As filed with the Securities and Exchange Commission on August 13, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
Registration Statement Under the Securities Act of 1933
Stage Stores, Inc.
(Exact name of registrant as specified in its charter)
Delaware 76-0407711
(State of or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10201 Main Street
Houston, TX 77002
Telephone: (713) 667-5601
(Address of Principal Executive Offices) (zip code)
Amended and Restated 1996 Equity Incentive Plan
(Full title of plans)
Mr. Carl Tooker
Stage Stores, Inc.
10201 Main Street
Houston, Texas 77002
(Name and address of agent for service)
(713) 667-5601
(Telephone number, including area code, of agent for service)
Copy to:
Lance C. Balk
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022-4675
Calculation of Registration Fee
Title of Amount to Proposed Proposed Amount of
securities be maximum maximum Registrati
to be registered price per aggregate on Fee
registered (1) share(2) offering
price(2)
Common stock
par value $.01
per share 2,000,000 $6.125 $12,250,000 $3,405.50
(1) This registration statement also relates to such additional
securities as may be offered or issued under the Amended and
Restated 1996 Equity Incentive Plan to prevent dilution
resulting from stock splits, stock dividends or similar
transactions.
(2) Estimated solely for purposes of calculating the
Registration Fee based, pursuant to Rules 457(c) and
457(h)(1) under the Securities Act, on the average of the
high and low prices of the Common Stock as of August 9,
1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 (the
"Securities Act") and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of certain documents by reference.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) Stage Stores, Inc.'s (the "Registrant") Annual Report on
Form 10-K for the fiscal year ended January 30, 1999 and
Quarterly Report on Form 10-Q for the fiscal quarter ended May 1,
1999.
(b) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form S-1 (the "Form
S-1"), as amended, originally filed on June 12, 1996 (File No. 33-
5855) under the caption "Description of Capital Stock."
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this Registration Statement, but
prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which
deregisters all securities then 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as
amended (the "Delaware Act") permits indemnification of the
directors and officers of Stage Stores, Inc. ("Stage Stores")
involved in a civil or criminal action, suit or proceeding,
including, under certain circumstances, suits by or in the right
of Stage Stores, for any expenses, including attorneys' fees, and
(except in the case of suits by or in the right of Stage Stores)
any liabilities which they may have incurred in consequence of
such action, suit or proceeding under the conditions stated in
said Section.
Article IX of Stage Stores' Restated Certificate of
Incorporation provides, in substance, for indemnification by
Stage Stores of its directors and officers in accordance with the
provisions of the Delaware Act.
In addition, Stage Stores has purchased insurance coverage
under policies which insure Stage Stores for amounts which Stage
Stores is required or permitted to pay as indemnification of
directors and certain officers of Stage Stores and its
subsidiaries, and which insure directors and certain officers of
Stage Stores and its subsidiaries against certain liabilities
which might be incurred by them in such capacities and for which
they are not entitled to indemnification by Stage Stores.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index that immediately
precedes the exhibits filed with this Registration Statement.
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 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 the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the
Registration Statement is on Form S-3 or Form S-8 and 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 Exchange Act that are incorporated by
reference in this 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 further undertakes
that, for the 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 any
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
herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as the indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, 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 express 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Houston, State of Texas, on August 12, 1999.
STAGE STORES, INC.
By: /s/ Carl Tooker
Carl Tooker
Chairman, Chief Executive Officer
and President (principle executive officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Carl
Tooker and James Marcum his true and lawful attorney-in-fact and
agent, with full power of substitution and revocation, 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 to file the same with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorney-in-fact and agent, full power and authority to do and
perform such, each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as
such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act this
Registration Statement and the foregoing Power of Attorney have
been signed by the following persons in the capacities and on the
date indicated.
Signature Capacity Date
/s/ Carl Tooker Chairman, Chief Executive August 12, 1999
Carl Tooker Officer and President
(principle executive officer)
/s/ James Marcum Vice Chairman and Chief August 12, 1999
James Marcum Financial Officer (principal
financial and accounting
officer)
/s/ Harold Compton Director August 12, 1999
Harold Compton
/s/ Robert Huth Director August 12, 1999
Robert Huth
/s/ Richard Jolosky Director August 12, 1999
Richard Jolosky
/s/ Jack Bush Director August 12, 1999
Jack Bush
/s/ David Thomas Director August 12, 1999
David Thomas
/s/ John Wiesner Director August 12, 1999
John Wiesner
INDEX TO EXHIBITS
Exhibit No. Description
*4.1 Amended and Restated Certificate of
Incorporation, as amended, of the Registrant.
Incorporated by reference to Exhibit 3.1 of
Registration No. 333-5855 on Form S-1.
*4.2 By-laws of Registrant, as amended to date.
Incorporated by reference to Exhibit 3.2 of
Registration No. 333-5855 on Form S-1.
**4.3 Amended and Restated 1996 Equity Incentive Plan.
**5.1 Opinion and consent of Kirkland & Ellis, special
counsel to the Registrant.
**23.1 Consent of PricewaterhouseCoopers LLP.
**23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1).
* Previously Filed
** Filed Herewith
EXHIBIT 4.3
STAGE STORES, INC.
