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As filed with the Securities and Exchange Commission on June 29, 2001
Registration No. 33-6086
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 3 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BIG LOTS, INC.
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(Exact name of Registrant as specified in its charter)
OHIO 06-1119097
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
300 PHILLIPI ROAD, P.O. BOX 28513, COLUMBUS, OHIO 43228-0512
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(Address of principal executive offices, including zip code)
BIG LOTS, INC. EXECUTIVE STOCK OPTION AND STOCK APPRECIATION
RIGHTS PLAN (f/k/a CONSOLIDATED STORES CORPORATION EXECUTIVE
STOCK OPTION AND STOCK APPRECIATION RIGHTS PLAN)
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(Full title of the plan)
CHARLES W. HAUBIEL II, ESQ.
300 PHILLIPI ROAD, P.O. BOX 28512
COLUMBUS, OHIO 43228-0512
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(Name and address of agent for service)
(614) 278-6800
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(Telephone number, including area code, of agent for service)
Index to Exhibits at page 10
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On May 15, 2001, Consolidated Stores Corporation, a Delaware
corporation ("Consolidated (Delaware)"), was merged (the "Merger") with and into
Big Lots, Inc., an Ohio corporation and a wholly-owned subsidiary of
Consolidated (Delaware) ("Big Lots (Ohio)"). Big Lots (Ohio) was formed as an
Ohio corporation as a vehicle to effect the change of the state of incorporation
of Consolidated (Delaware) from Delaware to Ohio through the Merger. The Merger
was approved by the stockholders of Consolidated (Delaware) at the Annual
Meeting of Stockholders held on May 15, 2001.
Each share of common stock, par value $0.01 per share (the
"Consolidated (Delaware) Shares"), of Consolidated (Delaware) was converted into
one common share, par value $0.01 per share (the "Big Lots (Ohio) Common
Shares"), of Big Lots (Ohio) automatically as a result of the Merger. By virtue
of the Merger, Big Lots (Ohio) has succeeded to all the business, properties,
assets and liabilities of Consolidated (Delaware), including the obligations of
Consolidated (Delaware) under the Big Lots, Inc. Executive Stock Option and
Stock Appreciation Rights Plan (f/k/a the Consolidated Stores Corporation
Executive Stock Option and Stock Appreciation Rights Plan) (the "Executive Stock
Option Plan"). Pursuant to Rule 12g-3(a) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Big Lots (Ohio) Common Shares are
deemed to be registered under the Exchange Act.
Pursuant to Rule 414 promulgated under the Securities Act of
1933, as amended (the "1933 Act"), Big Lots (Ohio) hereby adopts the
Registration Statement on Form S-8 (Registration No. 33-6086) of Consolidated
(Delaware), as amended and supplemented by Post-Effective Amendment No. 1 and
Post-Effective Amendment No. 2 to such Registration Statement, related to the
registration under the 1933 Act of the Consolidated (Delaware) Shares to be
offered under the Executive Stock Option Plan, as Big Lots (Ohio)'s own
Registration Statement on Form S-8 for all purposes of the 1933 Act and the
Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with
the Securities and Exchange Commission (the "Commission") are hereby
incorporated by reference:
(a) Consolidated (Delaware)'s Annual Report on Form 10-K
for the fiscal year ended February 3, 2001, filed
pursuant to Section 13(a) of the Exchange Act;
(b) Big Lots (Ohio)'s Quarterly Report on Form 10-Q for the
fiscal quarter ended May 5, 2001, filed pursuant to
Section 13(a) of the Exchange Act;
(c) All documents which may be filed by Big Lots (Ohio)
with the Commission pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of
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the offering contemplated by the Executive Stock Option
Plan, from the date of filing of each such document;
and
(d) The description of the Big Lots (Ohio) Common Shares
contained in Big Lots (Ohio)'s Quarterly Report on Form
10-Q for the fiscal quarter ended May 5, 2001.
Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 1701.13(E) of the Ohio Revised Code (the
"OGCL"), directors, officers, employees and agents of Ohio corporations have an
absolute right to indemnification for expenses (including attorneys' fees)
actually and reasonably incurred by them to the extent they are successful in
defense of any action, suit or proceeding, including derivative actions, brought
against them, or in defense of any claim, issue or matter asserted in any such
proceeding. A director, officer, employee or agent is entitled to such
indemnification if such person's success is "on the merits or otherwise."
Directors (but not officers, employees or agents) are entitled to mandatory
payment of expenses by the corporation as they are incurred, in advance of the
final disposition of the action, suit or proceeding, provided the director
agrees to cooperate with the corporation concerning the matter and to repay the
amount advanced if it is proved by clear and convincing evidence that the
director's act or failure to act was done with deliberate intent to cause injury
to the corporation or with reckless disregard for the corporation's best
interests.
