AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
On June 3, 1998
Registration Statement No. 333-50671
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. DEFERRED COMPENSATION 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.
Deferred Compensation 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) 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 the DGCL" at pages 13-17 of the Registrant's Registration
Statement on Form S-4 (File No. 333-50577).
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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.
Deferred Compensation Payment Obligation
Under the Plan, the Registrant provides certain key employees the
opportunity to defer specified portions of their annual bonus until April 1 of
the following fiscal year and defer other compensation until a later date, but
generally not before the earlier of the employee's retirement, termination of
employment or death (or prior occurrence of a severe financial hardship as
provided in the Plan). Under certain circumstances, such as (i) a Change in
Control (as defined in the Plan) or (ii) if the Committee administering the Plan
determines acceleration of payment is in the best interests of the Registrant,
the participants and their beneficiaries, payment can be accelerated. The
obligation of the Registrant to distribute the compensation deferred (the
"Deferred Compensation Payment Obligation") is an unsecured general obligation
of the Registrant to pay the deferred compensation in the future in accordance
with the terms of the Plan, and ranks pari passu with other unsecured general
obligations of the Registrant.
Participants choose from one of two options for the purpose of
investing deferred compensation: Cash Units or Stock Units. Participants may
have their deferred compensation credited in Cash Units or in Stock Units or in
both Cash Units and Stock Units.
Cash Unit
Under the Plan, if a participant elects Cash Units, the participant's
account will be credited with one Cash Unit for each dollar of deferred
compensation. Interest in the form of additional Cash Units is credited to the
participant's account each April 1 at a rate of interest equal to the average
yield on long-term U.S. Government Bonds for the preceding calendar year.
Deferred compensation will begin earning interest when the deferral is credited
to the participant's account on the April 1 following the year of deferral.
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Stock Unit
Under the Plan, if a participant elects Stock Units, the participant's
account will be credited with the number of whole Stock Units equivalent in
value to the participant's deferred compensation. For converting dollars to
Stock Units, the value of a Stock Unit is deemed to be equal to the average
closing price of the Registrant's Common Stock on the New York Stock Exchange
during the February immediately preceding the April 1 crediting date. The Stock
Units are only a bookkeeping entry and not an actual purchase of the
Registrant's Common Stock. The value of Stock Units will fluctuate based on
changes in the value of Registrant's Common Stock. To the extent that dividends
are paid on Registrant's Common Stock, a like amount (less any fractional
shares) will be added to the participant's account and reinvested in Stock
Units. This right to accrue earnings (or losses) based on the fluctuations in
the value of Registrant's Common Stock may be deemed to be a "security" under
the Securities Act and, as such, is being registered on this Registration
Statement on Form S-8.
The Committee administering the Plan may elect in its sole discretion
to make payments with respect to Stock Units in cash or in the Registrant's
Common Stock or in both cash and the Registrant's Common Stock. The shares of
Registrant's Common Stock that may be issued under such election is also being
registered on this Registration Statement on Form S-8.
Reallocation of Cash Units or Stock Units
Subject to Committee approval, until December 31, 1998 and prior to
the year in which such change is to become effective a participant may elect to
have all or a portion of the participant's Cash Units reallocated and credited
to the participant's Stock Unit account, or all or a portion or the
participant's Stock Units reallocated and credited to the participant's Cash
Unit account. Any such reallocation shall occur as of the April 1 following the
year in which the participant's election to reallocate was made.
Distributions
Distributions will be in cash, except that the Committee administering
the Plan may, if the participant has elected to invest deferred compensation in
Stock Units, elect in its sole discretion to make payments either in cash or in
the Registrant's Common Stock or in both cash and the Registrant's Common Stock.
If a distribution is in stock, Stock Units are converted to shares of the
Registrant's Common Stock on a one-to-one basis. If a distribution is in cash,
the value of a Stock Unit is deemed to be equal to the average closing price of
the Registrant's Common Stock on the New York Stock Exchange during the month of
February next preceding the date of distribution.
Except with respect to distributions of annual bonuses that have been
deferred until April 1 of the following fiscal year, the Committee administering
the Plan has discretion as to whether the distributions will be made in a lump
sum payment or payments in annual installments.
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Modification
The Plan may be amended, modified or terminated by the Registrant's
Board of Directors, except that no change may be made without the approval of
the shareholders of the Registrant's Common Stock (i) in the maximum number of
Stock Units deliverable or allocable in respect of any fiscal year under the
Plan or (ii) in certain provisions of the Plan relating to the method of
determining the number of Stock Units allocable to a Participant.
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 securities being issued pursuant to the Plan. Mr. Rainey is eligible to
participate in the Plan.
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 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
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respect to any criminal action or proceeding, had no eason 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
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.
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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 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. Deferred Compensation Plan, as amended
April 20, 1998 (incorporated by reference from Exhibit 99.4 of
Registrant's Current Report on Form 8-K filed (File No.
333-50577) 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,
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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.
(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
Amendment No. 1 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 June 2, 1998
Steven J. Douglass and 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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EXHIBIT INDEX
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 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. Deferred Compensation Plan, as amended April
20, 1998 (incorporated by reference from Exhibit 99.4 of 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 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. 333-50671) 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 PostEffective Amendment No. 1 relating to
Registration Statement 333-25877 respecting the Payless ShoeSource, Inc. 1996
Stock Incentive 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
