As filed with the Securities and
Exchange Commission on
March 14, 2008
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BIG 5 SPORTING GOODS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
| Delaware (State or Other Jurisdiction of Incorporation or Organization) |
95-4388794 (I.R.S. Employer Identification Number) |
2525 East El Segundo Boulevard
El Segundo, California 90245
(310) 536-0611
Big 5 Sporting Goods Corporation
2007 Equity and Performance Incentive Plan
(Full Title of the Plan)
| Gary S. Meade, Esq. Senior Vice President & General Counsel Big 5 Sporting Goods Corporation 2525 East El Segundo Boulevard El Segundo, California 90245 (310) 536-0611 (Name, address including zip code, and telephone number, including area code, of Registrants’ agent for service) |
Copy to: Kevin L. Finch, Esq. Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 (310) 277-1010 |
| Large accelerated filer o | Accelerated filer x | Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
| Proposed | Proposed | |||||||||||||||
| Maximum | Maximum | |||||||||||||||
| Title of Each Class of | Amount To Be | Offering Price | Aggregate | Amount of | ||||||||||||
| Securities to be Registered | Registered (1)(2) | Per Share (3) | Offering Price (3) | Registration Fee (4) | ||||||||||||
Common Stock, $.01
par value potentially
issuable in respect of
future awards under the
Registrant’s 2007 Equity
and Performance Incentive
Plan |
3,200,150 | $ | 8.21 | $ | 26,273,232 | $ | 1,032.54 | |||||||||
Common Stock, $.01
par value issuable upon
exercise of outstanding
options under the
Registrant’s 2007 Equity
and Performance Incentive
Plan |
328,000 | $ | 10.33 | $ | 3,388,240 | $ | 133.16 | |||||||||
Total: |
3,528,150 | $ | 29,661,472 | $ | 1,165.70 | |||||||||||
| (1) | This Registration Statement (the “Registration Statement”) covers (i) 2,434,250 shares of Common Stock, par value $0.01 per share, of Big 5 Sporting Goods Corporation (“Registrant”) currently available for issuance in respect of prior and future awards (including any options, stock appreciation rights, restricted stock awards, performance awards or other stock unit awards) under the Registrant’s 2007 Equity and Performance Incentive Plan (the “2007 Plan”), and (ii) up to 1,093,900 shares of the Registrant’s common stock represented by existing options granted under Registrant’s 2002 Stock Incentive Plan (the “2002 Plan”) and outstanding as of February 29, 2008, which will also become available for awards under the 2007 Plan to the extent that such options are forfeited, expire or otherwise terminate without issuance of shares of common stock, or which are settled for cash or otherwise do not result in the issuance of shares of common stock, on or after February 29, 2008. | |
| (2) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares as may result from anti-dilution adjustments under the above-named plan and which may hereinafter be offered or issued pursuant to the above-named plan to prevent dilution resulting from stock dividends, stock splits, recapitalizations or certain other capital adjustments. | |
| (3) | Estimated solely for the purpose of calculating the registration fee and calculated as follows: (i) with respect to options previously granted under the 2007 Plan covering 328,000 shares of common stock, on the basis of the weighted average exercise price of such option grants of $10.33 per share, and (ii) with respect to up to 3,200,150 additional shares associated with awards potentially available to be granted under the 2007 Plan, on the basis of $8.21 per share, the average of the high and low prices of the Registrant’s common stock on March 10, 2008, as reported on the Nasdaq Stock Market (“Nasdaq”), pursuant to Rule 457(c) and (h) promulgated under the Securities Act. | |
| (4) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) promulgated under the Securities Act. The fee is calculated as the sum of: (i) the exercise price for options previously granted pursuant to the 2007 Plan described above for 328,000 shares, which portion of the fee totals $133.16, and (ii) the average of the high and low prices of the Registrant’s common stock on March 10, 2008, as reported on Nasdaq for the remaining 3,200,150 shares which may be the subject of awards, which portion of the fee totals $1,032.54. |
| PART II | ||||||||
| SIGNATURES | ||||||||
| EXHIBIT INDEX | ||||||||
| EXHIBIT 5.1 | ||||||||
| EXHIBIT 23.2 | ||||||||
| EXHIBIT 23.3 | ||||||||
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by Big 5 Sporting Goods Corporation, a Delaware corporation (the “Registrant”), under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated herein by reference:
| (a) | the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 30, 2007 filed with the Commission on March 10, 2008 (Commission File No. 000-49850); and | ||
| (b) | the Registrant’s Registration Statement on Form 8-A, including any exhibits thereto, filed with the Commission on June 6, 2002 (Commission File No. 000-49850) pursuant to Section 12(g) of the Exchange Act, in which there is described the terms, rights and provisions applicable to the Registrant’s Common Stock. |
In addition, all documents subsequently filed by the Registrant 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 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 part hereof from the date of filing of such documents.
