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As filed with the Securities and Exchange Commission on May 9, 2007
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
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ESCALADE, INCORPORATED
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(Exact name of registrant as specified in its charter)
Indiana 13-2739290
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
817 Maxwell Avenue, Evansville, Indiana 47711
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(Address of principal executive offices) (Zip Code)
2006 NON-EMPLOYEE DIRECTOR NON-QUALIFIED STOCK OPTION GRANTS
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(Full title of the plan)
Terry D. Frandsen Copy To: Richard G. Schmalzl Esq.
Escalade, Incorporated Graydon Head & Ritchey LLP
817 Maxwell Avenue 1900 Fifth Third Center
Evansville, Indiana 47711 511 Walnut Street
(812) 467-1334 Cincinnati, Ohio 45202
(513) 629-2828
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Amount Proposed maximum Proposed maximum Amount of
Title of Securities to be offering price aggregate registration
to be Registered registered(1) per share(2) offering price(2) fee(2)
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Common Stock, no par value 10,000 shares $ 11.26 $ 112,600 $ 3.46
(1) Plus such additional number of shares as may be available for purchase
pursuant to the Plan in the event of a stock dividend, stock split,
recapitalization or similar change on the Common Stock.
(2) Calculated in accordance with Rule 457(h) of Regulation C based upon the
exercise price of the options to which the shares are subject.
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Escalade, Incorporated (the "Registrant") is filing this Registration
Statement on Form S-8 in order to register shares of its common stock, no par
value, relating to the Registrant's 2006 Non-Employee Director Non-Qualified
Stock Option Grant (the "Plan").
PART I EMPLOYEE INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS.
Information required by Part I of Form S-8 to be contained in a
prospectus meeting the requirements of Section 10(a) of the Securities Act of
1933, as amended, is not required to be filed with the Securities and Exchange
Commission and is omitted from this registration statement in accordance with
the explanatory note to Part I of Form S-8 and Rule 428 under the Securities
Act.
ITEM 1. PLAN INFORMATION.
The Registrant shall deliver to each participant in the Plan the
information required by this Item 1. The documents containing such information
need not be filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Such documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 or Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
See Rule 428(a)(1).
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Registrant shall provide a written statement to participants
advising them of the availability without charge, upon written or oral request,
of the documents incorporated by reference to Item 3 of Part II of the
Registration Statement, and stating that these documents are incorporated by
reference in the Section 10(a) Prospectus. The statement also shall indicate the
availability without charge, upon written or oral request, of other documents
required to be delivered pursuant to Rule 428(b). The statement shall include
the address as to which the request is to be directed. Requests for such
information shall be made to the Registrant's V.P. Finance, CFO & Secretary c/o
Escalade, Incorporated, 817 Maxwell Avenue, Evansville, Indiana 47711, telephone
(812) 467-1334.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference into this
Registration Statement, and all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part thereof from the date of filing of such documents;
provided, however, that any information set forth in any proxy statement of the
Registrant pursuant to Items 402(k) and/or (1) of Regulation S-K is specifically
not incorporated by reference herein.
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(a) The Registrant's latest annual report on Form 10-K for the
fiscal year ended December 30, 2006, filed with the Securities and Exchange
Commission on March 15, 2007 (File Number 000-06966) filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933 that contains
audited financial statements for the Registrant's latest fiscal year for which
statements have been filed.
(b) The Registrant's quarterly report on Form 10-Q for the period
ended March 24, 2007.
(c) The Registrant's current reports on Form 8-K filed with the
Commission on April 13, 2007 (Item 5.02 only) and May 3, 2007.
(d) The Registrant's proxy statement on Schedule 14A dated March 27,
2007 and as amended April 13, 2007.
(e) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal year covered by
the Registrant's documents referred to in the above paragraphs.
