As filed with the Securities and Exchange Commission on December 30, 2004.
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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ROCKY SHOES & BOOTS, INC.
(Exact name of Registrant as specified in its charter)
Ohio 31-1364046
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
39 East Canal Street
Nelsonville, Ohio 45764
(Address of Registrant's principal executive offices)
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ROCKY SHOES & BOOTS, INC.
2004 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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James E. McDonald
Vice President, Chief Financial Officer and Treasurer
Rocky Shoes & Boots, Inc.
39 East Canal Street
Nelsonville, Ohio 45764
(740) 753-1951
(Name, address and telephone number of agent for service)
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Copies of Correspondence to:
Curtis A. Loveland, Esq.
Porter, Wright, Morris & Arthur LLP
41 South High Street
Columbus, Ohio 43215
(614) 227-2004
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share* Price* Registration Fee
------------------- ------------ ---------------- ------------------ ----------------
Common Stock,
no par value 750,000 $28.60 $21,450,000 $2,524.67
*Estimated solely for the purpose of calculating the proposed maximum aggregate
offering price and the registration fee pursuant to Rule 457(h), based upon the
average of the high and low prices of Rocky Shoes & Boots, Inc. Common Stock as
reported on the Nasdaq National Market on December 27, 2004.
This Registration Statement shall be deemed to cover an indeterminate number of
additional shares of Rocky Shoes & Boots, Inc. Common Stock, no par value, as
may be issuable pursuant to future stock dividends, stock splits or similar
transactions.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information concerning the Rocky Shoes &
Boots, Inc. 2004 Stock Incentive Plan, specified in Part I, will be sent or
given to participants as specified by Rule 428(b)(1). Such documents are not
filed as part of this Registration Statement in accordance with the Note to Part
I of the Form S-8 Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Rocky Shoes & Boots, Inc. ("Rocky", the "Company" or the "Registrant")
incorporates by reference the following documents that the Company has
previously filed with the Securities and Exchange Commission:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2003, filed March 30, 2004.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 2004,
filed May 7, 2004; Quarterly Report on Form 10-Q for the quarter
ended June 30, 2004, filed August 4, 2004; and Quarterly Report on
Form 10-Q for the quarter ended September 30, 2004, filed November
3, 2004.
3. Current Report on Form 8-K dated November 30, 2004 (filed December
2, 2004); Current Report on Form 8-K dated December 6, 2004 (filed
December 8, 2004); and Current Report on Form 8-K dated December 13,
2004 (filed December 17, 2004).
4. Notice of Annual Meeting and Proxy Statement, filed April 6, 2004.
5. The description of Rocky common stock which is contained in Rocky's
Form 8-A filed with the Securities and Exchange Commission pursuant
to Section 12 of the Securities Exchange Act of 1934, as amended, as
updated in any amendment or report filed for the purpose of updating
such description, is hereby incorporated by reference.
All documents filed by Rocky pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, after the date of this
Registration Statement and prior to the filing of 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 incorporated by 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 document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1701.13 of the General Corporation Law of the State of Ohio
("Section 1701.13") provides that directors and officers of Ohio corporations
may, under certain circumstances, be indemnified against expenses (including
attorneys' fees) and other liabilities actually and reasonably incurred by them
as a result of any suit brought against them in their capacity as a director or
officer, if they acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, if they had no reasonable cause to believe
their conduct was unlawful. Section 1701.13 provides that directors and officers
may also be indemnified against expenses (including attorneys' fees) incurred by
them in connection with a derivative suit if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification may be made without court
approval if such person was adjudged liable to the corporation.
Article Ten of Rocky's Second Amended and Restated Articles of
Incorporation, adopted November 5, 1997, and filed on November 12, 1997
("Article Ten"), permits the Company to indemnify directors and officers against
expenses (including attorneys' fees) and other liabilities actually and
reasonably incurred by them to the full extent and according to the procedures
and requirements set forth in the Ohio General Corporation Law, as the same may
be in effect from time to time. Pursuant to Article Ten, the Company shall also
have the right to (i) indemnify employees, agents and others as permitted by
Ohio law, (ii) purchase and maintain insurance or provide similar protection on
behalf of the directors, officers or such other persons against liabilities
asserted against them or expenses incurred by them arising out of their service
to the Company as contemplated herein, and (iii) enter into agreements with such
directors, officers, incorporators, employees, agents or others indemnifying
them against any and all liabilities (or such lesser indemnification as may be
provided in such agreements) asserted against them or incurred by them arising
out of their service to the Company as contemplated herein.
The Company has also entered into indemnification agreements with each
director and executive officer of the Company, including the directors who are
also employees of the Company, to confirm and expand the Company's obligation to
indemnify such persons. These indemnification contracts (i) confirm the
indemnity provided to them by the Articles of Incorporation and give them
assurances that this indemnity will continue to be provided despite future
changes in the Articles of Incorporation, and (ii) provide that, in addition,
the directors and officers shall be indemnified to the fullest possible extent
permitted by law against all expenses (including attorneys' fees), judgments,
fines and settlement amounts, paid or incurred by them in any action or
proceeding, including any action by or in the right of the Company, on account
of their service as a director or officer of the Company or as a director or
officer of any subsidiary of the Company or as a director or officer of any
other company or enterprise when they are serving in such capacities at the
request of the Company.
