AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON JUNE 3, 1998
Registration Statement No. 333-25877
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
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. 1996 STOCK INCENTIVE PLAN
(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. 1996 Stock
Incentive Plan, as amended (the "Plan") is 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
Effective June 1, 1998, the Registrant's predecessor (also named
Payless ShoeSource, Inc. and referred to herein as 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 Plan. 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 Plan 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").
(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
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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
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.
William J. Rainey, Senior Vice President and General Counsel of the
Registrant, has given an opinion to the Registrant opining as to the validity of
the Shares of Common Stock to be issued pursuant to the Plan. Mr. Rainey has
received 7,500 restricted share awards under this plan of the Registrant and has
been granted options to purchase 31,250 shares of Common Stock under this Plan
and is eligible to receive future grants.
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 action, suit or
proceeding shall be paid or
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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
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under the applicable standard of conduct under the DGCL; (ii) for advancement of
expenses to the 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 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 Opinion of Counsel as to the legality of the securities being
registered hereby
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Counsel (included in the opinion filed as Exhibit
5 to this Registration Statement)
*24 Powers of Attorney
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99 Payless ShoeSource, Inc. 1996 Stock Incentive Plan, as amended
April 20, 1998 (incorporated herein by reference to
Exhibit 99.2 of the Registrant's Current Report on Form 8-K
(File No. 333-50577) filed June 3, 1998).
*Filed Herewith
**Previously Filed
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:
(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;
(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.(a)(i) and 1.(a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
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(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 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.
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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. 1 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
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/Howard R. Fricke* Director June 2, 1998
Howard R. Fricke
/s/Thomas A. Hays* Director June 2, 1998
Thomas A. Hays
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/s/Michael E. Murphy* Director June 2, 1998
Michael E. Murphy
/s/Richard L. Stark* Director June 2, 1998
Richard L. Stark
/s/Daniel Boggan, Jr.* Director June 2, 1998
Daniel Boggan, Jr.
/s/Mylle B. Mangum* Director June 2, 1998
Mylle B. Mangum
* By: /s/Ullrich E. Porzig
Ullrich E. Porzig
Attorney-in-Fact
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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 Opinion of Counsel as to the legality of the securities being
registered hereby
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Counsel (included in the opinion filed as Exhibit
5 to this Registration Statement)
*24 Powers of Attorney
99 Payless ShoeSource, Inc. 1996 Stock Incentive Plan, as amended
April 20, 1998 (incorporated herein by reference to Exhibit
99.2 of the Registrant's Current Report on From 8-K (File No.
333-50577) filed June 3, 1998).
*Filed Herewith
**Previously Filed
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Exhibit 5
Payless ShoeSource, Inc.
3231 East 6th Street
P.O. Box 1189
Topeka, Kansas 66601-1189
(785) 233-5171
William J. Rainey Law Department
Senior Vice President (785) 295-2434
General Counsel & Secretary (785) 368-7524 FAX
June 2, 1998
Gentlemen:
I am Senior Vice President and General Counsel of Payless ShoeSource,
Inc., a Delaware corporation (the "Company"). In that capacity, I have acted as
counsel for the Company in connection with the amendments (the "Amendments") on
Form S-8 (Reg. Nos. 333-25877 (relating to the Company's 1996 Stock Incentive
Plan (the "1996 SIP")) and 333-50671 (relating to the Company's Deferred
Compensation Plan (the "Deferred Plan"), and together with the 1996 SIP (the
"Plans")), of shares of common stock, par value of $.01 per share, of the
Company (the "Shares").
The Amendments are being filed to recognize the succession of the
Company to Payless ShoeSource, Inc., a Missouri corporation ("PSS") pursuant to
the consummation of the transactions contemplated by the Agreement and Plan of
Merger, dated as of April 20, 1998 by and among PSS, the Company and Payless
Merger Corp., a wholly-owned subsidiary of the Company.
In connection with the Amendments, I, or attorneys under my
supervision, have examined the originals, or certified, conformed or
reproduction copies of:
(i) resolutions of the Board of Directors;
(ii) the Amendments;
(iii) the Plans;
(iv) the Amended and Restated Certificate of Incorporation
of the Company; and
(v) the Amended and Restated Bylaws of the Company.
I, or attorneys under my supervision, have also made such other factual
and legal investigations as I have deemed necessary and appropriate in order to
render the opinion hereinafter expressed. In such examination, I, or attorneys
under my supervision have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of all
<PAGE>
documents submitted to me as certified copies or photocopies. As to any facts
material to the opinion set forth below which were not independently
established or verified, I, or attorneys under my supervision have relied upon
state-ments and representations of officers and other representatives of the
Company and others.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, I am of the opinion that the
Shares to be issued, sold and delivered under the respective Plans will, when so
issued, sold and delivered pursuant to the provisions of the respective Plan, be
validly issued, fully paid and nonassessable.
I hereby consent to the filing or incorporation by reference of this
opinion as an exhibit to the Amendments and to all references to the undersigned
in the Amendments and all further amendments to any of the Amendments.
The opinion expressed herein is solely for your benefit and may not be
relied upon in any manner or for any purpose by any other person or entity. It
may not be quoted in whole or in part without my prior consent.
Very truly yours,
/s/William J. Rainey
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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. 1 to registration statement on
Form S-8 (File No. 333-25877) 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 Incentive Plan, PostEffective 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
