-----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, QcTimSBdhac4Vg69dUChR/D1g1kPwoo+5a6vEtb+u/eELQnpd1joXuTMeCYRgTNB aqinAZVrqX1DpcQ3burjtw== 0000898430-98-003112.txt : 19980824 0000898430-98-003112.hdr.sgml : 19980824 ACCESSION NUMBER: 0000898430-98-003112 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980821 EFFECTIVENESS DATE: 19980821 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: FINISH LINE INC /DE/ CENTRAL INDEX KEY: 0000886137 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-SHOE STORES [5661] IRS NUMBER: 351537210 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62063 FILM NUMBER: 98696088 BUSINESS ADDRESS: STREET 1: 3308 N MITTHOEFFER RD CITY: INDINAPOLIS STATE: IN ZIP: 46236 BUSINESS PHONE: 3178991022 MAIL ADDRESS: STREET 1: 3308 N MITTHOEFFER ROAD CITY: INDIANAPOLIS STATE: IN ZIP: 46236 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 21, 1998 Registration No. 333-________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________________ THE FINISH LINE, INC. (Exact name of registrant as specified in its charter) DELAWARE 35-1537210 (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) Number) 3308 N. MITTHOEFFER ROAD INDIANAPOLIS, INDIANA 46236 (317) 899-1022 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ____________________________ THE FINISH LINE, INC. 1992 EMPLOYEE STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED ____________________________ Mr. Alan H. Cohen President The Finish Line, Inc. 3308 N. Mitthoeffer Road Indianapolis, Indiana 46236 (317) 899-1022 (Name, address, including zip code, and telephone number, including area code, of agent for service of process) ____ CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Proposed Proposed Maximum Maximum Amount of Amount to be Offering Price Per Aggregate Offering Registration Title of Each Class of Securities to be Registered Registered Security(2) Price(2) Fee(2) - ------------------------------------------------------------------------------------------------------------------------------------ Class A Common Stock, par value $0.01 per share 1,800,000(1) $10.3125 $18,562,500 $5,475.94 ====================================================================================================================================
(1) These shares of Class A Common Stock are reserved for issuance pursuant to the 1992 Employee Stock Incentive Plan, as amended and restated, of The Finish Line, Inc. Pursuant to Rule 416, there is also being registered such number of additional shares which may become available for purchase pursuant to the foregoing plan in the event of certain changes in outstanding shares, including reorganizations, recapitalizations, stock splits, stock dividends and reverse stock splits. This Registration Statement does not include 1,700,000 shares available under the Plan for which registration statements on Form S-8 (File Nos. 33-51392 and 33-95720) were previously filed on August 27, 1992 and August 11, 1995 and for which registration fees were previously paid. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low prices of the Class A Common Stock of The Finish, Inc. as reported on the NASDAQ National Market System on August 17, 1998. This Registration Statement is being filed for the purpose of registering additional securities of the same class as other securities for which registration statements on Form S-8 were filed with respect to The Finish Line, Inc. 1992 Employee Stock Incentive Plan, as amended and restated. Pursuant to General Instruction E of Form S-8, the Registration Statements on Form S-8 (File Nos. 33-51392 and 33-95720) filed on August 27, 1992 and August 11, 1995, respectively, by the Registrant with the Securities and Exchange Commission are hereby incorporated by reference. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by the Company with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended February 28, 1998; (b) The Company's Quarterly Report on Form 10-Q for the thirteen week period ended May 30, 1998; (c) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the registrant document referred to in (a) above; (d) The description of the Company's Class A Common Stock which is contained in the Company's Registration Statement on Form S-3 filed with the Commission on November 15, 1996 (File No. 333-16259), together with any amendment or report filed with the Commission for the purpose of updating such description; (e) The Company's Registration Statement on Form S-8 (File No. 33- 51392) filed on August 27, 1992; and (f) The Company's Registration Statement on Form S-8 (File No. 33- 95720) filed on August 11, 1995. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post- effective amendment which indicates that all securities offered 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. Copies of these documents will not be filed with this Registration Statement. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that such statement is modified or superseded by a subsequently filed document which also is or is deemed to be incorporated by reference herein. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement except as so modified or superseded. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Jonathan K. Layne, a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP, counsel to the Company, has been a director of the Company since June 1992, and beneficially owned 4,000 shares of the Company's Class A Common Stock as of May 29, 1998, the record date for the Company's 1998 Annual Meeting of Stockholders. ITEM 8. EXHIBITS. 4.1 The Finish, Inc. 1992 Employee Stock Incentive Plan, as amended and restated on April 30, 1998. 4.2 Form of Incentive Stock Option Agreement under the 1992 Employee Stock Incentive Plan (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-8 (Registration No. 33-51392)). 4.3 Form of Nonqualified Stock Option Agreement under the 1992 Employee Stock Incentive Plan (incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-8 (Registration No. 33-51392)). 4.4 Restated Certificate of Incorporation of the Company as amended to date (incorporated by reference to Exhibit 3.1.1 to the Company's Registration Statement on Form S-1 (Registration No. 33-47247)). 4.5 Bylaws of the Company (incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-47247)). 5.1 Opinion of Gibson, Dunn & Crutcher LLP. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (included on page 3 hereto). 2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Indianapolis, State of Indiana, on this 21st day of August, 1998. THE FINISH LINE, INC. By: /s/ Alan H. Cohen __________________________________________ Alan H. Cohen President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to this Registration Statement appears below hereby constitutes and appoints Steven J. Schneider and Alan H. Cohen, and each or any of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his substitute or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in their capacities and on the dates indicated.
