As filed with the Securities and Exchange Commission on June 12,
1998
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
DUCKWALL-ALCO STORES, INC.
(Exact name of registrant as specified in its charter)
KANSAS 43-0201080
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
401 COTTAGE STREET, ABILENE, KANSAS 67410-0219
(Address of Principal Executive Offices) (Zip Code)
_________________________
DUCKWALL-ALCO STORES, INC.
INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
CHARLES E. BOGAN, ESQ., 401 COTTAGE STREET, ABILENE, KANSAS
67410-0219
(Name and address of agent for service)
(785) 263-3350
(Telephone number, including area code, of agent for service)
PLEASE SEND COPIES OF ALL CORRESPONDENCE TO:
RICHARD N. NIXON, ESQ.
STINSON, MAG & FIZZELL, P.C.
1201 WALNUT
KANSAS CITY, MISSOURI 64106
(816) 842-8600
______________________________
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
securities to be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
share/1/ price/1/
Common Stock,
$.0001 par
value 250,000/2/ $17.125 $4,281,250 $1,298
/1/ Pursuant to Rule 457(h) of the Securities Act of 1933, and
solely for the purpose of calculating the amount of the
registration fee, the proposed maximum offering price per
share and proposed maximum aggregate offering price is based
on the average of the bid and asked prices of the Common
Stock on June 9, 1998 in the over-the-counter market as
quoted on the National Association of Securities Dealers
Automated Quotation National Market System.
/2/ The provisions of Rule 416 shall apply to this registration
statement and the number of shares registered on this
registration statement automatically shall increase or
decrease as a result of stock splits, stock dividends or
similar transactions.
Pursuant to General Instruction E to Form S-8, the contents of
the Registrant's Registration Statement on Form S-8, File No.
33-91664, are hereby incorporated herein by reference.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with
the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") are incorporated herein
by reference: (i) the Registrant's Annual Report on Form 10-K for
the fiscal year ended February 1, 1998; and (ii) the description
of the Common Stock of the Registrant which is contained in the
Registrant's Registration Statement on Form 10 (File No. 0-20269),
including any amendments or reports filed for the purpose
of updating such description.
All documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters
all securities offered hereby remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof
from the date of the filing of such reports and documents, except
in no event shall any information included in any such document
in response to Item 402(i), (k) or (l) of Regulation S-K be
deemed to constitute part of this Registration Statement.
Any statement contained herein or in a document
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
in any subsequently filed document which is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Common Stock of the
Registrant registered pursuant to this Registration Statement
will be passed upon by Stinson, Mag & Fizzell, P.C., 1201 Walnut
Street, Kansas City, Missouri 64106. As of June 5, 1998,
attorneys of such law firm owned in the aggregate 2,000 shares of
Common Stock of the Registrant.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 17-6305 of the Kansas general corporation code
provides for indemnification by a corporation of its officers and
directors and certain other persons as follows:
(a) A corporation shall have power to indemnify any
person who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of
the corporation, by reason of the fact that such person is
or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or
proceeding, including attorney fees, if such person acted in
good faith and in a manner such person 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 reasonable cause to believe such person's
conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act
in good faith and in a manner which such person 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 reasonable cause to believe that such
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any
person who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person
is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise against expenses actually and reasonably
incurred by such person in connection with the defense or
settlement of such action or suit, including attorney fees,
if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the
extent that the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
court shall deem proper.
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
<PAGE>
referred to in subsections (a) and (b), or in defense of any
claim, issue or matter therein, such director, officer,
employee or agent shall be indemnified against expenses
actually and reasonably incurred by such person in
connection therewith, including attorney fees.
(d) Any indemnification under subsections (a) and (b),
unless ordered by a court, shall be made by the corporation
only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or
agent is proper in the circumstances because such director,
officer, employee or agent has met the applicable standard
of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by the board of directors by
a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred by a director or officer in
defending any civil or criminal action, suit or proceeding
may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director or officer
to repay such amount if it is ultimately determined that the
officer or director is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses
incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections
of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement
of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise,
both as to action in a person's official capacity and as to
action in another capacity while holding such office.
