-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DSikp9fMSH334a3uj6LurTlSiYV4lezVLMdWIll42eMw+S98PhjtNsptcIfdycQa km7o6UexGy/bjNAewmhwCA== 0000049401-03-000044.txt : 20030606 0000049401-03-000044.hdr.sgml : 20030606 20030606141556 ACCESSION NUMBER: 0000049401-03-000044 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20030606 EFFECTIVENESS DATE: 20030606 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAUCONY INC CENTRAL INDEX KEY: 0000049401 STANDARD INDUSTRIAL CLASSIFICATION: RUBBER & PLASTICS FOOTWEAR [3021] IRS NUMBER: 041465840 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-105910 FILM NUMBER: 03735654 BUSINESS ADDRESS: STREET 1: 13 CENTENNIAL DR STREET 2: CENTENNIAL INDUSTRIAL PK CITY: PEABODY STATE: MA ZIP: 01961 BUSINESS PHONE: 5085329000 MAIL ADDRESS: STREET 1: 13 CENTENNIAL DRIVE STREET 2: CENTENNIAL INDUSTRIAL PARK CITY: PEABODY STATE: MA ZIP: 01960 FORMER COMPANY: FORMER CONFORMED NAME: HYDE ATHLETIC INDUSTRIES INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: HYDE A R & SONS CO DATE OF NAME CHANGE: 19701030 S-8 1 nqretire.txt NON QUALIFIED RETIREMENT PLAN As filed with the Securities and Exchange Commission on June 6, 2003 Registration No. 333-_____ =============================================================================== UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Saucony, Inc. (Exact Name Of Registrant As Specified In Its Charter) Massachusetts 04-1465840 (State Or Other Jurisdiction (I.R.S. Employer Identification No.) of Incorporation or Organization) 13 Centennial Drive, Peabody, Massachusetts 01960 (Address Of Principal Executive Offices) (Zip Code) Saucony, Inc. Non Qualified Retirement Plan (Full Title Of The Plan) Michael Umana Chief Operating Officer, Senior Vice President, Finance and Chief Financial Officer 13 Centennial Drive Peabody, Ma 01960 (Name And Address Of Agent For Service) (978) 532-9000 (Telephone Number, Including Area Code, Of Agent For Service)
CALCULATION OF REGISTRATION FEE ============================== ========================= ========================== ========================= Title of Securities to be Amount to be Proposed Maximum Amount of Registration Registered (1) Registered(1) Aggregate Offering Price Fee - ------------------------------ ------------------------- -------------------------- ------------------------- Deferred Compensation 5,000,000 $5,000,000 (2) $405.00 Obligations ============================== ========================= ========================== ========================= (1) The Deferred Compensation Obligations are unfunded and unsecured general obligations of Saucony, Inc. to pay deferred compensation in the future in accordance with the terms of the Saucony, Inc. Non Qualified Retirement Plan. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information. The information required by Item 1 is included in documents sent or given to participants in the Saucony, Inc. Non Qualified Retirement Plan (the "Retirement Plan") pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Item 2. Registrant Information and Employee Plan Annual Information. The written statement required by Item 2 is included in documents sent or given to participants in the Retirement Plan covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference: (a) The Registrant's latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the Registrant's latest fiscal year for which such statements have been filed. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above. 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 hereby 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 the filing of 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 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. Under the Retirement Plan, the Registrant provides a select group of management or highly compensated employees the opportunity to elect the deferral of a specified percentage of their regular compensation and all or any portion of a bonus or other nonregular compensation. The obligations of the Registrant under the Retirement Plan (the "Obligations") represent unfunded and unsecured general obligations of the Registrant to pay in the future the value of (1) the compensation elected to be deferred and (2) Registrant contributions, if any, under the Retirement Plan, in each case adjusted to reflect the performance, whether positive or negative, of selected investment measurement options, chosen by each participant, during the deferral period in accordance with the terms of the Retirement Plan. The Retirement Plan is administered by the Compensation Committee (the "Committee") of the Board of Directors of the Registrant, none of the members of which are participants in the Retirement Plan. The Committee has full power and authority to construe, interact and administer the Retirement Plan. A participant in the Retirement Plan may elect to have up to 15% of his or her regular compensation and all or any portion of a bonus or other nonregular compensation deferred until after the termination of the participant's employment. The Registrant may, but is not required to, make credits, including credits that are based upon (or match) participant deferrals, to the Retirement Plan. The Obligations for each participant are equal in value to the balance of a bookkeeping reserve account established for such participant. The investment earnings credited to such account will be indexed to one or more investments in which the account funds are deemed to be invested, the type of which will be individually chosen by each participant from a list of types of investment media. Each participant's deferred compensation account will be adjusted to reflect contributions by the Registrant, if any, and the