<PAGE> 1
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CONSOLIDATED STORES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-1119097
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
115 North Market Street, Suite 1300
P.O. Box 8958
Wilmington, Delaware 19899
(Address of Principle Offices)
CONSOLIDATED STORES CORPORATION 1996 PERFORMANCE INCENTIVE PLAN
(Full Title of Plan)
Albert J. Bell, Secretary
Consolidated Stores Corporation
Legal Department
P. O. Box 28512
300 Phillipi Road
Columbus, Ohio 43228-0512
(Name and Address of Agent for Service)
(614) 278-6800
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of securities Amount to be maximum offering maximum Amount of
to be registered registered price per share* aggregate offering price* registration fee*
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share 12,500,000 shares $38.1875 $477,343,750 $144,650
<FN>
* Estimated soley for the purpose of calculating the registration fee
pursuant to Rule 457(c), on the basis of $38.1875 the average of the high
and low prices of shares on the New York Stock Exchange on July 21, 1997.
</TABLE>
<PAGE> 2
PART I
The document(s) containing the information specified in Part I of the
instructions to Form S-8 will be sent or given to employees as specified in Rule
428(b)(1), and are not being filed with the Commission as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The registrant represents that incorporated in this registration statement by
reference are (a) the registrant's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; (b)
all other reports filed by the registrant pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since the end of the fiscal
year covered by the registrant document referred to in (a) above; and (c) that
certain Registration No. 333-2545, and all subsequent amendments thereto,
concerning the class of Consolidated Stores Corporation Common Stock, $.01 par
value.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Seven of the registrant's Certificate of Incorporation
eliminates the personal liability to the registrant or its stockholders of
directors of the registrant for monetary damages for breach of fiduciary duty as
a director pursuant to Delaware General Corporation Law Section 102. Such
elimination of liability is subject to the limitations imposed by Delaware
General Corporation Law Section 102 which prohibits the elimination or
limitation of a director's personal liability: (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the director derived an
improper personal benefit.
Section 5 of Article V of the Company's By-Laws states as follows:
"The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be made a party to an action,
suit or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate 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."
Section 145 of the Delaware General Corporation Law provides, generally,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any suit or proceeding because 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 enterprise against all
<PAGE> 3
costs actually and reasonably incurred by him in connection with such suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation. Similar indemnity
is permitted to be provided to such persons in connection with an action or suit
by or in the right of a corporation, provided such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and provided further that such person shall not
have been adjudged liable to the corporation.
In addition, the Company has entered into indemnification agreements with the
directors and key officers of the Company. The agreements (a) confirm the
existing indemnification provided under the Company's By-Laws and assure that
this indemnification will continue to be provided despite future changes in the
Company's By-Laws, (b) provide that if the Company does not maintain directors'
and officers' liability insurance, the Company will, in effect, be a
self-insurer of such insurance coverage, and (c) provide that, in addition,
indemnifiable persons be indemnified to the fullest extent permitted by law
against all expenses (including legal fees), judgments, fines and settlement
amounts paid or incurred by such persons in any action or proceeding, including
any action by or in the right of the Company, on account of service as a
director, officer, employee or agent of the Company or on account of service at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Securities Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions or agreements, the
Company has been informed that in the opinion of the Securities and Exchange
Commission (the "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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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.
The Company has obtained directors' and officers' insurance which insures
directors and officers of the Company against wrongful acts as a director or
officer, including civil liabilities pursuant to the Securities Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
See "Exhibit Index" herein.
Item 9. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants
annual report pursuant to section 13(a) or section 15(d) of the Securities
exchange Act of 1934 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.
<PAGE> 4
The undersigned registrant hereby undertakes further:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, 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.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
<PAGE> 5
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 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 Columbus, State of Ohio, on this 24th day of July, 1997.
CONSOLIDATED STORES CORPORATION
Date: July 24, 1997 By: /s/ William G. Kelley
-----------------------------------
William G. Kelley
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Date: July 24 , 1997 /s/ William G. Kelley
------------------------------------
William G. Kelley
Chairman of the Board and Chief
Executive Officer
Date: July 24 , 1997 /s/ Michael L. Glazer
------------------------------------
Michael L. Glazer
President
Date: July 24 , 1997 /s/ Michael J. Potter
--------------------------------------
Michael J. Potter
Senior Vice President, Chief Financial
and Accounting Officer
Date: July 24 , 1997
Sheldon M. Berman William G. Kelley Nathan Morton
W. Eric Carlborg David T. Kollat Dennis B. Tishkoff
Michael L. Glazer Brenda J. Lauderback William A. Wickham
Directors
Albert J. Bell, by signing his name hereto, does hereby sign this Form S-8
pursuant to the Powers of Attorney executed by the Directors named, filed with
the Securities and Exchange Commission on behalf of such Directors, all in the
capacities indicated and on the date stated, such persons being a majority of
the Directors of the Registrant.
Date: July 24 , 1997 /s/ Albert J. Bell
--------------------------------------
Albert J. Bell
Attorney-in-Fact
<PAGE> 6
EXHIBIT INDEX
Exhibit No Document
- ---------- ------------------------------------------------------------------
3(a) Form of Restated Certificate of Incorporation of the
Company (Exhibit 4(a) to the Company Registration
Statement (No. 33-6086) on Form S-8 and incorporated
herein by reference)
3(b) Amended and Restated By-laws of the Company (Exhibit 3(c)
to the Company's Annual Report on Form 10-K for the year
ended February 3, 1990 and incorporated herein by
reference)
3(c) Amendment to By-laws dated April 14, 1992 (Exhibit 3(c) to
the Company's Annual Report on Form 10-K for the year
ended February 1, 1992 and incorporated herein by
reference)
4(a) Specimen Stock Certificate (Exhibit 4(a) to the Company's
Annual Report on Form 10-K for the year ended February 1,
1992 and incorporated herein by reference)
4(b) Summary of Rights to Purchase Preferred Stock (Exhibit
4(b) to the Company's Annual Report on Form 10-K for the
year ended February 3, 1990 and incorporated herein by
reference)
4(c) Rights Agreement between the Company and National City
Bank (Exhibit 4(c) to the Company's Annual Report on Form
10-K for the year ended February 3, 1990 and incorporated
herein by reference)
4(d) Form of Certificate of Designation, Preferences and Rights
of Series A Junior Participating Preferred Stock of the
Company (Exhibit 4(d) to the Company's Annual Report on
Form 10-K for the year ended February 3, 1990 and
incorporated herein by reference)
5* Opinion of Counsel re Legality
10(a)* Consolidated Stores Corporation 1996 Performance Incentive
Plan as Amended and Restated on July 23, 1996
10(a)(i) Consolidated Stores Corporation Directors Stock Option
Plan (Exhibit 10(q) to the Company's Registration
Statement (No. 33-42502) on Form S-8 and incorporated
herein by reference)
10(a)(ii) Consolidated Stores Corporation Amended and Restated
Directors Stock Option Plan (Exhibit 10(c)(ii) to the
Company's Annual Report on Form 10-K for the year ended
February 1, 1992 and incorporated herein by reference)
10(b) Consolidated Stores Corporation Supplemental Savings Plan
(Exhibit 10(r) to the Company's Registration Statement
(No. 33-42692) on Form S-8 and incorporated herein by
reference)
10(c) CSIC Pension Plan and Trust dated March 1, 1976 (Exhibit
10(h)(ii) to the Company's Registration Statement (No.
