As filed
with the Securities and Exchange Commission on March 3, 2010
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ROCKY
BRANDS, INC.
(Exact
name of registrant as specified in its charter)
|
Ohio
|
31-1364046
|
|
(State
or other jurisdiction
|
(I.R.S.
Employer
|
|
of
incorporation or organization)
|
Identification
Number)
|
39 East
Canal Street
Nelsonville,
Ohio 45764
(740)
753-1951
(Address,
including zip code, and telephone number, including
area
code, of registrant’s principal executive offices)
Mike
Brooks
Chairman
and Chief Executive Officer
Rocky
Brands, Inc.
39 East
Canal Street
Nelsonville,
Ohio 45764
(740)
753-1951
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies of
Correspondence to:
Curtis A.
Loveland, Esq.
Erin F.
Siegfried, Esq.
Porter,
Wright, Morris & Arthur LLP
41 South
High Street, Suite 2800
Columbus,
Ohio 43215-6194
(614)
227-2059
(614)
227-2100 (fax)
esiegfried@porterwright.com
Approximate
date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box: ¨
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment
thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following
box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,” and
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
|
Large
accelerated filer ¨
|
Accelerated
filer ¨
|
Non-accelerated
filer ¨
|
Smaller
reporting company x
|
|
|
|
(Do
not check if a smaller
|
|
|
|
|
reporting
company)
|
|
Calculation
of Registration Fee
|
Title of each class of
securities to be registered
|
|
Amount to be
Registered
|
|
|
Proposed maximum
offering price per
unit(1)
|
|
|
Proposed maximum
aggregate offering
price(2)
|
|
|
Amount of
registration fee(2)
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
Stock, without par value
|
|
|
|
|
|
|
|
|
|
$ |
50,000,000 |
|
|
$ |
3,565 |
|
|
(1)
|
Omitted
pursuant to General Instruction II.D. of Form S-3. The proposed
maximum offering price per class of security registered will be determined
from time to time by Rocky Brands, Inc. in connection with, and at the
time of, the issuance by Rocky Brands, Inc. of the securities registered
hereunder.
|
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o). The maximum aggregate offering price of the
securities to be registered will not exceed
$50,000,000.
|
The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the Registration Statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
Subject
to completion, dated March 3, 2010
$50,000,000
ROCKY
BRANDS, INC.
Common
Stock
|
·
|
We
may offer from time to time to sell shares of our common
stock. The aggregate offering price of our shares of common
stock sold under this prospectus will not exceed
$50,000,000.
|
|
·
|
This
prospectus provides a general description of the securities we may
offer. Each time we sell securities, we will provide specific
terms of the securities offered in a supplement to this
prospectus. The prospectus supplement may also add, update or
change information contained in this prospectus. You should
read this prospectus and the applicable prospectus supplement carefully
before you invest in any securities. This prospectus may not be
used to consummate a sale of securities unless accompanied by the
applicable prospectus supplement.
|
|
·
|
We
will sell these securities directly to our stockholders or to purchasers
or through agents on our behalf or through underwriters or dealers as
designated from time to time. If any agents or underwriters are
involved in the sale of any of these securities, the applicable prospectus
supplement will provide the names of the agents or underwriters and any
applicable fees, commissions or
discounts.
|
|
·
|
The
last reported sale price of our common stock on March 1, 2010 was $8.69
per share.
|
|
·
|
Trading
symbol: Nasdaq Global Select Market –
RCKY
|
|
·
|
As
of March 1, 2010, the aggregate market value of our outstanding common
stock held by non-affiliates, or the public float, was approximately
$43,067,883, which was calculated based on 4,956,028 shares of outstanding
common stock held by non-affiliates and on a price per share of $8.69, the
closing price of our common stock on March 1, 2010. Pursuant to General
Instruction I.B.6 of Form S-3, in no event will we sell our
securities in a public primary offering with a value exceeding more than
one-third of our public float in any 12-month period so long as our public
float remains below $75.0 million. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the 12
calendar months prior to and including the date of this
prospectus.
|
This
investment involves risk. See “Risk Factors” beginning on page
4.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved of anyone’s investment in these securities or determined if this
prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The date
of this prospectus is
,
2010
TABLE
OF CONTENTS
|
|
Page
|
|
About
This Prospectus
|
2
|
|
About
Rocky Brands, Inc.
|
3
|
|
Risk
Factors
|
4
|
|
Special
Note Regarding Forward-Looking Statements
|
9
|
|
Where
You Can Find More Information and Incorporation by
Reference
|
10
|
|
Use
of Proceeds
|
11
|
|
Description
of Capital Stock
|
11
|
|
Plan
of Distribution
|
14
|
|
Legal
Matters
|
15
|
|
Experts
|
15
|
ABOUT
THIS PROSPECTUS
This prospectus is a part of a
registration statement that we filed with the Securities and Exchange
Commission, or the Commission, utilizing a “shelf” registration process. Under
this shelf registration process, we may offer to sell the securities described
in this prospectus in one or more offerings up to a total dollar amount of
$50,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities under this shelf
registration, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. To the extent
that any statement that we make in a prospectus supplement is inconsistent with
statements made in this prospectus, the statements made in this prospectus will
be deemed modified or superseded by those made in the prospectus supplement. You
should read both this prospectus and any prospectus supplement, including all
documents incorporated herein or therein by reference, together with additional
information described under “Where You Can Find More Information and
Incorporation by Reference.”
We have
not authorized any dealer, salesman or other person to give any information or
to make any representation other than those contained or incorporated by
reference in this prospectus and the accompanying prospectus supplement. You
must not rely upon any information or representation not contained or
incorporated by reference in this prospectus or the accompanying prospectus
supplement. This prospectus and the accompanying prospectus supplement do not
constitute an offer to sell or the solicitation of an offer to buy any
securities other than the registered securities to which they relate, nor do
this prospectus and the accompanying prospectus supplement constitute an offer
to sell or the solicitation of an offer to buy securities in any jurisdiction to
any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that the information contained in this
prospectus and the accompanying prospectus supplement is accurate on any date
subsequent to the date set forth on the front of the document or that any
information we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though this
prospectus and any accompanying prospectus supplement is delivered or securities
are sold on a later date.
In this prospectus, “we,” “us,” “our”
and “Rocky” refer to Rocky Brands, Inc. and its subsidiaries.
ABOUT
ROCKY BRANDS, INC.
