As Filed with the Securities and Exchange Commission
On June 3, 1998
Registration Statement No. 333-28483
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 2
to
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PAYLESS SHOESOURCE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 43-1813160
(State of Incorporation) (I.R.S. Employer Identification No.)
3231 E. 6th Street, Topeka, Kansas 66607-2207
(Address of Principal Executive Offices) (Zip Code)
PAYLESS SHOESOURCE, INC. PROFIT SHARING PLAN
and
PAYLESS SHOESOURCE, INC. PROFIT SHARING PLAN FOR
PUERTO RICO ASSOCIATES
(Full Title of Plan)
William J. Rainey
Senior Vice President, Secretary and General Counsel
PAYLESS SHOESOURCE, INC.
3231 E. 6th Street
Topeka, Kansas 66607-2207
(913) 233-5171
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Carl W. Struby
Lathrop & Gage L.C.
2345 Grand Boulevard, Suite 2800
Kansas City, Missouri 64108
(816) 460-5834
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Part I
The Section 10(a) prospectus relating to the Payless ShoeSource, Inc. Profit
Sharing Plan, as amended (the "Payless Plan") and the Payless Shoe Source, Inc.
Profit Sharing Plan for Puerto Rico Associates, as amended (the "Payless Puerto
Rico Plan" and collectively with the Payless Plan, the "Plans") are omitted from
this Registration Statement pursuant to the Note to the Instructions to Part I
of Form S-8.
Part II
Information Required in the Registration Statement
On January 30, 1998, Registrant's predecessor (also named Payless
ShoeSource, Inc. and referred to herein as the "Predecessor") caused the Trustee
of the Payless Plan to create a separate account under the Trust for the Payless
Plan and to allocate to it an amount equal to the account balances of its Puerto
Rico associates previously held under the Payless Plan, which account thereafter
will be governed by the Payless Puerto Rico Plan.
Effective June 1, 1998, the Predecessor reorganized its corporate
structure into a "holding company" form of organizational structure by merging
(the "Merger") with Payless Merger Corp., a newly-formed, wholly-owned indirect
subsidiary of the Predecessor and a direct subsidiary of the Registrant.
Predecessor was the surviving company in the Merger, and in the Merger, each
share of common stock of the Predecessor was automatically converted into one
share of Common Stock, par value $.01 per share, of Registrant. As a result of
the Merger, the Registrant became the holding company and the successor issuer
to the Predecessor.
In connection with the Merger, the Registrant assumed the obligations
of the Predecessor as sponsor of the Plans. This post-effective amendment is
filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the
"Securities Act"), to reflect the adoption by Registrant of this Registration
Statement, as well as the Plans to which it relates, as its own for all purposes
of the Securities Act and the Securities Exchange Act of 1934, as amended.
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
(a) The Annual Report of Payless ShoeSource, Inc. on Form 10-K (File
No. 1-11633) for the Fiscal Year ended January 31, 1998, filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
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(b) All other reports filed by Payless ShoeSource, Inc. pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since January 31,
1998.
(c) The description of the Registrant's Common Stock and related Rights
contained under the captions "New Payless Capital Stock" and "Possible
Anti-takeover Effect of Certain Provisions of the New Payless Charter, the New
Payless Bylaws and the DGCL" at pages 13-17 of the Registrant's Registration
Statement on Form S-4 (File No. 333-50577).
In addition, all documents subsequently filed by the Registrant or the
Plans pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, are incorporated by reference in this Registration Statement and are a
part hereof from the date of filing of such documents. Any statement contained
herein or in a document all or a portion of which is incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified and amended, to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Registrant's Restated Certificate of Incorporation ("the "Charter")
provides that it will indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (including any action or suit by or in
the right of Registrant) by reason of the fact that such person is or was a
director, officer, employee or agent of Registrant or is or was serving at the
request of Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suite or proceeding, but in each case only if and to the extent
permitted under applicable state or federal law. Expenses, including attorneys'
fees, incurred by any such person in defending any such
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action, suit or proceeding shall be paid or reimbursed by Registrant in advance
of the final disposition of such action, suit or proceeding upon receipt by it
of an undertaking of such person to repay such expenses if it shall ultimately
be determined that such person is not entitled to be indemnified by Registrant.