AMENDED AND RESTATED 1996 EQUITY INCENTIVE PLAN
1. Purpose. The purpose of the Stage Stores, Inc. Amended
and Restated 1996 Equity Incentive Plan (the "Plan") is to
advance the interests of Stage Stores, Inc., a Delaware
corporation (the "Company"), and its stockholders by providing
incentives to certain key employees of the Company and its
subsidiaries who contribute significantly to the strategic and
long-term performance objectives and growth of the Company.
2. Administration. The Plan shall be administered solely
by the Board of Directors (the "Board") or the Compensation
Committee (the "Committee") of the Board, which Committee shall
be comprised solely of two or more Outside Directors who shall
administer the Plan. The term "Outside Director" shall mean a
director who, within the meaning of Treasury Department
regulation 1.162-27(e)(3), (1) is not a current employee of the
Company, (2) is not a former employee of the Company who receives
compensation for prior services (other than benefits under a
tax-qualified retirement plan) during the taxable year with
respect to which the director's status is being determined, (3)
has not been an officer of the Company or (4) does not receive
remuneration from the Company, either directly or indirectly, in
any capacity other than as a director. References to the
Committee hereunder shall include the Board where appropriate.
The membership of the Committee or such successor committee shall
be constituted so as to comply at all times with the applicable
requirements of Rule 16b-3. No member of the Committee shall
have within one year prior to his appointment received awards
under the Plan ("Awards") or under any other plan, program or
arrangement of the Company or any of its affiliates if such
receipt would cause such member to cease to be a "disinterested
person" under Rule 16b-3; provided that if at any time (i) Rule
16b-3 so permits without adversely affecting the ability of the
Plan to comply with the conditions for exemption from Section 16
of the Exchange Act (or any successor provision) provided by Rule
16b-3 and (ii) Treasury Department regulation 1.162-27 so
permits without adversely affecting the ability of Awards under
the Plan to qualify as "performance-based" within the meaning of
such regulation, one or more members of the Committee may cease
to be a "disinterested person." For purposes of the remainder of
the Plan, reference to the "Committee" shall include the Board to
the extent that the Board has not designated a committee to
administer the Plan.
The Committee has all the powers vested in it by the terms
of the Plan set forth herein, such powers to include exclusive
authority (except as may be delegated as permitted herein) to
select the key employees and other key individuals to be granted
Awards under the Plan, to determine the type, size and terms of
the Award to be made to each individual selected, to modify the
terms of any Award that has been granted, to determine the time
when Awards will be granted, to establish performance objectives,
to make any adjustments necessary or desirable as a result of the
granting of Awards to eligible individuals located outside the
United States and to prescribe the form of the instruments
embodying Awards made under the Plan. The Committee is
authorized to interpret the Plan and the Awards granted under the
Plan, to establish, amend and rescind any rules and regulations
relating to the Plan, and to make any other determinations which
it deems necessary or desirable for the administration of the
Plan. The Committee (or its delegate as permitted herein) may
correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Award in the manner and to
the extent the Committee deems necessary or desirable to carry it
into effect. Any decision of the Committee (or its delegate as
permitted herein) in the interpretation and administration of the
Plan, as described herein, shall lie within its sole and absolute
discretion and shall be final, conclusive and binding on all
parties concerned. The Committee may act only by a majority of
its members in office, except that the members thereof may
authorize any one or more of their members or any officer of the
Company to execute and deliver documents or to take any other
ministerial action on behalf of the Committee with respect to
Awards made or to be made to Plan participants. No member of the
Committee and no officer of the Company shall be liable for
anything done or omitted to be done by him, by any other member
of the Committee or by any officer of the Company in connection
with the performance of duties under the Plan, except for his own
willful misconduct or as expressly provided by statute.
Determinations to be made by the Committee under the Plan may be
made by its delegates.
3. Participation. Consistent with the purposes of the
Plan, the Committee shall have exclusive power (except as may be
delegated as permitted herein) to select the key employees of the
Company and its subsidiaries who may participate in the Plan and
be granted Awards under the Plan. Eligible individuals may be
selected individually or by groups or categories, as determined
by the Committee in its discretion.
4. Awards under the Plan.
(a) Types of Awards. Awards under the Plan may
include, but need not be limited to, one or more of the
following types, either alone or in any combination thereof:
(i) "Stock Options," (ii) "Stock Appreciation Rights," or
(iii) "Restricted Stock" (including, but not limited to,
Awards of, or options or similar rights granted with respect
to, unbundled stock units or components thereof, and Awards
made to participants who are foreign nationals or are
employed or performing services outside the United States).
Stock Options, which include "Nonqualified Stock Options"
and "Incentive Stock Options" or combinations thereof, are
rights to purchase common shares of the Company having a par
value of $.01 per share and stock of any other class into
which such shares may thereafter be changed (the "Common
Shares"). Nonqualified Stock Options and Incentive Stock
Options are subject to the terms, conditions and
restrictions specified in Paragraph 5. Stock Appreciation
Rights are rights to receive (without payment to the
Company) cash, Common Shares, other Company securities
(which may include, but need not be limited to, unbundled
stock units or components thereof, debentures, preferred
stock, warrants, securities convertible into Common Shares
or other property ("Other Company Securities")) or property,
or other forms of payment, or any combination thereof, as
determined by the Committee, based on the increase in the
value of the number of Common Shares specified in the Stock
Appreciation Right. Stock Appreciation Rights are subject
to the terms, conditions and restrictions specified in
Paragraph 6. Shares of Restricted Stock are Common Shares
which are issued subject to certain restrictions pursuant to
Paragraph 7.