Any statement contained herein or 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 subsequently filed document which also is incorporated or deemed to be incorporated herein by reference modifies or supersedes such prior 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.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (“DGCL”) provides that a Delaware corporation may 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 proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that the person is or was a director, officer, employee or agent of the corporation or is or was serving at its request in such capacity in another corporation or business association, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of
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the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
As permitted by Section 145 of the DGCL, the Registrant’s Amended and Restated Bylaws provide that, to the fullest extent permitted by the DGCL, directors, officers and certain other persons who are made, or are threatened to be made, parties to, or are involved in, any action, suit or proceeding will be indemnified by the Registrant with respect thereto.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.
As permitted by Section 102(b)(7) of the DGCL, the Registrant’s Amended and Restated Certificate of Incorporation includes a provision that limits a director’s personal liability to the Registrant or its stockholders for monetary damages for breaches of his or her fiduciary duty as a director. Article EIGHTH of the Registrant’s Amended and Restated Certificate of Incorporation provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty to the fullest extent permitted by the DGCL.
As permitted by Section 145(g) of the DGCL and the Registrant’s Amended and Restated Bylaws, the Registrant maintains insurance policies under which its directors and officers are insured, within the limits and subject to the limitations of the policies, against expenses in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been directors or officers of the Registrant.
In addition, the Registrant has entered into contracts with its directors and officers pursuant to which the Registrant agrees to provide and maintain directors’ and officers’ insurance and further agrees to provide indemnification of such directors and officers to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
| Exhibit | ||
| Number | Description | |
| 4.1 (1) | Amended and Restated Certificate of Incorporation of the Registrant | |
| 4.2 (1) | Amended and Restated Bylaws of the Registrant | |
| 5.1 | Legal Opinion of Irell & Manella LLP | |
| 23.1 (2) | Consent of Irell & Manella LLP | |
| 23.2 | Consent of Deloitte & Touche LLP | |
| 23.3 | Consent of KPMG LLP | |
| 24.1 (3) | Power of Attorney | |
| 99.1 (4) | Big 5 Sporting Goods Corporation 2007 Equity and Performance Incentive Plan |
| (1) | Incorporated by reference to the Registrant’s Annual Report on Form 10-K filed March 31, 2003 (File No. 000-49850). | |
| (2) | Included in Legal Opinion of Irell & Manella LLP filed as Exhibit 5.1 to this Registration Statement. | |
| (3) | Included on the signature pages filed with this Registration Statement. | |
| (4) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed June 25, 2007. |
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; | ||
| (ii) | to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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 end 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; |
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| (iii) | to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
| provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 Section 15(d) of the Exchange Act that are incorporated by reference in this 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. |
| (b) | The undersigned Registrant hereby undertakes that, for purposes 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 this 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 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 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. |
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant hereby 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 El Segundo, state of California, on this 14th day of March, 2008.
| BIG 5 SPORTING GOODS CORPORATION | ||||
| By: | /s/ Barry D. Emerson |
|||
| Barry D. Emerson | ||||
| Senior Vice President & Chief Financial Officer |
||||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Steven G. Miller, Barry D. Emerson and Gary S. Meade, and each of them, his or her attorneys-in-fact and agents, each with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or the substitute or substitutes of any or all of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
| Signature | Title | Date | ||
| /s/ Steven G. Miller Steven G. Miller |
Chairman of the Board, President & Chief Executive Officer (Principal Executive Officer) |
March 14, 2008 | ||
| /s/ Barry D. Emerson Barry D. Emerson |
Senior Vice President, Chief Financial Officer & Treasurer (Principal Financial and Accounting Officer) |
March 14, 2008 | ||
| /s/ Sandra N. Bane Sandra N. Bane |
Director | March 14, 2008 | ||
| /s/ G. Michael Brown |
Director | March 14, 2008 | ||
| G. Michael Brown | ||||
| /s/ Jennifer Holden Dunbar Jennifer Holden Dunbar |
Director | March 14, 2008 | ||
| /s/ David R. Jessick |
Director | March 14, 2008 | ||
| David R. Jessick | ||||
| /s/ Michael D. Miller Dr. Michael D. Miller |
Director | March 14, 2008 |
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EXHIBIT INDEX
| Exhibit | ||
| Number | Description | |
| 4.1 (1) | Amended and Restated Certificate of Incorporation of the Registrant | |
| 4.2 (1) | Amended and Restated Bylaws of the Registrant | |
| 5.1 | Legal Opinion of Irell & Manella LLP | |
| 23.1 (2) | Consent of Irell & Manella LLP | |
| 23.2 | Consent of Deloitte & Touche LLP | |
| 23.3 | Consent of KPMG LLP | |
| 24.1 (3) | Power of Attorney | |
| 99.1 (4) | Big 5 Sporting Goods Corporation 2007 Equity and Performance Incentive Plan |
| (1) | Incorporated by reference to the Registrant’s Annual Report on Form 10-K filed March 31, 2003 (File No. 000-49850). | |
| (2) | Included in Legal Opinion of Irell & Manella LLP filed as Exhibit 5.1 to this Registration Statement. | |
| (3) | Included on the signature pages filed with this Registration Statement. | |
| (4) | Incorporated by reference to the Registrant’s Current Report on Form 8-K filed June 25, 2007. |
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