The Charter further states that the right to indemnification and
advancement of expenses provided therein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled, and shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, and personal representatives of such a
person.
Section 145 of the Delaware General Corporation Law ("DGCL") permits a
corporation to indemnify its directors and officers against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlements actually and
reasonably incurred by them in connection with any action, suit or proceeding
brought by third parties, if such directors or officers 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, had no reason to believe their conduct was unlawful. In a derivative
action, i.e., one by or in the right of the corporation, indemnification may be
made only for expenses actually and reasonably incurred by directors and
officers in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have 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 shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant, officers or directors are fairly
and reasonably entitled to indemnity for such expenses despite such adjudication
of liability.
As permitted by Section 102(b) (7) of the DGCL, the Charter provides
that no director of Registrant will be liable to Registrant or its shareowners
for monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to Registrant or
its shareowners; (2) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of the law; (3) under Section 174 of
the DGCL; or (4) for any transaction from which a director derived an improper
benefit.
Registrant has entered into indemnification agreements with each
director and certain executive officers of Registrant. Generally, each
indemnification agreement provides, among other things, (i) for indemnification
to the fullest extent permitted by law against all expenses, judgments, fines,
penalties incurred in connection with, and amounts paid in settlement of, any
claim against the indemnified party, provided it is determined pursuant to the
agreement that the indemnitee is entitled to be indemnified under the applicable
standard of conduct under the DGCL; (ii) for advancement of expenses to the
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indemnitee in connection with the indemnitee's defense of any threatened or
pending claim, provided that if it is determined pursuant to the agreement that
the indemnitee would not be permitted to be indemnified under applicable law,
Registrant shall be entitled to be reimbursed by the indemnitee for all such
amounts previously paid; (iii) for the creation of a trust for the benefit of
the indemnitee in the event of a potential change in control of Registrant which
shall be funded from time to time at the request of the indemnitee in an amount
sufficient to satisfy Registrant's indemnification obligations under the
agreement; and (iv) that no legal action be brought and no cause of action be
asserted by or on behalf of Registrant against the indemnitee after the
expiration of the earlier of the applicable statute of limitations or two years
after the date of accrual of such cause of action. Similar indemnification
agreements may be entered into from time to time with additional officers of
Registrant. In addition, Registrant has purchased a directors and officers
liability insurance policy.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.1 Restated Certificate of Incorporation of Registrant
(Incorporated herein by reference to Exhibit 3.1 to
Registrant's report on Form 8-K (File No. 333-50577) filed
June 3, 1998).
3.2 Bylaws of Registrant (Incorporated herein by reference to
Exhibit 3.2 to Registrant's Current Report on Form 8-K (File
No. 333-50577) filed June 3, 1998).
4 Registrant's Stockholder Rights Protection Agreement
(Incorporated herein by reference to Exhibit 4 to
Registrant's Current Report on Form 8-K (File No. 333-50577)
filed June 3, 1998).
**5 Determination letter dated November 25, 1997 with respect to
qualification of the Payless Plan under Section 401(a) of the
Internal Revenue Code
* 23.1 Consent of Arthur Andersen LLP.
* 24 Powers of Attorney
99.1 Payless ShoeSource, Inc. Profit Sharing Plan, as amended April
20, 1998 (incorporated herein by reference to Exhibit 99.9 of
the Registrant's Current Report on Form 8-K (File No.
333-50577) filed June 3, 1998).
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99.2 Payless ShoeSource, Inc. Profit Sharing Plan for Puerto Rico
Associates, as amended April 20, 1998 (incorporated by
reference to Exhibit 99.10 to Registrant's Current Report on
Form 8-K (File No. 1-11633) filed June 3, 1998).
* Filed Herewith
** Previously Filed
No opinion of counsel is being furnished because none of the shares of Common
Stock offered under the Plans are original issuance securities.