2-97642) on Form S-1 and incorporated herein by reference)
10(c)(i) Amendment to CSIC Pension Plan and Trust (Exhibit
10(h)(ii) to the Company's Registration Statement (No.
2-97642) on Form S-1 and incorporated herein by reference)
E-1
<PAGE> 7
EXHIBIT INDEX - CONTINUED
Exhibit No Document
- ---------- -------------------------------------------------------------------
10(c)(ii) Amendment No. 2 to CSIC Pension Plan and Trust (Filed as an
Exhibit to the Company's Registration Statement (No. 33-6086) on
Form S-8 and incorporated herein by reference)
10(d) Amended and Restated Credit Agreement dated as of May 3, 1996, by
and among Consolidated Stores Corporation, an Ohio corporation
(the "Borrower"), the BANKS (as defined), and The Bank of New
York, in its capacity as Syndication Agent and as Managing Agent,
National City Bank of Columbus, in its capacity as Administrative
Agent ("Administrative Agent") and as Managing Agent, PNC Bank,
Ohio, National Association, in its capacity as Arranger, as
Documentation Agent (the "Documentation Agent") and as Managing
Agent , Bank One, Columbus, N.A., in its capacity as Managing
Agent, and National City Bank in its capacity as Managing Agent
(Exhibit 10(d) to the Company's Annual Report on Form 10-K for the
year ended February 1, 1997 and incorporated herein by reference)
10(e) Consolidated Stores Corporation 7% Senior Subordinated Note due
May 4, 2000 (Exhibit 10(b) to the Company's Current Report on Form
8-K dated May 10, 1996, and incorporated herein by reference)
10(e)(i) Indenture, dated as of May 5, 1996, between Consolidated Stores
Corporation, an Ohio corporation, and The Bank of New York, a New
York banking corporation (the "Trustee") for the equal and ratable
benefit of the Holders of the Company's Subordinated Notes due May
4, 2000 (Exhibit 10(b)(i) to the Company's Current Report on Form
8-K dated May 10, 1996, and incorporated herein by reference)
10(e)(ii) First Supplemental Indenture, dated as of January 22, 1997, among
Consolidated Stores Corporation, an Ohio corporation, and The Bank
of New York, a New York banking corporation (Exhibit 10(e)(ii) to
the Company's Annual Report on Form 10-K for the year ended
February 1, 1997 and incorporated herein by reference)
10(f) Stock Purchase Agreement dated as of March 25, 1996 between
Melville Corporation and Consolidated Stores Corporation relating
to the purchase and sale of 100% of the Common Stock of Kay-Bee
Center, Inc. (Exhibit B to the Company's Current Report on Form
8-K dated April 8, 1996, and incorporated herein by reference)
10(f)(i) Amendment No. 1 to Stock Purchase Agreement dated as of March 25,
1996 between Melville Corporation and Consolidated Stores
Corporation relating to the purchase and sales of 100% of the
Common Stock of Kay-Bee Center, Inc. (Exhibit 10 to the Company's
Current Report on Form 8-K dated May 10, 1996, and incorporated
herein by reference)
10(g) Employment Agreement with William G. Kelley (Exhibit 10(r) to
the Company's Annual Report on Form 10-K for the year ended
February 3, 1990 and incorporated herein by reference)
E-2
<PAGE> 8
EXHIBIT INDEX - CONTINUED
Exhibit No Document
- ---------- -----------------------------------------------------------------
10(g)(i) Amendment No. 1 to Employment Agreement with William G. Kelley
(Exhibit 10(f)(i) to the Company's Annual Report on Form 10-K
for the year ended February 3, 1996 and incorporated herein by
reference)
10(h) Employment Agreement with Armen Bahadurian (Exhibit 10(a) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
July 29, 1995, and incorporated herein by reference)
10(i) Employment Agreement with Charles Freidenberg (Exhibit 10(b) to
the Company's Quarterly Report on Form 10-Q for the quarter
ended July 29, 1995, and incorporated herein by reference)
10(j) Employment Agreement with Michael L. Glazer (Exhibit 10(c) to
the Company's Quarterly Report on Form 10-Q for the quarter
ended July 29, 1995, and incorporated herein by reference)
10(k) Employment Agreement with C. Matthew Hunnell (Exhibit 10(d) to
the Company's Quarterly Report on Form 10-Q for the quarter
ended July 29, 1995, and incorporated herein by reference)
10(l) Consolidated Stores Corporation 1987 Restricted Stock Plan as
amended and restated (Exhibit 10(p)(i) to the Company's Annual
Report on Form 10-K for the year ended February 3, 1990 and
incorporated by reference herein)
10(m) Consolidated Stores Corporation Savings Plan and Trust, as
amended and restated (Exhibit 10(q)(i) to the Company's Annual
Report on Form 10-K for the year ended February 3, 1990 and
incorporated by reference herein)
10(n) The Consolidated Stores Corporation Key Associate Annual
Incentive Compensation Plan (Exhibit 10(n) to the Company's
Annual Report on Form 10-K for the year ended February 1, 1997
and incorporated herein by reference)
10(o) Form of Executive Severance Agreement of the Company (Exhibit
10(s)(i) to the Company's Annual Report on Form 10-K for the
year ended February 3, 1990 and incorporated herein by
reference)
10(p) Consolidated Stores Executive Benefits Plan (Exhibit 10(t) to
the Company's Annual Report on Form 10-K for the year ended
February 3, 1990 and incorporated herein by reference)
21 List of subsidiaries of the Company (Exhibit 21 to the Company's
Annual Report on Form 10-K for the year ended February 1, 1997
and incorporated herein by reference)
23* Consent of Deloitte & Touche LLP
24 Power of Attorney for William G. Kelley, Michael L. Glazer and
Michael J. Potter (Exhibit 24 included in Part II of the
Company's Registration Statement (No. 333-2545) on Form S-3 and
incorporated herein by reference)
E-3
<PAGE> 9
EXHIBIT INDEX - CONTINUED
Exhibit No Document
- ---------- ---------------------------------------------------------------
24.1 Power of Attorney for David T. Kollat (Exhibit 24.1 to the
Company's Registration Statement (No. 333-2545) on Form S-3 and
incorporated herein by reference)
24.2 Power of Attorney for Nathan P. Morton (Exhibit 24.2 to the
Company's Registration Statement (No. 333-2545) on Form S-3 and
incorporated herein by reference)
24.3 Power of Attorney for Dennis B. Tishkoff (Exhibit 24.4 to the
Company's Registration Statement (No. 333-2545) on Form S-3 and
incorporated herein by reference)
24.4 Power of Attorney for William A. Wickham (Exhibit 24.5 to the
Company's Registration Statement (No. 333-2545) on Form S-3 and
incorporated herein by reference)
24.5 Power of Attorney for Sheldon M. Berman (Exhibit 24.6 to the
Company's Registration Statement (No. 333-2545) on Form S-3 and
incorporated herein by reference)
24.6* Power of Attorney for W. Eric Carlborg
24.7* Power of Attorney for Brenda J. Lauderback
27 Financial Data Schedule (Exhibit 27 to the Company's Annual
Report on Form 10-K for the year ended February 1, 1997 and
incorporated herein by reference)
E-4
<PAGE> 1
EXHIBIT 5
[LETTERHEAD]
July 24, 1997
Members of the Board of Directors
Consolidated Stores Corporation
300 Phillipi Road
P. O. Box 28512
Columbus, Ohio 43228-0512
Re: Opinion of Counsel as to Legality of 12,500,000
Shares of Common Stock to be Registered Under
the Securities Act of 1933
Dear Board Members:
This opinion is furnished in connection with the registration under the
Securities Act of 1933 on Form S-8 of 12,500,000 shares of Common Stock, $.01
par value, of Consolidated Stores Corporation (the "Company") offered to
employees of the Company and its subsidiary corporations pursuant to the
Consolidated Stores Corporation 1996 Performance Incentive Plan as Amended and
Restated on July 23, 1996 (1996 Performance Incentive Plan).