We are a leading designer, manufacturer
and marketer of premium quality footwear marketed under a portfolio of well
recognized brand names including Rocky Outdoor Gear, Georgia Boot, Durango,
Lehigh, Dickies and Mossy Oak. Our brands have a long history of representing
high quality, comfortable, functional and durable footwear and our products are
organized around four target markets: outdoor, work, duty and western. Our
footwear products incorporate varying features and are positioned across a range
of suggested retail price points from $29.95 for our value priced products to
$249.95 for our premium products. In addition, as part of our strategy of
outfitting consumers from head-to-toe, we market complementary branded apparel
and accessories that we believe leverage the strength and positioning of each of
our brands.
Our products are distributed through
three distinct business segments: wholesale, retail and military. In our
wholesale business, we distribute our products through a wide range of
distribution channels representing over 10,000 retail store locations in the
U.S. and Canada. Our wholesale channels vary by product line and include
sporting goods stores, outdoor retailers, independent shoe retailers, hardware
stores, catalogs, mass merchants, uniform stores, farm store chains, specialty
safety stores and other specialty retailers. Our retail business includes direct
sales of our products to consumers through our Lehigh Safety Shoes mobile and
retail stores (including a fleet of trucks, supported by small warehouses that
include retail stores, which we refer to as mini-stores), our Rocky outlet store
and our websites. We also sell footwear under the Rocky label to the U.S.
military.
We are an Ohio corporation. Our
headquarters is located at 39 East Canal Street, Nelsonville, Ohio 45764, and
our telephone number is (740) 753-1951. Our corporate website address is
www.rockyboots.com. This reference to our website is a textual reference only.
We do not incorporate the information on our website into this prospectus and
you should not consider any information on, or that can be accessed through, our
website as part of this prospectus.
Rocky, Rocky Outdoor Gear, Georgia
Boot, Durango and Lehigh and our other marks mentioned or used in this
prospectus or the documents incorporated by reference herein are our registered
trademarks and service marks. This prospectus and the documents incorporated by
reference herein also contains trademarks and service marks belonging to other
entities.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. You should
carefully consider the risks described below, together with all of the other
information included in this prospectus, before making an investment decision.
If any of the following risks actually occurs, our business, financial condition
or results of operations could suffer. In that case, the trading price of our
common stock could decline, and you may lose all or part of your
investment.
Risks
Relating to Our Business
Expanding
our brands into new footwear and apparel markets may be difficult and expensive,
and if we are unable to successfully continue such expansion, our brands may be
adversely affected, and we may not achieve our planned sales
growth.
Our growth strategy is founded
substantially on the expansion of our brands into new footwear and apparel
markets. New products that we introduce may not be successful with consumers or
one or more of our brands may fall out of favor with consumers. If we are unable
to anticipate, identify or react appropriately to changes in consumer
preferences, we may not grow as fast as we plan to grow or our sales may
decline, and our brand image and operating performance may suffer.
Furthermore, achieving market
acceptance for new products will likely require us to exert substantial product
development and marketing efforts, which could result in a material increase in
our selling, general and administrative, or SG&A, expenses, and there can be
no assurance that we will have the resources necessary to undertake such
efforts. Material increases in our SG&A expenses could adversely impact our
results of operations and cash flows.
We may also encounter difficulties in
producing new products that we did not anticipate during the development stage.
Our development schedules for new products are difficult to predict and are
subject to change as a result of shifting priorities in response to consumer
preferences and competing products. If we are not able to efficiently
manufacture newly-developed products in quantities sufficient to support retail
distribution, we may not be able to recoup our investment in the development of
new products. Failure to gain market acceptance for new products that we
introduce could impede our growth, reduce our profits, adversely affect the
image of our brands, erode our competitive position and result in long term harm
to our business.
A
majority of our products are produced outside the U.S. where we are subject to
the risks of international commerce.
A majority of our products are produced
in the Dominican Republic and China. Therefore, our business is subject to the
following risks of doing business offshore:
•
the
imposition of additional United States legislation and regulations relating to
imports, including quotas, duties, taxes or other charges or
restrictions;
•
foreign
governmental regulation and taxation;
•
fluctuations
in foreign exchange rates;
•
changes
in economic conditions;
•
transportation
conditions and costs in the Pacific and Caribbean;
•
changes
in the political stability of these countries; and
•
changes
in relationships between the United States and these
countries.
If any of these factors were to render
the conduct of business in these countries undesirable or impracticable, we
would have to manufacture or source our products elsewhere. There can be no
assurance that additional sources or products would be available to us or, if
available, that these sources could be relied on to provide product at terms
favorable to us. The occurrence of any of these developments would have a
material adverse effect on our business, financial condition, results of
operations and cash flows.
Our
success depends on our ability to anticipate consumer trends.
Demand for our products may be
adversely affected by changing consumer trends. Our future success will depend
upon our ability to anticipate and respond to changing consumer preferences and
technical design or material developments in a timely manner. The failure to
adequately anticipate or respond to these changes could have a material adverse
effect on our business, financial condition, results of operations and cash
flows.
Loss
of services of our key personnel could adversely affect our
business.
The development of our business has
been, and will continue to be, highly dependent upon Mike Brooks, Chairman and
Chief Executive Officer, David Sharp, President and Chief Operating Officer, and
James E. McDonald, Executive Vice President, Chief Financial Officer and
Treasurer. Messrs. Brooks, Sharp, and McDonald each have an at-will employment
agreement with us. Each employment agreement provides that in the event of
termination of employment without cause, the terminated executive will receive a
severance benefit. In the event of termination for any reason, the terminated
executive may not compete with us for a period of one year. None of our other
executive officers and key employees has an employment agreement with our
company. The loss of the services of any of these officers could have a material
adverse effect on our business, financial condition, results of operations and
cash flows.
We
depend on a limited number of suppliers for key production materials, and any
disruption in the supply of such materials could interrupt product manufacturing
and increase product costs.
We purchase raw materials from a number
of domestic and foreign sources. We do not have any long-term supply contracts
for the purchase of our raw materials, except for limited blanket orders on
leather. The principal raw materials used in the production of our footwear, in
terms of dollar value, are leather, Gore-Tex waterproof breathable fabric,
Cordura nylon fabric and soling materials. Availability or change in the prices
of our raw materials could have a material adverse effect on our business,
financial condition, results of operations and cash flows.
We
currently have a licensing agreement for the use of Gore-Tex waterproof
breathable fabric, and any termination of this licensing agreement could impact
our sales of waterproof products.
We are currently one of the largest
customers of Gore-Tex waterproof breathable fabric for use in footwear. Our
licensing agreement with W.L. Gore & Associates, Inc. may be terminated by
either party upon advance written notice to the other party by October 1 for
termination effective December 31 of that same year. Although other
waterproofing techniques and materials are available, we place a high value on
our Gore-Tex waterproof breathable fabric license because Gore-Tex has high
brand name recognition with our customers. The loss of our license to use
Gore-Tex waterproof breathable fabric could have a material adverse effect on
our competitive position, which could have a material adverse effect on our
business, financial condition, results of operations and cash
flows.