Item 9. Undertakings.
(a) The 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 and 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each 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.
(b) 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 Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 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
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the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification (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 Act and will
be governed by the final adjudication of such issue.
(d) Pursuant to Item 8(b) of Form S-8, in lieu of (i) an opinion of
counsel concerning the compliance of the Plans with the requirements of ERISA or
(ii) an Internal Revenue Service ("IRS") determination letter that the Payless
Plan, as amended, and the Payless Puerto Rico Plan, as amended, are qualified
under Section 401 of the Internal Revenue Code of 1986, as amended, the
undersigned Registrant hereby undertakes (i) to submit any amendments to the
Payless Plan to the IRS in a timely manner and to make all changes required by
the IRS to qualify the Plan, as amended and (ii) to submit the Payless Puerto
Rico Plan and any amendments thereto to the Puerto Rico Treasury Department
("Department") in a timely manner and to make all changes required by the
Department in order to qualify the Payless Puerto Rico Plan, as amended, under
Section 1165(e) of the Puerto Rico Internal Revenue Code.
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SIGNATURES
The Registrant. 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 Amendment
No. 2 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Topeka, State of Kansas, on the 2nd
day of June, 1998.
PAYLESS SHOESOURCE, INC.
By: /s/Ullrich E. Porzig
Name: Ullrich E. Porzig
Title: Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature Title Date
/s/Steven J. Douglass* Director, Chairman of the Board and June 2, 1998
Steven J. Douglass Chief Executive officer (Principal
Executive officer)
/s/Richard A. Jolosky* Director and President June 2, 1998
Richard A. Jolosky
/s/Ullrich E. Porzig* Senior Vice President and Chief June 2, 1998
Ullrich E. Porzig Financial Officer (Principal Financial
Officer)
/s/Ronald A. Cooperman* Controller June 2, 1998
Ronald A. Cooperman
/s/Daniel Boggan, Jr.* Director June 2, 1998
Daniel Boggan, Jr.
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/s/Howard R. Fricke* Director June 2, 1998
Howard R. Fricke
/s/Thomas A. Hays* Director June 2, 1998
Thomas A. Hays
/s/Mylle B. Mangum* Director June 2, 1998
Mylle B. Mangum
/s/Michael E. Murphy* Director June 2, 1998
Michael E. Murphy
/s/Richard L. Stark* Director June 2, 1998
Richard L. Stark
* By: /s/ Ullrich E. Porzig
Ullrich E. Porzig
Attorney-in-Fact
The Plans. Pursuant to the requirements of the Securities Act of 1933, the
Retirement Committees of the Payless ShoeSource, Inc. Profit Sharing Plan and of
the Payless ShoeSource, Inc. Profit Sharing Plan for Puerto Rico Associates have
duly caused this Amendment No. 2 to Registration Statement to be signed on their
behalf by the undersigned, thereunto duly authorized, in the City of Topeka,
State of Kansas, on the 2nd day of June, 1998.
Payless ShoeSource, Inc. Profit Sharing Plan
Payless ShoeSource, Inc. Profit Sharing Plan for Puerto Rico Associates
By: /s/ Jeffrey A. Long
Name: Jeffrey A. Long
Title: Chairman
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2
to Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
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Signature Title Date
/s/Jed L. Norden* Member June 2, 1998
Jed L. Norden
/s/William J. Rainey* Member June 2, 1998
William J. Rainey
/s/Ullrich E. Porzig* Member June 2, 1998
Ullrich E. Porzig
/s/Jeffrey A. Long* Member June 2, 1998
Jeffrey A. Long
/s/Ronald A. Cooperman* Member June 2, 1998
Ronald A. Cooperman
*By: /s/ Jeffrey A. Long
Jeffrey A. Long,
Attorney-in-Fact
** Payless ShoeSource Profit Sharing Plan and Payless ShoeSource Profit
Sharing Plan for Puerto Rico Associates
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Exhibit List
3.1 Restated Certificate of Incorporation of Registrant
(Incorporated herein by reference to Exhibit 3.1 to
Registrant's Current Report on Form 8-K (File No. 333-50577)
filed June 3, 1998).
