SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
99 CENTS ONLY STORES
(Exact Name of Registrant as Specified in Its Charter)
CALIFORNIA 95-2411605
(State or Other Jurisdiction of (I.R.S. Employer or
Incorporation Organization) Identification No.)
4000 EAST UNION PACIFIC AVENUE
CITY OF COMMERCE, CALIFORNIA 90023
(Address of Principal Executive Offices) (Zip Code)
99 CENTS ONLY STORES 1996 STOCK OPTION PLAN
(Full Title of The Plan)
ERIC SCHIFFER
4000 EAST UNION PACIFIC AVENUE
CITY OF COMMERCE, CALIFORNIA 90023
(Name and Address of Agent For Service)
(213) 980-8145
(Telephone Number, Including Area Code, of Agent For Service)
Copies of communications to:
C.N. FRANKLIN REDDICK III, ESQ.
TROOP MEISINGER STEUBER & PASICH, LLP
10940 WILSHIRE BOULEVARD
Eighth Floor
Los Angeles, California 90024
(310) 824-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
---------- ---------- ---------- ----------- ------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 1,000,000 $20.19 $20,190,000 $6,119
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) under the Securities Act of 1933, as amended, and based upon
the average of the high and low price of the Common Stock on the New York Stock
Exchange on April 29, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) Registrant's Annual Report on Form 10-K, for the fiscal year ended
December 31, 1996;
(b) Registrant's Reports on Form 8-K, filed on April 9, 1997;
(c) The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form S-1 (File No. 333-2764).
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The securities to be offered are registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California General Corporation Law provides generally
that a person sued as a director, officer or agent of a corporation may be
indemnified by the corporation for reasonable expenses, including counsel fees,
if (a) in the case of other than derivative suits, such person has acted in
good faith and in a manner such person reasonably believed to be in the best
interests of the corporation (and in the case of a criminal proceeding, had no
reasonable cause to believe that his or her conduct was unlawful), and (b) in
the case of a derivative suit, such person has acted in good faith in a manner
such person believed to be in the best interests of the corporation and its
shareholders, and with such care, including reasonable inquiry, as an
ordinarily prudent person, in a like position would use under similar
circumstances. Section 317 provides that no indemnification shall be made in
the case of a derivative suit in respect of any claim as to which a director,
officer or agent has been adjudged to be liable to the corporation, except with
court approval, nor shall indemnification be made for costs of and expenses in
connection with settlement, without court approval. Indemnification is
mandatory in the case of a director, officer, or agent who is successful on the
merits in
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defense of a suit against him or her. The determination as whether to
indemnify a director, officer or agent is made by a majority of disinterested
directors, a majority of disinterested shareholders, or the court in which the
suit is pending.
The Company's Articles of Incorporation provide that the liability of the
Company's directors for monetary damages shall be eliminated to the fullest
extent permissible under California law. This is intended to eliminate the
personal liability of a director for monetary damages in an action brought by
or in the right of the Company for breach of a director's duties to the Company
or its shareholders except for liability: (1) for acts or omissions that
involve intentional misconduct or a knowing and culpable violation of law; (2)
for acts or omissions that a director believes to be contrary to the best
interests of the Company or its shareholders or that involve the absence of
good faith on the part of the director; (3) for any transaction from which a
director derived an improper personal benefit; (4) for acts or omissions that
show a reckless disregard for the director's duty to the Company or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
or serious injury to the Company or its shareholders; (5) for acts or omissions
that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Company or its shareholders; (6) with
respect to certain transactions, or the approval of transaction in which a
director has a material financial interest; and (7) expressly imposed by
statute, for approval of certain improper distributions to shareholders or
certain loans or guarantees. This provision does not eliminate or limit
liability of an officer for any act or omission as an officer, notwithstanding
that the officer is also a director or that his or her actions, if negligent or
improper, have been ratified by the Board of Directors. Further, the provision
has no effect on claims under federal or state securities laws and does not
affect the availability of injunctions and other equitable remedies available
to the Company's shareholders for any violation of a director's fiduciary duty
to the Company or its shareholders. Although the validity and scope of the
legislation underlying the provision have not yet been interpreted to any
significant extent by the California courts, the provision may relieve
directors or monetary liability to the Company for grossly negligent conduct,
including conduct in situations involving attempted takeovers of the Company.
The Articles also provide that the Company is authorized to provide
indemnification to its agents (as defined in Section 317 of the California
Corporations Code), through the Company's Bylaws or through agreements with
such agents or both, for breach of duty to the Company and its shareholders, in
excess of the indemnification otherwise permitted by Section 317 of the
California Corporations Code, subject to the limits on such excess
indemnification set forth in Section 204 of the California Corporations Code.
The Bylaws of the Company provide that a person sued as an agent of the
Company may be indemnified by the Company for reasonable expenses incurred
thereby, if (a) in the case of other than derivative suits, such person has
acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the Company (and in the case of a criminal proceeding, had no
reasonable cause to believe that his or her conduct was unlawful), and (b) in
the case of a derivative suit, such person has acted in good faith in a manner
he or she believed to be in the best interests of the Company and its
shareholders, and with such are, including reasonable inquiry, as an ordinarily
prudent person, in a like position would use under similar circumstances. The
Bylaws further provide that no indemnification shall be made in the case of a
derivative suit in respect to any claim as to which such person has been
adjudged to be liable to the corporation, except with court approval, nor shall
indemnification be made for amounts paid in settling or otherwise disposing of
a threatened or pending action, with or without court approval, or for expenses
incurred in defending a threatened or pending action which is settled or
otherwise disposed of without court approval. Indemnification under the Bylaws
is mandatory in the case of an agent of the Company (present or past) who is
successful on the merits in defense of a suit against him or her in such
capacity. In all other cases where indemnification is permitted by the Bylaws,
a determination to indemnify such person must be made by a majority of a quorum
of disinterested directors, a majority of disinterested shareholders, or the
court in which the suit is pending.