Signature Title Date - --------- ----- ---- /s/ Alan H. Cohen - -------------------------------------------------- Chairman of the Board, President and August 21, 1998 Alan H. Cohen Chief Executive Officer (Principal Executive Officer) /s/ David I. Klapper - -------------------------------------------------- Executive Vice-President and Director August 21, 1998 David I. Klapper /s/ David M. Fagin - -------------------------------------------------- Executive Vice President and Director August 21, 1998 David M. Fagin /s/ Larry J. Sablosky - -------------------------------------------------- Executive Vice President and Director August 21, 1998 Larry J. Sablosky /s/ Steven J. Schneider - -------------------------------------------------- Senior Vice President--Finance and August 21, 1998 Steven J. Schneider Chief Financial Officer (Principal Financial and Accounting Officer) and Assistant Secretary /s/ Jeffrey H. Smulyan - -------------------------------------------------- Director August 21, 1998 Jeffrey H. Smulyan /s/ Jonathan K. Layne - -------------------------------------------------- Director August 21, 1998 Jonathan K. Layne
EXHIBIT INDEX
Exhibit No. Description - ----------- ----------- 4.1 The Finish, Inc. 1992 Employee Stock Incentive Plan, as amended and restated on April 30, 1998. 4.2 Form of Incentive Stock Option Agreement under the 1992 Employee Stock Incentive Plan (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-8 (Registration No. 33-51392)). 4.3 Form of Nonqualified Stock Option Agreement under the 1992 Employee Stock Incentive Plan (incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-8 (Registration No. 33-51392)). 4.4 Restated Certificate of Incorporation of the Company as amended to date (incorporated by reference to Exhibit 3.1.1 to the Company's Registration Statement on Form S-1 (Registration No. 33-47247)). 4.5 Bylaws of the Company (incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-47247)). 5.1 Opinion of Gibson, Dunn & Crutcher LLP. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (included on page 3 hereof).
EX-4.1 2 1992 EMPLOYEE STOCK INCENTIVE PLAN EXHIBIT 4.1 THE FINISH LINE, INC. AMENDED AND RESTATED 1992 EMPLOYEE STOCK INCENTIVE PLAN Section 1. Purpose of Plan --------------- The purpose of this Amended and Restated 1992 Employee Stock Incentive Plan (the "Plan") of The Finish Line, Inc., a Delaware corporation (the "Company"), is to enable the Company and its subsidiaries to attract, retain and motivate their employees by providing for or increasing the proprietary interests of such employees in the Company. Section 2. Persons Eligible Under Plan --------------------------- Any person employed by the Company or any of its subsidiaries including any director who is so employed (an "Employee"), shall be eligible to be considered for the grant of Awards (as hereinafter defined) hereunder. Section 3. Awards ------ (a) The Committee (as hereinafter defined and so long as it is comprised of two or more Non-Employee Directors (as defined in Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended, or in any successor rule)), on behalf of the Company, is authorized under this Plan to enter into any type of arrangement with an Employee that is consistent with the provisions of the Plan and that, by its terms involves or might involve the issuance of (i) shares of Class A Common Stock, par value $.01 per share, of the Company ("Class A Shares") or (ii) a Derivative Security (as such term is defined in Rule 16a-l promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as such Rule may be amended from time to time with an exercise or conversion privilege at a price related to the Class A Shares or with a value derived from the value of the Class A Shares. The entering into of any such arrangement is referred to herein as the "grant" of an "Award." (b) Awards are not restricted to any specified form or structure and may include, without limitation, sales or bonuses of stock, restricted stock, stock options, reload stock options, stock purchase warrants, other rights to acquire stock, securities convertible into or redeemable for stock, stock appreciation rights, limited stock appreciation rights, phantom stock, dividend equivalents, performance units or performance shares, and an Award may consist of one such security or benefit, or two or more or them in tandem or in the alternative. (c) Class A Shares may be issued pursuant to an Award for any lawful consideration as determined by the Committee, including, without limitation, services rendered by the recipient of such Award. (d) Subject to the provisions of this Plan, the Committee (so long as it is comprised of two or more Non-Employee Directors) or the full Board of Directors (so long as the Committee is not comprised of two or more Non-Employee Directors), in its sole and absolute discretion, shall determine all of the terms and conditions of each Award granted under this Plan, which terms and conditions may include, among