(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise
against any liability asserted against such person and
incurred by such person in any such capacity, or arising out
of such person's status as such, whether or not the
corporation would have the power to indemnify such person
against such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers and employees or agents, so that any person who is
or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer,
<PAGE>
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or
surviving corporation as such person would have with respect
to such constituent corporation if its separate existence
had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in
good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
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, executors and administrators of such a person.
Section 17-6002(b)(8) of the Kansas general corporation code
provides that a corporation's certificate of incorporation may
contain:
(8) A provision eliminating or limiting the
personal liability of a director to the corporation or
its stockholders, policyholders or members for monetary
damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or
limit the liability of a director (A) for any breach of
the director's duty of loyalty to the corporation or
its stockholders, policyholders or members, (B) for
acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(C) under the provisions of K.S.A. 17-6424 [relating to
unlawful dividend payments or stock redemptions or
repurchases] and amendments thereto or (D) for any
transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or
limit the liability of a director for any act or
omission occurring prior to the date when such
provision becomes effective. All references in this
subsection to a director shall also be deemed to refer
to a member of the governing body of a corporation
which is not authorized to issue capital stock.
Article NINTH of the Company's Amended and Restated Articles
of Incorporation provides:
<PAGE>
The corporation may agree to the terms and
conditions upon which any director, officer, employee
or agent accepts his office or position and in its
bylaws, by contract or in any other manner may agree to
indemnify and protect any director, officer, employee
or agent of the corporation, or any person who serves
at the request of the corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
to the fullest extent permitted by the laws of the
State of Kansas; provided, however, that the only
limitation upon the power granted to the corporation by
this paragraph shall be a prohibition against
indemnification of any person from or on account of
such person's conduct which was finally adjudged to
have been knowingly fraudulent, deliberately dishonest
or willful misconduct.
Without limiting the generality of the foregoing
provisions of this paragraph EIGHTH [sic], to the
fullest extent permitted or authorized by the laws of
the State of Kansas, including, without limitation, the
provisions of subsection (b)(8) of K.S.A. 17-6002 as
now in effect and as it may from time to time hereafter
be amended, no director of the corporation shall be
personally liable to the corporation or to its
stockholders for monetary damages for breach of
fiduciary duty as a director.
Bylaw 24 of the Company's Bylaws provides:
Each person who is or was a director or officer of
the corporation or is or was serving at the request of
the corporation as a director or officer of another
corporation (including the heirs, executors,
administrators and estate of such person) shall be
indemnified by the corporation as of right to the full
extent permitted or authorized by the laws of the State
of Kansas, as now in effect and as hereafter amended,
against any expenses, judgments, fines and amounts paid
in settlement (including attorneys' fees) actually and
reasonably incurred by such person in his capacity as
or arising out of his status as a director or officer
of the corporation or, if serving at the request of the
corporation, as a director or officer of another
corporation. The indemnification provided by this
bylaw provision shall not be exclusive of any other
rights to which those indemnified may be entitled under
the articles of incorporation, under any other bylaw or
under any agreement, vote of stockholders or
disinterested directors or otherwise, and shall not
limit in any way any right which the corporation may
have to make different or further indemnifications with
respect to the same or different persons or classes of
persons.
No person shall be liable to the corporation for
any loss, damage, liability or expense suffered by it
on account of any action taken or omitted to be taken
by him as a director or officer of the corporation or
of any other corporation which he serves as a director
or officer at the request of the corporation, if such
person <PAGE> (i) exercised the same degree of care and skill
as a prudent man would have exercised under the
circumstances in the conduct of his own affairs, or
(ii) took or omitted to take such action in reliance
upon advice of counsel for the corporation, or for such
other corporation, or upon statements made or
information furnished by directors, officers, employees
or agents of the corporation, or of such other
corporation, which he had no reasonable grounds to
disbelieve.
For information regarding the Registrant's undertaking to
submit to adjudication the issue of indemnification for violation
of securities laws, see "Undertakings," Item 9 hereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of the exhibits included as part of this
Registration Statement is set forth in the Exhibit Index which
immediately precedes such exhibits and is incorporated by
reference herein.