investment experience of the selected investment, including any appreciation or depreciation. The Registrant is not required to actually invest the deferred compensation in the types of investments specified by participants. Any investments made by the Registrant are made solely in the name of the Registrant and remain the property of the Registrant. The Obligations are distributed by the Registrant in accordance with the terms of the Retirement Plan in a single payment at the time selected by each participant. Upon termination of employment or earlier retirement due to total and permanent disability, a participant will receive his or her deferred compensation account balance in a single payment within 60 days of termination, unless he or she has elected a later payment. Upon the death of a participant, the unpaid balance of his or her deferred compensation account will be paid to his or her estate or to his or her designated beneficiary, if any, as promptly as practicable after such death. Upon a determination by the Board of Directors that a participant has suffered an unforeseeable financial emergency, the Board or Directors may direct the Registrant to pay such participant an amount necessary to meet the emergency, but, in any case, no withdrawal will be permitted if the withdrawal would cause the undistributed balance in the participant's account to become currently taxable. If at any time the Compensation Committee believes that any participant may not be considered by the Department of Labor or a court of competent jurisdiction to be a member of a select group of the Registrant's management or highly compensated employees, or that a participant or beneficiary will recognize income for state or federal income tax purposes with respect to Retirement Plan benefits not then payable, the Compensation Committee will communicate such belief to the Registrant and will follow the Registrant's direction as to whether the benefits of such a participant or beneficiary should be paid in a single sum or otherwise prior to the time they would otherwise be payable. The Retirement Plan is intended to be an unfunded plan. Nothing contained in the Retirement Plan, and no action taken pursuant to the provisions of the Retirement Plan, creates or may be construed to create a trust of any kind, or a fiduciary relationship between the Registrant and any participant in the Retirement Plan, beneficiary or any other person. Any funds which may be invested by the Registrant to make provisions for its obligations under the Retirement Plan, including any assets owned by any trust established to provide a source of benefits under the Retirement Plan, continue for all purposes to be a part of the general funds of the Registrant until and except for amounts actually paid to participants or their beneficiaries. No person other than the Registrant shall by virtue of the provisions of the Retirement Plan have any interest in such funds. To the extent that any person acquires a right to receive payments from the Registrant under the Retirement Plan, such right will be no greater than the rights of any unsecured general creditor of the Registrant. To the extent permitted by law, the rights of any participant or beneficiary, and the benefit or payment to any participant or beneficiary under the Retirement Plan, will not be subject to attachment or other legal process for the debts of the participant or beneficiary, and the benefit or payment will not be subject to anticipation, alienation, sale, transfer, assignment or encumbrance. The Board of Directors may at any time amend, suspend or terminate any or all of the provisions of the Retirement Plan, except that no such amendment, suspension or termination may adversely affect the rights of any participants or their spouses or beneficiaries whose Retirement Plan benefits were then in pay status, nor shall such action reduce or otherwise adversely affect the benefit accrued as of that date. All rights under the Retirement Plan are governed by and construed in accordance with the laws of the Commonwealth of Massachusetts to the extent they are not preempted by the laws of the United States of America. Item 5. Interests of Named Experts and Counsel. Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement. David E. Redlick, a partner of Hale and Dorr LLP, serves as Clerk to the Registrant. Item 6. Indemnification of Directors and Officers. Consistent with applicable provisions of Chapter 156B of the Massachusetts General Laws, the Registrant's Restated Articles of Organization, as amended (the "Articles of Organization"), provide that the Registrant's directors and officers may be indemnified by the Registrant from and against any claims, liabilities and expenses to which they may become subject by reason of being a director or officer, except with respect to any matter as to which such director or officer shall have been adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that his or her action was in the best interests of the Registrant. Generally, Article 6 of the Articles of Organization provides for the indemnification of directors and officers of the Registrant against liabilities and expenses arising out of legal proceedings brought against them by reason of their status of service as directors or officers or by reason of their agreeing to serve, at the request of the Registrant, as a director or officer of, or in a similar capacity with, another organization or in any capacity with respect to any employee benefit plan of the Registrant. Under Article 6, a director or officer of the Registrant will be indemnified by the Registrant for all expenses, judgments, fines and amounts paid in settlement of such proceedings, even if he or she