Section 1701.13(E) of the OGCL permits a corporation to
indemnify directors, officers, employees or agents of the corporation in
circumstances where indemnification is not mandated by the statute if certain
statutory standards are satisfied. A corporation may grant indemnification in
actions other than derivative actions if the indemnitee has acted in good faith
and in a manner the indemnitee reasonably believed to be in, or not opposed to,
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe the indemnitee's conduct was
unlawful. Such indemnification is permitted against expenses (including
attorneys' fees) as well as judgments, fines and amounts paid in settlement
actually and reasonably incurred by the indemnitee.
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An Ohio corporation may also provide indemnification in
derivative actions for attorneys' fees and expenses actually and reasonably
incurred in connection with the defense or settlement of an action if the
officer, director, employee or agent acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the best interests of
the corporation. Ohio law does not expressly authorize indemnification against
judgments, fines and amounts paid in settlement of such actions. The corporation
may not indemnify a director, officer, employee or agent in such actions for
attorneys' fees and expenses if such person is adjudged to be liable to the
corporation for negligence or misconduct in the performance of such person's
duties to the corporation, unless and only to the extent that a court determines
that, despite the adjudication of liability, such person is fairly and
reasonably entitled to indemnity.
Section 1701.13(E) of the OGCL states that the indemnification
provided thereby is not exclusive of any other rights granted to those persons
seeking indemnification under the articles, the regulations, any agreement, a
vote of the shareholders or disinterested directors or otherwise.
The OGCL grants express power to an Ohio corporation to
purchase and maintain insurance or furnish similar protection, including, but
not limited to, trust funds, letters of credit and self-insurance, for director,
officer, employee or agent liability, regardless of whether that individual is
otherwise eligible for indemnification by the corporation.
The Regulations provide for the broadest indemnification
permitted under Section 1701.13(E) of the OGCL. The Regulations provide that Big
Lots (Ohio) must indemnify officers and directors against expenses (including
attorneys' fees, filing fees, court reporters' fees and transcript costs),
judgments, fines and amounts paid in settlement incurred in connection with any
pending, threatened or completed action (whether criminal, civil, administrative
or investigative) by reason of the fact that any such individual is or was a
director, officer, employee, agent or volunteer of Big Lots (Ohio) or is or was
serving at the request of Big Lots (Ohio) as a director, trustee, officer,
employee, member, manager, agent or volunteer of another corporation or other
entity so long as such individual's act or omission was not occasioned by such
individual's intent to cause injury to, or by such individual's reckless
disregard for the best interests of, Big Lots (Ohio) and, with respect to any
criminal matter, such individual had no reasonable cause to believe such
individual's conduct was unlawful.
The Regulations forbid Big Lots (Ohio) from indemnifying an
officer or director if such person is adjudged to be liable for an act or
omission occasioned by such person's deliberate intent to cause injury to, or by
such person's reckless disregard for the best interests of, Big Lots (Ohio),
unless and only to the extent a court, in view of all the circumstances,
concludes that such person is fairly and reasonably entitled to such indemnity
as the court deems proper. The Regulations recite a presumption (which may only
be rebutted by clear and convincing evidence) that no act or omission by a
director or officer was occasioned by an intent to cause injury to, or by a
reckless disregard for the best interests of, Big Lots (Ohio), and with respect
to any criminal matter, that no director or officer had reasonable cause to
believe his or her conduct was unlawful.
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The Regulations state that the indemnification provided
thereby is not exclusive of any other rights to which any person seeking
indemnification may be entitled. Additionally, the Regulations provide that Big
Lots (Ohio) may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee, agent or volunteer of Big Lots (Ohio), or
who is or was serving another entity at the request of Big Lots (Ohio), against
any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or not
Big Lots (Ohio) would have the obligation or power to indemnify such person
under the Regulations. The Regulations also authorize Big Lots (Ohio) to
purchase and maintain trust funds, letters of credit or self-insurance on behalf
of any person who is or was a director, officer, employee, agent or volunteer of
Big Lots (Ohio) or who is or has served another entity at the request of Big
Lots (Ohio).
The Board of Directors of Big Lots (Ohio) has in the past and
may in the future maintain insurance to insure its present or former directors,
officers and employees against liabilities and expenses arising out of any claim
or breach of duty, error, misstatement, misleading statement, omission or other
acts done by reasons of their being such directors, officers or employees of Big
Lots (Ohio).
ITEM 8. EXHIBITS.