(b) Maximum Number of Shares that May be Issued.
There may be issued under the Plan (as Restricted Stock,
pursuant to the exercise of Stock Options or Stock
Appreciation Rights, or in payment of or pursuant to the
exercise of such other Awards as the Committee, in its
discretion, may determine) an aggregate of not more than
3,500,000 Common Shares, subject to adjustment as provided
in Paragraph 13. Irrespective of the aggregate number of
shares authorized herein, each participant in the Plan shall
be entitled to receive grants of Stock Options and Stock
Appreciation Rights with respect to no more than 400,000
Common Shares in any calendar year. Common Shares issued
pursuant to the Plan may be either authorized but unissued
shares, treasury shares, reacquired shares, or any
combination thereof. If any Common Shares issued as
Restricted Stock or otherwise subject to repurchase or
forfeiture rights are reacquired by the Company pursuant to
such rights, or if any Award is cancelled, terminates or
expires unexercised, any Common Shares that would otherwise
have been issuable pursuant thereto will be available for
issuance under new Awards.
(c) Rights with respect to Common Shares and Other
Securities.
(i) Unless otherwise determined by the Committee
in its discretion, a participant to whom an Award of
Restricted Stock has been made (and any person
succeeding to such participant's rights in accordance
with the Plan) shall have, after issuance of a
certificate for the number of Common Shares awarded and
prior to the expiration of the Restricted Period (as
hereinafter defined) or the earlier repurchase of such
Common Shares as herein provided, ownership of such
Common Shares, including the right to vote the same and
to receive dividends or other distributions made or
paid with respect to such Common Shares (provided that
such Common Shares, and any new, additional or
different shares, or Other Company Securities or
property, or other forms of consideration which the
participant may be entitled to receive with respect to
such Common Shares as a result of a stock split, stock
dividend or any other change in the corporation or
capital structure of the Company, shall be subject to
the restrictions hereinafter described as determined by
the Committee in its discretion), subject, however, to
the options, restrictions and limitations imposed
thereon pursuant to the Plan. Notwithstanding the
foregoing, a participant with whom an Award agreement
is made to issue Common Shares in the future, shall
have no rights as a stockholder with respect to Common
Shares related to such agreement until issuance of a
certificate to him.
(ii) Unless otherwise determined by the Committee
in its discretion, a participant to whom a grant of
Stock Options or Stock Appreciation Rights is made (and
any person succeeding to such a participant's rights
pursuant to the Plan) shall have no rights as a
stockholder with respect to any Common Shares or as a
holder with respect to other securities, if any,
issuable pursuant to any such Award until the date of
the issuance of a stock certificate to him for such
Common Shares or other instrument of ownership, if any.
Except as provided in Paragraph 13, no adjustment shall
be made for dividends, distributions or other rights
(whether ordinary or extraordinary, and whether in
cash, securities, other property or other forms of
consideration, or any combination thereof) for which
the record date is prior to the date such stock
certificate or other instrument of ownership, if any,
is issued.
(iii) Any participant who is directly or
indirectly the beneficial owner of more than 10 per
centum of any class of any equity security which is
registered pursuant to Section 12 of the Exchange Act,
or who is an officer of the Company, shall hold his
Restricted Stock, if any, for at least six months from
the date of grant and any other Award received by him
for at least six months from the date of acquisition of
the Award before disposition of the Award or its
underlying Common Stock.
(d) Vesting. Rights acquired pursuant to an Award may
be subject to vesting as determined by the Committee in its
sole discretion.
(e) Frequency of Grants. The Committee in its
discretion, shall set the frequency of grants.
(f) Securities and Tax Law Compliance.
(i) Unless otherwise determined by the Committee
in its discretion, no Awards shall be granted unless
counsel for the Company shall be satisfied that such
issuance will qualify as performance-based compensation
for purposes of Section 162(m) of the Internal Revenue
Code of 1986, as amended, or any successor statutory
provision thereto (the "Code") and that such issuance
will be in compliance with the Code and regulations
issued thereunder.
(ii) No Common Shares, Other Company Securities
or property, other securities or property, or other
forms of payment shall be issued hereunder with respect
to any Award unless counsel for the Company shall be
satisfied that such issuance will be in compliance with
applicable federal, state, local and foreign legal,
securities exchange and other applicable requirements.
5. Stock Options. The Committee may grant or sell Stock
Options either alone, or in conjunction with Stock Appreciation
Rights, either at the time of grant or by amendment thereafter;
provided that an Incentive Stock Option may be granted only to an
eligible employee of the Company or any parent or subsidiary
corporation. Each Stock Option (referred to herein as an
"Option") granted or sold under the Plan shall be evidenced by an
instrument in such form as the Committee shall prescribe from
time to time in accordance with the Plan and shall comply with
the following terms and conditions, and with such other terms and
conditions, including, but not limited to, restrictions upon the
Option or the Common Shares issuable upon exercise thereof, as
the Committee, in its discretion, shall establish:
(a) The option price shall be at least the fair market
value of the Common Shares subject to such Option at the
time the Option is granted.