is not successful on the merits, if he or she acted in good faith and in a manner he or she reasonably believed to be in the best interests of the Registrant. The Articles of Organization establish the presumption that the director or officer has met the applicable standard of conduct required for indemnification. The indemnification above will be made unless the Registrant determines, by clear and convincing evidence, that the applicable standard of conduct has not been met. Such a determination would be made by a majority of a quorum of the directors, independent legal counsel, the stockholders or a court of competent jurisdiction. The Board of Directors can authorize advancing litigation expenses to a director or officer at his request upon receipt of an undertaking by such director or officer to repay such expenses if it is ultimately determined that he or she is not entitled to indemnification for such expenses. The Articles of Organization also provide that, in the event of a determination by the Registrant that a director or officer did not meet the standard of conduct required for indemnification, or if the Registrant fails to make an indemnification payment or an advance of expenses within 60 days after such payment is claimed by a director or officer, such director or officer can petition the court to make an independent determination of whether such director or officer is entitled to indemnification. The Articles of Organization explicitly provide for partial indemnification of costs and expenses in the event that a director or officer is not entitled to full indemnification. The Registrant has purchased and maintains insurance coverage under a policy insuring directors and officers of the Registrant against certain liabilities which they may incur as directors or officers of the Registrant, which may include coverage for liabilities arising under the Securities Act. 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. 1. Item 512(a) of Regulation S-K. 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 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; and (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 (i) and (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 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. 2. Item 512(b) of Regulation S-K. 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 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. 3. Item 512(h) of Regulation S-K. 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 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. 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 Peabody, Massachusetts, on this 6th day of June, 2003. SAUCONY, INC. By: /s/ Michael Umana ----------------------- Michael Umana Chief Operating Officer, Senior Vice President, Finance and Chief Financial Officer POWER OF ATTORNEY AND SIGNATURES We, the undersigned officers and directors of Saucony, Inc., hereby severally constitute and appoint John H. Fisher, Michael Umana and David E. Redlick, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Saucony, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto. 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 --------- ----- ---- /s/ John H. Fisher Chairman of the Board, June 6, 2003 John H. Fisher President and Chief Executive Officer (Principal Executive Officer) /s/ Charles A. Gottesman Vice Chairman of the Board, June 6, 2003 Charles A. Gottesman Executive Vice President, Business Development /s/ Michael Umana Chief Operating Officer, June 6, 2003 Michael Umana Senior Vice President, Finance and Chief Financial Officer (Principal Financial Officer) /s/ Roger P. Deschenes Vice President, Controller and June 6, 2003 Roger P. Deschenes Chief Accounting Officer (Principal Accounting Officer) /s/ Jonathan O. Lee Director June 6, 2003 Jonathan O. Lee /s/ Robert J. Lefort, Jr. Director June 6, 2003 Robert J. Lefort, Jr. /s/ John J. Neuhauser Director June 6, 2003 John J. Neuhauser INDEX TO EXHIBITS Number Description - ------ ----------- 4.1 Saucony, Inc. Non Qualified Retirement Plan, as amended. 5.1 Opinion of Hale and Dorr LLP, counsel to the Registrant. 23.1 Consent of Hale and Dorr LLP is included in Exhibit 5.1 filed with this registration statement. 23.2 Consent of Deloitte & Touche LLP. 23.3 Consent of PricewaterhouseCoopers LLP. 24.1 Power of attorney is included on the signature pages of this registration statement. EX-4 4 exh41.txt NON QUALIFIED RETIREMENT PLAN AMENDED Exhibit 4.1 SAUCONY, INC. NON QUALIFIED RETIREMENT PLAN 2000 Restatement ARTICLE I NAME, PURPOSE AND EFFECTIVE DATE OF PLAN 1.01 Name of Plan. This Plan shall be known as the "Saucony, Inc. Non Qualified Retirement Plan" (the "Plan"). 1.02 Purpose. This Plan is intended to provide retirement and death benefits to certain management or highly compensated employees of Saucony, Inc. (the "Corporation"). This Plan is intended to be an unfunded Plan, maintained by the Corporation primarily for the purpose of providing deferred compensation to a select group of its management or highly compensated employees described in 29 U.S.C. Section 1051(2) and shall be operated and construed accordingly. 1.03 Plan Effective Date. The Effective Date of this Plan is April 12, 1996. The Effective Date of this 2000 Restatement is January 1, 2000. ARTICLE II DEFINITIONS 2.01 "Deferred Compensation" shall mean compensation of a Participant which the Participant shall have elected to defer in accordance with Section 3.01 of this Plan. 2.02 "Matching Credits" means credits made by the Corporation that are based on the deferrals of Particpants. 