(f) The description of the Registrant's common stock contained in a
registration statement filed under the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating such
description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Indiana Code Section 23-1-37-8 provides that a corporation may indemnify
an individual made a party to a proceeding because the individual is or was a
director against liability incurred in a proceeding if: (i) the individual's
conduct was in good faith; and (ii) the individual reasonably believed that in
the case of conduct in the individual's official capacity with the corporation,
that the individual's conduct was in its best interest and in all other cases,
that the individual's conduct was at least not opposed to its best interests;
and (iii) in the case of a criminal proceeding, the individual either had
reasonable cause to believe the individual's conduct was lawful or had no
reasonable cause to believe the individual's conduct was unlawful. This Code
Section also provides that the termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the standard of
conduct described in this Section. Indiana Code Section 23-1-37-7 defines a
"proceeding" as any threatened, pending or completed
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action, suit or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal. A corporation may not indemnify a
director under Indiana Code Section 23-1-37-8 unless a determination has been
made that the director has met the standard of conduct of that Section. This
determination must be made by any one of the following procedures: (i) by the
board of directors by a majority vote of a quorum consisting of directors not at
the time parties to the proceeding; (ii) if a quorum can not be obtained, then
by a majority vote of a committee designated by the board of directors
consisting solely of two or more directors not at the time parties to the
proceeding; (iii) by special legal counsel selected pursuant to the procedures
detailed in (i) and (ii) or if neither of these procedures are available then by
a majority vote of the full board of directors; (iv) by the shareholders, but
shares owned by or voted under the control of directors who are at the time
parties to the proceeding may not be voted on the determination.
Indiana Code Section 23-1-37-9 requires a corporation, unless prohibited
by its articles of incorporation, to indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the director was a party because the director is or was a director of the
corporation against reasonable expenses incurred by the director in connection
with the proceeding. In addition, a corporation may pay for or reimburse
reasonable expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if: (i) the director furnishes
the corporation with a written affirmation of the director's good faith belief
that the director has met the standard of conduct described in Indiana Code
Section 23-1-37-8; (ii) the director furnishes the corporation a written
undertaking to repay the advance if it is ultimately determined that the
director did not meet the standard of conduct; and (iii) a determination is made
that the facts then known would not preclude indemnification.
Furthermore, Indiana Code Section 23-1-37-11 provides that unless a
corporation's articles of incorporation provide otherwise, a director of the
corporation who is a party to a proceeding may apply for indemnification to the
court conducting the proceeding or to another court of competent jurisdiction. A
court may order indemnification if it determines (i) the director is entitled to
mandatory indemnification under Indiana Code Section 23-1-37-9, or (ii) the
director is fairly and reasonably entitled to indemnification in view of all
relevant circumstances, whether or not the standards of conduct set forth in
Indiana Code Section 23-1-37-8 are met.
Indiana Code Section 23-1-37-13 provides that unless a corporation's
articles of incorporation provide otherwise, an officer of the corporation is
entitled to mandatory indemnification under Indiana Code Section 23-1-37-9 and
is entitled to apply for court ordered indemnification under Indiana Code
Section 23-1-37-11, in each case to the same extent as a director. Also, this
Section provides that a corporation may indemnify and advance expenses under the
Indiana Code to the same extent as to a director and may indemnify and advance
expenses to an officer, employee, or agent, to the extent, consistent with
public policy, that may be provided by the corporation's articles of
incorporation, bylaws, action of its board of directors or contract.
Indiana Code Section 23-1-37-15 provides that the indemnification and
advance for expenses under these Indiana Code Sections does not exclude any
other rights to indemnification
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and advance for expenses that a person may have under a corporation's articles
of incorporation or bylaws, a resolution of the board of directors or of the
shareholders, or any authorization of a majority of the shareholders. Also, this
Section provides that its does not limit a corporation's power to pay or
reimburse expenses incurred by a director, officer, employee or agent in
connection with the person's appearance as a witness in a proceeding at a time
when the person has not been made a named defendant or respondent to the
proceeding.