The Company has also entered into agreements to indemnify its officers and
directors in addition to the indemnification provided for in the Articles of
Incorporation and Bylaws. Among other things, these agreements provide that
the Company will indemnify, subject to certain requirements, each of the
Company's directors for certain expenses (including attorneys' fees),
judgments, fines and settlement amounts incurred by such person in any action
or proceeding, including any action by or in the right of the Company, on
account of services by such person as a director or officer of
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the Company, or as a director or officer of any other company or enterprise to
which the person provides services at the request of the Company.
The Company and David Gold, Chief Executive Officer and President of the
Company, Sherry Gold, David Gold's wife, Howard Gold, Senior Vice President of
Distribution and Director, Karen Schiffer, daughter of David Gold and wife of
Eric Schiffer, an officer and director, and Jeff Gold, Senior Vice President of
Real Estate and Information Systems and Director (collectively, the "Pre-
Offering Shareholders"), have entered into a tax indemnification agreement (the
"Tax Agreement") relating to their respective income tax liabilities. The Tax
Agreement generally provides that if an adjustment is made to the taxable
income of the Company for a year in which it was treated as an S corporation,
the Company will indemnify the Pre-Offering Shareholders and the Pre-Offering
Shareholders will indemnify the Company against any increase in the indemnified
party's income tax liability (including interest and penalties and related
costs and expenses), with respect to any tax year to the extent such increase
results in a related decrease in the income tax liability of the indemnifying
party for that year. The Company will also indemnify the Pre-Offering
Shareholders for all taxes imposed upon them as the result of their receipt of
an indemnification payment under the Tax Agreement. Any payment made by the
Company to the Pre-Offering Shareholders pursuant to the Tax Agreement may be
considered by the Internal Revenue Service or state taxing authorities to be
non-deductible by the Company for income tax purposes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Registrant's 1996 Stock Option Plan. Incorporated by
reference to Exhibit 10.4 to Registrant's Registration
Statement on Form S-1 (File No. 333-2764).
5.1 Opinion of Troop Meisinger Steuber & Pasich, LLP
regarding validity of securities.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Troop Meisinger Steuber & Pasich, LLP (included in Exhibit
5.1).
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 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 20 percent
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.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, 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 the 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, Registrant will, unless in the opinion of the
counsel the matter has been settled by controlling precedent, submit to a
court of the appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act 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 Los Angeles, State of California as of May 2,
1997.
99 CENTS ONLY STORES
(Registrant)
By: /s/ Eric Schiffer
-----------------------------------
Eric Schiffer
Senior Vice President Finance and
Operations
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints David
Gold and Eric Schiffer and each of them, as his true and lawful attorneys--
in-fact and agents, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this Registration Statement on Form S-8, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
foregoing, as fully to all intents and purposes as he might or could do in
person, and hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their substitutes, may lawfully do or cause to be
done by the virtue hereof.
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/ David Gold President, Chief Executive Officer May 2, 1997
- ---------------------- and Director (Principal Executive
David Gold Officer)
/s/ Howard Gold Senior Vice President of
- ---------------------- Distribution and Director May 2, 1997
Howard Gold
/s/ Eric Schiffer Senior Vice President Finance and May 2, 1997
- ---------------------- Operations, Treasurer and Director
Eric Schiffer (Principal Financial Officer)
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/s/ Jeff Gold Senior Vice President of Real May 2, 1997
- ---------------------- Estate and Information Systems
Jeff Gold and Director
Director May 2, 1997
- ----------------------
William O. Christy
Director May 2, 1997
- ----------------------
Marvin Holen
Director May 2, 1997
- ----------------------
Ben Schwartz
/s/ Lawrence Glascott Director May 2, 1997
- ----------------------
Lawrence Glascott
PAGE 7
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EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
4.1 Registrant's 1996 Stock Option Plan. Incorporated by
reference to Exhibit 10.4 to Registrant's Registration
Statement on Form S-1 (File No. 333-2764).
5.1 Opinion of Troop Meisinger Steuber & Pasich, LLP regarding
validity of securities.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Troop Meisinger Steuber & Pasich, LLP (included
in Exhibit 5.1)
PAGE 8
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TROOP MEISINGER STEUBER & PASICH, LLP
Lawyers
May 6, 1997
99 Cents Only Stores
4000 East Union Pacific Avenue
City of Commerce, California 90023
Ladies/Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to which this letter is attached as
Exhibit 5.1 filed by 99 Cents Only Stores, a California corporation (the
"Company"), in order to register under the Securities Act of 1933, as
amended (the "Act"), 1,000,000 shares of Common Stock, no par value per
share (the "Shares"), of the Company issuable pursuant to the Company's
1996 Stock Option Plan (the "Plan").
We are of the opinion that the Shares have been duly authorized and
upon issuance and sale in conformity with and pursuant to the Plan, the
Shares will be validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an Exhibit to the
Registration Statement and to use of our name in the Prospectus
constituting a part thereof.
Respectfully submitted,
/s/ Troop Meisinger Steuber & Pasich, LLP
TROOP MEISINGER STEUBER & PASICH, LLP
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports
dated March 11, 1997 included in 99 Cents Only Stores Form 10-K for the year
ended December 31, 1996 and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
April 30, 1997
<PAGE>