As counsel for the Company, I advise you that it is my opinion, based on my
familiarity with the affairs of the Company and upon my examination of pertinent
documents, that the 12,500,000 shares of Common Stock to be offered to the
employees of the Company under the 1996 Performance Incentive Plan, will, when
paid for and issued pursuant to the terms of the 1996 Performance Incentive
Plan, be validly issued and lawfully outstanding, fully paid and non-assessable
shares of Common Stock of the Company.
The undersigned hereby consents to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the registration statement
with respect to the aforementioned shares of Common Stock under the Securities
Act of 1933.
Very truly yours,
/s/ Albert J. Bell
- --------------------------
Albert J. Bell,
Senior Vice President, General Counsel and Secretary
<PAGE> 1
Exhibit 10(a)
CONSOLIDATED STORES CORPORATION
1996 PERFORMANCE INCENTIVE PLAN
AS AMENDED AND RESTATED ON JULY 23, 1996
1. PURPOSE. The Consolidated Stores Corporation 1996 Performance
Incentive Plan (the "Plan") has been adopted to promote the long-term success of
Consolidated Stores Corporation (the "Company") for the benefit of the Company's
stockholders by encouraging and creating significant ownership of Consolidated
Stores Corporation Common Stock, $.01 par value ("Common Stock" or "shares"), by
employees of the Company and its subsidiary corporations ("Subsidiaries"), as
defined in Section 424(f) of the Internal Revenue Code of 1986, as amended (the
"Code"). Additional purposes of the Plan include generating meaningful incentive
to participants to make substantial contributions to the Company's future
success and to enhance the Company's abilities to attract and retain persons who
will make such contributions. These purposes are to be accomplished through
stock options, restricted stock, performance units, and stock equivalent units.
2. EFFECTIVE DATE. The Plan shall be effective as of January 1, 1996,
subject to approval and modification by the Company's stockholders no later than
September 1, 1996. Awards may occur and shares may be issued under the Plan on
or after January 1, 1996 and prior to stockholder approval, subject to the
condition that any transactions under the Plan shall be rescinded in the event
that stockholders have not approved the Plan by September 1, 1996.
3. COMMON SHARES AVAILABLE. Subject to adjustments contemplated by
Section 4, the maximum number of newly issued shares of Common Stock that will
be available for issuance under the Plan shall be 2,000,000 shares, plus an
additional one percent (1%) of the total number of issued shares of Common Stock
(including treasury shares) as of the start of each of the Company's fiscal
years (currently comprised of a 52/53 week Fiscal Year which ends on the
Saturday nearest to January 31) that the Plan is in effect (including shares
exchanged in exercising stock options as contemplated by Section 5). Any shares
available but unissued in any given fiscal year shall continue to be available
for use in subsequent fiscal years. In any event, the total awards of stock
options or restricted stock outstanding and shares available for use under the
Plan combined with any awards of stock options or restricted stock outstanding
from the Company's 1987 Restricted Stock Plan, Executive Stock Option and Stock
Appreciation Rights Plan, and Director Stock Option Plan, respectively, shall
not exceed fifteen percent (15%) of the total shares of issued and outstanding
Common Stock as of any measurement date. The aggregate number of shares that can
be issued under the Plan by virtue of the exercise of incentive stock options
("ISO"), which are intended to be qualified under Section 422 of the Code, shall
be limited to 5,000,000 shares. Any shares that may be issued under the Plan may
be either authorized but unissued shares or issued shares reacquired by the
Company and that are being held as treasury shares, or shares acquired and held
for the benefit of the Plan pursuant to a written agreement with the Company. In
the event that the Committee enters into such an agreement with one or more
third persons to acquire shares of the Company's Common Stock in the market for
use by the Plan, such market acquired shares shall not be subject to or included
in any calculations of shares available in any fiscal year.
4. ADJUSTMENTS AND REORGANIZATIONS. The Committee may make such
adjustments to Awards made under the Plan (including the terms, exercise price
and otherwise) as it deems appropriate in the event of changes that impact the
Company, the Company's share price, or share status, provided that any such
actions are consistently and equitably applied to all affected participants;
provided, that, notwithstanding any other provision hereof, insofar as any Award
is subject to performance goals established to qualify payments thereunder as
"performance-based compensation" as described in Section 162(m) of the Code, the
Committee shall have no power to adjust such Awards other than (i) discretion to
decrease (but not increase) compensation and (ii) the power to adjust
<PAGE> 2
Awards for corporate transactions, in either case to the extent permissible
under regulations interpreting Code Section 162(m).
In the event of any stock dividend, stock split, extraordinary
dividend, combination or exchange of shares, merger, reorganization,
consolidation, recapitalization, spin-off or other distribution (other than
normal cash dividends) of Company assets to stockholders, or any other change
affecting the number of shares or the Company's capitalization, such
proportionate adjustments, if any, as the Committee in its discretion may deem
appropriate to reflect such change shall be made with respect to (i) aggregate
number of shares that may be issued under the Plan; (ii) the number of shares
relating to each outstanding Award made or assumed under the Plan; and (iii) the
price per share for any outstanding stock options awarded or assumed under the
Plan. If an equitable adjustment cannot be made or the Committee determines that
future adjustments are necessary, the Committee shall make such equitable
adjustment under the Plan as it determines will fairly preserve the intended
benefits of the Plan to the participants and the Company. In addition, any
shares issued by the Company through the assumption or substitution of
outstanding securities or commitments to issue securities from an acquired
company or other entity shall not reduce the shares available for issuance under
the Plan.