(b) The Committee shall determine the number of Common
Shares to be subject to each Option. The number of Common
Shares subject to an outstanding Option may be reduced on a
share-for-share or other appropriate basis, as determined by
the Committee, to the extent that Common Shares under such
Option are used to calculate the cash, Common Shares, Other
Company Securities or property, or other forms of payment,
or any combination thereof, received pursuant to exercise of
a Stock Appreciation Right attached to such Option.
(c) Unless the Committee determines otherwise, the
Option may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the
laws of descent and distribution, and shall be exercisable
during the grantee's lifetime only by him. Unless the
Committee determines otherwise, the Option shall not be
exercisable for at least six months after the date of grant,
unless the grantee ceases employment before the expiration
of such six-month period by reason of his disability as
defined in Paragraph 11 or his death.
(d) The Option shall not be exercisable:
(i) after the tenth anniversary of the date it is
granted. Any Option may be exercised during such
period only as set forth under Paragraph 4(d) or at
such time or times and in such installments as the
Committee may establish in its grant of the Option;
(ii) unless payment in full is made for the
shares being acquired thereunder at the time of
exercise; such payment shall be made in such form
(including, but not limited to, cash, Common Shares
held for at least six months, or a combination thereof)
as the Committee may determine in its discretion; and
(iii) unless the person exercising the Option has
been, at all times during the period beginning with the
date of the grant of the Option and ending on the date
of such exercise, employed by the Company, or a parent
or subsidiary of the Company, or a corporation
substituting or assuming the Option in a transaction to
which Section 424(a) of the Code, is applicable, except
that:
(A) if such person shall cease such
employment by reason of his disability as defined
in Paragraph 11 or early, normal or deferred
retirement under an approved retirement program of
the Company (or such other plan or arrangement as
may be approved by the Committee, in its
discretion, for this purpose) while holding an
Option which has not expired and has not been
fully exercised, such person, at any time within
one year (or such period determined by the
Committee) after the date he ceased such
employment (but in no event after the Option has
expired), may exercise the Option with respect to
any shares as to which he could have exercised the
Option on the date he ceased such employment or
with respect to such greater number of shares as
determined by the Committee;
(B) if any person to whom an Option has been
granted shall die holding an Option which has not
expired and has not been fully exercised, his
executors, administrators, heirs or distributees,
as the case may be, may, at any time within one
year (or such other period determined by the
Committee) after the date of death (but in no
event after the Option has expired), exercise the
Option with respect to any shares as to which the
decedent could have exercised the Option at the
time of his death, or with respect to such greater
number of shares as determined by the Committee;
or
(C) if such person shall cease employment
with the Company while holding an Option which has
not expired and has not been fully exercised, the
Committee may determine to allow such person at
any time within the one year (or three months in
the case of an Incentive Stock Option) or such
other period determined by the Committee after the
date he ceased such employment (but in no event
after the Option has expired), to exercise the
Option with respect to any shares as to which he
could have exercised the Option on the date he
ceased such employment or with respect to such
greater number of shares as determined by the
Committee.
(e) In the case of an Incentive Stock Option, the
amount of the aggregate fair market value of Common Shares
(determined at the time of grant of the Option pursuant to
subparagraph 5(a) of the Plan) with respect to which
incentive stock options are exercisable for the first time
by an employee during any calendar year (under all such
plans of his employer corporation and its parent and
subsidiary corporations) shall not exceed $100,000.
(f) It is the intent of the Company that Nonqualified
Stock Options granted under the Plan not be classified as
Incentive Stock Options, that the Incentive Stock Options
granted under the Plan be consistent with and contain or be
deemed to contain all provisions required under Section 422
(and the other appropriate provisions) of the Code and any
implementing regulations (and any successor provisions
thereof), and that any ambiguities in construction shall be
interpreted in order to effectuate such intent.
6. Stock Appreciation Rights. The Committee may grant
Stock Appreciation Rights either alone, or in conjunction with
Stock Options, either at the time of grant or by amendment
thereafter. Each Award of Stock Appreciation Rights granted
under the Plan shall be evidenced by an instrument in such form
as the Committee shall prescribe from time to time in accordance
with the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions, including,
but not limited to, restrictions upon the Award of Stock
Appreciation Rights or the Common Shares issuable upon exercise
thereof, as the Committee, in its discretion, shall establish:
(a) The Stock Appreciation Right shall be granted with
a hurdle price equal to at least the fair market value of
the underlying Common Shares on the date of such grant.
(b) The Committee shall determine the number of Common
Shares to be subject to each Award of Stock Appreciation
Rights. The number of Common Shares subject to an
outstanding Award of Stock Appreciation Rights may be
reduced on a share-for-share or other appropriate basis, as
determined by the Committee, to the extent that Common
Shares under such Award of Stock Appreciation Rights are
used to calculate the cash, Common Shares, Other Company
Securities or property, or other forms of payment, or any
combination thereof, received pursuant to exercise of an
Option attached to such Award of Stock Appreciation Rights,
or to the extent that any other Award granted in conjunction
with such Award of Stock Appreciation Rights is paid.
