As filed with the Securities and Exchange Commission on January 14, 1999.
- --------------------------------------------------------------------------------
Registration No. 333-____________
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PAYLESS CASHWAYS, INC.
(Exact name of registrant as specified in its charter)
Delaware 42-0945849
(State of Incorporation) (I.R.S. Employer Identification No.)
Two Pershing Square
2300 Main, P.O. Box 419466
Kansas City, Missouri 64141-0466
(Address of Principal Executive Offices) (Zip Code)
PAYLESS CASHWAYS, INC. 1998 OMNIBUS INCENTIVE PLAN
(Full title of the Plan)
Millard E. Barron
Chief Executive Officer
Payless Cashways, Inc.
Two Pershing Square
2300 Main, P.O. Box 419466
Kansas City, Missouri 64141-0466
(Name and address of agent for service)
(816) 234-6000
(Telephone number, including area code, of agent for service)
- -------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price per offering registration
be registered registered share* price* fee
- ----------------- -------------- ------------ ----------- ------------------
Common Stock 2,010,000 $0.88 - $4,790,700 $1,332
$0.01 par value $3.04
- ----------------- -------------- ------------ ----------- ------------------
Common Stock 390,000 $2 9\16 $999,375 $278
$0.01 par value
- ----------------- -------------- ------------- ---------- ------------------
* The amount of the registration fee is estimated in accordance with Rule
457(h). With respect to 2,010,000 shares subject to outstanding options, the fee
has been calculated based upon the exercise price per share of $2.97, $2.94,
$1.00, $3.04, $0.88, $1.03, $1.91, $2.50, $1.85 and $1.94 with respect to
950,000, 40,000, 360,000, 250,000, 60,000, 60,000, 60,000, 110,000, 60,000, and
60,000 shares, respectively. The price per share of 390,000 shares, which have
not been awarded under the Payless Cashways, Inc., Omnibus Incentive Plan is
estimated to be $2 9/16 (the average of the high and low prices of the
Registrant's Common Stock on January 11, 1999).
<PAGE>
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by Payless Cashways, Inc., (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended November 29,
1997;
(b) Quarterly Reports on Form 10-Q for the quarters ended February 28,
1998, May 30, 1998 and August 29, 1998;
(c) The description of Common Stock, par value $.01 per share, of the
Company contained in the Company's Registration Statement on Form
8-A filed with the Securities and Exchange Commission on December
1, 1997 and Form 8-K filed with the Commission on December 2,
1997.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such 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 confers broad powers
upon corporations incorporated in that state with respect to indemnification of
any person against liabilities incurred by reason of the fact that he 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 or other business entity. The provisions of Section 145 are
not exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement or otherwise.
2
<PAGE>
The Company's certificate of incorporation provides that the directors and
officers of the Company shall be indemnified to the maximum extent permitted by
law. Without limiting the foregoing, the Company's certificate of incorporation
provides that each person who was or is made a party or is threatened to be made
a party to any proceeding by reason of the fact that he or she is or was a
director or officer of the Company, shall be indemnified and held harmless by
the Company to the full extent which it is empowered to do so under the Delaware
Corporation Law, against all expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding, including attorneys' fees. The Company's certificate of
incorporation further provides that expenses incurred by a director or officer
of the Company in defending a proceeding shall be paid by the Company in advance
of the final disposition of such 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 director or officer is not entitled to be indemnified by the
Company as authorized by the Delaware Corporation Law.
The Certificate of Incorporation of the Company contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty to the
fullest extent permitted by the Delaware General Corporation Law.