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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment thereto) 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)(i) and (1)(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 <PAGE> Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(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 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,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant, 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 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 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 Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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
Abilene, State of Kansas, on May 21, 1998.
DUCKWALL-ALCO STORES, INC.
By: /s/ Glen L. Shank
Glen L. Shank
President and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby severally constitutes and appoints
Glen L. Shank, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement and all documents relating thereto, 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 necessary
or advisable to be done in and about the premises, as fully to all
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 or substitutes, lawfully may do or cause to be
done by 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 date indicated.
Signature and Title Date
/s/ Glen L. Shank May 21, 1998
Glen L. Shank
President, Chairman of the Board
and Director
(Principal Executive Officer)
/s/ Richard A. Mansfield May 21, 1998
Richard A. Mansfield
Vice President-Finance and Treasurer
(Principal Financial and Accounting Officer)
<PAGE>
/s/ Dennis A. Mullin May 21, 1998
Dennis A. Mullin
Director
/s/ Robert L. Barcum May 21, 1998
Robert L. Barcum
Director
/s/ William J. Morgan May 21, 1998
William J. Morgan
Director
/s/ Robert C. Amenta May 21, 1998
Robert C. Amenta
Director
/s/ Lolan C. Mackey May 21, 1998
Lolan C. Mackey
Director
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit No. Description Numbered Page
4(a) Specimen Common Stock Certificates (filed as
Exhibit 4.1 to Registrant's Registration
Statement on Form S-1 (File No. 33-78664) and
incorporated herein by reference). *
4(b) Reference is made to the Amended and Restated
Articles of Incorporation and Bylaws (filed as
Exhibit 3(a) and 3(c), respectively, to
Registrant's Registration Statement on Form 10
and hereby incorporated herein by reference). *
4(c) Reference is made to the Certificate of
Amendment to the Articles of Incorporation
(filed as Exhibit 3(b) to Registrant's Annual
Report on Form 10-K for the fiscal year ended
January 29, 1995, and incorporated herein by
reference). *
4(d) Form of 10% Subordinated Notes (filed as
Exhibit 4(c) to Registrant's Registration
Statement on Form 10 and hereby incorporated
herein by reference). *
4(e) Duckwall-ALCO Stores, Inc. Incentive Stock
Option Plan. __
4(f) Form of Duckwall-ALCO Stores, Inc. Incentive
Stock Option Agreement (filed as Exhibit 4.8.1
to the Registrant's Registration Statement on
Form S-8 (File No. 33-91664) and hereby
incorporated herein by reference). *
5(a) Opinion of Stinson, Mag & Fizzell, P.C.,
counsel for the Registrant, with respect to the
legality of the Registrant's Common Stock being
registered hereby. __
23(a) Consent of independent auditors. __
24(b) Consent of Stinson, Mag & Fizzell, P.C. the
Registrant's counsel (contained in the Opinion of
Counsel filed herewith as Exhibit 5).
24 Power of Attorney (included on signature page
hereto).
________________________
* Incorporated herein by reference.
Duckwall-ALCO Stores, Inc.
AMENDED AND RESTATED
INCENTIVE STOCK OPTION PLAN
June 5, 1998
This Amended and Restated Incentive Stock Option Plan
is adopted as an amendment and restatement of the previous
undated Incentive Stock Option Plan. The previous plan is hereby
revoked and replaced by this plan.
Duckwall-ALCO Stores, Inc., a corporation organized and
existing under the laws of the State of Kansas (the "Company"),
hereby formulates and adopts, subject to the approval of the
holders of a majority of the issued and outstanding shares of
common stock of the Company ("Duckwall-ALCO Common Stock") voting
in person or by proxy at a duly constituted meeting of the
stockholders of the Company, an incentive stock option plan for
key employees of the Company and its subsidiaries as follows:
1. Purpose of Plan. The purpose of this Incentive Stock
Option Plan (the "Plan") is to encourage the key employees of the
Company and its subsidiaries to participate in the ownership of
the Company, and to provide additional incentive for such
employees to promote the success of its business through sharing
in the future growth of such business.