other things: (i) a provision permitting the recipient of such Award, including any recipient who is a director or officer of the Company, to pay the purchase price of the Class A Shares or other property issuable pursuant to such Award, or such recipient's tax withholding obligation with respect to such issuance, in whole or in part, by any one or more of the following: (A) the delivery of previously owned Class A Shares of the Company (including or other property, (B) a reduction in the amount of Class A Shares or other property otherwise issuable pursuant to such award, or (C) the delivery of a promissory note, the terms and conditions of which shall be determined by the Committee; (ii) a provision conditioning or accelerating the receipt of benefits pursuant to such Award, either automatically or in the discretion of the Committee, upon the occurrence of specified events, including, without limitation, a change of control of the Company, an acquisition of a specified percentage of the voting power of the Company, the dissolution or liquidation of the Company, a sale of substantially all of the property and assets of the Company or an event of the type described in Section 7 hereof; or (iii) a provision required in order for such Award to qualify as an incentive stock option under Section 422 of the Internal Revenue Code (an "Incentive Stock Option") (e) Notwithstanding any other provision of the Plan, no one Employee shall be granted options or other Awards with respect to more than 100,000 Class A Shares in any one calendar year; provided, however, that this limitation shall not apply if it is not required in order for the compensation attributable to Awards hereunder to qualify as performance-based compensation described in Section 162(m) of the Internal Revenue Code ("Performance-Based Compensation"). The limitation set forth in this Section 3(e) shall be subject to adjustment as provided in Section 7 hereof, but only to the extent such adjustment would not affect the status of compensation attributable to Awards hereunder as Performance-Based Compensation. Section 4. Stock Subject to Plan --------------------- (a) The aggregate number of Class A Shares that may be issued pursuant to all Incentive Stock Options granted under the Plan shall not exceed 3,500,000, subject to adjustment as provided in Section 7 hereof. (b) At any time, the aggregate number of Class A Shares issued and issuable pursuant to all Awards (including all Incentive Stock Options) granted under the Plan shall not exceed 3,500,000, subject to adjustment as provided in Section 7 hereof. (c) For purposes of Section 4(b) hereof, the aggregate number of Class A Shares issued and issuable pursuant to Awards granted under this Plan shall at any time be deemed to be equal to the maximum number of Class A Shares which are or may be issuable at or after such time pursuant to Awards granted under this Plan prior to such time. Section 5. Duration of Plan ---------------- No Awards shall be granted under this Plan after March 27, 2002. Although Class A Shares may be issued after March 27, 2002 pursuant to Awards granted prior to such date, no Class A Shares shall be issued under this Plan after March 27, 2012. Section 6. Administration of Plan ---------------------- (a) This Plan shall be administered by a committee (the "Committee") of the Board of Directors of the Company (the "Board") consisting of two or more directors; provided, however, that in the event the Committee is not comprised of two or more Non-Employee Directors, then the Committee shall only be authorized and empowered to recommend to the Board all things necessary or desirable in connection with the administration of this Plan, including, without limitation, the things listed in this Section 6, and all recommendations of the Committee relating to this Plan shall be subject to final approval by the Board. 2 (b) Subject to the provisions of this Plan, the Committee (so long as it is comprised of two or more Non-Employee Directors) or the Board (so long as the Committee is not comprised of two or more Non-Employee Directors) shall be authorized and empowered to do all things necessary or desirable in connection with the administration of this Plan, including, without limitation, the following: (i) adopt, amend and rescind rules and regulations relating to this Plan; (ii) determine which persons meet the requirements of Section 2 hereof for eligibility under this Plan and to which of such eligible persons, if any, Awards shall be granted hereunder; (iii) grant Awards to eligible persons and determine the terms and conditions thereof, including the number of Class A Shares issuable pursuant thereto; (iv) determine whether, and the extent to which adjustments are required pursuant to Section 7 hereof; and (v) interpret and construe this Plan and the terms and conditions of any Award granted hereunder. Section 7. Adjustments ----------- If the outstanding securities of the class then