5. SHARE USAGE. If Awards made or assumed under the Plan expire or are
canceled without either the issuance of shares or a settlement in cash in lieu
of the issuance of shares, the shares of stock covered by such Awards shall
remain available for issuance under the Plan. Further, any shares which are
exchanged (whether actual or constructive) by a participant as full or partial
payment to the Company of the purchase price of shares being acquired through
the exercise of a stock option awarded or assumed under the Plan shall be added
to the aggregate number of shares available for issuance, but not added to the
maximum number of shares available for issuance pursuant to ISO Awards.
6. TERM OF THE PLAN. The term of this Plan shall be from January 1,
1996, until 5:00 p.m. Eastern time on February 3, 2006, unless sooner terminated
by the Board. Outstanding Awards shall continue to be effective and governed by
this Plan until they expire by their terms as provided in their respective Award
Agreements even though their expiration dates may be subsequent to the
termination of this Plan.
7. PLAN ADMINISTRATION.
7.1 Committee. A committee appointed by the Board (the
"Committee") shall be responsible for administering this Plan. The
Committee shall be comprised of three or more members of the Board who
shall, to the extent required, qualify to administer this Plan as
contemplated by Rule 16b-3 under the Securities Exchange Act of 1934
(the "1934 Act") (or any successor rule) and "Outside Directors" as
that term is used in Section 162(m) of the Code and regulations
promulgated thereunder. Without limiting the foregoing, except as
otherwise designated by the Board, the Committee shall be the
Compensation Committee of the Board.
7.2 Powers of the Committee. Subject only to the express
restrictions and limitations otherwise set forth in the Plan, the
Committee shall have sole, absolute and full authority and power to:
(a) Interpret this Plan and undertake such actions
and make such determinations and decisions as it deems
necessary and appropriate to carry out the Plan intent;
(b) Determine eligibility of participants and select
individuals to receive Awards;
<PAGE> 3
Exhibit 10(a)
(c) Determine the nature and amount of each Award;
(d) Decide the type of Award instrument to be made to
each participant and the terms and conditions applicable to
each such Award;
(e) Award instruments in isolation, in addition to,
in tandem with, or in substitution for other instruments made
under this Plan or Awards made under any other plan of the
Company or any options assumed under the Plan;
(f) Enter into agreements evidencing Awards made
under this Plan and their respective terms and conditions
("Award Agreements");
(g) Correct any defect, supply any omission,
reconcile any inconsistency in the Plan or any Award
instrument in the manner and to the extent the Committee deems
necessary or desirable;
(h) Establish, amend and rescind rules and
regulations relating to this Plan, provided that no such rule
or regulation shall be effective to the extent that its effect
would cause the Plan or any transaction to not comply with
Rule 16b-3 under the 1934 Act; and
(i) Take any other action necessary to the
administration of this Plan, provided that no such action
shall be effective to the extent that the effect of the action
would cause the Plan or any transaction to not comply with
Rule 16b-3 under the 1934 Act.
7.3 Delegation of Authority. The Committee may designate
persons other than members of the Committee or the Board to carry-out
its responsibilities subject to such limitations, restrictions and
conditions as it may prescribe, except that the Committee may not
delegate its authority with regards to the awarding of options to
persons subject to Sections 16(a) and 16(b) of the 1934 Act. Further,
the Committee may not delegate its authority if such delegation would
cause this Plan not to comply with the requirements of Rule 16b-3 or
any successor rule under the 1934 Act.
7.4 Documentation of Awards. All Awards made under this Plan
shall be evidenced by written agreements or such other appropriate
documentation as the Committee shall determine.
7.5 Indemnification. The Company may make such indemnification
arrangements for the Committee and its delegated appointees as shall be
permitted by its Articles of Incorporation, Bylaws and any applicable
law.
8. ELIGIBILITY. Any salaried employee, consultant or advisor of the
Company and its Subsidiaries shall be eligible to be designated, in the
discretion of the Committee, a participant of this Plan, provided such
eligibility would not jeopardize this Plan's compliance with Rule 16b-3 under
the 1934 Act or any successor rule. For purposes of this Plan, a consultant or
advisor shall be eligible only if bona fide services are being rendered pursuant
to a valid written agreement between the consultant or advisor and the Company,
and the services rendered are not in connection with the offer or sale of
securities in a capital-raising transaction.
9. AWARDS. Awards may be made singly, in combination or in tandem to
the extent allowable under the Code and regulations promulgated thereunder.
Awards may also be made in combination or in tandem with, in replacement of, as
alternatives to, or as the payment form for, Awards or rights under any other
employee benefit or compensation plan of the Company and Subsidiaries, including
any such employee benefit or compensation plan
<PAGE> 4
Exhibit 10(a)
of any acquired entity. Each Award shall be created upon and evidenced by an
Award Agreement. No Award shall be required to be similar to any other Award
made by the Committee.
9.1 Stock Options. A stock option shall confer on a participant the
right to purchase a specified number of shares from the Company subject to the
terms and conditions of the stock option Award. Options awarded under the Plan
may be: (i) Options which are intended to qualify and are clearly identified as
ISOs under Section 422 of the Internal Revenue Code of 1986 as amended (the
"Code") (ISOs); (ii) Options which are not so intended to qualify under Section
422 of the Code (NQSOs); or (iii) both of the foregoing if awarded separately,
not in tandem. Any stock option not specifically designated as intended to
qualify as an ISO shall constitute an NQSO.
In the case of Options intended to be ISOs, the exercise price
per share shall not be less than the fair market value of the
underlying common stock on the date of the Award. The fair market
value, determined at the time of awarding the Option to a participant,
of shares of Common Stock with respect to which ISOs are exercisable
for the first time by such participant during any calendar year (under
all plans of the participant's employer corporation and its parent and
subsidiary corporations) shall not exceed $100,000. In the case of an
optionee who owns stock possessing more than ten percent (10%) of the
total combined voting power or value of all classes of stock of the
Corporation or its parent or subsidiary corporations (as determined
under Section 424(d), (e) and (f) of the Code) at the time an Option
which is intended to qualify as an ISO under Section 422 of the Code is
awarded, the price per share of Common Stock at which such Option may
be exercised shall not be less than 110% of the fair market value of
the Common Stock at the time such Option is awarded.
NQSOs may be awarded to any Plan participant without regard to
such fair market value limitation, provided that in any event the
exercise price of any NQSO shall be at least the price per share of the
fair market value of the underlying Common Stock on the date of the
Award.
In any award of stock options under this Plan, the fair market
value of the Common Stock shall be the volume weighted average trading
price of the Common Stock on the New York Stock Exchange on the Award
Date.