We
currently have a licensing agreement for the use of the Dickies trademark, and
any termination of this licensing agreement could impact our sales and growth
strategy.
We have an exclusive license through
December 31, 2010 to use the Dickies brand on all footwear products, except
nursing shoes. The Dickies brand is well recognized by consumers, and we plan to
introduce value priced Dickies footwear targeting additional markets, including
outdoor, duty and western. Our license with Dickies may be terminated by Dickies
prior to December 31, 2010 if we do not achieve certain minimum net shipments in
a particular year. We expect that our license to manufacture and distribute
products bearing the Dickies brand will terminate upon the expiration of this
agreement. The loss of our license to use the Dickies brand could have a
material adverse effect on our competitive position and growth strategy, which
could have a material adverse effect on our business, financial condition,
results of operations and cash flows. Sales of our Dickies branded
merchandise approximated $11.2 million in 2009.
Our
outdoor products are seasonal.
We have historically experienced
significant seasonal fluctuations in our business because we derive a
significant portion of our revenues from sales of our outdoor products. Many of
our outdoor products are used by consumers in cold or wet weather. As a result,
a majority of orders for these products are placed by our retailers in January
through April for delivery in July through October. In order to meet demand, we
must manufacture and source outdoor footwear year round to be in a position to
ship advance orders for these products during the last two quarters of each
year. Accordingly, average inventory levels have been highest during the second
and third quarters of each year and sales have been highest in the last two
quarters of each year. There is no assurance that we will have either sufficient
inventory to satisfy demand in any particular quarter or have sufficient demand
to sell substantially all of our inventory without significant
markdowns.
Our
outdoor products are sensitive to weather conditions.
Historically, our outdoor products have
been used primarily in cold or wet weather. Mild or dry weather has had in the
past, and may have in the future, a material adverse effect on sales of our
products, particularly if mild or dry weather conditions occur in broad
geographical areas during late fall or early winter. Also, due to variations in
weather conditions from year to year, results for any single quarter or year may
not be indicative of results for any future period.
Our
business could suffer if our third party manufacturers violate labor laws or
fail to conform to generally accepted ethical standards.
We require our third party
manufacturers to meet our standards for working conditions and other matters
before we are willing to place business with them. As a result, we may not
always obtain the lowest cost production. Moreover, we do not control our third
party manufacturers or their respective labor practices. If one of our third
party manufacturers violates generally accepted labor standards by, for example,
using forced or indentured labor or child labor, failing to pay compensation in
accordance with local law, failing to operate its factories in compliance with
local safety regulations or diverging from other labor practices generally
accepted as ethical, we likely would cease dealing with that manufacturer, and
we could suffer an interruption in our product supply. In addition, such a
manufacturer’s actions could result in negative publicity and may damage our
reputation and the value of our brand and discourage retail customers and
consumers from buying our products.
The
growth of our business will be dependent upon the availability of adequate
capital.
The growth of our business will depend
on the availability of adequate capital, which in turn will depend in large part
on cash flow generated by our business and the availability of equity and debt
financing. We cannot assure you that our operations will generate positive cash
flow or that we will be able to obtain equity or debt financing on acceptable
terms or at all. Our revolving credit facility contains provisions that restrict
our ability to incur additional indebtedness or make substantial asset sales
that might otherwise be used to finance our expansion. Security interests in
substantially all of our assets, which may further limit our access to certain
capital markets or lending sources, secure our obligations under our revolving
credit facility. Moreover, the actual availability of funds under our revolving
credit facility is limited to specified percentages of our eligible inventory
and accounts receivable. Accordingly, opportunities for increasing our cash on
hand through sales of inventory would be partially offset by reduced
availability under our revolving credit facility. As a result, we cannot assure
you that we will be able to finance our current expansion plans.
We
must comply with the restrictive covenants contained in our revolving credit
facility.
Our credit facility and term loan
agreements require us to comply with certain financial restrictive covenants
that impose restrictions on our operations, including our ability to incur
additional indebtedness, make investments of other restricted payments, sell or
otherwise dispose of assets and engage in other activities. Any failure by us to
comply with the restrictive covenants could result in an event of default under
those borrowing arrangements, in which case the lenders could elect to declare
all amounts outstanding thereunder to be due and payable, which could have a
material adverse effect on our financial condition. As of December 31, 2009, we
were in compliance with all financial restrictive covenants.
We
face intense competition, including competition from companies with
significantly greater resources than ours, and if we are unable to compete
effectively with these companies, our market share may decline and our business
could be harmed.
The footwear and apparel industries are
intensely competitive, and we expect competition to increase in the future. A
number of our competitors have significantly greater financial, technological,
engineering, manufacturing, marketing and distribution resources than we do, as
well as greater brand awareness in the footwear market. Our ability to succeed
depends on our ability to remain competitive with respect to the quality,
design, price and timely delivery of products. Competition could materially
adversely affect our business, financial condition, results of operations and
cash flows.
We
currently manufacture a portion of our products and we may not be able to do so
in the future at costs that are competitive with those of competitors who source
their goods.
We currently plan to retain our
internal manufacturing capability in order to continue benefiting from expertise
we have gained with respect to footwear manufacturing methods conducted at our
manufacturing facilities. We continue to evaluate our manufacturing facilities
and third party manufacturing alternatives in order to determine the appropriate
size and scope of our manufacturing facilities. There can be no assurance that
the costs of products that continue to be manufactured by us can remain
competitive with products sourced from third parties.
We
rely on distribution centers in Logan and Columbus, Ohio, San Bernardino,
California and Waterloo, Ontario, Canada, and if there is a natural disaster or
other serious disruption at any of these facilities, we may be unable to deliver
merchandise effectively to our retailers.
We rely on distribution centers located
in Logan and Columbus, Ohio, San Bernardino, California and Waterloo, Ontario,
Canada. Any natural disaster or other serious disruption at any of these
facilities due to fire, tornado, flood, terrorist attack or any other cause
could damage a portion of our inventory or impair our ability to use our
distribution center as a docking location for merchandise. Either of these
occurrences could impair our ability to adequately supply our retailers and harm
our operating results.
We
are subject to certain environmental and other regulations.
Some of our operations use substances
regulated under various federal, state, local and international environmental
and pollution laws, including those relating to the storage, use, discharge,
disposal and labeling of, and human exposure to, hazardous and toxic materials.