In addition, the Company has entered into indemnification agreements with
certain of its directors and officers (each, an "indemnitee") pursuant to which
the Company has agreed to indemnify each indemnitee for all costs and expenses
reasonably incurred by the indemnitee in investigating, defending and appealing
certain proceedings against the indemnitee. To be eligible for indemnification
pursuant to the indemnification agreements, the indemnitee: (a) must be a
director, officer, employee, agent or fiduciary of the Company, or must be
serving at the request of the Company as a director, officer, employee, agent or
fiduciary of another entity; (b) must have acted in good faith and in a manner
the indemnitee reasonably believed to be in or not opposed to the best interests
of the Company; and (c) with respect to any criminal action or proceeding, must
have had no reason to believe that his or her conduct was unlawful. The Company
is not obligated to pay any indemnification which is prohibited under Delaware
law. Under the indemnification agreements, the Company also has agreed to
provide policies of directors' and officers' liability insurance and to advance
certain costs and expenses for the indemnitee.
Pursuant to express authority therefor contained in the Company's
certificate or incorporation, the Company maintains a policy of insurance under
which the insurer will, subject to certain conditions, defend the directors and
officers of the Company against and indemnify them from any liability incurred
in their capacities as such.
Item 7. Exemption from Registration Claimed.
Not Applicable.
3
<PAGE>
Item 8. Exhibits.
The following exhibits are filed herewith or are incorporated by reference
from documents filed by the Company with the Commission.
4.1 Certificate of Incorporation (incorporated by reference to Exhibit
4.1 filed as part of the Company's Current Report on Form 8-K
dated December 2, 1997).
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.1 filed as part of the Company's Quarterly Report on Form 10-Q
for the quarter ended August 29, 1998).
4.3(a) Amended and Restated Credit Agreement dated December 2, 1997
(incorporated by reference to Exhibit 4.1(a) filed as part of the
Company's Annual Report on Form 10-K for the year ended November
29, 1997).
4.3(b) First Amendment to Amended and Restated Credit Agreement dated
August 13, 1998 (incorporated by reference to Exhibit 4.1 filed as
part of the Company's Quarterly Report on Form 10-Q for the
quarter ended August 29, 1998).
4.4 Amended and Restated Loan Agreement dated December 2, 1997 by and
between the Company and UBS Mortgage Finance, Inc. (incorporated
by reference to Exhibit 4.2(a) filed as part of the Company's
Annual Report on Form 10-K for the year ended November 29, 1997).
5.1 Opinion of Blackwell Sanders Peper Martin LLP.
15.1 Letter regarding unaudited interim financial information of KPMG
LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Blackwell Sanders Peper Martin LLP (included in the
opinion filed as Exhibit 5.1).
24.1 Powers of attorney executed by certain officers and Directors of
the Company.
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 of 1933, as amended (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
4
<PAGE>
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
and
(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 (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934, as amended (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 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 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.
5
<PAGE>
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 Kansas City, State of Missouri, on January 14, 1999.
PAYLESS CASHWAYS, INC.
By: /s/ Millard E. Barron
Millard E. Barron, President
and Chief Executive Officer
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 Name Capacity Date
President, Chief Executive
Officer and Director
/s/ Millard E. Barron (Principal Executive Officer) January 14, 1999
Millard E. Barron
* Director January 14, 1999
- ---------------------
Donald E. Roller
* Chairman of the Board January 14, 1999
- ----------------------
Peter G. Danis
* Director January 14, 1999
- -----------------------
H. D. Cleberg
* Director January 14, 1999
- -----------------------
David G. Gundling
* Director January 14, 1999
- -----------------------
Max D. Hopper
* Director January 14, 1999
- -----------------------
Peter M. Wood
Senior Vice President - Finance
and Chief Financial Officer
(Principal Financial Officer and
/s/ Richard G. Luse Principal Accounting Officer) January 14, 1999
Richard G. Luse
By: /s/ Richard G. Luse As Attorney-in-Fact for the above
Richard G. Luse, directors marked by an asterisk.
Attorney-in-Fact
6
<PAGE>
Index to Exhibits
Exhibit
Number Document
4.1 Certificate of Incorporation (incorporated by reference to Exhibit 4.1
filed as part of the Company's Current Report on Form 8-K dated December
2, 1997).
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1
filed as part of Company's Quarterly Report on Form 10-Q dated for the
quarter ended August 29, 1998).
4.3(a) Amended and Restated Credit Agreement dated December 2, 1997
(incorporated by reference to Exhibit 4.1(a) filed as part of the
Company's Annual Report on Form 10-K for the year ended November 29,
1997).