Article III, Section 17 of the by-laws of the registrant provides as
follows:
(a) Indemnification Pursuant to Statute. The Corporation
shall indemnify its directors, officers, trustees, employees and agents
(and the heirs, executors or administrators of such person) against any
liability, potential or actual, in connection with any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, arising out of or related to
such person's position as a director, officer, employee, employee
benefit plan administrator or fiduciary, or agent of the corporation or
of another corporation, and against any expenses incurred in defending
against any such liability to no less than the full extent as required
or permitted by Section 23-1-37 of the Indiana General Corporation Act
or any successor thereto as in effect at the time indemnification is
requested or required (the "Indemnification Statute"), as determined by
any persons or entities authorized under the Indemnification Statute of
this Section 17 to make a determination whether indemnification is
proper.
(b) Insurance. The Corporation, at its expense may purchase
and maintain insurance or similar protection (including without
limitation a trust fund, letter of credit or self-insurance) to protect
itself and any such director, officer, trustee, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust,
or other enterprise against any such expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the law of the State of
Indiana.
(c) Indemnification Not Exclusive. The indemnification
authorized by this Section 17 shall not be exclusive of, and shall be in
addition to, any rights of indemnification now existing or hereafter
granted to any person under any statute, provision of the Articles of
Incorporation, By-Laws, agreement, vote or other action of the
Corporation's stockholders or disinterested directors or otherwise.
(d) Maximum Indemnification. It is the intention of this
Section 17 to give the persons covered hereunder the maximum
indemnification permitted under the law of the State of Indiana as it
exists at the time any such person seeks indemnification hereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION OF EXHIBIT
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4.1 Form of 2006 Non-Employee Director Non-Qualified Stock
Option Grant(1)
5.1 Opinion of Graydon Head & Ritchey LLP
23.1 Consent of Graydon Head & Ritchey LLP
23.2 Consent of BKD LLP
23.3 Consent of Falk & Co GmbH
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect on 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 is registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the change 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;
(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 (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the
registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with
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(1) Identical stock option grants of 2,000 shares each at an exercise price of
$11.26 per share were made on April 24, 2006 to each of the Registrant's
non-employee directors: Richard F. Baalmann, Jr.; Blaine E. Matthews, Jr.;
George Savitsky; Richard D. White; and Edward E. Williams.
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or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in 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 an initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC such information is
against public policy as expressed in the Securities Act of 1933 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, suite 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 of 1933 and will govern the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements 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 Evansville, State of Indiana, on this 7th day of May,
2007.
ESCALADE, INCORPORATED
BY: /s/ Terry D. Frandsen
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Terry D. Frandsen,
CEO, VP Finance,
CFO & Secretary
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
May 7, 2007 /s/ Robert E. Griffin
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Robert E. Griffin,
Chairman of the Board and
Director
May 7, 2007 /s/ Richard F. Baalmann, Jr.
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Richard F. Baalmann, Jr.,
Director
May 7, 2007 /s/ Blaine E. Matthews, Jr.
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Blaine E. Matthews, Jr.,
Director
May 7, 2007 /s/ George Savitsky
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George Savitsky, Director
May 7, 2007 /s/ Richard D. White
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Richard D. White, Director
May 7, 2007 /s/ Edward E. Williams
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Edward E. Williams, Director
May 7, 2007 /s/ Terry D. Frandsen
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Terry D. Frandsen,
Chief Executive Officer and
Principal Executive Officer;
and Chief Financial Officer and
Principal Accounting Officer
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INDEX TO EXHIBITS
Exhibits Description of Exhibit Page
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4.1 Form of 2006 Non-Employee Director Non-Qualified Stock
Option Grant, incorporated by reference herein from
Exhibit A to the Registrant's 2006 Definitive Proxy
Statement (2) *
5.1 Opinion of Graydon Head & Ritchey LLP 10
23.1 Consent of Graydon Head & Ritchey LLP (included in opinion) 10
23.2 Consent of BKD LLP 11
23.3 Consent of Falk & Co. GmbH 12
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(2) Identical stock option grants of 2,000 shares each at an exercise price of
$11.26 per share were made on April 24, 2006 to each of the Registrant's
non-employee directors: Richard F. Baalmann, Jr.; Blaine E. Matthews, Jr.;
George Savitsky; Richard D. White; and Edward E. Williams.
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