Compliance with current or future environmental laws and regulations could
restrict our ability to expand our facilities or require us to acquire
additional expensive equipment, modify our manufacturing processes or incur
other significant expenses. In addition, we could incur costs, fines and civil
or criminal sanctions, third party property damage or personal injury claims or
could be required to incur substantial investigation or remediation costs, if we
were to violate or become liable under any environmental laws. Liability under
environmental laws can be joint and several and without regard to comparative
fault. There can be no assurance that violations of environmental laws or
regulations have not occurred in the past and will not occur in the future as a
result of our inability to obtain permits, human error, equipment failure or
other causes, and any such violations could harm our business, financial
condition, results of operations and cash flows.
If
our efforts to establish and protect our trademarks, patents and other
intellectual property are unsuccessful, the value of our brands could
suffer.
We regard certain of our footwear
designs as proprietary and rely on patents to protect those designs. We believe
that the ownership of patents is a significant factor in our business. Existing
intellectual property laws afford only limited protection of our proprietary
rights, and it may be possible for unauthorized third parties to copy certain of
our footwear designs or to reverse engineer or otherwise obtain and use
information that we regard as proprietary. If our patents are found to be
invalid, however, to the extent they have served, or would in the future serve,
as a barrier to entry to our competitors, such invalidity could have a material
adverse effect on our business, financial condition, results of operations and
cash flows.
We own U.S. registrations for a number
of our trademarks, trade names and designs, including such marks as Rocky,
Georgia Boot, Durango and Lehigh. Additional trademarks, trade names and designs
are the subject of pending federal applications for registration. We also use
and have common law rights in certain trademarks. Over time, we have increased
distribution of our goods in several foreign countries. Accordingly, we have
applied for trademark registrations in a number of these countries. We intend to
enforce our trademarks and trade names against unauthorized use by third
parties.
Our
success depends on our ability to forecast sales.
Our investments in infrastructure and
product inventory are based on sales forecasts and are necessarily made in
advance of actual sales. The markets in which we do business are highly
competitive, and our business is affected by a variety of factors, including
brand awareness, changing consumer preferences, product innovations,
susceptibility to fashion trends, retail market conditions, weather conditions
and economic and other factors. One of our principal challenges is to improve
our ability to predict these factors, in order to enable us to better match
production with demand. In addition, our growth over the years has created the
need to increase the investment in infrastructure and product inventory and to
enhance our systems. To the extent sales forecasts are not achieved, costs
associated with the infrastructure and carrying costs of product inventory would
represent a higher percentage of revenue, which would adversely affect our
business, financial condition, results of operations and cash
flows.
Risks
Related to Our Industry
Because
the footwear market is sensitive to decreased consumer spending and slow
economic cycles, if general economic conditions deteriorate, many of our
customers may significantly reduce their purchases from us or may not be able to
pay for our products in a timely manner.
The footwear industry has been subject
to cyclical variation and decline in performance when consumer spending
decreases or softness appears in the retail market. Many factors affect the
level of consumer spending in the footwear industry, including:
• general
business conditions;
•
interest rates;
• the
availability of consumer credit;
•
weather;
•
increases in prices of nondiscretionary goods;
•
taxation; and
•
consumer confidence in future economic conditions.
Consumer purchases of discretionary
items, including our products, may decline during recessionary periods and also
may decline at other times when disposable income is lower. A downturn in
regional economies where we sell products also reduces sales.
The
continued shift in the marketplace from traditional independent retailers to
large discount mass merchandisers may result in decreased margins.
A continued shift in the marketplace
from traditional independent retailers to large discount mass merchandisers has
increased the pressure on many footwear manufacturers to sell products to these
mass merchandisers at less favorable margins. Because of competition from large
discount mass merchandisers, a number of our small retailing customers have gone
out of business, and in the future more of these customers may go out of
business, which could have a material adverse effect on our business, financial
condition, results of operations and cash flows.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the information
incorporated by reference in this prospectus contain forward-looking statements.
We sometimes use words such as “anticipate,” “believe,” “continue,” “estimate,”
“expect,” “intend,” “may,” “plan,” “project,” “will” and similar expressions, as
they relate to us, our management and our industry, to identify forward-looking
statements. Forward-looking statements relate to our expectations, beliefs,
plans, strategies, prospects, future performance, anticipated trends and other
future events. Specifically, this prospectus and the information incorporated by
reference in this prospectus contain forward-looking statements relating to,
among other things:
|
|
·
|
our
business, growth, operating and financing
strategies;
|
|
|
·
|
the
introduction or success of new
products;
|
|
|
·
|
the
impact of seasonality and weather on our
operations;
|
|
|
·
|
expectations
regarding our net sales and earnings
growth;
|
|
|
·
|
expectations
regarding our liquidity;
|
|
|
·
|
our
future financing plans; and
|
|
|
·
|
trends
affecting our financial condition or results of
operations.
|
We have based our forward-looking
statements largely on our current expectations and projections about future
events and financial trends affecting our business. Actual results may differ
materially. Some of the risks, uncertainties and assumptions that may cause
actual results to differ from these forward-looking statements are described in
“Risk Factors”. In light of these risks, uncertainties and assumptions, the
forward-looking events and circumstances discussed in this prospectus and the
information incorporated by reference in this prospectus might not
occur.
You should read this prospectus, the
documents that we filed as exhibits to the registration statement of which this
prospectus is a part and the documents that we incorporate by reference in this
prospectus completely and with the understanding that our future results may be
materially different from what we expect. We qualify all of our forward-looking
statements by these cautionary statements, and we assume no obligation to update
these forward-looking statements publicly for any reason.
WHERE
YOU CAN FIND MORE INFORMATION
AND
INCORPORATION BY REFERENCE
We have filed a registration statement
on Form S-3 with the Securities and Exchange Commission. This prospectus does
not contain all of the information in the registration statement. In addition,
we file annual, quarterly and special reports, proxy statements and other
information with the Commission. Our Commission filings are available to the
public over the Internet at the Commission’s web site at http://www.sec.gov. You
may also read and copy any document we file with the Commission at its public
reference facilities at 100 F Street, N.E., Washington, DC 20549. You can also
obtain copies of the documents at prescribed rates by writing to the Public
Reference Section of the Commission at 100 F Street, N.E., Washington, DC 20549.
Please call the Commission at 1-800-SEC-0330 for further information on the
operation of the public reference facilities. Our Commission filings are also
available at the office of the Nasdaq Stock Market, One Liberty Plaza, 165
Broadway, New York, New York 10006. For further information on obtaining copies
of our public filings at the Nasdaq Stock Market, you should call
212-401-8700.