The Committee shall have the discretion to award SARs with or
without stock options to purchase shares of Common Stock on such terms
and conditions provided in the Award Agreement as it deems appropriate
(including any limit on aggregate appreciation). The Committee may
award an SAR concurrently with the award of an Option or, in the case
of an Option which is not an ISO, with respect to an outstanding
option. A tandem Option/SAR will allow a participant to surrender an
Option or portion thereof and to receive payment from the Corporation
in an amount equal to the excess of the aggregate fair market value of
the shares of Common Stock with respect to which the Option is
surrendered over the aggregate option price of such shares. An SAR
shall be exercisable no sooner than six (6) months after it is awarded
and thereafter at any time prior to its stated expiration date, but
only to the extent the related Option may be exercised. SARs may be
settled in shares of Common Stock, cash or a combination of shares and
cash, as provided in the SAR Award Agreement. Shares as to which any
Option is so surrendered shall not be available for future option
Awards hereunder.
The Award price per share of Common Stock of a SAR shall be
fixed in the Award Agreement and shall not be less than one hundred
percent (100%) of the Fair Market Value of a share of Common Stock on
the date of the Award. The Fair Market Value shall be determined in the
same manner as described above.
<PAGE> 5
Exhibit 10(a)
9.2 Performance Units. The Committee shall have the discretion
to award instruments which designate an Award of cash or its
equivalent, which upon satisfaction of the criteria set forth in the
Award Agreement may become payable to the Award recipient in the form
of cash, stock, stock options, annuities, or such other form as is
deemed appropriate by the Committee. Performance Units may vest in such
manner as described in Section 10 below, subject to the provision of
Section 13 and upon satisfaction of such criteria as the Committee
shall deem appropriate. At the discretion of the Committee, Performance
Units may but need not convert into securities or derivative securities
at such time or times and in such manner as is set forth in the Award
Agreement.
9.3 Restricted Stock. The Committee shall have the discretion
to award shares of any series or class of common stock of the
Corporation which have been duly listed with one or more stock
exchanges, and which have been duly authorized and reserved for
purposes of the Plan; provided that such shares shall be restricted
against any disposition, transfer or negotiation by sale,
hypothecation, pledge or otherwise except in keeping with the vesting
and other criteria established by the Committee at the time of Award
("Restricted Stock"). The Committee shall establish vesting criteria
consistent with Sections 10 sand 11, respectively.
9.4 Stock Equivalent Units. The Committee shall have the
discretion to create and award one or more series or class of Stock
Equivalent Units. The Committee shall set forth the specific terms
appurtenant to each series or class of Stock Equivalent Units. No Stock
Equivalent Units shall at any time be deemed to constitute or convey
equity ownership, or a fractional share thereof in the Company, its
assets, or in any other person, entity or assets; and all Stock
Equivalent Units shall be restricted against any disposition, transfer
or negotiation by sale, hypothecation, pledge or otherwise.
10. PERFORMANCE-BASED COMPENSATION. Unless expressly waived (either
with respect to an individual or a class of individuals) in writing by the
Committee, Awards of Performance Units, Restricted Stock, and Stock Equivalent
Units are subject to the provisions of this Section 10 in addition to other
provisions of this Plan to the extent that the Committee intends to establish
performance goals applicable to Performance Units, Restricted Stock, and Stock
Equivalent Units awarded to participants in such a manner as shall permit
payouts with respect thereto to qualify as "performance-based compensation" as
described in Section 162(m)(4)(C) of the Code. In the event of an express waiver
by the Committee, any award of Restricted Stock that does not require vesting
based upon one or more of the provisions described in this Section 10, in any
event shall not fully vest within a period of less than three (3) years from the
date of the award.
10.1 Awards subject to this Section must vest solely on the
attainment of one or more objective performance goals unrelated to term
of employment. Awards will also be subject to the general vesting of
Award provisions provided in Section 15.
10.2 The Committee must establish the goals in writing no
later than ninety (90) days after commencement of the period of service
to which the performance goal relates. The outcome of the goal must be
substantially uncertain at the time the Committee actually established
the goal.
10.3 The performance goal must state, in terms of an objective
formula or standard, the method for computing the amount payable to the
participant if the goal is attained.
10.4 The performance goal formula or standard must specify the
individual employee(s) or class of employees to which it applies.
<PAGE> 6
Exhibit 10(a)
10.5 The terms of the objective formula or standard must
prevent any discretion being exercised by the Committee to later
increase the amount payable that otherwise would be due upon attainment
of the goal.
10.6 The material terms of the performance goal must be
disclosed to and subsequently approved in a separate vote by the
stockholders before the payout is executed, unless they conform to one
or any combination of the following:
(a) Earnings per common and common equivalent share
of stock from continuing operations as disclosed in the
Company's annual report to stockholders for a particular
fiscal year, or
(b) Common stock price, or
(c) Total stockholder return expressed on a dollar or
percentage basis as is customarily disclosed in the proxy
statement accompanying the notice of annual meetings of
stockholders, or
(d) Income from continuing operations, or
(e) Percentage increase in comparable store sales
(stores open two or more years at the beginning of the fiscal
year) as disclosed in the Company's annual report, or
(f) Any of items (a), (b), (c), (d) or (e) with
respect to any subsidiary, affiliate or business unit of the
Company whether or not such information is included in the
Company's annual report to stockholders, proxy statement or
notice of annual meeting of stockholders.
(g) Total Stockholder Return Ranking Position meaning
the relative placement of the Company's Total Stockholder
Return compared to those publicly held companies in the
Company's peer group as established by the Committee prior to
the beginning of a vesting period or such later date as
permitted under the Code. The peer group shall be comprised of
not less than eight (8) and not more than sixteen (16)
companies, including the Company.
A combination of target criteria may be used with a
particular Award Agreement.
10.8 The Committee must certify in writing prior to payout
that the performance goals and any other material terms were in fact
satisfied.
10.9 Any terms used in this Section 10 are to be interpreted
consistently with Section 162(m) of the Code and regulations
promulgated thereunder.
11. LIMITATIONS ON AWARDS.
11.1 Stock Options and SARs. In no event shall the number of
shares of Common Stock subject to Stock Options plus the number of
shares underlying SARs awarded to any one participant for any fiscal
year exceed 1,000,000 shares.
If an option is canceled before it expires, the canceled
option continues to be counted against the maximum number of shares for
which options may be awarded to that individual for that fiscal year.
If, after an Award, the exercise price of an option is reduced, the
transaction is treated as a cancellation of the
<PAGE> 7
Exhibit 10(a)
option and the award of a new option. In such a case, both the option
that is deemed canceled and the new option that is deemed awarded
reduce the maximum number of shares that can be awarded to any one
participant. Similar treatment is afforded to SARs where, after an
Award is made, the Award price is reduced.