2. Effectiveness of Plan. The provisions of this Plan shall
become effective on the date the Plan is adopted by the Board of
Directors of the Company (the "Board of Directors"), subject to
the requirement that the Plan be approved by the holders of a
majority of the shares of Duckwall-ALCO Common Stock voting in
person or by proxy at a duly constituted meeting of the
stockholders of the Company to be held within 12 months after the
date on which the Plan is adopted.
3. Administration. This Plan shall be administered by a stock
option committee ("Compensation Committee") which shall be
selected by the Board of Directors and which shall be composed of
not less than two (2) nor more than five (5) members of the Board
of Directors who are not employees and who qualify as
disinterested persons within the meaning of Securities and
Exchange Commission Rule 16b-3. The Compensation Committee shall
have full power and authority to construe, interpret and
administer the Plan, and may from time to time adopt such rules
and regulations for carrying out this Plan as it may deem proper
and in the best interests of the Company. Subject to the terms,
provisions and conditions of the Plan, the Compensation Committee
shall have exclusive authority (i) to select key employees to
whom options shall be granted (ii) to determine the number of
shares subject to each option, (iii) to determine the time or
times when options will be granted, (iv) to determine the option
price of the shares subject to each option, (v) to determine the
time when each option may be exercised, (vi) to fix such other
provisions of each option agreement as the Compensation Committee
may deem necessary or desirable, consistent with the terms of
this Plan, and (vii) to determine all other questions relating <PAGE> to
the administration of this Plan. The interpretation and
construction of this Plan by the Compensation Committee shall be
final, conclusive and binding upon all persons.
4. Eligibility.
a. Key employees--Options to purchase shares of
Duckwall-ALCO Common Stock shall be granted under this Plan only
to key employees of the Company or of any of its subsidiary
corporations, as that term is defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended (the "Code"). Key
employees to whom options may be granted under this Plan will be
those employees selected by the Compensation Committee from time
to time who, in the sole discretion of the Compensation
Committee, have made material contributions in the past, or who
are expected to make material contributions in the future, to the
successful performance of the Company.
b. Stock ownership limitation--No option shall be
granted under this Plan to any employee of the Company or of a
subsidiary corporation who, immediately before the option is
granted, owns (either directly or by application of the rules
contained in Section 424(d) of the Code) stock possessing more
than 10 percent of the total combined voting power of all classes
of stock of the Company or of any of its subsidiary corporations
unless at the time of such grant the option price is fixed at not
less than 110 percent of the fair market value of the stock
subject to the option, and the exercise of such option is
prohibited by its terms after the expiration of five (5) years
from the date such option is granted.
5. Shares Subject to the Plan. Options granted under this
Plan shall be granted solely with respect to shares of Duckwall-
ALCO Common Stock. Subject to any adjustments made pursuant to
the provisions of Section 13, the aggregate number of shares of
Duckwall-ALCO Common Stock which may be issued upon exercise of
the options which will be granted under this Plan shall not
exceed 450,000.
If any option granted under this Plan shall expire or
terminate for any reason without having been exercised in full,
the unpurchased shares subject to such option shall be added to
the number of shares otherwise available for options which may be
granted in accordance with the terms of this Plan.
The shares to be delivered upon exercise of the options
granted under this Plan shall be made available, at the
discretion of the Board of Directors, from either the authorized
but unissued shares of Duckwall-ALCO Common Stock or any treasury
shares of Duckwall-ALCO Common Stock held by the Company.
6. Option Agreement. Each option granted under this Plan
shall be evidenced by an incentive stock option agreement, which
shall be signed by an officer of the Company and by the employee
to whom the option is granted (the "optionee"). The terms of
said incentive stock option agreement shall be in accordance with
the provisions of this Plan, but it may include such <PAGE> other
provisions as may be approved by the Compensation Committee. The
granting of an option under this Plan shall be deemed to occur on
the date on which the option grant is authorized by the
Compensation Committee. Each incentive stock option agreement
shall constitute a binding contract between the Company and the
optionee, and every optionee, upon the execution of an incentive
stock option agreement, shall be bound by the terms and
restrictions of this Plan and such incentive stock option
agreement.