(c) Unless the Committee determines otherwise, the
Award of Stock Appreciation Rights may not be sold,
assigned, transferred, pledged, hypothecated or otherwise
disposed of, except by will or the laws of descent and
distribution, and shall be exercisable during the grantee's
lifetime only by him. Unless the Committee determines
otherwise, the Award of Stock Appreciation Rights shall not
be exercisable for at least six months after the date of
grant, unless the grantee ceases employment or performance
of services before the expiration of such six-month period
by reason of his disability as defined in Paragraph 11 or
his death.
(d) The Award of Stock Appreciation Rights shall not
be exercisable:
(i) after the tenth anniversary of the date it is
granted. Any Award of Stock Appreciation Rights may be
exercised only as set forth under Paragraph 4(d) or at
such time or times and in such installments as the
Committee may establish;
(ii) in the case that the Award of Stock
Appreciation Rights is attached to an Option, unless
such Option is at the time exercisable; and
(iii) unless the person exercising the Award of
Stock Appreciation Rights has been, at all times during
the period beginning with the date of the grant thereof
and ending on the date of such exercise, employed by
the Company, except that:
(A) if such person shall cease such
employment or performance of services by reason of
his disability as defined in Paragraph 11 or
early, normal or deferred retirement under an
approved retirement program of the Company (or
such other plan or arrangement as may be approved
by the Committee, in its discretion, for this
purpose) while holding an Award of Stock
Appreciation Rights which has not expired and has
not been fully exercised, such person may, at any
time within three years (or such other period
determined by the Committee) after the date he
ceased such employment (but in no event after the
Award of Stock Appreciation Rights has expired),
exercise the Award of Stock Appreciation Rights
with respect to any shares as to which he could
have exercised the Award of Stock Appreciation
Rights on the date he ceased such employment or
with respect to such greater number of shares as
determined by the Committee; or
(B) if any person to whom an Award of Stock
Appreciation Rights has been granted shall die
holding an Award of Stock Appreciation Rights
which has not expired and has not been fully
exercised, his executors, administrators, heirs or
distributees, as the case may be, may at any time
within one year (or such other period determined
by the Committee) after the date of death (but in
no event after the Award of Stock Appreciation
Rights has expired), exercise the Award of Stock
Appreciation Rights with respect to any shares as
to which the decedent could have exercised the
Award of Stock Appreciation Rights at the time of
his death, or with respect to such greater number
of shares as determined by the Committee.
(e) An Award of Stock Appreciation Rights shall
entitle the holder (or any person entitled to act under the
provisions of subparagraph 6(d)(iii)(B) hereof) to exercise
such Award and surrender unexercised the Option, if any, to
which the Stock Appreciation Right is attached (or any
portion of such Option) to the Company and to receive from
the Company in exchange thereof, without payment to the
Company, that number of Common Shares having an aggregate
value equal to (or, in the discretion of the Committee, less
than) the excess of the fair market value of one share at
the time of such exercise, over the exercise price (or
Option Price, as the case may be), times the number of
shares subject to the Award or the Option, or portion
thereof, which is so exercised or surrendered, as the case
may be. The Committee shall be entitled in its discretion
to elect to settle the obligation arising out of the
exercise of a Stock Appreciation Right by the payment of
cash or Other Company Securities or property, or other forms
of payment, or any combination thereof, as determined by the
Committee, equal to the aggregate value of the Common Shares
it would otherwise be obligated to deliver. Any such
election by the Committee shall be made as soon as
practicable after the receipt by the Committee of written
notice of the exercise of the Stock Appreciation Right. The
value of a Common Share, Other Company Securities or
property, or other forms of payment determined by the
Committee for this purpose shall be the fair market value
thereof on the last business day next preceding the date of
the election to exercise the Stock Appreciation Right,
unless the Committee, in its discretion, determines
otherwise.
(f) A Stock Appreciation Right may provide that it
shall be deemed to have been exercised at the close of
business on the business day preceding the expiration date
of the Stock Appreciation Right or of the related Option, or
such other date as specified by the Committee, if at such
time such Stock Appreciation Right has a positive value.
Such deemed exercise shall be settled or paid in the same
manner as a regular exercise thereof as provided in
subparagraph 6(e) hereof.
(g) No fractional shares may be delivered under this
Paragraph 6, but in lieu thereof a cash or other adjustment
shall be made as determined by the Committee in its
discretion.
7. Restricted Stock. Each Award of Restricted Stock under
the Plan shall be evidenced by an instrument in such form as the
Committee shall prescribe from time to time in accordance with
the Plan and shall comply with the following terms and
conditions, and with such other terms and conditions as the
Committee, in its discretion, shall establish:
(a) The Committee shall determine the number of Common
Shares to be issued to a participant pursuant to the Award,
and the extent, if any, to which they shall be issued in
exchange for cash, other consideration, or both.