11.2 Performance and Stock Equivalent Units. With respect to
these units, the maximum amount of compensation that may be paid
(within the meaning of Section 162(m) of the Code) to any one
participant with respect to any one fiscal year shall be $2,000,000
(the "Annual Payment Limit"). In the event that the vesting of any
Award, other than that caused by Section 18, would result in a payment
in excess of the Annual Payment Limit, the balance in excess of the
Annual Payment Limit shall be paid in the next succeeding fiscal year.
11.3 Restricted Stock. In no event shall the number of
Restricted Stock shares awarded to any one participant for any fiscal
year exceed 1,000,000 shares.
12. EXERCISE OF OPTIONS AND SARS. Subject to the provisions of the
Plan, an Option or an SAR may be exercised at such time or times after the date
of Award thereof as may be determined by the Committee at the time of Award,
subject to earlier exercise by operation of Section 18 hereof; provided,
however, no SAR shall be exercisable for six (6) months after it is awarded.
In case the employment of any participant to whom an Option or SAR
shall have been granted shall be terminated for any reason other than the
participant's death or permanent and total disability within the meaning of
Section 422 of the Code, such Option or SAR may be exercised by the participant
only during a period not exceeding three (3) months after the date of such
termination (but no later than the end of the fixed term of the Option or SAR)
and only for the number of shares of Common Stock for which the Option or SAR
could have been exercised at the time participant ceased to be an employee.
If a participant to whom an Option or SAR shall have been granted shall
die or become permanently and totally disabled within the meaning of Section 422
of the Code while in the employ of the Corporation, such Option or SAR may be
exercised by the participant or the participant's personal representative only
during a period not exceeding one (1) year after the date of the participant's
death or permanent and total disability (but no later than the end of the fixed
term of the Option or SAR) and only for the number of shares of Common Stock for
which the Option or SAR could have been exercised at the time the participant
died or became permanently and totally disabled.
In no event may an Option or SAR be exercised after the expiration of
its fixed term.
The recipient of a stock option Award shall pay for the shares at time
of exercise in cash or such other form as the Committee may approve, including
shares valued at their fair market value on the date of exercise, or in a
combination of payment forms; provided however, that Company stock surrendered
to satisfy all or a portion of the exercise price was held by the participant of
the stock option for at least six (6) months. For purposes of this paragraph,
shares of Common Stock tendered as payment of a stock option exercise shall have
a fair market value equal to the volume weighted average trading price of the
Common Stock as reported by the New York Stock Exchange on the Exercise Date.
Each Option or SAR awarded under the Plan shall be exercised by
execution by the holder of written notice of such exercise and delivery thereof
to the Corporation at its principal office at 300 Phillipi Road, Columbus, Ohio
43228-0512, or such other address as the Committee may designate, which notice
shall in the case of Options specify the number of shares of Common Stock being
purchased, together with payment in full for the shares
<PAGE> 8
Exhibit 10(a)
of Common Stock for which the Option is exercised and in the case of SARs
specify the number of SARs exercised, the Options to which such SARs are
connected and the cash or the number of shares of Common Stock to be received.
Such notice shall comply with such other reasonable requirements as the
Committee may establish. Unless the Committee determines to require full payment
of the option price in cash, part or all of the option price may be paid in
whole shares of Common Stock duly endorsed, or with attached stock powers in
blank duly endorsed, for transfer to the Corporation, provided that an
additional cash payment is made in such amount as may be required to pay any and
all applicable withholding taxes.
No person, estate or other entity shall have any of the rights of a
stockholder with reference to shares of Common Stock subject to an Option or SAR
or any Award which converts into Common Stock, or with reference to any share of
Restricted Stock until a certificate for the shares without restriction has been
delivered to the participant.
An Option or SAR granted under the Plan may be exercised for any lesser
number of shares of Common Stock than the full amount for which it could be
exercised, except that an Option or SAR may not be exercised for a fractional
share. Such a partial exercise of an Option or SAR shall not affect the right to
exercise the Option or SAR from time-to-time in accordance with the Plan for the
remaining shares subject to the Option or SAR.
13. TRADING RESTRICTIONS. The Committee may require that any security,
derivative security, restricted stock, or any Award whether or not it involves
any of the foregoing, be restricted against the transfer, pledge, conversion,
exercise, sale (direct or indirect), or hypothecation, or against any other
event, as the Committee may deem appropriate. Such restrictions may take the
form of legends appearing on the stock certificate or other instrument
evidencing such security, derivative security, or other Award.
The Committee may establish and enforce from time-to-time restrictions
on any participant in this Plan with respect to any trading of other
transactions or any nature which involve any instruments awarded under this
Plan. Such restrictions may include, but shall not be limited to, quarterly
trading periods which require transactions to occur only at specific times or
under certain conditions.
14. DEFERRAL. The Committee may require or permit participants to defer
payout of Awards under such rules or procedures as it may establish under each
Award Agreement. The deferral shall be executed by a written, irrevocable
election by the participant at such time and in such manner as the Committee at
its discretion, shall determine, including but not limited to any deferral which
could be subject to a Company plan, if available at such time. The Committee
shall determine reasonable bases to account for the delay in payout and, where
appropriate, shall determine such bases consistent with Code Section 162(m) and
the regulations thereunder (to preserve the Company's tax deduction). Such bases
may include, for example, the actual rate of return on a predetermined
investment (including any decrease as well as any increase in the value of an
investment) during the deferral period (whether or not the assets are actually
invested therein).
15. VESTING OF AWARDS. Awards consisting of any form of instrument
under this Plan shall vest in the manner designated by the Committee and set
forth in the Award instrument provided, however, that, except as provided in the
following paragraph, no Award awarded pursuant to this Plan shall vest in less
than six (6) months after the date the Award is awarded, and may be based upon
the occurrence of events or the satisfaction of criteria which may consist of
any measurable standard or combination of standards, and which may include,
though shall not be limited to, any one or more of (i) one or more personal
performance measurements, (ii) one or more Company performance measurements,
(iii) one or more Company Stock performance measurements, or (iv) passage of
time; provided, however, that the term of any stock option which is intended to
qualify as an ISO shall not exceed ten (10) years from the date of Award; and
provided, further, that in the case of an optionee who owns stock pos-
<PAGE> 9
Exhibit 10(a)
sessing more than ten percent (10%) of the total combined voting power or value
of all classes of stock of the Corporation or its parent or subsidiary
corporations (as determined under Section 424(d), (e) and (f) of the Code) at
the time any stock option is awarded, the term of such stock option shall not
exceed five (5) years from the date of Award.
16. TRUST DEPOSITS. The Committee may establish one or more revocable
and/or irrevocable trusts into which it may elect to deposit cash, securities or
derivative securities, or other property for the benefit of any one or more
Award recipients, which trust and its contents shall be deemed subject to the
general creditors of the Company. The Committee may also establish one or more
irrevocable trusts into which it may elect to deposit cash, securities or
derivative securities, or other property for the benefit of any one or more
Award recipients, which trust and its assets shall not be subject to the claims
of the Company's creditors.