7. Option Price. The price at which shares of Duckwall-ALCO
Common Stock may be purchased under an option granted pursuant to
this Plan shall be determined by the Compensation Committee, but
in no event shall the price be less than the greater of (a) the
par value thereof, or (b) 100 percent of the fair market value of
such shares on the date that the option is granted. If such
shares are then listed on any national securities exchange, the
fair market value shall be the mean between the high and low
sales prices, if any, on the largest such exchange on the date of
the grant of the option, or, if none, shall be determined by
taking a weighted average of the means between the highest and
lowest sales on the nearest date before and the nearest date
after the date of grant in accordance with Treasury Regulations
Section 25.2512-2. If the shares are not then listed on any such
exchange, the fair market value of such shares shall be the mean
between the closing "Bid" and the closing "Ask" prices, if any,
as reported in the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") for the date of the grant
of the option, or, if none, shall be determined by taking a
weighted average of the means between the highest and lowest
sales on the nearest date before and the nearest date after the
date of grant in accordance with Treasury Regulations Section
25.2512-2. If the shares are not then either listed on any such
exchange or quoted in NASDAQ, the fair market value shall be the
mean between the average of the "Bid" and the average of the
"Ask" prices, if any, as reported in the National Daily Quotation
Service for the date of the grant of the average of the means
between the highest and lowest sales on the nearest date before
and the nearest date after the date of grant in accordance with
Treasury Regulations Section 25.2512-2. If the fair market value
cannot be determined under the preceding three sentences, it
shall be determined in good faith by the Compensation Committee.
8. Period and Exercise of Option:
a. Period--Subject to the provisions of Sections 10
and 11 hereof with respect to the death or termination of
employment of an optionee, the period during which each option
granted under this Plan may be exercised shall be fixed by the
Compensation Committee at the time such option is granted,
provided that such period shall expire no later than five (5)
years from the date on which the option is granted. In the event
the Company shall not be the surviving corporation in any merger,
consolidation, or reorganization, or in the event of acquisition
by another corporation of all or substantially all of the assets
of the Company, every option outstanding hereunder may be assumed
(with appropriate changes) by the surviving, continuing,
successor or purchasing corporation, as the case may be, subject
to any applicable provisions of the Code or replaced with new
options of comparable value (in accordance with Section 424(a) of
the Code). In the event (i) that such surviving, continuing,
successor or purchasing corporation, <PAGE> as the case may be, does not
assume or replace the outstanding options hereunder, or (ii) of
liquidation or dissolution of the Company, the Compensation
Committee may provide that each optionee shall have the right,
within a period commencing not more than 30 days immediately
prior to and ending on the day immediately prior to such merger,
consolidation, reorganization or acquisition by another
corporation of all or substantially all of the assets of the
Company or the liquidation or dissolution of the Company, to
exercise the optionee's outstanding options to the extent of all
or any part of the aggregate number of shares subject to such
option(s). In the event of a "Change of Control" (as defined
below) the Compensation Committee may accelerate the time at
which options granted under this Plan may be exercised by the
optionee. For purposes of this paragraph (a) "Change of Control"
shall mean a change in control of a nature that would be required
to be reported in response to item 5(f) of Schedule 14A of
Regulation 14A (in effect on the date hereof) promulgated under
the Securities Exchange Act of 1934, as in effect on the date
hereof; provided, however, that, without limitation, such a
Change of Control shall be deemed to occur when either (i) a
person (other than a current stockholder, or a director nominated
or selected by the Board of Directors of the Company or an
officer elected by the Board of Directors of the Company)
acquires beneficial ownership (as defined by Securities and
Exchange Commission Rule 13d-3) of 33 percent or more of the
combined voting power of the Company's voting securities, or
(ii) less than a majority of the directors are persons who were
either nominated or selected by the Board of Directors.