4.3(b) First Amendment to Amended and Restated Credit Agreement dated August 13,
1998 (incorporated by reference to Exhibit 4.1 filed as part of the
Company's Quarterly Report on Form 10-Q for the quarter ended August 29,
1998).
4.4 Amended and Restated Loan Agreement dated December 2, 1997 by and between
the Company and UBS Mortgage Finance, Inc. (incorporated by reference to
Exhibit 4.2(a) filed as part of the Company's Annual Report on Form 10-K
for the year ended November 29, 1997).
5.1 Opinion of Blackwell Sanders Peper Martin LLP.
15.1 Letter regarding unaudited financial information of KPMG LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Blackwell Sanders Peper Martin LLP (included in opinion filed
as Exhibit 5.1).
24.1 Powers of attorney executed by certain officers and Directors of the
Company.
Exhibit 5.1
----------------------------------------------------------
LETTERHEAD OF BLACKWELL SANDERS PEPER MARTIN LLP
----------------------------------------------------------
January 14, 1999
Payless Cashways, Inc.
Two Pershing Square
2300 Main, P.O. Box 419466
Kansas City, Missouri 64141
Ladies and Gentlemen:
We have acted as counsel to Payless Cashways, Inc., a Delaware corporation
(the "Company"), in connection with the proposed offering of up to 2,400,000
shares of common stock of the Company (the "Common Stock") pursuant to the
Company's 1998 Omnibus Incentive Plan (the "Plan").
In connection with the foregoing, we have examined such documents,
corporate records and other instruments as we have deemed necessary or
appropriate in connection with this opinion. Based upon and subject to the
foregoing, we are of the opinion that when such 2,400,000 shares of Common Stock
have been issued and sold by the Company in accordance with the terms of the
Plan and related award agreements, such shares will constitute legally issued,
fully paid and non-assessable shares of the Company.
We consent to the filing of this opinion as an exhibit to the registration
statement pursuant to which such shares will be sold and to the reference to us
in such registration statement.
Very truly yours,
/s/ Blackwell Sanders Peper Martin LLP
Blackwell Sanders Peper Martin LLP
Exhibit 15.1
--------------------------
LETTERHEAD OF KPMG LLP
--------------------------
The Board of Directors
Payless Cashways, Inc.:
With respect to the subject registration statement on Form S-8 of Payless
Cashways, Inc., we acknowledge our awareness of the use therein of our reports
dated March 17, 1998, June 16, 1998 and September 16, 1998 related to our
reviews of interim financial information. Pursuant to Rule 436(c) under the
Securities Act of 1933, such reports are not considered part of a registration
statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of the Act.
/s/ KPMG LLP
KPMG LLP
Kansas City, Missouri
January 14, 1999
Exhibit 23.1
--------------------------
LETTERHEAD OF KPMG LLP
--------------------------
The Board of Directors
Payless Cashways, Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-8 of Payless Cashways, Inc. of our report dated January 19, 1998,
relating to the balance sheets of Payless Cashways, Inc. as of November 29, 1997
and November 30, 1996, and the related statements of operations, stockholders'
equity and cash flows for each of the fiscal years in the three-year period
ended November 29, 1997 and all related schedules, which report appears in the
November 29, 1997 annual report on Form 10-K of Payless Cashways, Inc. In
addition, our report dated January 19, 1998 refers to the application of fresh
start reporting as of November 29, 1997.
/s/ KPMG LLP
KPMG LLP
Kansas City, Missouri
January 14, 1999
Exhibit 24.1
POWER OF ATTORNEY
I, the undersigned Director of Payless Cashways, Inc., do hereby name,
constitute and appoint Millard E. Barron or Richard G. Luse, and each of them,
my agent and attorney-in-fact, for me and in my behalf as a Director of Payless
Cashways, Inc., to sign and execute a Registration Statement on Form S-8, and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of Common Stock of Payless Cashways, Inc. under the 1998
Omnibus Incentive Plan.