We “incorporate by reference” into this
prospectus the information we file with the Commission (Commission file number
000-21026), which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. Information that we file with the
Commission after the date of this prospectus will automatically update this
prospectus. We incorporate by reference the documents listed below, and
any filings we make with the Commission under Sections 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 after the initial filing of
the registration statement that contains this prospectus (except for information
furnished and not filed with the Commission in a Current Report on
Form 8-K):
|
·
|
our
Annual Report on Form 10-K for the year ended December 31, 2009, filed
with the Commission on March 2,
2010;
|
|
·
|
the
description of our common shares, which is contained in our registration
statement on Form 8-A filed with the Commission on December 22, 1992,
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended,
as updated in any amendment or report filed for the purpose of updating
such description; and
|
|
·
|
the
description of the preferred stock purchase rights associated with our
common stock, contained in our registration statement on Form 8-A filed
with the Commission on June 15, 2009, as updated in any amendment or
report filed for the purpose of updating such
description.
|
Information
furnished by us in Current Reports on Form 8-K under Items 2.02 and 9.01 is
expressly not incorporated by reference in this prospectus.
We will provide to each person,
including any beneficial owner, to whom a prospectus is delivered, without
charge, upon written or oral request, a copy of any or all of the documents that
are incorporated by reference into this prospectus but not delivered with the
prospectus, including exhibits that are specifically incorporated by reference
into such documents. You may request a copy of these filings at no
cost, by writing to or telephoning us at:
Rocky
Brands, Inc.
39 East
Canal Street
Nelsonville,
Ohio 45764
Attention: James
E. McDonald, Chief Financial Officer
(740)
753-1951
USE
OF PROCEEDS
Unless otherwise indicated in the
prospectus supplement, we intend to use the net proceeds from the sale of
securities under this prospectus for general corporate purposes, which may
include additions to working capital, repayment or redemption of existing
indebtedness and financing capital expenditures and acquisitions. We
will set forth in the particular prospectus supplement our intended use for the
net proceeds we receive from the sale of our securities under such prospectus
supplement.
DESCRIPTION
OF CAPITAL STOCK
The following description of our
capital stock is only a summary and is subject to the provisions of our articles
of incorporation and code of regulations, which are included as exhibits to the
registration statement of which this prospectus forms a part, and provisions of
applicable law.
Our articles of incorporation authorize
our board of directors to issue 25,000,000 shares of common stock, without par
value, and 500,000 shares of preferred stock, without par value, of which
250,000 shares are voting preferred stock and 250,000 shares are non-voting
preferred stock.
Common
Stock
The holders of common stock are
entitled to one vote for each share held of record on all matters submitted to
be voted upon. Shareholders are not entitled to cumulate votes for
the election of directors. Common shareholders are entitled to share
ratably in any dividends that may be declared by the board of directors out of
funds legally available therefor. Holders of common stock do not have
preemptive, redemption, conversion or other preferential rights and, upon the
liquidation, dissolution or winding up of our company, are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation
preference, if any, which may be granted to the holders of preferred
stock. All shares outstanding before this offering are, and the
shares to be issued in this offering will be, validly issued, fully paid and
non-assessable. The rights, preferences and privileges of holders of
common stock are subject to the rights, preferences and privileges of holders of
any classes or series of preferred stock that we may issue in the
future. As of March 1, 2010, 5,602,537 shares of common stock were
outstanding.
Preferred
Stock
Our articles of incorporation authorize
our board of directors to issue, without further action by the holders of our
common stock, up to 500,000 shares of preferred stock, of which 250,000 shares
are voting preferred stock and 250,000 shares are non-voting preferred stock, in
one or more series and to fix any preferences, conversion and other rights,
voting powers, restrictions, limitations, qualifications and terms and
conditions of redemption as are provided in resolutions adopted by the
board. The issuance of preferred stock could have an adverse effect
on the rights of holders of common stock. For example, any preferred
stock may rank senior to the common stock with respect to the payment of
dividends or amounts upon liquidation, dissolution or winding up, or both. In
addition, any preferred stock may have class or series voting
rights. Holders of preferred stock have no preemptive or other rights
to subscribe for additional shares.
Classified
Board of Directors; Election of Directors
Our code of regulations provides that
our board of directors shall consist of up to 15 members. Our board
is divided into two classes, with staggered terms of two years
each. Each year the term of one class expires. As a
result, approximately one-half of the directors are elected at each annual
meeting of shareholders. This can delay the ability of a significant
shareholder or group of shareholders to gain control of our board of
directors.
Our code of regulations provides that
the number of directors cannot be fewer than three nor more than 15; any change
in the number of directors cannot have the effect of shortening the term of any
incumbent director; and no action may be taken to increase the number of
directors unless at least two-thirds of the directors then in office concur in
such action. Consistent with the adoption of a classified board, our
code of regulations precludes the removal of an incumbent director unless such
removal is for cause. This will prevent a shareholder or group of
shareholders from removing incumbent directors and simultaneously gaining
control of the board by filling the vacancies created by removals with their own
nominees. Vacancies on our board of directors may be filled by the
remaining directors and, in cases where a director has been removed for cause,
by the shareholders. These provisions may only be repealed or amended
with the affirmative vote of the holders of two-thirds of the shares entitled to
vote on the proposal. Otherwise, our code of regulations may be
amended with the affirmative vote of the holders of a majority of the shares
entitled to vote on the proposal.
Our code of regulations requires that
notice in writing of proposed shareholder nominations for the election of
directors be given to our secretary prior to the meeting. The notice
must contain certain information about the non-incumbent nominee, including
name, age, business and residence addresses, principal occupation, the class and
number of our shares beneficially owned by the nominee and such other
information as would be required to be included in a proxy statement soliciting
proxies for election of the nominee, as well as certain information about the
nominating shareholder. We may require any nominee to furnish other
information reasonably required by us to determine the nominee’s eligibility to
serve as a director. If the presiding officer of any shareholder
meeting determines that a person was not nominated in accordance with the
foregoing procedures, the person shall not be eligible for election as a
director.
In addition, our code of regulations
requires that notice in writing from any shareholder who proposes to bring
business before any meeting of shareholders must be timely given to our
secretary prior to the meeting. The notice must contain certain
information, including a brief description of the business proposed to be
brought before the meeting, the reasons for conducting this business at the
meeting, the class and number of our shares beneficially owned by the
shareholder and any supporting shareholders and any material interest of the
proposing shareholder in the business so proposed. If the presiding
officer of any shareholder meeting determines that any business was not properly
brought before the meeting in accordance with the foregoing procedures, the
business will not be conducted at the meeting. Nothing in our code of
regulations precludes discussion by any shareholder of any business properly
brought before the meeting in accordance with these procedures.
To be timely, shareholder notice of a
nomination for election of a director or to bring business before any
shareholder meeting must be received by us not less than 30 days nor more than
60 days prior to the meeting (or, if fewer than 40 days’ notice or prior public
disclosure of the meeting date is given or made to shareholders, not later than
the tenth day following the day of mailing notice of the meeting or public
disclosure of the mailing).