The following exhibits are filed herewith and made a part
hereof:
Exhibit No. Description of Exhibit
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2 Agreement of Merger, dated as of May 15, 2001, by and
between Consolidated Stores, Inc. and Big Lots, Inc.
(incorporated by reference to Exhibit 2 of Big Lots (Ohio)'s
Quarterly Report on Form 10-Q for the fiscal quarter ended
May 5, 2001 (File No. 1-8897))
3(a) Amended Articles of Incorporation of Big Lots, Inc.
(incorporated by reference to Exhibit 3(a) of Big Lots
(Ohio)'s Quarterly Report on Form 10-Q for the fiscal
quarter ended May 5, 2001 (File No. 1-8897))
3(b) Code of Regulations of Big Lots, Inc. (incorporated by
reference to Exhibit 3(b) of Big Lots (Ohio)'s Quarterly
Report on Form 10-Q for the fiscal quarter ended May 5, 2001
(File No. 1-8897))
5 Opinion of Vorys, Sater, Seymour and Pease LLP, counsel to
Big Lots, Inc.
10 Big Lots, Inc. Executive Stock Option and Stock Appreciation
Rights Plan (f/k/a Consolidated Stores Corporation Executive
Stock Option and Stock Appreciation Rights Plan), as amended
and restated October 9, 1990 (incorporated by reference to
Exhibit 10(c) of Consolidated (Delaware)'s Annual Report on
Form 10-K for the fiscal year ended February 1, 1992 (File
No. 1-8897))
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23 Consent of Vorys, Sater, Seymour and Pease LLP, counsel to
Big Lots, Inc. (included in Exhibit 5)
24 Powers of Attorney
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement; 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) do
not apply if the information required to be included in the
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 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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 liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration
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statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described in Item 6 of this Part II, 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 of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
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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
Post-Effective Amendment No. 3 to Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Columbus, State of Ohio, on June 28, 2001.
BIG LOTS, INC.
By: /s/ Michael J. Potter
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Michael J. Potter, Chairman of the Board,
Chief Executive Officer and President
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Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 3 to Registration Statement on Form S-8 has
been signed by the following persons in the capacities indicated on June 28,
2001.
SIGNATURE TITLE
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/s/ Michael J. Potter Chairman of the Board, Chief Executive Officer
- ------------------------------- and President (Principal Executive Officer)
Michael J. Potter
/s/ Albert J. Bell Director (Vice Chairman) and Chief
- ------------------------------- Administrative Officer (Principal Financial and
Albert J. Bell Accounting Officer)
* Director
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Sheldon M. Berman
* Director
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W. Eric Carlborg
* Director
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Michael L. Glazer
* Director
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David T. Kollat
* Director
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Brenda J. Lauderback
* Director
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Dennis B. Tishkoff
* Director
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William A. Wickham
*By Albert J. Bell pursuant to Powers of Attorney executed by the directors and
executive officers listed above, which Powers of Attorney have been filed with
the Securities and Exchange Commission.
/s/ Albert J. Bell
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Albert J. Bell, Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
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2 Agreement of Merger, dated as of May 15, 2001, by and between
Consolidated Stores, Inc. and Big Lots, Inc. ("Big Lots (Ohio)")
(incorporated by reference to Exhibit 2 of Big Lots (Ohio)'s
Quarterly Report on Form 10-Q for the fiscal quarter ended May 5,
2001 (File No. 1-8897))
3(a) Amended Articles of Incorporation of Big Lots, Inc. (incorporated
by reference to Exhibit 3(a) of Big Lots (Ohio)'s Quarterly
Report on Form 10-Q for the fiscal quarter ended May 5, 2001
(File No. 1-8897))
3(b) Code of Regulations of Big Lots, Inc. (incorporated by reference
to Exhibit 3(b) of Big Lots (Ohio)'s Quarterly Report on Form
10-Q for the fiscal quarter ended May 5, 2001 (File No. 1-8897))
*5 Opinion of Vorys, Sater, Seymour and Pease LLP, counsel to Big
Lots, Inc.
10 Big Lots, Inc. Executive Stock Option and Stock Appreciation
Rights Plan (f/k/a Consolidated Stores Corporation Executive
Stock Option and Stock Appreciation Rights Plan), as amended and
restated October 9, 1990 (incorporated by reference to Exhibit
10(c) of Consolidated Stores Corporation's Annual Report on Form
10-K for the fiscal year ended February 1, 1992 (File No.
1-8897))
*23 Consent of Vorys, Sater, Seymour and Pease LLP, counsel to Big
Lots, Inc. (included in Exhibit 5)
*24 Powers of Attorney
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*Filed herewith
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