Executed this 16th day of December, 1998.
/s/ Donald E. Roller
Donald E. Roller
<PAGE>
POWER OF ATTORNEY
I, the undersigned Director of Payless Cashways, Inc., do hereby name,
constitute and appoint Millard E. Barron or Richard G. Luse, and each of them,
my agent and attorney-in-fact, for me and in my behalf as a Director of Payless
Cashways, Inc., to sign and execute a Registration Statement on Form S-8, and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of Common Stock of Payless Cashways, Inc. under the 1998
Omnibus Incentive Plan.
Executed this 16th day of December, 1998.
/s/ Peter G. Danis
Peter G. Danis
<PAGE>
POWER OF ATTORNEY
I, the undersigned Director of Payless Cashways, Inc., do hereby name,
constitute and appoint Millard E. Barron or Richard G. Luse, and each of them,
my agent and attorney-in-fact, for me and in my behalf as a Director of Payless
Cashways, Inc., to sign and execute a Registration Statement on Form S-8, and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of Common Stock of Payless Cashways, Inc. under the 1998
Omnibus Incentive Plan.
Executed this 16th day of December, 1998.
/s/ H.D. Cleberg
H. D. Cleberg
<PAGE>
POWER OF ATTORNEY
I, the undersigned Director of Payless Cashways, Inc., do hereby name,
constitute and appoint Millard E. Barron or Richard G. Luse, and each of them,
my agent and attorney-in-fact, for me and in my behalf as a Director of Payless
Cashways, Inc., to sign and execute a Registration Statement on Form S-8, and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of Common Stock of Payless Cashways, Inc. under the 1998
Omnibus Incentive Plan.
Executed this 19th day of December, 1998.
/s/ David G. Gundling
David G. Gundling
<PAGE>
POWER OF ATTORNEY
I, the undersigned Director of Payless Cashways, Inc., do hereby name,
constitute and appoint Millard E. Barron or Richard G. Luse, and each of them,
my agent and attorney-in-fact, for me and in my behalf as a Director of Payless
Cashways, Inc., to sign and execute a Registration Statement on Form S-8, and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of Common Stock of Payless Cashways, Inc. under the 1998
Omnibus Incentive Plan.
Executed this 18th day of December, 1998.
/s/ Max D. Hopper
Max D. Hopper
<PAGE>
POWER OF ATTORNEY
I, the undersigned Director of Payless Cashways, Inc., do hereby name,
constitute and appoint Millard E. Barron or Richard G. Luse, and each of them,
my agent and attorney-in-fact, for me and in my behalf as a Director of Payless
Cashways, Inc., to sign and execute a Registration Statement on Form S-8, and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of Common Stock of Payless Cashways, Inc. under the 1998
Omnibus Incentive Plan.
Executed this 16th day of December, 1998.
/s/ Peter M. Wood
Peter M. Wood
<PAGE>
POWER OF ATTORNEY
I, the undersigned Director and Officer of Payless Cashways, Inc., do
hereby name, constitute and appoint Richard G. Luse my agent and
attorney-in-fact, for me and in my behalf as a Director and Officer of Payless
Cashways, Inc., to sign and execute a Registration Statement on Form S-8, and
any amendments thereto, relating to the registration with the Securities and
Exchange Commission of Common Stock of Payless Cashways, Inc. under the 1998
Omnibus Incentive Plan.
Executed this 16th day of December, 1998.
/s/ Millard E. Barron
Millard E. Barron
<PAGE>
POWER OF ATTORNEY
I, the undersigned officer of Payless Cashways, Inc., do hereby name,
constitute and appoint Millard E. Barron my agent and attorney-in-fact, for me
and in my behalf as an Officer of Payless Cashways, Inc., to sign and execute a
Registration Statement on Form S-8, and any amendments thereto, relating to the
registration with the Securities and Exchange Commission of Common Stock of
Payless Cashways, Inc. under the 1998 Omnibus Incentive Plan.
Executed this 16th day of December, 1998.
/s/ Richard G. Luse
Richard G. Luse