Shareholder
Rights Plan
We
adopted a shareholder rights plan in 2009 under a shareholder rights agreement
intended to protect shareholders against unsolicited attempts to acquire control
of our company that do not offer what our board of directors believes to be an
adequate price to all shareholders or that our board of directors otherwise
opposes. As part of the plan, our board of directors declared a
dividend that resulted in the issuance of one preferred stock purchase right for
each outstanding share of our common stock. Unless extended, the
preferred share purchase rights expire on June 11, 2012. If a bidder
proceeds with an unsolicited attempt to purchase our stock and acquires 20% or
more (or announces its intention to acquire 20% or more) of our outstanding
stock, and the board of directors does not redeem the preferred stock purchase
rights, the rights will become exercisable at a price that significantly dilutes
the interest of the bidder in our common stock.
Provisions
Relating to Acquisitions and Mergers
Under our articles of incorporation, we
have elected not to be covered by the Ohio Control Share Acquisition Act, known
as the Control Act. The Control Act requires the prior approval of
shareholders for transfers of corporate control that occur in the open market,
including tender offers, or that are privately negotiated.
Under our articles of incorporation,
the affirmative vote of the holders of two-thirds of the shares entitled to vote
is required for the approval or authorization of any (1) merger or consolidation
of our company with or into any other corporation, or (2) sale, lease, exchange
or other disposition of all or substantially all of our assets to or with any
other corporation, person or other entity, unless two-thirds of our directors
have approved the transaction.
Our articles of incorporation further
provide that it is a proper corporate purpose, reasonably calculated to benefit
shareholders, for our board of directors to base our response to any acquisition
proposal, as defined in our articles of incorporation, on our board’s evaluation
of what is in our best interests. This evaluation will include
consideration of the best interests of our shareholders, including the
relationship of the consideration offered in the acquisition proposal to the
then-current market price of our stock, our current value in a freely negotiated
transaction and the estimate of our future value as an independent entity; the
business and financial conditions and earnings prospects of the acquiring person
or persons; the competence, experience and integrity of the acquiring person or
persons and its or their management; and such other factors as our board of
directors deems relevant, including the social, legal and economic effects of
the acquisition proposal upon employees, suppliers, customers and our
business. An acquisition proposal means any proposal for a tender
offer or exchange offer for any of our equity securities, any proposal to merge
or consolidate us with another corporation, or any proposal to purchase or
otherwise acquire all or substantially all of our properties and
assets.
Our articles of incorporation
explicitly provide that the provisions of Chapter 1704 of the Ohio Revised Code
apply to us. Section 1704 generally prevents an issuing public corporation
(generally defined as an Ohio corporation with 50 or more shareholders that has
its principal place of business, its principal offices, assets with substantial
value, or a substantial percentage of its assets in Ohio) from entering into
certain business combinations with an interested shareholder (generally defined
as any person or entity that can vote, or direct the voting of, 10% or more of
the issuing public corporation’s stock) or its affiliates for a period of three
years after the date of the transaction in which the person became an interested
shareholder, unless prior to this transaction (1) the directors have approved
the Section 1704 business combination or (2) the directors have approved this
transaction. Section 1704 provides further that a corporation may, in
its articles of incorporation or code of regulations, elect not to be governed
by Section 1704. We have not made this election.
These provisions relating to
acquisitions, mergers and combinations may only be amended by the affirmative
vote of the holders of two-thirds of the shares entitled to vote on the
proposal. Otherwise, our articles of incorporation may be amended by the
affirmative vote of the holders of a majority of the shares entitled to vote on
the proposal.
Limitation
of Director Liability and Indemnification Agreements
Under the Ohio General Corporation Law,
a director’s liability to us or our shareholders for damages is limited to only
those situations where it is proven by clear and convincing evidence that his
act or failure to act was undertaken with deliberate intent to cause injury to
us or undertaken with reckless disregard for our best interests and those
situations involving unlawful loans, asset distributions, dividend payments or
share repurchases. As a result, shareholders may be unable to recover
monetary damages against directors for actions that constitute gross negligence
or that are in violation of their fiduciary duties, although it may be possible
to obtain injunctive or other equitable relief with respect to such actions. If
equitable remedies are found not to be available to shareholders for any
particular case, shareholders may not have any effective remedy against the
challenged conduct. Our articles of incorporation provide that
indemnification may be granted to directors, officers and certain other persons
serving (or having served) as a director or officer of our company or any other
company or enterprise at our request against all expenses (including attorneys’
fees), judgments, fines and settlement amounts, paid or incurred by them in any
action or proceeding, on account of their service as a director or officer of
our company or any other company or enterprise when serving at our request, to
the fullest extent permitted by law.
We also entered into indemnification
agreements with each director and executive officer, including the directors who
are also our employees, to confirm and expand our obligation to indemnify these
persons. These indemnification agreements (1) confirm the indemnity
provided to them by our articles of incorporation and give them assurances that
this indemnity will continue to be provided despite future changes in our
articles of incorporation, and (2) provide that, in addition, the directors and
officers shall be indemnified to the fullest possible extent permitted by law
against all expenses (including attorneys’ fees) judgments, fines and settlement
amounts, paid or incurred by them in any action or proceeding, including any
action by or in the right of our company, on account of their service as a
director or officer of our company or as a director or officer of any of our
subsidiaries or as a director or officer of any other company or enterprise when
they are serving in such capacities at our request.
No indemnity will be provided under the
indemnification agreements to any director or officer on account of conduct that
is adjudged to have been undertaken with deliberate intent to cause injury to us
or undertaken with reckless disregard for our best interests. In addition, the
indemnification agreements provide that no indemnification will be permitted if
a final court adjudication shall determine that the indemnification is not
lawful, or in respect of any suit in which judgment is rendered against a
director or officer for an accounting of profits made from a purchase or sale of
our securities in violation of Section 16(b) of the Securities Exchange Act of
1934 or of any similar statutory law, or on account of any remuneration paid to
a director or officer that is adjudicated to have been paid in violation of
law. Except as so limited, indemnification of directors and officers
will be permitted under the indemnification agreements to the fullest extent
permitted by law.
We believe that these indemnification
provisions are essential to attracting and retaining qualified persons as
officers and directors. We have obtained directors’ and officers’
insurance.
Transfer
Agent and Registrar
The transfer agent and registrar for
our common stock is Computershare Investor Services LLC located in Chicago,
Illinois.