2.03 "Non Qualified Plan Committee" shall mean the committee established to administer this Plan in accordance with Article IV. 2.04 "Participant" means any employee of the Corporation whose participation in this Plan is approved by the Board of Directors of the Corporation. The Plan Participants as of December 1, 1995 are listed in Exhibit A. Others may be added when approved by the Board of Directors of the Corporation. ARTICLE III BENEFITS 3.01 Deferral Elections. Prior to the close of each calendar year, a Participant may elect to have up to 15% of the Participant's regular compensation and all or any portion of a bonus or other nonregular compensation otherwise payable in the following calendar year deferred until after the termination of the Participant's employment; except, that in the case of the initial Plan year or the first Plan year in which an employee becomes a Participant, a Participant may make a deferral election pursuant to this Section 3.01 with respect to compensation earned in periods beginning after the election is made; such special elections must be made within thirty (30) days after the first day of the initial Plan year or the first day of having been designated a Participant, respectively. An election made under this Section 3.01 shall be irrevocable after the close of the calendar year in which such election is made, except for elections made in the initial Plan year or the first Plan year in which an employee becomes a Participant which shall be irrevocable when made. An election made under this Section 3.01 shall remain in effect until modified or revoked by the Participant. Any modification or revocation shall only apply to subsequent calendar years. 3.02 Credits by Corporation. The Corporation may make credits including Matching Credits, to the Plan. 3.03 Accounts of Participants. Whenever a Participant first makes an election pursuant to Section 3.01, there shall be established for such Participant a Deferred Compensation Account to which there shall be credited the amounts of all Deferred Compensation, any Matching Credits and other credits by the Corporation, and the amounts of all investment return equivalents attributable to such Deferred Compensation and any Matching Credits or other credits granted or credited to such Participant. 3.04 Method of Payment of Deferred Compensation and Other Credits. That portion of the Deferred Compensation Account that is payable as provided in Section 3.05 after termination of the Participant's employment shall be paid in a single payment. Any election by a Participant as to the time of payment of his Deferred Compensation may be changed by such Participant at any time prior to December 31 of the year preceding the calendar year of termination of the Participant's employment. Each Participant who has at any time elected to defer compensation under Section 3.01 shall at all times have on file with the Non Qualified Plan Committee the Participant's election as to the time of payment of his or her Deferred Compensation. If any Participant does not have such an election on file with the Non Qualified Plan Committee, the Participant's Deferred Compensation Account shall be paid in one sum within 60 days of termination. At its discretion, the Corporation may direct that payment of benefits be made by any Trust established to provide a source for payments under this Plan. 3.05 Termination of Employment and Disability Benefits. Upon termination of employment or earlier retirement due to total and permanent disability, a Participant shall receive his or her Deferred Compensation Account balance in a lump sum within 60 days of termination unless he has elected a later payment. 3.06 Death Benefits. Upon the death of a Participant who had not yet received any payments under this Plan, the unpaid balance of the Participant's Deferred Compensation Account shall be paid to the estate of such Participant, or, if any such deceased Participant shall have designated a beneficiary or beneficiaries pursuant to Section 7.05, to such beneficiary or beneficiaries, as promptly as practicable after the death of such Participant. 3.07 Acceleration of Payments. Notwithstanding any other provision in this Plan, if at any time the Non Qualified Plan Committee believes that any Participant may not be considered by the Department of Labor or a court of competent jurisdiction to be a member of a select group of the Corporation's management or highly compensated employees (as those terms are used in 29 U.S.C. Section 1051(2) and related provisions), or that a Participant or beneficiary will recognize income for state or federal income tax purposes with respect to Plan benefits not then payable, the Non Qualified Plan Committee shall communicate such belief to the Corporation and shall follow the Corporation's direction as to whether the benefits of such a Participant or beneficiary should be paid in a single sum or otherwise prior to the time they would otherwise be payable. 3.08 Hardship Withdrawals. At the written request of a Participant, the Board of Directors of the Corporation may permit the Participant to withdraw an amount from the Participant's account only to the extent reasonably needed to satisfy an unforeseeable emergency. The Board of Directors of the Corporation shall determine a Participant's eligibility for such a withdrawal on a case-by-case basis, but, in any case, no withdrawal will be permitted if the withdrawal would cause the undistributed balance in the Participant's account to become currently taxable. An "unforeseeable emergency" means severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant or of a dependent (as defined in Section 152(a) of the Internal Revenue Code of 1986) of the Participant, loss of the Participant's property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. The circumstances that will constitute