17. NON-TRANSFERABILITY. Each Award granted hereunder shall not be
assignable or transferable other than by will or the laws of descent and
distribution or pursuant to a Qualified Domestic Relations Order; provided,
however, that a participant may, to the extent and in a manner specified by the
Committee: (a) designate in writing a beneficiary to exercise his Award after
the participant's death; (b) transfer an option (other than an ISO), SAR or
Performance Unit to a revocable inter vivos trust as to which the participant is
both the settlor and the trustee; and (c) if the Award Agreement expressly
permits, transfer an Award (other than Restricted Stock or an ISO) for no
consideration to any of the following permissible transferees (each a
"Permissible Transferee"): (w) any member of the immediate family of the
participant to whom such Award was granted, (x) any trust solely for the benefit
of members of the participant's immediate family, or (y) any partnership whose
only partners are members of the participant's immediate family; and further
provided that (i) the transferee shall remain subject to all of the terms and
conditions applicable to such Award prior to such transfer; and (ii) any such
transfer shall be subject to and in accordance with the rules and regulations
prescribed by the Committee in accordance with Section 7. For the purposes of
this Section 17, "Immediate Family" means, with respect to a particular
participant, such participant's spouse, children and grandchildren.
Notwithstanding the foregoing, each Award (other than restricted stock)
granted hereunder to a participant who is an "insider" pursuant to Section 16 of
the 1934 Act ("Section 16 participant") shall not be assignable or transferable
other than by will or the laws of descent and distribution unless the Committee
has determined that such restrictions are not then required for grants under
this Plan to satisfy the requirements for the exemption provided by Rule 16b-3
under the 1934 Act (in the form then applicable to the Company), in which event
the restrictions set forth in clause (c) of the preceding paragraph shall apply
to any such transfer. Notwithstanding the foregoing, a Section 16 participant
may, in a manner specified by the Committee and to the extent provided by this
Plan, designate a beneficiary to exercise an Award after the participant's
death.
Each share of restricted stock shall be non-transferable until such
share becomes nonforfeitable.
18. CHANGE IN CONTROL. Notwithstanding any provisions in this Plan to
the contrary, but subject to the last sentence of this Section 18, if there
occurs any event that results in a Change in Effective Control of the Company,
then all of the Awards outstanding under the Plan shall automatically become
vested in the Award recipient upon the consummation of such event. As used
herein, "Change in Effective Control" means any one or more of the following:
(i) any person or group (as defined for purposes of section 13(d) of the
Securities Exchange Act of 1934) becomes the beneficial owner of, or has the
right to acquire (by contract, option, warrant, conversion of convertible
securities or otherwise), 20% or more of the outstanding equity securities of
the Company entitled to vote for the election of directors; (ii) a majority of
the Board of Directors of the Company is replaced within any period of two (2)
years or less by directors not nominated and approved by a majority of the
Directors in office at the beginning of such period (or their successors so
nominated and approved), or a majority of the Board of Directors at any date
<PAGE> 10
Exhibit 10(a)
consists of persons not so nominated and approved; or (iii) the stockholders of
the Company approve an agreement to merge or consolidate with another
corporation or an agreement to sell or otherwise dispose of all or substantially
all of the Company's assets (including without limitation, a plan of
liquidation). Provided, however, the other provisions of this Section 18
notwithstanding, the term "Change in Control" shall not mean any transaction,
merger, consolidation, or reorganization in which Consolidated or CSC exchange
or offer to exchange newly issued or treasury shares in an amount of 20% or
more, but less than 50%, of the outstanding equity securities of Consolidated or
CSC entitled to vote for the election of directors, for 51% or more of the
outstanding equity securities entitled to vote for the election of at least the
majority of the directors of a corporation other than Consolidated or CSC or an
Affiliate thereof (the "Acquired Corporation"), or for all or substantially all
of the assets of the Acquired Corporation.
19. SECTION 83(b) ELECTION. The Committee may prohibit a participant
from making an election under Section 83(b) of the Code. If the Committee has
not prohibited such election, and if the participant elects to include in such
participant's gross income in the year of transfer the amounts specified in
Section 83(b) of the Code, the participant shall notify the Company of such
election within ten (10) days of filing notice of the election with the Internal
Revenue Service, in addition to any filing and notification required pursuant to
regulations issued under the authority of Section 83(b) of the Code.
20. NOTICE OF DISPOSITION OF COMMON STOCK PRIOR TO THE EXPIRATION OF
SPECIFIED ISO HOLDING PERIODS. The Company may require that a participant
exercising an ISO give a written representation to the Company, satisfactory in
form and substance, upon which the Company may rely, that the participant will
report to the Company any disposition of shares acquired via an ISO exercise
prior to the expiration of the holding periods specified by Section 422(a)(1) of
the Code.
21. TAX WITHHOLDING. The Company shall have the right to (i) make
deductions from any settlement of an Award made under the Plan, including the
delivery or vesting of shares, or require shares or cash or both be withheld
from any Award, in each case in an amount sufficient to satisfy withholding of
any federal, state or local taxes required by law, or (ii) take such other
action as may be necessary or appropriate to satisfy any such withholding
obligations. The Committee may determine the manner in which such tax
withholding may be satisfied, and may permit shares of Common Stock (rounded up
to the next whole number) to be used to satisfy required tax withholding based
on the Fair Market Value of any such shares of Common Stock, as of the
Settlement Date of the applicable Award.
22. OTHER COMPANY BENEFIT AND COMPENSATION PROGRAMS. Except as
expressly determined by the Committee, settlements of Awards received by
participants under this program shall not be deemed a part of a participant's
regular, recurring compensation for purposes of calculating payments or benefits
from any Company benefit or severance program (or parachute impact severance pay
law of any country). The above notwithstanding, the Company may adopt other
compensation programs, programs or arrangements as it deems appropriate or
necessary in its absolute discretion.
23. GENERAL PROVISIONS. The following provisions are applicable to the
Plan generally:
23.1 Future Rights. No person shall have any claim or rights
to be awarded an option under the Plan, and no option holder shall have
any rights under the Plan to be retained in the employ of the Company.
<PAGE> 11
Exhibit 10(a)
23.2 Stockholder Rights. Only upon the issuance of shares to a
participant or its agent (and only in respect to such shares) shall the
participant obtain the rights of stockholders, subject however, to any
limitations imposed by the terms of the applicable option.
23.3 No Fractional Shares. No fractional shares shall be
issued under the Plan and cash shall be paid in lieu of any fractional
shares in settlement of stock options exercised under the Plan.
23.4 Unfunded Plan. The Plan shall be unfunded and shall not
create (or be construed to create) a trust or a separate fund or funds.
Likewise, the Plan shall not establish any fiduciary relationship
between the Company and any participant or other person. To the extent
any person holds any rights by virtue of an option awarded under the
Plan, such right shall be no greater than the right of an unsecured
general creditor of the Company.