PLAN
OF DISTRIBUTION
We may
sell the securities from time to time pursuant to underwritten public offerings,
negotiated transactions, block trades or a combination of these
methods. We may sell the securities separately or
together:
|
|
·
|
through
one or more underwriters or dealers in a public offering and sale by
them;
|
|
|
·
|
directly
to one or more purchasers.
|
We may
distribute the securities from time to time in one or more
transactions:
· at
a fixed price or prices, which may be changed;
· at
market prices prevailing at the time of sale;
· at
prices related to such prevailing market prices; or
· at
negotiated prices.
We may
solicit directly offers to purchase the securities being offered by this
prospectus. We may also designate agents to solicit offers to
purchase the securities from time to time. We will name in a
prospectus supplement any agent involved in the offer or sale of our
securities.
If we
utilize a dealer in the sale of the securities being offered by this prospectus,
we will sell the securities to the dealer, as principal. The dealer
may then resell the securities to the public at varying prices to be determined
by the dealer at the time of resale.
If we
utilize an underwriter in the sale of the securities being offered by this
prospectus, we will execute an underwriting agreement with the underwriter at
the time of sale and we will provide the name of any underwriter in the
prospectus supplement that the underwriter will use to make resales of the
securities to the public. In connection with the sale of the
securities, we or the purchasers of securities for whom the underwriter may act
as agent may compensate the underwriter in the form of underwriting discounts or
commissions. The underwriter may sell the securities to or through
dealers, and the underwriter may compensate those dealers in the form of
discounts, concessions or commissions.
We will
provide in the applicable prospectus supplement any compensation we will pay to
underwriters, dealers or agents in connection with the offering of the
securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers. Underwriters, dealers and
agents participating in the distribution of the securities may be deemed to be
underwriters within the meaning of the Securities Act of 1933, as amended, and
any discounts and commissions received by them and any profit realized by them
on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters,
dealers and agents against civil liabilities, including liabilities under the
Securities Act or to contribute to payments they may be required to make in
respect thereof.
The
securities may or may not be listed on a national securities
exchange. To facilitate the offering of securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may
include over-allotments or short sales of the securities, which involves the
sale by persons participating in the offering of more securities than we sold to
them. In these circumstances, these persons would cover such
over-allotments or short positions by making purchases in the open market or by
exercising their over-allotment option. In addition, these persons
may stabilize or maintain the price of the securities by bidding for or
purchasing securities in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in the offering may be
reclaimed if securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a level above
that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
We may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in
connection with any derivative transaction, the third parties may sell
securities covered by this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third party may use
securities pledged by us or borrowed from us or others to settle those sales or
to close out any related open borrowings of stock, and may use securities
received from us in settlement of those derivatives to close out any related
open borrowings of stock. The third party in such sale transactions
will be an underwriter and, if not identified in this prospectus, will be
identified in the applicable prospectus supplement or a post-effective amendment
to the registration statement of which this prospectus is a part. In addition,
we may otherwise loan or pledge securities to a financial institution or other
third party that in turn may sell the securities short using this
prospectus. Such financial institution or other third party may
transfer its economic short position to investors in our securities or in
connection with a concurrent offering of other securities.
The
underwriters, dealers and agents may engage in transactions with us, or perform
services for us, in the ordinary course of business.
LEGAL
MATTERS
The validity of the shares offered
hereby has been passed upon for us by Porter Wright Morris & Arthur LLP, 41
South High Street, Columbus, Ohio 43215. Curtis A.
Loveland, a partner in Porter Wright Morris & Arthur LLP, is our secretary
and a director and beneficially owns an aggregate of 107,302 shares of our
common stock consisting of a combination of stock and options exercisable within
60 days after March 1, 2010.
EXPERTS
The consolidated financial statements
and the related financial statement schedule, incorporated in this prospectus by
reference from our Annual Report on Form 10-K, and the effectiveness our
internal control over financial reporting have been audited by Schneider Downs
& Co., Inc., an independent registered public accounting firm, as stated in
their reports which are incorporated herein by reference. Such
consolidated financial statements and financial statement schedule have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
Item
14.
|
Other
Expenses of Issuance and
Distribution.
|
The
following table sets forth the expenses expected to be incurred by our company
in connection with the issuance and distribution of the securities being
registered.
|
SEC
registration fee
|
|
$ |
3,565 |
|
|
Legal
fees and expenses
|
|
|
** |
|
|
Accounting
fees
|
|
|
** |
|
|
Printing
expenses
|
|
|
** |
|
|
Miscellaneous
|
|
|
** |
|
|
|
|
|
|
|
|
Total
|
|
$ |
** |
|
** Estimated
expenses are presently not known and cannot be estimated.
|
Item
15.
|
Indemnification
of Directors and Officers.
|
Section 1701.13 of the Ohio General
Corporation Law provides that directors and officers of Ohio corporations may,
under certain circumstances, be indemnified against expenses (including
attorneys’ fees) and other liabilities actually and reasonably incurred by them
as a result of any suit brought against them in their capacity as a director or
officer, if they acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, if they had no reasonable cause to believe
their conduct was unlawful. Section 1701.13 provides that directors
and officers may also be indemnified against expenses (including attorneys’
fees) incurred by them in connection with a derivative suit if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the corporation, except that no indemnification may be
made without court approval if such person was adjudged liable to the
corporation.
Article Ten of our articles of
incorporation permits us to indemnify directors and officers against expenses
(including attorneys’ fees) and other liabilities actually and reasonably
incurred by them to the full extent and according to the procedures and
requirements set forth in the Ohio General Corporation Law, as the same may be
in effect from time to time. Pursuant to Article Ten, we also have
the right to (i) indemnify employees, agents and others as permitted by Ohio
law, (ii) purchase and maintain insurance or provide similar protection on
behalf of the directors, officers or such other persons against liabilities
asserted against them or expenses incurred by them arising out of their service
to us as contemplated by our articles of incorporation, and (iii) enter into
agreements with these directors, officers, incorporators, employees, agents or
others indemnifying them against any and all liabilities (or lesser
indemnification as may be provided in these agreements) asserted against them or
incurred by them arising out of their service to our company as contemplated by
our articles of incorporation.
We have also entered into
indemnification agreements with each of our directors and executive officers,
including the directors who are also our employees, to confirm and expand our
obligation to indemnify these persons. These indemnification
agreements (i) confirm the indemnity provided to them by our articles of
incorporation and give them assurances that this indemnity will continue to be
provided despite future changes in our articles of incorporation, and (ii)
provide that, in addition, the directors and officers shall be indemnified to
the fullest possible extent permitted by law against all expenses (including
attorneys’ fees), judgments, fines and settlement amounts, paid or incurred by
them in any action or proceeding, including any action by or in the right of our
company, on account of their service as a director or officer of our company or
as a director or officer of any subsidiary of our company or as a director or
officer of any other company or enterprise when they are serving in these
capacities at our request.