b. Exercise--Any option granted under this Plan may
be exercised by the optionee (or by the purchaser acting under
Section 11 below) only by (i) delivering to the Company written
notice of the number of shares with respect to which the optionee
is exercising his or her option right, (ii) paying in full the
option price of the purchased shares, and (iii) if the shares to
be purchased have not been registered under the applicable
securities laws and if necessary, in the opinion of counsel for
the Company to secure an exemption from such registration,
furnishing to the Company such representation or agreement in
writing signed by the optionee (or purchaser) as shall be
necessary in the opinion of such counsel to secure such
exemption. Subject to the limitations of this Plan and the terms
and conditions of the respective incentive stock option
agreement, each option granted under this Plan shall be
exercisable in whole or in part at such time or times as the
Compensation Committee may specify in such incentive stock option
agreement.
c. Payment for shares--Payment for shares of
Duckwall-ALCO Common Stock purchased pursuant to an option
granted under this Plan may be made either in cash or in other
shares of Duckwall-ALCO Common Stock.
d. Delivery of certificates--As soon as practicable
after receipt by the Company of the notice and representation
described in subsection (b), and of payment in full of the option
price for all of the shares being purchased pursuant to an option
granted under this Plan, a certificate or certificates
representing such shares of stock shall be registered in the name
of the optionee and shall be delivered to the optionee. However,
no certificate for fractional shares of stock shall be issued by
the Company notwithstanding any request therefor. Neither any
<PAGE>
optionee, nor the legal representative, legatee or distributee of
any optionee, shall be deemed to be a holder of any shares of
stock subject to an option granted under this Plan unless and
until the certificate or certificates for such shares have been
issued. All stock certificates issued upon the exercise of any
options granted pursuant to this Plan may bear such legend as the
Compensation Committee shall deem appropriate regarding
restrictions upon the transfer or sale of the shares evidenced
thereby.
e. Limitations on exercise--Except as provided in
Sections 10 and 11 hereof, no option granted under this Plan
shall be exercised unless the optionee is at the time of such
exercise employed by the Company or one of its subsidiary
corporations and shall have been so employed by the Company or
one of its subsidiary corporations at all times since the date on
which such option was granted.
9. Limitation on Options Granted to Individual Employees. The
aggregate fair market value (determined at the time the options
are granted) of stock with respect to which incentive stock
options are exercisable for the first time by any individual
during any calendar year under this Plan (and under any other
plan or plans of such individual's employer corporation and any
parent or subsidiary corporation or corporations) shall not
exceed $100,000. The limitation provided by the preceding
sentence shall be applied by taking options into account in the
order in which they are granted.
10. Termination of Employment. If an optionee shall cease to
be employed by the Company or any of its subsidiary corporations
for any reason other than death, any option or unexercised
portion thereof granted to him under this Plan which is otherwise
exercisable shall terminate unless it is exercised within thirty
(30) days of the date on which such optionee ceases to be so
employed, and in any event no later than the expiration date of
such option as specified in the respective incentive stock option
agreement. Nothing in this Plan or in any incentive stock option
agreement shall be construed as an obligation on the part of the
Company or any of its subsidiary corporations to continue the
employment of any employee.
11. Death of Optionee. In the event of the death of an
optionee while he is an employee of the Company or any of its
subsidiary corporations (or within thirty (30) days of the date
on which such optionee ceases to be so employed) any option or
unexercised portion thereof granted to him under this Plan which
is otherwise exercisable may be exercised by the person or
persons to whom such optionee's rights under the option pass by
operation of the optionee's will or the laws of descent and
distribution, at any time within a period of twelve (12) months
following the death of the optionee (but in no event later than
the expiration date of the option as specified in the respective
incentive stock option agreement).
12. Nontransferability of Options. Each option granted under
this Plan shall not be transferable or assignable by the optionee
other than by will or the laws of descent and distribution, and
during the lifetime of the optionee may be exercised only by said
optionee.
<PAGE>
13. Adjustment upon Changes in Capitalization. In the event of
any change in the capital structure of the Company, including but
not limited to a change resulting from a stock dividend, stock
split, reorganization, merger, consolidation, liquidation or any
combination or exchange of shares, the number of shares of
Duckwall-ALCO Common Stock subject to this Plan and the number of
such shares subject to each option granted hereunder shall be
correspondingly adjusted by the Compensation Committee. The
option price for which shares of Duckwall-ALCO Common Stock may
be purchased pursuant to an option granted under this Plan shall
also be adjusted so that there will be no change in the aggregate
purchase price payable upon the exercise of any option.