No indemnity will be provided under the indemnification contracts to any
director or officer on account of conduct which is adjudged to have been
undertaken with deliberate intent to cause injury to the Company or undertaken
with reckless disregard for the best interests of the Company. In addition, the
indemnification contracts provide that no indemnification will be permitted if a
final court adjudication shall determine that such indemnification is not
lawful, or in respect of any suit in which judgment is rendered against a
director or officer for an accounting of profits made from a purchase or sale of
securities of the Company in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or of any similar statutory law, or on account
of any remuneration paid to a director or officer which is adjudicated to have
been paid in violation of law. Except as so limited, indemnification of
directors and officers will be permitted under the indemnification contracts to
the fullest extent permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION
Not applicable.
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ITEM 8. EXHIBITS
Exhibit Number Description
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4(a) Rocky Shoes & Boots, Inc. 2004 Stock Incentive Plan (previously filed as
Appendix B to the Company's Notice of Annual Meeting and Proxy Statement,
filed with the Securities and Exchange Commission on April 6, 2004, and
incorporated herein by reference).
4(b) Second Amended and Restated Certificate of Incorporation of Rocky Shoes &
Boots, Inc. (previously filed as Exhibit 3.1 to the Company's Annual
Report on Form 10-K filed with the Securities and Exchange Commission on
March 27, 1998, and incorporated herein by reference).
4(c) Amended and Restated Code of Regulations (previously filed as Exhibit 3.2
to the Company's Registration Statement on Form S-1, registration number
33-56118, filed with the Securities and Exchange Commission and
incorporated herein by reference).
5 * Opinion of Porter, Wright, Morris & Arthur LLP regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur LLP (included in Exhibit 5
filed herewith).
23(b) * Consent of Deloitte & Touche LLP.
24 * Power of Attorney.
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* 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,
as 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 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 the securities offered would not exceed what
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 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 (1)(i) and (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
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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 into
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 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.
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 of 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 Columbus, State of Ohio, on December 30, 2004.
ROCKY SHOES & BOOTS, INC.
/s/ James E. McDonald
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James E. McDonald, Vice President, Chief
Financial Officer and Treasurer
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:
SIGNATURE TITLE DATE
* Mike Brooks Chairman, Chief Executive Officer, December 30, 2004
----------------------------------- President and Director
Mike Brooks (Principal Executive Officer)
/s/ James E. McDonald Vice President, Chief Financial December 30, 2004
----------------------------------- Officer and Treasurer
James E. McDonald (Principal Financial and Accounting
Officer)
* Curtis A. Loveland Secretary and Director December 30, 2004
-----------------------------------
Curtis A. Loveland
* J. Patrick Campbell Director December 30, 2004
-----------------------------------
J. Patrick Campbell
* Glenn E. Corlett Director December 30, 2004
-----------------------------------
Glenn E. Corlett
* Michael L. Finn Director December 30, 2004
-----------------------------------
Michael L. Finn
* G. Courtney Haning Director December 30, 2004
-----------------------------------
G. Courtney Haning
* Harley E. Rouda, Jr. Director December 30, 2004
-----------------------------------
Harley E. Rouda, Jr.
* James L. Stewart Director December 30, 2004
-----------------------------------
James L. Stewart
* By: /s/ James E. McDonald
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James E. McDonald, attorney-in-fact for each
of the persons indicated
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Registration No. 333-______________
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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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ROCKY SHOES & BOOTS, INC.
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EXHIBITS
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EXHIBIT INDEX
Exhibit Exhibit
Number Description
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4(a) Rocky Shoes & Boots, Inc. 2004 Stock Incentive Plan (previously filed as
Appendix B to the Company's Notice of Annual Meeting and Proxy Statement,
filed with the Securities and Exchange Commission on April 6, 2004, and
incorporated herein by reference).
4(b) Second Amended and Restated Certificate of Incorporation of Rocky Shoes &
Boots, Inc. (previously filed as Exhibit 3.1 to the Company's Annual
Report on Form 10-K filed with the Securities and Exchange Commission on
March 27, 1998, and incorporated herein by reference).
4(c) Amended and Restated Code of Regulations previously filed as Exhibit 3.2
to the Company's Registration Statement on Form S-1, registration number
33-56118, filed with the Securities and Exchange Commission and
incorporated herein by reference).
5 * Opinion of Porter, Wright, Morris & Arthur LLP regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur LLP (included in Exhibit 5
filed herewith).
23(b) * Consent of Delloite & Touche LLP.
24 * Power of Attorney.
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* Filed herewith.