the
average of the high and low prices of such shares on January 26, 1998 as
quoted on the New York Stock Exchange).
(3) Does not include the maximum aggregate offering price of: (i)
$6,365,367 for the 624,668 shares previously registered on Form S-8,
Registration No. 333-04829, (ii) $4,410,800 for the 1,000,000 shares (as
adjusted for the 3-for-2 stock split in the form of a stock dividend effected in
September 1994) previously registered on Form S-8, Registration No. 33-66960,
and (iii) of $13,492,640 for the 1,419,237 shares (as adjusted for the 3-for-2
stock split in the form of a stock dividend effected in September 1994)
previously registered on Form S-8, Registration No. 33-61192.
(4) The Rights are appurtenant to and trade with the Common Stock. The
value attributable to the Rights, if any, is reflected in the proposed maximum
aggregate offering price for the Common Stock, as indicated above, and the
registration fee for the rights is included in the fee for the Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in the Section 10(a) prospectus under the
Securities Act by reference as of their respective dates:
a. The Company's Annual Report on Form 10-K for the year ended
January 30, 1997 which contains the Company's audited financial
statements for the Company's latest fiscal year for which such
statements have been filed.
b. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (Reg. No.
33-50098) under the Securities Act of 1933, filed on July 28,
1992, as amended, is hereby incorporated by reference.
c. All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the Annual Report on Form 10-K of the Company referred
to in (a) above.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference in the registration
statement and to be a part thereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IV of the Company's Bylaws provides for the indemnification by
the Company of each director, officer, employee, or agent of the Company to the
fullest extent permitted by the Florida Business Corporation Act ("FBCA"), as
the same exists or may hereafter be amended. Section 607.0850 of the FBCA
provides in relevant part that a corporation may indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of, the
corporation) by reason of the fact that such person is or was a director,
officer, employee, or
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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 liability incurred in
connection with such proceeding, including any appeal thereof, if such person
acted in good faith and in a manner such person 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 such
person's conduct was unlawful.
In addition, Section 607.0850 of the FBCA provides that a corporation
may indemnify any person who was or is a party to any proceeding by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that such person 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 and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Such indemnification shall be
authorized if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
corporation, 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 unless, and only to the extent that, the court in which such proceeding
was brought or any other court of competent jurisdiction shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper. Florida law
further provides that the indemnification and advancement of expenses provided
pursuant to Section 607.0850 are not exclusive, and a corporation may make any
other further indemnification or advancement of expenses. However, such
indemnification or advancement of expenses shall not be made if a judgment or
other final adjudication establishes such person's actions, or omissions to act,
were material to the cause of action so adjudicated and constitute:
(a) A violation of the law unless such person had reasonable cause to
believe such person's conduct was lawful or had no reasonable cause to believe
such person's conduct was unlawful;
(b) A transaction from which such person derived an improper personal
benefit;
(c) In the case of a director, such director authorized an unlawful
dividend or other distribution; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
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The Company has entered into indemnity agreements (the "Indemnity
Agreements") with each of its directors. By its terms, each Indemnity Agreement
holds directors harmless against amounts that they become legally obligated to
pay because of acts or omissions that they commit or permit to occur while
acting as agents of the Company. Each Indemnity Agreement specifically provides
that the Company shall pay the costs incurred by the indemnified party (the
"Indemnitee") in connection with claims against the indemnitee, including the
cost of settling such claims. Each Indemnity Agreement provides, however, that
the Company may not indemnify an Indemnitee: (i) in respect of a claim based
upon or attributable to the Indemnitee gaining in fact any personal profit or
advantage to which he was not legally entitled; (ii) for an accounting of
profits made from the purchase or sale by the Indemnitee of securities of the
Company within the meaning of Section 16(b) of the Securities Exchange Act of
1934; or (iii) on account of the Indemnitee's deliberately dishonest conduct.