14. Amendment and Termination of Plan. No option shall be
granted pursuant to this Plan after May 18, 2003, on which date
this Plan will expire except as to options then outstanding under
the Plan, which options shall remain in effect until they have
been exercised or have expired. The Board of Directors may at
any time before such date amend, modify or terminate the Plan;
provided, however, that the Board of Directors may not, without
further approval of the holders of a majority of the issued and
outstanding shares of Duckwall-ALCO Common Stock voting in person
or by proxy at a duly constituted meeting of the stockholders of
the Company, (i) increase the maximum number of shares of
Duckwall-ALCO Common Stock as to which options may be granted
pursuant to this Plan, (ii) change the class of employees
eligible to be granted options pursuant to the Plan, (iii) extend
the period under this Plan during which options may be granted or
exercised, or (iv) change the provisions of Section 7 hereof with
respect to the determination of the option price, other than to
change the manner of determining the fair market value of shares
of Duckwall-ALCO Common Stock to conform with any then applicable
provisions of the Internal Revenue Code or the regulations issued
thereunder. No amendment, modification or termination of this
Plan may adversely affect the rights of any optionee under any
then outstanding option granted hereunder without the consent of
such optionee.
15. No Special Employment Rights. Nothing contained in the
Plan or in any option granted under the Plan shall confer upon
any option holder any right with respect to the continuation of
his or her employment by the Company (or any subsidiary) or
interfere in any way with the right of the Company (or any
subsidiary), subject to the terms of any separate employment
agreement to the contrary, at any time to terminate such
employment or to increase or decrease the compensation of the
option holder from the rate in existence at the time of the grant
of an option. Whether an authorized leave of absence, or absence
in military or government service, shall constitute termination
of employment shall be determined by the Board of Directors at
the time.
16. Governing Law. This Plan and the rights of all persons
claiming hereunder shall be construed and determined in
accordance with the laws of the State of Kansas.
June 12, 1998
Duckwall-ALCO Stores, Inc.
401 Cottage Avenue
Abilene, Kansas 67410-2832
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") of Duckwall-ALCO Stores, Inc., a Kansas
corporation (the "Company"), to be filed with the Securities and
Exchange Commission on June 12, 1998 for the purpose of
registering under the Securities Act of 1933, as amended, 250,000
shares of Common Stock, par value $.0001 per share ("Common
Stock"), of the Company. These shares of Common Stock are
proposed to be issued pursuant to the Duckwall-ALCO Stores, Inc.
Incentive Stock Option Plan (the "Plan").
We have examined the Company's Restated Certificate of
Incorporation and all amendments thereto, the Bylaws of the
Company, as presently in effect, minutes of the applicable
meetings of the Board of Directors, Compensation Committee of the
Board of Directors and stockholders of the Company, together with
such other corporate records, certificates of public officials
and other documents as we have deemed relevant to this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Kansas.
2. All necessary corporate action has been taken to
authorize the issuance of the aforesaid 250,000 shares of
Common Stock, and all such shares of Common Stock as shall
be issued and paid for as described in the Plan shall be,
when so issued, legally issued, fully paid and
nonassessable.
<PAGE>
We hereby consent to the reference to our firm under
the heading "Interests of Named Experts and Counsel" in the
Registration Statement. We also consent to the inclusion of this
opinion in the Registration Statement as an exhibit thereto.
Very truly yours,
STINSON, MAG & FIZZELL, P.C.
By: /s/ Richard N. Nixon
Richard N. Nixon
RNN/lkf
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Duckwall-ALCO Stores, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 of Duckwall-ALCO Stores, Inc. of our report
dated March 20, 1998, relating to the consolidated balance sheets
of Duckwall-ALCO Stores, Inc. and subsidiary as of February 1,
1998 and February 23, 1997, and the related consolidated
statements of operations, stockholders' equity and cash flows for
each of the years in the three-year period ended February 1,
1998, which report appears in the February 1, 1998 annual report
on Form 10-K of Duckwall-ALCO Stores, Inc.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Wichita, Kansas
May 28, 1998