(b) Restricted Stock awarded to a participant in
accordance with the Award shall be subject to the following
restrictions until the expiration of such period as the
Committee shall determine, from the date on which the Award
is granted (the "Restricted Period"): (i) a participant to
whom an award of Restricted Stock is made may, at the
discretion of the Committee, be issued, but shall not be
entitled to, a stock certificate, (ii) the Restricted Stock
shall not be transferable prior to the end of the Restricted
Period, (iii) the Restricted Stock shall be forfeited and
the stock certificate, if issued, shall be returned to the
Company and all rights of the holder of such Restricted
Stock to such shares and as a shareholder shall terminate
without further obligation on the part of the Company if the
participant's continuous employment or performance of
services for the Company shall terminate for any reason
prior to the end of the Restricted Period, except as
otherwise provided in subparagraph 7(c), and (iv) such other
restrictions as determined by the Committee in its
discretion.
(c) if a participant who has been in continuous
employment with the Company since the date on which a
Restricted Stock Award was granted to him shall, while in
such employment, die, or terminate such employment by reason
of disability as defined in Paragraph 11 or by reason of
early, normal or deferred retirement under an approved
retirement program of the Company (or such other plan or
arrangement as may be approved by the Committee in its
discretion, for this purpose) and any of such events shall
occur after the date on which the Award was granted to him
and prior to the end of the Restricted Period of such Award,
the Committee may determine to cancel any and all
restrictions on any or all of the Common Shares subject to
such Award.
8. Deferral of Compensation. The Committee shall determine
whether or not an Award shall be made in conjunction with
deferral of the participant's salary, bonus or other
compensation, or any combination thereof, and whether or not such
deferred amounts may be:
(a) forfeited to the Company or to other participants
or any combination thereof, under certain circumstances
(which may include, but need not be limited to, certain
types of termination of employment with the Company),
(b) subject to increase or decrease in value based
upon the attainment of or failure to attain, respectively,
certain performance measures and/or,
(c) credited with income equivalents (which may
include, but need not be limited to, interest, dividends or
other rates of return) until the date or dates of payment of
the Award, if any.
9. Deferred Payment of Awards. The Committee may specify
that the payment of all or any portion of cash, Common Shares,
Other Company Securities or property, or any other form of
payment, or any combination thereof, under an Award shall be
deferred until a later date. Deferrals shall be for such periods
or until the occurrence of such events, and upon such terms, as
the Committee shall determine in its discretion. Deferred
payments of Awards may be made by undertaking to make payment in
the future based upon the performance of certain investment
equivalents (which may include, but need not be limited to,
government securities, Common Shares, other securities, property
or consideration, or any combination thereof), together with such
additional amounts of income equivalents (which may be compounded
and may include, but need not be limited to, interest, dividends
or other rates of return or any combination thereof) as may
accrue thereon until the date or dates of payment, such
investment equivalents and such additional amounts of income
equivalents to be determined by the Committee in its discretion.
10. Amendment or Substitution of Awards under the Plan.
The terms of any outstanding Award under the Plan may be amended
from time to time by the Committee in its discretion in any
manner that it deems appropriate (including, but not limited to,
acceleration of the date of exercise of any Award and/or payments
thereunder); provided that no such amendment shall adversely
affect in a material manner any right of a participant under the
Award without his written consent, unless the Committee
determines in its discretion that there have occurred or are
about to occur significant changes in the participant's position,
duties or responsibilities, or significant changes in economic,
legislative, regulatory, tax, accounting or cost/benefit
conditions which are determined by the Committee in its
discretion to have or to be expected to have a substantial effect
on the performance of the Company, or any subsidiary, affiliate,
division or department thereof, on the Plan or on any Award under
the Plan. The Committee may, in its discretion, permit holders
of Awards under the Plan to surrender outstanding Awards in order
to exercise or realize the rights under other Awards, or in
exchange for the grant of new Awards, or require holders of
Awards to surrender outstanding Awards as a condition precedent
to the grant of new Awards under the Plan.
11. Disability. For the purposes of this Plan, a
participant shall be deemed to have terminated his employment by
the Company and its Affiliates by reason of disability, if the
Committee shall determine that the physical or mental condition
of the participant by reason of which such employment terminated
was such at that time as would entitle him to payment of monthly
disability benefits under any Company disability plan. If the
participant is not eligible for benefits under any disability
plan of the Company, he shall be deemed to have terminated such
employment by reason of disability if the Committee shall
determine that his physical or mental condition would entitle him
to benefits under any Company disability plan if he were eligible
therefor.
12. Termination of a Participant. For all purposes under
the Plan, the Committee shall determine whether a participant has
terminated employment with the Company.
13. Dilution and Other Adjustments. In the event of any
change in the outstanding Common Shares of the Company by reason
of any stock split, dividend, split-up, split-off, spin-off,
recapitalization, merger, consolidation, rights offering,
reorganization, combination or exchange of shares, a sale by the
Company of all of its assets, any distribution to stockholders
other than a normal cash dividend, or other extraordinary or
unusual event, if the Committee shall determine, in its
discretion, that such change equitably requires an adjustment in
the terms of any Award or the number of Common Shares available
for Awards, such adjustment may be made by the Committee and
shall be final, conclusive and binding for all purposes of the
Plan.
In the event of the proposed dissolution or liquidation of
the Company, all outstanding Awards shall terminate immediately
prior to the consummation of such proposed action, unless
otherwise provided by the Committee. In the event of a proposed
sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, all
restrictions on any outstanding Awards shall lapse and
participants shall be entitled to the full benefit of all such
Awards immediately prior to the closing date of such sale or
merger, unless otherwise provided by the Committee.