subject to this Plan are increased, decreased or exchanged for or converted into cash, property or a different number or kind or securities, or if cash, property or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, restructuring, reclassification, dividend (other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock split or the like, or if substantially all of the property and assets of the Company are sold, then, unless the terms of such transaction shall provide otherwise, the Committee (so long as it is comprised of two or more Non-Employee Directors) or the Board (so long as the Committee is not comprised of two or more Non-Employee Directors) shall make appropriate and proportionate adjustments in (a) the number and type of shares or other securities or cash or other property that may be acquired pursuant to Incentive Stock Options and other Awards theretofore granted under this Plan, (b) the maximum number and type of shares or other securities that may be issued pursuant to Incentive Stock Options and other Awards thereafter granted under the Plan and (c) to the extent permitted under Section 3(e) hereof, the maximum number of Class A Shares with respect to which Awards may be granted to any Employee during any calendar year; provided, however, that no adjustment shall be made to the number of Class A Shares that may be acquired pursuant to outstanding Incentive Stock Options or the maximum number of Class A Shares with respect to which Incentive Stock Options may be granted under this Plan to the extent such adjustment would result in such options being treated as other than Incentive Stock Options; provided further that no such adjustment shall be made to the extent the Committee or the Board, as the case may be, determines that such adjustment would result in the disallowance of a federal income tax deduction for compensation attributable to Awards hereunder by causing such compensation to be other than Performance-Based Compensation. Section 8. Amendment and Termination of Plan --------------------------------- The Board may amend or terminate this Plan at any time and in any manner; provided, however, that no such amendment or termination shall deprive the recipient of an Award theretofore granted under this Plan, without the consent of such recipient, of any of his or her rights or with respect thereto. Section 9. Effective Date of Plan ---------------------- The 1992 Employee Stock Incentive Plan became effective on March 27, 1992. The amendments to the 1992 Employee Stock Incentive Plan reflected in this Amended and Restated 1992 Employee Stock Incentive Plan shall be effective as of April 30, 1998, the date upon which it was approved by the Board; provided, however, that no Class A Shares may be issued under this Amended and Restated 1992 Employee Stock Incentive Plan until it has been approved, directly or indirectly, by (a) the affirmative votes of the holders of a majority of the securities of the 3 Company present, or represented, and entitled to vote at a meeting duly held in accordance with the law's of the State of Delaware or (b) the written consent of the holders of a majority of the securities of the Company entitled to vote. 4 EX-5.1 3 OPINION OF GIBSON, DUNN & CRUTCHER LLP EXHIBIT 5.1 [GIBSON, DUNN & CRUTCHER LLP LETTERHEAD] August 21, 1998 The Finish Line, Inc. 3308 N. Mitthoeffer Road Indianapolis, Indiana 46236 Re: The Finish Line, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: As special counsel to The Finish Line, Inc., a Delaware corporation ("Finish Line"), we are familiar with the activities of Finish Line and its corporate records. We have participated in the authorization and preparation of The Finish Line, Inc. 1992 Employee Stock Incentive Plan, as amended and restated (the "Plan") and the Registration Statement on Form S-8 (the "Registration Statement") being filed by Finish Line under the Securities Act of 1933, as amended, for the purpose of registering 1,800,000 shares of Class A common stock, par value $0.01 per share, of Finish Line for use in connection with the Plan (the "Shares"). On the basis of our knowledge of Finish Line's activities and its corporate records, we are of the opinion that the Shares will be legally issued, fully paid and nonassessable when issued and paid for in accordance with the Plan. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. JKL/SS Sincerely, GIBSON, DUNN & CRUTCHER LLP EX-23.1 4 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to The Finish Line, Inc. 1992 Employee Stock Incentive Plan, as amended and restated April 30, 1998, of our reports dated March 25, 1998, with respect to the consolidated financial statements of The Finish Line, Inc. incorporated by reference in its Annual Report (Form 10-K) for the year ended February 28, 1998, and the related financial statement schedule included therein, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Fort Wayne, Indiana August 21, 1998 -----END PRIVACY-ENHANCED MESSAGE-----