an unforeseeable emergency will depend upon the facts of each case but in any case, payment may not be made to the extent that such hardship is or may be relieved: (i) Through reimbursement or compensation by insurance or otherwise, (ii) By liquidation of the Participant's assets, to the extent the liquidation of such assets would not itself cause severe financial hardship, or (iii) By cessation of deferrals under the Plan. Examples of what are not considered to be unforeseeable emergencies include the need to send a Participant's child to college or the desire to purchase a home. ARTICLE IV PLAN ADMINISTRATION 4.01 Plan Administrator: Power and Authority. This Plan shall be administered by the Saucony, Inc., Non Qualified Retirement Plan Committee (the "Non Qualified Plan Committee") as named by the Corporation. Members of the Non Qualified Plan Committee may not include employees or officers of the Corporation who are covered by this Plan or family members thereof (as defined in Code Section 4975(e)(6)). The Non Qualified Plan Committee shall have full power and authority to construe, interpret and administer this Plan and shall have total discretion to fulfill their responsibilities as they see fit on a uniform and consistent basis and as they believe a prudent person acting in a like capacity and familiar with such matters would do. In the administration of this Plan, the Non Qualified Plan Committee may, from time to time, employ agents and delegate to them such administrative duties as it sees fit and from time to time consult with counsel who may be counsel to the Corporation. 4.02 Non Qualified Plan Committee to Act by Majority Vote, etc. The Non Qualified Plan Committee shall act by majority vote of all members. All actions, determinations, interpretations and decisions of the Non Qualified Plan Committee with respect to any matter within its jurisdiction will be conclusive and binding on all persons. 4.03 Records and Reports of the Non Qualified Plan Committee. The Non Qualified Plan Committee shall keep a record of all of its proceedings and acts, and shall keep all such books of account, records and other data as may be necessary for the proper administration of the Plan. 4.04 Costs and Expenses of Administration. All expenses and costs of administering the Plan shall be paid by the Corporation, unless deducted from any assets owned by any Trust described in Section 7.03, which deductions shall be limited to those expenses and costs reasonably necessary to administer the Plan. ARTICLE V CLAIMS PROCEDURES 5.01 Claims for Benefits. Claims for benefits under the Plan must be made in writing to the Non Qualified Plan Committee. For purposes of this procedure, "claim" means a request for a Plan benefit by a Participant or a beneficiary of a Participant. If the basis of the claim includes documentation not a part of the records of the Plan or of the Corporation, all such documentation must be included with the claim. 5.02 Notice of Denial of Claim. If a claim is wholly or partially denied, the Non Qualified Plan Committee shall notify the claimant of the denial of the claim within a reasonable period of time. Such notice of denial (i) shall be in writing, (ii) shall be written in a manner calculated to be understood by the claimant, and (iii) shall contain (a) the specific reason or reasons for the denial of the claim, (b) a specific reference to the pertinent Plan provisions upon which the denial is based, (c) a description of any additional material or information necessary for the claimant to perfect the claim, along with the explanation of why such material or information is necessary, and (d) an explanation of the Non Qualified Plan Committee's claim review procedure. Unless special circumstances require an extension of time for processing the claim, the Non Qualified Plan Committee shall notify the claimant of the claim denial no later than 90 days after the Non Qualified Plan Committee's receipt of the claim. If such an extension is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial 90-day period. In no event shall such extension exceed a period of 90 days from the end of such initial period. The extension notice shall indicate the special circumstances requiring the extension of time and the date by which the Non Qualified Plan Committee expects to render the final decision. 5.03 Request for Review of Denial of Claim. Within 120 days of the receipt by the claimant of the written notice of denial of the claim or if the claim has not been granted within a reasonable period of time, the claimant or his or her duly authorized representative may file a written request with the Non Qualified Plan Committee to conduct a full and fair review of the denial of the claimant's claim for benefits. In connection with the claimant's appeal of the denial of his or her benefits, the claimant or his or her duly authorized representative may review pertinent documents and may submit issues and comments in writing. 