14. Designation of Beneficiary by Participant. A
participant may name a beneficiary to receive any payment to
which he may be entitled in respect of any Award under the Plan
in the event of his death, on a written form to be provided by
and filed with the Committee, and in a manner determined by the
Committee in its discretion. The Committee reserves the right to
review and approve beneficiary designations. A participant may
change his beneficiary from time to time in the same manner,
unless such participant has made an irrevocable designation. Any
designation of beneficiary under the Plan (to the extent it is
valid and enforceable under applicable law) shall be controlling
over any other disposition, testamentary or otherwise, as
determined by the Committee in its discretion. If no designated
beneficiary survives the participant and is living on the date on
which any amount becomes payable to such a participant's
beneficiary, such payment will be made to the legal
representatives of the participant's estate, and the term
"beneficiary" as used in the Plan shall be deemed to include such
person or persons. If there are any questions as to the legal
right of any beneficiary to receive a distribution under the
Plan, the Committee in its discretion may determine that the
amount in question be paid to the legal representatives of the
estate of the participant, in which event the Company, the Board
and the Committee and the members thereof, will have no further
liability to anyone with respect to such amount.
15. Financial Assistance. If the Committee determines that
such action is advisable, the Company may assist any person to
whom an Award has been granted in obtaining financing from the
Company (or under any program of the Company approved pursuant to
applicable law), or from a bank or other third party, on such
terms as are determined by the Committee, and in such amount as
is required to accomplish the purposes of the Plan, including,
but not limited to, to permit the exercise of an Award, the
participation therein, and/or the payment of any taxes in respect
thereof. Such assistance may take any form that the Committee
deems appropriate, including, but not limited to, a direct loan
from the Company, a guarantee of the obligation by the Company,
or the maintenance by the Company of deposits with such bank or
third party.
16. Miscellaneous Provisions.
(a) No employee or other person shall have any claim
or right to be granted an Award under the Plan.
Determinations made by the Committee under the Plan need not
be uniform and may be made selectively among eligible
individuals under the plan, whether or not such eligible
individuals are similarly situated. Neither the Plan nor
any action taken hereunder shall be construed as giving any
employee any right to continue to be employed by the
Company, and the right to terminate the employment of any
participants at any time and for any reason is specifically
reserved.
(b) No participant or other person shall have any
right with respect to the Plan, the Common Shares reserved
for issuance under the Plan or in any Award, contingent or
otherwise, until written evidence of the Award shall have
been delivered to the recipient and all the terms,
conditions and provisions of the Plan and the Award
applicable to such recipient (and each person claiming under
or through him) have been met.
(c) Except as may be approved by the Committee where
such approval shall not adversely affect compliance of the
Plan with Rule 16b-3 under the Exchange Act, a participant's
rights and interest under the Plan may not be assigned or
transferred, hypothecated or encumbered in whole or in part
either directly or by operation of law or otherwise (except
in the event of a participant's death) including, but not by
way of limitation, execution, levy, garnishment, attachment,
pledge, bankruptcy or in any other manner; provided,
however, that any Option or similar right (including, but
not limited to, a Stock Appreciation Right) offered pursuant
to the Plan shall be transferable by will or the laws of
descent and distribution but shall be exercisable during the
participant's lifetime only by him.
(d) It is the intent of the Company that the Plan
comply in all respects with Rule 16b-3 under the Exchange
Act, that any ambiguities or inconsistencies in construction
of the Plan be interpreted to give effect to such intention
and that if any provision of the Plan is found not to be in
compliance with Rule 16b-3, such provision shall be deemed
null and void to the extent required to permit the Plan to
comply with Rule 16b-3.
(e) The Company shall have the right to deduct from
any payment made under the Plan any federal, state, local or
foreign income or other taxes required by law to be withheld
with respect to such payment. It shall be a condition to
the obligation of the Company to issue Common Shares, Other
Company Securities or property, other securities or
property, or other forms of payment, or any combination
thereof, upon exercise, settlement or payment of any Award
under the Plan, that the participant (or any beneficiary or
person entitled to act) pay to the Company, upon its demand,
such amount as may be required by the Company for the
purpose of satisfying any liability to withhold federal,
state, local or foreign income or other taxes. If the
amount requested is not paid, the Company may refuse to
issue Common Shares, Other Company Securities or property,
other securities or property, or other forms of payment, or
any combination thereof. Notwithstanding anything in the
Plan to the contrary, the Committee may, in its discretion,
permit an eligible participant (or any beneficiary or person
entitled to act) to elect to pay a portion or all of the
amount requested by the Company for such taxes with respect
to such Award, at such time and in such manner as the
Committee shall deem to be appropriate (including, but not
limited to, by authorizing the Company to withhold, or
agreeing to surrender to the Company on or about the date
such tax liability is determinable, Common Shares, Other
Company Securities or property, other securities or
property, or other forms of payment, or any combination
thereof, owned by such person or a portion of such forms of
payment that would otherwise be distributed, or have been
distributed, as the case may be, pursuant to such Award to
such person, having a fair market value equal to the amount
of such taxes).
