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As filed with the Securities and Exchange Commission on August 30, 2001
Registration No. 33-19309
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2 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, COLUMBUS, OHIO 43228-0512
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(Address of principal executive offices, including zip code)
BIG LOTS, INC. SAVINGS PLAN AND TRUST
(F/K/A CONSOLIDATED STORES CORPORATION SAVINGS PLAN AND TRUST)
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(Full title of the plan)
CHARLES W. HAUBIEL II, ESQ.
300 PHILLIPI ROAD
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 11
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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. Savings Plan and Trust (f/k/a
the Consolidated Stores Corporation Savings Plan and Trust) (the "Savings
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. 33-19309) of Consolidated
(Delaware), as amended and supplemented by Post-Effective Amendment No. 1 to
such Registration Statement, related to the registration under the 1933 Act of
Consolidated (Delaware) Shares and an indeterminate amount of interests to be
offered under the Savings 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.
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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) The Annual Report on Form 11-K for the fiscal year
ended December 31, 2000 of the Savings Plan, filed
pursuant to Section 15(d) of the Exchange Act;
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(d) All documents which may be filed by Big Lots (Ohio) or
the Savings Plan 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 the offering contemplated by the Savings
Plan, from the date of filing of each such document;
and
(e) 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.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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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
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against expenses (including attorneys' fees) as well as judgments, fines and
amounts paid in settlement actually and reasonably incurred by the indemnitee.
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 Code of Regulations of Big Lots (Ohio) (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
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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.
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.
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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 Corporation 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))
24 Powers of Attorney
The undersigned Registrant has submitted the Savings Plan, and
any amendments to the Savings Plan required to be submitted, to the Internal
Revenue Service (the "IRS") in a timely manner and has made all changes required
by the IRS in order to qualify the Savings Plan under Section 401 of the
Internal Revenue Code of 1986, as amended (the "Code"). The Registrant hereby
undertakes to submit to the IRS any further amendments to the Savings Plan
required to be so submitted and will make all changes required by the IRS in
order to continue to qualify the Savings Plan under Section 401 of the Code.
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Item 9. Undertakings.
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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 (and each filing of the
Savings Plan's annual report pursuant to 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.
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
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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
THE REGISTRANT. 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. 2 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 August 30, 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. 2 to Registration Statement on Form S-8 has
been signed by the following persons in the capacities indicated on August 30,
2001.
SIGNATURE TITLE
/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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THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Post-Effective Amendment No. 2 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 August 30, 2001.
BIG LOTS, INC. SAVINGS PLAN AND TRUST (f/k/a CONSOLIDATED
STORES CORPORATION SAVINGS PLAN AND TRUST)
By: /s/ Albert J. Bell
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Albert J. Bell, Chief Administrative Officer
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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 Corporation 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)))
*24 Powers of Attorney
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*Filed herewith
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