5.04 Decision on Review of Denial of Claim. The Non Qualified Plan Committee shall deliver to the claimant a written decision on the claim promptly, but not later than 60 days after the receipt of the claimant's request for review, except that if there are special circumstances which require an extension of time for processing, the aforesaid 60-day period may be extended to 120 days by written notice delivered to the claimant prior to the expiration of the initial 60-day period. Such decision shall (i) be written in a manner calculated to be understood by the claimant, (ii) include specific reasons for the decision, and (iii) contain specific references to the pertinent Plan provisions upon which the decision is based. Notwithstanding any provisions elsewhere to the contrary, the Non Qualified Plan Committee shall have total discretion to make decisions as they see fit on a uniform and consistent basis, as they believe a prudent person acting in a like capacity and familiar with such matters would do. 5.05 Communication of Decisions. The Non Qualified Plan Committee shall communicate all claims and benefit decisions to the Corporation and any Trust established to provide a source for payments under this Plan. ARTICLE VI AMENDMENT AND TERMINATION 6.01 Right to Amend, Suspend or Terminate Plan. The Saucony, Inc. Board of Directors reserves the right to amend, suspend or terminate the Plan at any time or from time to time, in whole or in part, without the consent of any Participant, Participant's spouse or other beneficiary. Provided, however, that no such amendment, suspension or termination shall affect the rights of Participants or their spouses or beneficiaries whose Plan benefits were then in pay status, nor shall such action reduce or otherwise adversely affect the benefit accrued as of that date. ARTICLE VII MISCELLANEOUS 7.01 Protection of Employee Interest. To the extent permitted by law, the rights of any Participant or beneficiary, and such benefit or payment under this Plan shall not be subject to attachment or other legal process for the debts of such Participant, or beneficiary and such benefit or payment shall not be subject to anticipation, alienation, sale, transfer, assignment or encumbrance. 7.02 Plan Does Not Create or Modify Employment Rights. This plan shall not be constructed as creating or modifying any contract of employment between the Corporation and any Participant. All Participants shall be subject to discharge to the same extent that they would have been of this Plan had never been adopted. 7.03 Unfunded Plan; No Fiduciary Relationship Created. This Plan is intended to be an unfunded plan. Nothing contained in this Plan, and no action taken pursuant to the provisions of this Plan, shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Corporation and any Plan Participant, beneficiary or any other person. Any funds which may be invested by the Corporation to make provisions for its obligations hereunder, including any assets owned by any Trust established to provide a source of benefits under this Plan, shall continue for all purposes to be a part of the general funds of the Corporation until and except for amounts actually paid to Participants or Beneficiaries. No person other than the Corporation shall by virtue of the provisions of this Plan have any interest in such funds. To the extent that any person acquires a right to receive payments from the Corporation under this Plan, such right shall be no greater than the rights of any unsecured general creditor of the Corporation. 7.04 Deemed Investment. The Non Qualified Plan Committee shall designate one or more investments in which each Participant's Deferred Compensation Account may be deemed to be invested. A Participant may from time to time select one or more such investments in which the Participant's Deferred Compensation Account shall be deemed to be invested. The Deferred Compensation Account of each Participant shall be credited with the amount the Deferred Compensation Account would have earned if it had actually been invested in the investment or investments selected by the Participant. The deemed investment return shall be credited to a Participant's Deferred Compensation Account at the close of each calendar year, until benefits are completed under Section 3.05 of this Plan. Any amount(s) withdrawn from a Participant's Deferred Compensation Account before the close of a given calendar year shall be credited with the deemed investment return for the amount of time during the calendar year that said the amount(s) have been credited to the Participant's Deferred Compensation Account. Nothing in this Section 7.04 shall be construed to require the Corporation to acquire or provide any of the investments selected by a Participant. Any investments made by the Corporation shall be made solely in the name of the Corporation and shall remain the property of the Corporation. 7.05 Designation of Beneficiary. Each Participant may designate a beneficiary or beneficiaries and may change such designation from time to time by filing a written designation with the Non Qualified Plan Committee on a form to be prescribed by it, provided that no such designation shall be effective unless so filed and accepted by the Non Qualified Plan Committee prior to the death of such Participant. 7.06 Payments to Minor or Disabled Persons. If any person to whom any amount is payable hereunder is a minor, or if the Non Qualified Plan Committee is notified that any person to whom such amount is payable is incompetent because of mental disability, the Non Qualified Plan Committee shall have the power to cause any such payment becoming due to such person to be made to any other person or institution for his benefit without responsibility of the Non Qualified Plan Committee to see to the application of such payments. Payments made pursuant to such power shall operate as a complete discharge of the Corporation. 7.07 Governing Law. All rights under this Plan shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts to the extent they are not preempted by the laws of the United States of America. AMENDMENT NO. 1 TO SAUCONY, INC. NON QUALIFIED RETIREMENT PLAN 2000 RESTATEMENT ARTICLE V of the 2000 Restatement of the Saucony, Inc. Non Qualified Retirement Plan is amended and restated in its entirety as follows: 5.01 Claims for Benefits. Claims for benefits under the Plan must be made in writing to the Non Qualified Plan Committee. For purposes of this procedure, "claim" means a request for a Plan benefit by a Participant or a beneficiary of a Participant. If the basis of the claim includes documentation not a part of the records of the Plan or of the Corporation, all such documentation must be included with the claim. 