(f) The expenses of the Plan shall be borne by the
Company.
(g) The Plan shall be unfunded. The Company shall not
be required to establish any special or separate fund or to
make any other segregation of assets to assure the payment
of any Award under the Plan, and rights to the payment of
Awards shall be no greater than the rights of the Company's
general creditors.
(h) By accepting any Award or other benefit under the
Plan, each participant and each person claiming under or
through him shall be conclusively deemed to have indicated
his acceptance and ratification of, and consent to, any
action taken under the Plan by the Company, the Board or the
Committee or its delegates.
(i) Fair market value in relation to Common Shares,
Other Company Securities or property, other securities or
property or other forms of payment of Awards under the Plan,
or any combination thereof, as of any specific time shall
mean such value as determined by the Committee in accordance
with applicable law.
(j) The masculine pronoun includes the feminine and
the singular includes the plural wherever appropriate.
(k) The appropriate officers of the Company shall
cause to be filed any reports, returns or other information
regarding Awards hereunder of any Common Shares issued
pursuant hereto as may be required by Section 13 or 15(d) of
the Exchange Act (or any successor provision) or any other
applicable statute, rule or regulation.
(l) The validity, construction, interpretation,
administration and effect of the Plan, and of its rules and
regulations, and rights relating to the Plan and to Awards
granted under the Plan, shall be governed by the substantive
laws, but not the choice of law rules, of the State of
Delaware.
17. Plan Amendment or Suspension. The Plan may be amended
or suspended in whole or in part at any time from time to time by
the Board, but no amendment shall be effective unless and until
the same is approved by stockholders of the Company where the
failure to obtain such approval would adversely affect the
compliance of the Plan with Rule 16b-3 under the Exchange Act and
with other applicable law. No amendment of the Plan shall
adversely affect in a material manner any right of any
participant with respect to any Award theretofore granted without
such participant's written consent, except as permitted under
Paragraph 10.
18. Plan Termination. This Plan shall terminate upon the
earlier of the following dates or events to occur:
(a) upon the adoption of a resolution of the Board
terminating the Plan; or
(b) ten years from the date the Plan as amended is approved and
adopted by the stockholders of the Company in accordance with
Paragraph 19 hereof; provided, however, that the Board may, prior
to the expiration of such ten-year period, extend the term of the
Plan for an additional period of up to five years for the grant
of Awards other than Incentive Stock Options. No termination of
the Plan shall materially alter or impair any of the rights or
obligations of any person, without his consent, under any Award
theretofore granted under the Plan, except that subsequent to
termination of the Plan, the Committee may make amendments
permitted under Paragraph 17.
19. Stockholder Adoption. The Plan was approved by the Board of
Directors on March 5, 1999 and stockholders of the Company on May
13, 1999.
EXHIBIT 5.1
August 12, 1999
Stage Stores, Inc.
10201 Main Street
Houston, Texas 77002
Re: Shares of Common Stock, $.01 par value
Ladies and Gentlemen:
We are acting as counsel to Stage Stores, Inc., a
Delaware corporation (the "Registrant"), in connection with the
preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the
"Securities Act"), of a Registration Statement on Form S-8 (the
"Registration Statement") pertaining to the registration of a
proposed offering of up to 2,000,000 shares of the Registrant's
Common Stock, $.01 par value per share (the "Common Stock")
pursuant to the Registrant's Amended and Restated 1996 Equity
Incentive Plan.
We have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed
necessary for the purposes of this opinion, including the
following: (i) Restated Certificate of Incorporation and the
Bylaws of the Registrant, each as amended to the date hereof; and
(ii) certain resolutions adopted by the Board of Directors of the
Registrant. In addition, we have made such other and further
investigations as we have deemed necessary to enable us to
express the opinions hereinafter set forth.
Based upon the foregoing and having regard to legal
considerations that we deem relevant, and subject to the comments
and qualifications set forth below, it is our opinion that the
Common Stock has been duly authorized.
For purposes of this opinion, we have with your
permission made the following assumptions, in each case without
independent verification: (i) the authenticity of all documents
submitted to us as originals, (ii) the conformity to the
originals of all documents submitted to us as copies, (iii) the
authenticity of the originals of all documents submitted to us as
copies, (iv) the genuineness of the signatures of persons signing
all documents in connection with which this opinion is rendered,
(v) the authority of such persons signing all documents on behalf
of the parties thereto and (vi) the due authorization, execution
and delivery of all documents by the parties thereto.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving such consent,
we do not thereby concede that we are within the category of
persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations promulgated
thereunder.
We do not find it necessary for purposes of this
opinion to cover, and accordingly we do not purport to cover
herein, the application of the securities or "Blue Sky" laws of
the various states to the offering and sale of the Common Stock.
This opinion shall be limited to the laws of the State
of Delaware.
This opinion is furnished to you in connection with the
filing of the Registration Statement and is not to be used,
circulated, quoted or otherwise relied upon for any other
purpose.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 10,
1999 relating to the financial statements, which appears in Stage
Stores, Inc.'s Annual Report on Form 10-K for the year ended
January 30, 1999.
/s/PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Houston, Texas
August 13, 1999