No indemnity will be provided under the
indemnification contracts to any director or officer on account of conduct that
is adjudged to have been undertaken with deliberate intent to cause injury to us
or undertaken with reckless disregard for our best interests. In
addition, the indemnification contracts provide that no indemnification will be
permitted if a final court adjudication shall determine that such
indemnification is not lawful, or in respect of any suit in which judgment is
rendered against a director or officer for an accounting of profits made from a
purchase or sale of our securities in violation of Section 16(b) of the
Securities Exchange Act of 1934 or of any similar statutory law, or on account
of any remuneration paid to a director or officer that is adjudicated to have
been paid in violation of law. Except as so limited, indemnification
of directors and officers will be permitted under the indemnification contracts
to the fullest extent permitted by law.
Item
16. Exhibits.
|
|
|
|
|
|
|
|
|
4(a)
|
|
Rights
Agreement dated as of June 11, 2009, by and between the Company and
Computershare Trust Company, N.A., as Rights Agent, previously filed as
Exhibit 4.1 to the Registration Statement on Form 8-A (file number
001-34382), filed on June 15, 2009, and incorporated herein by
reference.
|
|
|
|
|
|
4(b)
|
|
Articles
Fourth, Fifth, Sixth, Seventh, Eighth, Eleventh, Twelfth, and Thirteenth
of the Company’s Second Amended and Restated Articles of Incorporation,
previously filed March 15, 2007 as Exhibit 3.1 to the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2006, and
incorporated herein by reference.
|
| |
|
|
|
4(c)
|
|
Articles
I and II of the Company’s Amended and Restated Code of Regulations,
previously filed as Exhibit 3.2 to the Registration Statement on Form S-1,
(file number 33-56118) and incorporated herein by
reference.
|
|
|
|
|
|
4(d)
|
|
Form
of Stock Certificate for the Company, previously filed as Exhibit 4.1
to the Registration Statement on Form S-1 (file number 33-56118) and
incorporated herein by reference.
|
|
|
|
|
|
5*
|
|
Opinion
of Porter Wright Morris & Arthur LLP.
|
|
|
|
|
|
23(a)*
|
|
Consent
of Porter Wright Morris & Arthur LLP (included in Exhibit
5).
|
|
|
|
|
|
23(b)*
|
|
Consent
of Schneider Downs & Co, Inc.
|
|
|
|
|
|
24*
|
|
Power
of Attorney.
|
* Filed
herewith.
Item
17. Undertakings.
The undersigned 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 of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective 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 (1)(i), (1)(ii) and (1)(iii) above 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”) that
are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement;
|
(2) That, for
the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(4) That, for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
|
|
(i)
|
If
the registrant is relying on Rule
430B:
|
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement;
and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date; or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use.
|
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to 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.
|
|
|
Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to the 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.
|
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-3 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Nelsonville, State of
Ohio, on March 3, 2010.
|
ROCKY
BRANDS, INC.
|
|
|
|
By:
|
/s/ James E. McDonald
|
|
|
James
E. McDonald, Executive Vice
President
and Chief Financial Officer
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Mike Brooks
|
|
Chairman,
Chief Executive
|
|
March
3, 2010
|
|
Mike
Brooks
|
|
Officer
and Director
|
|
|
|
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ James E. McDonald
|
|
Executive
Vice President and
|
|
March
3, 2010
|
|
James
E. McDonald
|
|
Chief
Financial Officer
|
|
|
|
|
|
(Principal
Financial and Accounting
|
|
|
|
|
|
Officer)
|
|
|
|
|
|
|
|
|
|
*Curtis A.
Loveland
|
|
Secretary
and Director
|
|
March
3, 2010
|
|
Curtis
A. Loveland
|
|
|
|
|
|
|
|
|
|
|
|
*J. Patrick
Campbell
|
|
Director
|
|
March
3, 2010
|
|
J.
Patrick Campbell
|
|
|
|
|
|
|
|
|
|
|
|
*Glenn E.
Corlett
|
|
Director
|
|
March
3, 2010
|
|
Glenn
E. Corlett
|
|
|
|
|
|
|
|
|
|
|
|
*Michael L.
Finn
|
|
Director
|
|
March
3, 2010
|
|
Michael
L. Finn
|
|
|
|
|
|
|
|
|
|
|
|
*G. Courtney
Haning
|
|
Director
|
|
March
3, 2010
|
|
G.
Courtney Haning
|
|
|
|
|
|
|
|
|
|
|
|
*Harley E. Rouda,
Jr.
|
|
Director
|
|
March
3, 2010
|
|
Harley
E. Rouda, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
*James L.
Stewart
|
|
Director
|
|
March
3, 2010
|
|
James
L. Stewart
|
|
|
|
|
|
|
|
|
|
|
|
*By:
|
/s/ Mike Brooks
|
|
|
|
|
|
|
Mike
Brooks, attorney-in-fact
|
|
|
|
|
|
|
for
each of the persons indicated
|
|
|
|
|
Exhibit
Index
|
Number
|
|
Exhibit Description
|
|
|
|
|
|
4(a)
|
|
Rights
Agreement dated as of June 11, 2009, by and between the Company and
Computershare Trust Company, N.A., as Rights Agent, previously filed as
Exhibit 4.1 to the Registration Statement on Form 8-A (file number
001-34382), filed on June 15, 2009, and incorporated herein by
reference.
|
|
|
|
|
|
4(b)
|
|
Articles
Fourth, Fifth, Sixth, Seventh, Eighth, Eleventh, Twelfth, and Thirteenth
of the Company’s Second Amended and Restated Articles of Incorporation,
previously filed March 15, 2007 as Exhibit 3.1 to the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2006, and
incorporated herein by reference.
|
|
|
|
|
|
4(c)
|
|
Articles
I and II of the Company’s Amended and Restated Code of Regulations,
previously filed as Exhibit 3.2 to the Registration Statement on Form S-1,
(file number 33-56118) and incorporated herein by
reference.
|
|
|
|
|
|
4(d)
|
|
Form
of Stock Certificate for the Company, previously filed as Exhibit 4.1
to the Registration Statement on Form S-1 (file number 33-56118) and
incorporated herein by reference.
|
|
|
|
|
|
5*
|
|
Opinion
of Porter Wright Morris & Arthur LLP.
|
|
|
|
|
|
23(a)*
|
|
Consent
of Porter Wright Morris & Arthur LLP (included in Exhibit
5).
|
|
|
|
|
|
23(b)*
|
|
Consent
of Schneider Downs & Co, Inc.
|
|
|
|
|
|
24*
|
|
Power
of Attorney.
|
* Filed
herewith.