5.02 Notice of Denial of Claim. If a claim is wholly or partially denied, the Non Qualified Plan Committee shall notify the claimant of the denial of the claim within a reasonable period of time. Such notice of denial (i) shall be in writing, (ii) shall be written in a manner calculated to be understood by the claimant, and (iii) shall contain (a) the specific reason or reasons for the denial of the claim, (b) a specific reference to the pertinent Plan provisions upon which the denial is based, (c) a description of any additional material or information necessary for the claimant to perfect the claim, along with the explanation of why such material or information is necessary, and (d) an explanation of the Non Qualified Plan Committee's claim review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under Section 502(a) of the Employee Retirement Security Act of 1974 ("ERISA") following an adverse benefit determination on review. Unless special circumstances require an extension of time for processing the claim, the Non Qualified Plan Committee shall notify the claimant of the claim denial no later than 90 days after the Non Qualified Plan Committee's receipt of the claim. If such an extension is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial 90-day period. In no event shall such extension exceed a period of 90 days from the end of such initial period. The extension notice shall indicate the special circumstances requiring the extension of time and the date by which the Non Qualified Plan Committee expects to render the final decision. 5.03 Request for Review of Denial of Claim. Within 120 days of the receipt by the claimant of the written notice of denial of the claim or if the claim has not been granted within a reasonable period of time, the claimant or his or her duly authorized representative may file a written request with the Non Qualified Plan Committee to conduct a full and fair review of the denial of the claimant's claim for benefits. In connection with the claimant's appeal of the denial of his or her benefits, the claimant shall have the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits, and the claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits. Whether a document is relevant for purposes of this Article V shall be determined by reference to paragraph (m)(8) of Regulation ss. 2560.503-1. The review shall take into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. 5.04 Decision on Review of Denial of Claim. The Non Qualified Plan Committee shall deliver to the claimant a written decision on the claim promptly, but not later than 60 days after the receipt of the claimant's request for review, except that if there are special circumstances which require an extension of time for processing, the aforesaid 60-day period may be extended to 120 days by written notice delivered to the claimant prior to the expiration of the initial 60-day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan expects to render the determination on review. Such decision shall (i) be written in a manner calculated to be understood by the claimant, (ii) include specific reasons for the decision, (iii) contain specific references to the pertinent Plan provisions upon which the decision is based, (iv) set forth a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits and (v) set forth a statement of the claimant's right to bring an action under Section 502(a) of ERISA. Notwithstanding any provisions elsewhere to the contrary, the Non Qualified Plan Committee shall have total discretion to make decisions as they see fit on a uniform and consistent basis, as they believe a prudent person acting in a like capacity and familiar with such matters would do. 5.05 Communication of Decisions. The Non Qualified Plan Committee shall communicate all claims and benefit decisions to the Corporation and any Trust established to provide a source for payments under this Plan. Adopted by the Board of Directors on June 6, 2003. EX-5 5 exh5.txt LEGAL OPINION HALE AND DORR LLP Counselors at Law haledorr.com 60 STATE STREET O BOSTON, MA 02109 617-526-6000 O FAX 617-526-5000 Exhibit 5.1 June 6, 2003 Saucony, Inc. 13 Centennial Drive Peabody, MA 01960 Re: Non Qualified Retirement Plan Ladies and Gentlemen: We have assisted in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of $5,000,000 of deferred compensation obligations (the "Obligations") under the Saucony, Inc. Non Qualified Retirement Plan (the "Plan") which will represent unfunded and unsecured general obligations of Saucony, Inc. (the "Company"). We have examined the Articles of Organization and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion. In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents. We assume that the appropriate action will be taken to register and qualify the Obligations for sale under all applicable state securities or "blue sky" laws. We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of The Commonwealth of Massachusetts and the federal laws of the United States of America. Our opinions below are qualified to the extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, usury, fraudulent conveyance or other laws affecting the rights of creditors generally, (ii) statutory or decisional law concerning recourse by creditors to security in the absence of notice or hearing, (iii) duties and standards imposed on creditors and parties to contracts, including, without limitation, requirements of good