Each Indemnity Agreement provides that litigation expenses shall be
advanced to the Indemnitee at his request provided that he undertakes to repay
the amount advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses. Should indemnification be withheld, the
Indemnitee is entitled to seek a final judicial determination with respect to
his right to indemnification under the Indemnity Agreement.
The Indemnity Agreements and the foregoing provisions of the bylaws may
reduce the likelihood of derivative litigation against directors and may
discourage or deter stockholders or management from bringing a lawsuit against
directors for breaches of their fiduciary duties, even though such an action, if
successful, might otherwise have benefitted the Company and its stockholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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:
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(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
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 subparagraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in 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.
(4) If the registrant is a foreign private issuer, to
file a post-effective amendment to the registration
statement to include any financial statements
required by Rule 3-19 of this chapter at the start of
any delayed offering or throughout a continuous
offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Act
need not be furnished,
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provided, that the registrant includes in the
prospectus, by means of a post-effective amendment,
financial statements required pursuant to this
paragraph (a)(4) and other information necessary to
ensure that all other information necessary to ensure
that all other information in the prospectus is at
least as current as the date of those financial
statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a
post-effective amendment need not be filed to include
financial statements and information required by
Section 10(a)(3) of the Act or Rule 3-19 of this
chapter if such financial statements and information
are contained in periodic reports filed with or
furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the Form F-3.
(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 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.
(h) 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
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 such
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 the City of Tampa, State of Florida, on January 28, 1998.
JumboSports Inc.
By: /s/ Jack E. Bush
-----------------------------------------
Jack E. Bush, Chairman of the Board and
Chief Executive Officer
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.
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<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Jack E. Bush
- ----------------------------- Chairman of the Board and January 28, 1998
Jack E. Bush Chief Executive Officer
/s/ Raymond P. Springer
- ----------------------------- President, Chief Financial January 28, 1998
Raymond P. Springer Officer, and Chief Operating
Officer (Principal Financial
Officer)
/s/ Jerry Kollar Vice President and Controller January 28, 1998
- -----------------------------
Jerry Kollar
/s/ Harold Compton
- ----------------------------- Director January 28, 1998
Harold Compton
</TABLE>
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<TABLE>
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/s/ Ronald L. Vaughn
- ----------------------------- Director January 28, 1998
Ronald L. Vaughn
/s/ Samuel Northrop, Jr.
- ----------------------------- Director January 28, 1998
Samuel Northrop, Jr.
/s/ Steven A. Raymund
- ----------------------------- Director January 28, 1998
Steven A. Raymund
</TABLE>
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EXHIBIT INDEX
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Exhibit
Number Description
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4.1 Articles of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended January
31, 1997).
4.2 Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 filed with the Registrant's Annual Report on
Form 10-K for the fiscal year ended January 31, 1997).
4.3 Form of Stock Certificate used to evidence ownership of the
Registrant's Common Stock, $.01 par value (incorporated by
reference to Exhibit 4.1 included the Registrant's Annual
Report on Form 10-K for the fiscal year ended January 29,
1995).
4.4 1989 Stock Incentive Plan as amended through June 23, 1994
(incorporated by reference to Exhibit 10.3 included in
Registrant's Annual Report on Form 10-K for the fiscal year
ended January 29, 1995).
4.5 Amendment to the 1989 Stock Incentive Plan, as approved by
the Registrant's shareholders on June 4, 1997.
4.6 Form of Stock Option Agreement pursuant to the 1989 Stock
Incentive Plan for options granted prior to the Registrant's
initial public offering (incorporated by reference to
Exhibit 10.10 filed with the Registrant's Registration
Statement on Form S-1 (Reg. No. 33-50098) filed with the
Commission on July 28, 1992).
4.7 Form of Stock Option Agreement pursuant to the 1989 Stock
Incentive Plan for options granted in contemplation of the
Registrant's initial public offering (incorporated by
reference to Exhibit 10.16 filed with Amendment No. 2 to the
Registrant's
</TABLE>
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<TABLE>
<S> <C>
Registration Statement on Form S-1 (Reg. No. 33-50098) filed
with the Commission on September 9, 1992).