3.2 Bylaws of Registrant (Incorporated herein by reference to
Exhibit 3.2 to Registrant's Current Report on Form 8-K (File
No. 333-50577) filed June 3, 1998).
4 Registrant's Stockholder Rights Protection Agreement
(Incorporated herein by reference to Exhibit 4 to
Registrant's Current Report on Form 8-K (File No. 333-50577)
filed June 3, 1998).
**5 Determination letter dated November 25, 1997 with respect to
qualification of the Payless Plan under Section 401(a) of the
Internal Revenue Code
*23.1 Consent of Arthur Andersen LLP
*24 Powers of Attorney
99.1 Payless ShoeSource, Inc. Profit Sharing Plan, as amended April
20, 1998 (incorporated herein by reference to Exhibit 99.9 of
the Registrant's Current Report on Form 8-K (File No.
333-50577) filed June 3, 1998).
99.2 Payless ShoeSource, Inc. Profit Sharing Plan for Puerto Rico
Associates, as amended April 20, 1998 (incorporated by
reference to Exhibit 99.10 to Registrant's Current Report on
Form 8-K (File No. 333-50577) filed June 3, 1998).
* Filed Herewith
** Previously Filed
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Amendment No. 2 to registration statement on
Form S-8 (File No. 333-28483) of our report dated February 20, 1998,
incorporated by reference in the Payless ShoeSource, Inc. Form 10-K for the year
ended January 31, 1998, and to all references to our firm included in this
registration statement.
/s/ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
St. Louis, Missouri
June 2, 1998
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Steven J, Douglass, Ullrich E. Porzig, and William J. Rainey, and each
or any one of them acting alone, as his true and lawful attorney-in-fact and
agent, with full power of substitution for him and in his name, place and stead,
in any and all capacities, to sign Post-Effective Amendment No. 1 relating to
Registration Statement 333-25877 respecting the Payless ShoeSource, Inc. 1996
Stock Ownership Plan, Post-Effective Amendment No. 1 to Registration Statement
333-30371 respecting the Payless ShoeSource, Inc. Stock Ownership Plan,
Post-Effective Amendment No. 2 relating to Registration Statement No. 333-28483
respecting the Payless ShoeSource, Inc. Profit Sharing Plan and the Payless
ShoeSource, Inc. Profit Sharing Plan for Puerto Rico Associates, and
Post-Effective Amendment No. 1 relating to Registration Statement No. 333-50671
relating to the Payless ShoeSource, Inc. Deferred Compensation Plan, and any and
all further post-effective amendments to any such Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
to perfect and complete such filing(s), as fully to all the intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute may lawfully do or cause to be
done by virtue thereof.
Dated this 22nd day of May, 1998
/s/ Steven J. Douglass
/s/ Ullrich E. Porzig
/s/ Howard R. Fricke
/s/ Thomas A. Hays
/s/ Michael E. Murphy
/s/ Richard L. Stark
/s/ Daniel Boggan Jr
/s/ Mylle B. Mangum
/s/ Ronald A. Cooperman
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Jeffrey A. Long and William J. Rainey, and each or any one of them
acting alone, as his true and lawful attorney-in-fact and agent, with full power
of substitution for him and in his name, place and stead, in any and all
capacities, to sign Post-Effective Amendment No. 2 relating to Registration
Statement No. 333-28483 respecting the Payless ShoeSource, Inc. Profit Sharing
Plan and the Payless ShoeSource, Inc. Profit Sharing Plan for Puerto Rico
Associates and any and all further post-effective amendments to such
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises to perfect and complete such filing(s), as
fully to all the intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute may lawfully do or cause to be done by virtue thereof.
Dated this 22nd day of May, 1998
/s/Jed L. Norden
/s/Ronald A. Cooperman
/s/Ullrich E. Porzig
/s/William J. Rainey
/s/Jeffrey A. Long