faith, reasonableness and fair dealing, and (iv) general equitable principles. We express no opinion as to the availability of any equitable or specific remedy, or as to the successful assertion of any equitable defense, upon any breach of any agreements or documents or obligations referred to herein, or any other matters, inasmuch as the availability of such remedies or defenses may be subject to the discretion of a court. We also express no opinion herein as to any provision of the Obligations or the Plan (a) which may be deemed to or construed to waive any right of the Company, (b) to the effect that rights and remedies are not exclusive, that every right or remedy is cumulative and may be exercised in addition to or with any other right or remedy and does not preclude recourse to one or more other rights or remedies, (c) relating to the effect of invalidity or unenforceability of any provision of the Obligations or the Plan on the validity or enforceability of any other provision thereof, (d) requiring the payment of penalties, consequential damages or liquidated damages, (e) which is in violation of public policy, (f) purporting to indemnify any person against his, her or its own negligence or intentional misconduct, (g) providing that the terms of the Obligations may not be waived or modified except in writing, or (h) relating to choice of law or consent to jurisdiction. It is understood that this opinion is to be used only in connection with the offer and sale of the Obligations while the Registration Statement is in effect. Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. Based upon and subject to the foregoing, we are of the opinion that, when issued by the Company in the manner provided in the Plan, the Obligations will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. As the Plan is unfunded and maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees, the Plan is subject to Parts 1 and 5 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"), but not to any other provisions of ERISA. The Plan is not designed or operated with the purpose of satisfying the requirements for qualification under Section 401(a) of the Internal Revenue Code of 1986, as amended. Parts 1 and 5 of Subtitle B of Title 1 of ERISA do not impose specific written requirements on non-qualified deferred compensation arrangements such as the Plan as a condition to compliance with the applicable provisions of ERISA. Further, the operation of the Plan pursuant to the written provisions of the Plan will not cause the Plan to fail to comply with Parts 1 or 5 of Subtitle B of Title I of ERISA. Based upon and subject to the foregoing, we are of the opinion that the provisions of the written document constituting the Plan comply with the requirements of ERISA pertaining to such provisions. We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. David E. Redlick, a partner of this firm, is Clerk of the Company. Very truly yours, /s/ Hale and Dorr LLP HALE AND DORR, LLP EX-23 6 exh232.txt CONSENT OF AUDITOR Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT AND REPORT ON SCHEDULES To the Board of Directors and Stockholders of Saucony, Inc. Peabody, MA We consent to the use in this Registration Statement (relating to Deferred Compensation Obligations) of Saucony, Inc. on Form S-8 of our report dated February 13, 2003 (March 11, 2003 as to Note 22), relating to the consolidated financial statements of Saucony, Inc. as of and for the year ended January 3, 2003 (which report expresses an unqualified opinion and includes explanatory paragraphs concerning the change in the year ended January 3, 2003 in the method of accounting for goodwill and intangible assets and to the application of procedures relating to certain disclosures of financial statement amounts related to the January 4, 2002 consolidated financial statements that were audited by other auditors who have ceased operations), appearing in this Registration Statement. Our audits of the financial statements referred to in our aforementioned report also included the January 3, 2003 financial statement schedule of Saucony, Inc., listed in Item 15(a)2. This financial statement schedule is the responsibility of the Company's management. Our responsibility is to express an opinion based on our audit. In our opinion, such January 3, 2003 financial statement schedule, when considered in relation to the January 3, 2003 basic financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein. The financial statement schedule for the year ended January 4 2002 was audited by other auditors who have ceased operations. Those auditors expressed an opinion, in their report dated February 14, 2002, that such January 4, 2002 financial statement schedule, when considered in relation to the January 4, 2002 basic financial statements taken as a whole (prior to the disclosures referred to above), presented fairly, in all material respects, the information set forth therein. The financial statement schedule for the year ended January 5, 2001 was audited by other auditors, whose report, dated February 26, 2001, expressed an unqualified opinion on those statements and financial statement schedule. /s/ Deloitte & Touche, LLP DELOITTE & TOUCHE LLP Boston, Massachusetts June 4, 2003 EX-23 7 exh233.txt CONSENT OF AUDITOR Exhibit 23.3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (Non Qualified Retirement Plan) of our report dated February 26, 2001, relating to the financial statements and financial statement schedules of Saucony, Inc. which appears in Saucony's Annual Report on Form 10-K for the year ended January 3, 2003. /s/ PricewaterhouseCoopers, LLP PricewaterhouseCoopers, LLP Boston, Massachusetts June 3, 2003 -----END PRIVACY-ENHANCED MESSAGE-----