5.1 Opinion of Fowler, White, Gillen, Boggs, Villareal and
Boggs, P.A., as to the legality of the shares being
registered.
23.1(a) Consent of Coopers & Lybrand L.L.P.
23.1(b) Consent of Deloitte & Touche LLP
23.2 Consent of Fowler, White, Gillen, Boggs, Villareal and
Boggs, P.A., is contained in its Opinion filed as Exhibit
5.1
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EXHIBIT 4.5
AMENDMENT TO
1989 EMPLOYEE STOCK PURCHASE PLAN
1. Section 2 of the JumboSports Inc. 1989 Stock Incentive Plan
(the "1989 Plan") is amended by increasing the number of shares of the
Company's Common Stock that may be issued under the 1989 Plan from 2,212,212
shares to 3,212,212 shares.
2. This Amendment shall become effective on the date
affirmatively approved by the holders of a majority (not counting abstentions)
of shares of the Company's Common Stock voting in person or by proxy at the
Annual Meeting of Stockholders of the Company to be held on June 4, 1997, if a
quorum is then present.
3. Except as otherwise amended hereby, all other terms and
conditions of the 1989 Plan shall remain in full force and effect.
<PAGE> 1
EXHIBIT 5.1
FOWLER, WHITE, GILLEN, BOGGS, VILLAREAL AND BANKER, P.A.
ATTORNEYS AT LAW
TAMPA - ST. PETERSBURG - CLEARWATER
FT. MYERS - TALLAHASSEE
CABLE - FOWHITE 501 EAST KENNEDY BLVD. TELECOPIER
TELEX 52776 TAMPA, FLORIDA 33602 (813) 229-8313
POST OFFICE BOX 1438
TAMPA, FLORIDA 33601
(813) 228-7411
January 28, 1998
JumboSports Inc.
4701 W. Hillsborough Avenue
Tampa, FL 33614
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
This opinion is given to you in connection with the filing by
JumboSports Inc., a Florida corporation (the "Company"), with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, of the
Registration Statement on Form S-8 (the "Registration Statement") with respect
to 1,000,000 shares of the common stock, $.01 par value, of the Company
issuable pursuant to the Company's 1989 Stock Incentive Plan, as amended (the
"Plan") (all shares of such stock issuable pursuant to the Plan are referred to
herein as the "Common Stock"). As counsel for the Company, we have examined
the relevant corporate documents incident to the giving of this opinion.
Based on the foregoing, we are of the opinion that the shares
of Common Stock, when issued and delivered in accordance with the provisions of
the Plan and the options issued thereunder, will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ FOWLER, WHITE, GILLEN, BOGGS,
VILLAREAL AND BANKER, P.A.
-----------------------------
FOWLER, WHITE, GILLEN, BOGGS,
VILLAREAL AND BANKER, P.A.
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EXHIBIT 23.1(a)
[LETTERHEAD OF COOPERS & LYBRAND L.L.P.]
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement of
JumboSports, Inc. on Form S-8 related to the 1989 Stock Incentive Plan of our
report dated March 21, 1997, on our audit of the consolidated balance sheet of
JumboSports, Inc. and subsidiaries as of January 31, 1997 and the related
consolidated statements of operations, stockholders' equity and cash flows for
the year ended January 31, 1997, which report is included in the annual report
on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
-----------------------------------
Coopers & Lybrand L.L.P.
Tampa, Florida
January 20, 1998
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EXHIBIT 23.1(b)
[LETTERHEAD OF DELOITTE & TOUCHE LLP]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
JumboSports, Inc. on Form S-8 pertaining to the 1989 Stock Incentive Plan of
our report dated March 22, 1996, appearing in and incorporated by reference in
the Annual Report on Form 10-K of JumboSports, Inc. for the year ended January
30, 1997.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Tampa, Florida
January 20, 1998