23.5 Successors and Assigns. The Plan shall be binding on all
successors and assigns of a participant, including, without limitation,
the estate of such participant and the executor, administrator or
trustee of such estate, or any receiver or trustee in bankruptcy or
representative of the participant's creditors.
23.6 Indemnification of Committee and Agents. In addition to
such other rights of indemnification as they may have as members of the
Board, the members of the Committee, and any employees or directors
acting as agents of, or carrying out the intentions of, the Committee
shall be indemnified by the Corporation against the reasonable
expenses, including attorney's fees, actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be
a part by reason of any action taken or failure to act under or in
connection with the Plan or any Option or SAR, and against all amounts
paid by them in settlement thereof (provided such settlement is
approved by independent legal counsel selected by the Corporation) or
paid by them in satisfaction of a judgment in any such action, suit or
proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such member is liable
for negligence or misconduct in the performance of the participant's
duties; provided that within sixty (60) days after institution of any
such action, suit or proceeding the member shall in writing offer the
Corporation the opportunity, at its own expense, to handle and defend
the same.
23.7 Plan Amendment. The Committee may amend the Plan as it
deems necessary or appropriate to better achieve the purposes of the
Plan, except that no amendment without the approval of the Company's
stockholders shall be made which would:
(a) Increase the total number of shares available for issuance
under the Plan (subject to the Committee's discretion provided for in
Section 4); or
(b) Cause the Plan not to comply with Rule 16b-3 or any
successor rule under the 1934 Act.
<PAGE> 12
Exhibit 10(a)
23.8 Governing Law. The validity, construction and effect of
the Plan and any actions taken under or relating to the Plan shall be
determined in accordance with the laws of the State of Delaware and
applicable Federal law.
Amended and restated this 23rd day of July, 1996.
Consolidated Stores Corporation
/s/ William G. Kelley
-----------------------------------------
Chairman and Chief Executive Officer
Attest:
/s/ Albert J. Bell
- --------------------------------------
Senior Vice President, General Counsel
and Secretary
<PAGE> 1
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Consolidated Stores Corporation on From S-8 of our report dated February 24,
1997 incorporated by reference in the Annual Report on Form 10-K of Consolidated
Stores Corporation for the year ended February 1, 1997.
Deloitte & Touche LLP
Dayton, Ohio
July 24, 1997
<PAGE> 1
Exhibit 24.6
SPECIAL POWER OF ATTORNEY
THE UNDERSIGNED, W. ERIC CARLBORG having his address at 14123 Denver West
Parkway, Golden Colorado 80401, does hereby appoint William G. Kelley, Albert J.
Bell and James E. Eggenschwiler, Jr., respectively and each of them, and each of
them having full power of substitution for the other, as his lawful
attorney-in-fact, and hereby empowers each of them to act singly or in concert
for the limited purpose of preparing, executing and filing on behalf of the
undersigned any registration statement, prospectus, underwriting agreement, and
all periodic reports required to be filed by Consolidated Stores Corporation on
Form 10-K, Form 10-Q, Form 8-K, Form 3, Form 4, Form 5, Form 144, or such other
form as may be required, respectively as the case may be, with the Securities
and Exchange Commission and with any securities exchange on which such security
is listed or traded, as may from time-to-time be required pursuant to the
Securities Act of 1933 as amended, the Securities Exchange Act of 1934 as
amended, or the rules which are promulgated from time-to-time under either of
such Acts, or the rules of any securities exchange.
This Special Power of Attorney is limited to the specific acts herein described
and is made effective the date last below written, and shall continue in full
force and effect until revoked by the undersigned. This Special Power of
Attorney, and the appointment and empowerment herein made, shall not be deemed
revoked or superseded, or otherwise affected, by the illness, incapacity or
death of the undersigned until such time as the earlier occurring of either (i)
a period of one year shall have elapsed from the date of such illness,
incapacity or death, or (ii) the receipt by each of the above named appointees
of a writing which revokes this Special Power of Attorney issued by the lawful
Personal Representative, Custodian or Conservator, of the undersigned.
/s/ W. Eric Carlborg
---------------------
W. ERIC CARLBORG
STATE OF Colorado )
-------------
).ss
COUNTY OF Jefferson )
-------------
BEFORE ME, the undersigned Notary Public in and for said county and state, did
personally appear on this 29th day of May, 1997, the above-signed individual
known to me to be W. ERIC CARLBORG, and upon oath duly sworn did testify that
the signing of the above and foregoing instrument did constitute his free and
voluntary act and deed.
/s/ Julie R. Rigazio
- -----------------------
NOTARY PUBLIC
[SEAL]
My Commission expires:
9-14-98
- -----------------------
<PAGE> 1
Exhibit 24.7
SPECIAL POWER OF ATTORNEY
THE UNDERSIGNED, BRENDA J. LAUDERBACK having her address at 9 West Broad
Street, Stamford, CT 06902, does hereby appoint William G. Kelley, Albert J.
Bell and James E. Eggenschwiler, Jr., respectively and each of them, and each
of them having full power of substitution for the other, as her lawful
attorney-in-fact, and hereby empowers each of them to act singly or in concert
for the limited purpose of preparing, executing and filing on behalf of the
undersigned any registration statement, prospectus, underwriting agreement,
and all periodic reports required to be filed by Consolidated Stores
Corporation on Form 10-K, Form 10-Q, Form 8-K, Form 3, Form 4, Form 5, Form
144, or such other form as may be required, respectively as the case may be,
with the Securities and Exchange Commission and with any securities exchange on
which such security is listed or traded, as may from time-to-time be required
pursuant to the Securities Act of 1933 as amended, the Securities Exchange Act
of 1934 as amended, or the rules which are promulgated from time-to-time under
either of such Acts, or the rules of any securities exchange.
This Special Power of Attorney is limited to the specific acts herein
described and is made effective the date last below written, and shall continue
in full force and effect until revoked by the undersigned. This Special Power
of Attorney, and the appointment and empowerment herein made, shall not be
deemed revoked or superseded, or otherwise affected, by the illness, incapacity
or death of the undersigned until such time as the earlier occurring of either
(i) a period of one year shall have elapsed from the date of such illness,
incapacity or death, or (ii) the receipt by each of the above named appointees
of a writing which revokes this Special Power of Attorney issued by the lawful
Personal Representative, Custodian or Conservator, of the undersigned.
/s/ Brenda J. Lauderback
------------------------
BRENDA J. LAUDERBACK
STATE OF Ohio )
-----------
).ss
COUNTY OF Franklin )
-----------
BEFORE ME, the undersigned Notary Public in and for said county and state, did
personally appear on this 20th day of May, 1997, the above-signed individual
known to me to be BRENDA J. LAUDERBACK, and upon oath duly sworn did testify
that the signing of the above and foregoing instrument did constitute his free
and voluntary act and deed.
/s/ Brenda E. Murphy
- --------------------
NOTARY PUBLIC
[SEAL]
My Commission expires:
9-15-97
