S-8 POS 1 c66043sv8pos.htm FORM S-8 POS sv8pos
As filed with the Securities and Exchange Commission on August 31, 2011
Registrant No. 333-143699

 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
POST EFFECTIVE AMENDMENT NO. 1

TO
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
COLLECTIVE BRANDS, INC.
(Exact Name of Registrant as Specified in its Charter)
     
Delaware   43-1813160
     
(State of Incorporation)   (I.R.S. Employer Identification No.)
     
3231 S.E. 6th Avenue, Topeka, Kansas   66607-2207
     
(Address of Principal Executive Offices)   (Zip Code)
COLLECTIVE BRANDS 401(K) PROFIT SHARING PLAN
COLLECTIVE BRANDS PUERTO RICO PROFIT SHARING PLAN
COLLECTIVE BRANDS PERFORMANCE + LIFESTYLE GROUP EMPLOYEE
SAVINGS & INVESTMENT PLAN
(Full Title of Plan)
Harold J. Herman, II
Vice President, Group Counsel and Assistant Secretary
COLLECTIVE BRANDS, INC.
3231 S.E. 6th Avenue
Topeka, Kansas 66607-2207
(785) 233-5171
(Name, Address and Telephone Number of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of the “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
             
Large accelerated filer þ   Accelerated filer o   Non-accelerated filer o   Smaller reporting company o
        (Do not check if a smaller reporting company)    
 
 

 

 

EXPLANATORY NOTE
     On June 13, 2007, Collective Brands, Inc. (formerly Payless ShoeSource, Inc.), a Delaware corporation (the “Registrant”), registered on Form S-8 File No. 333-143699 the offering and sale of 10,000,000 shares of Registrant’s common stock, par value $.01 per share (“Common Stock”) together with attached preferred stock purchase rights and an indeterminate amount of plan interests constituting separate securities, pursuant to the Payless ShoeSource, Inc. 401(k) Plan and the Payless ShoeSource, Inc. Profit Sharing Plan for Puerto Rico Associates (renamed effective July 1, 2011 the Collective Brands 401(k) Profit Sharing Plan and the Collective Brands Puerto Rico Profit Sharing Plan, respectively). This Post Effective Amendment No. 1 to the 2007 registration statement is being filed to (i) revise the plan names of the plans listed under the 2007 registration statement (ii) add the Collective Brands Performance + Lifestyle Group Employee Savings & Investment Plan and (iii) indicate that effective October 1, 2011, the 10,000,000 shares of Common Stock (and related plan interests), the offering and sale of which are covered by the 2007 registration statement, shall include such offerings and sales under the Collective Brands 401(k) Profit Sharing Plan, the Collective Brands Puerto Rico Profit Sharing Plan and the Collective Brands Performance + Lifestyle Group Employee Savings & Investment Plan. The registration fees in respect of such shares of Common Stock were paid at the time of the filing of the 2007 registration statement.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
 
*   The information required by Items 1 and 2 of part 1 of Form S-8 is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933 and the “Note” to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference:
     (a) The Annual Report of Collective Brands, Inc. (the “Company” or “Registrant”) on Form 10-K (Commission File No. 1-14770) for the Fiscal Year ended January 29, 2011.
     (b) The Quarterly Report of the Registrant on Form 10-Q for the fiscal Quarters ended April 30, 2011 and July 30, 2011. (Commission File No 1-14770).
     (c) The Registrant’s Current Reports on Form 8-K filed on (i) March 2, 2011, (ii) May 18, 2011, (iii) May 24, 2011, (iv) May 26, 201, (v) June 2, 2011 (vi) June 15, 2011 (vii) June 16, 2011 (viii) June 21, 2011 (ix) June 23, 2011 (x) July 6, 2011, (xi) July 22, 2011,(xii) August 17, 2011, and (xiii) August 24, 2011.
     (d) The description of the Registrant’s Common Stock contained under the captions “New Payless Capital Stock” of the Registrant’s Registration Statement on Form S-4 (File No. 333-50577).
     (e) The description of the Rights contained under “Description of Registrant’s Securities to be Registered” contained in the Registrant’s Registration Statement on Form 8-A filed on August 24, 2011
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, are incorporated by reference in this registration statement and are a part hereof from the date of filing of such documents. 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 and amended, to constitute part of this registration statement.

 

 

ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant’s Restated Certificate of Incorporation (the “Charter”) provides that it will indemnify any person who was or is a party or is threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative (including any action or suit by or in the right of Registrant) by reason of the fact that such person is or was a director, officer, employee or agent of Registrant or is or was serving at the request of Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, but in each case only if and to the extent permitted under applicable state or federal law. Expenses, including attorneys’ fees, incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by Registrant in advance of the final disposition of such action, suit or proceeding upon receipt by it of an undertaking of such person to repay such expenses if it shall ultimately be determined that such person is not entitled to be indemnified by Registrant.
The Charter further states that the right to indemnification and advancement of expenses provided therein shall not be deemed exclusive of any other rights to which those indemnified may be entitled, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, and personal representatives of such a person.
Section 145 of the Delaware General Corporation Law (“DGCL”) permits a corporation to indemnify its directors and officers against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties, if such directors or officers acted in good faith and in a manner they 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 reason to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant, officers or directors are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
As permitted by Section 102(b) (7) of the DGCL, the Charter provides that no director of Registrant will be liable to Registrant or its shareowners for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to Registrant or its shareowners; (2) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of the law; (3) under Section 174 of the DGCL; or (4) for any transaction from which a director derived an improper benefit.
Registrant has entered into indemnification agreements with each director and certain executive officers of Registrant. Generally, each indemnification agreement provides, among other things, (i) for indemnification to the fullest extent permitted by law against all expenses, judgments, fines, penalties incurred in connection with, and amounts paid in settlement of, any claim against the indemnified party, provided it is determined pursuant to the agreement that the indemnitee is entitled to be indemnified under the applicable standard of conduct under the DGCL; (ii) for advancement of expenses to the indemnitee in connection with the indemnitee’s defense of any threatened or pending claim, provided that if it is determined pursuant to the agreement that the indemnitee would not be permitted to be indemnified under applicable law, Registrant shall be entitled to be reimbursed by the indemnitee for all such amounts previously paid; (iii) for the creation of a trust for the benefit of the indemnitee in the event of a potential change in control of Registrant which shall be funded from time to time at the request of the indemnitee in an amount sufficient to satisfy Registrant’s indemnification obligations under the agreement; and (iv) that no legal action be brought and no cause of action be asserted by or on behalf of Registrant against the indemnitee after the expiration of the earlier of the applicable statute of limitations or two years after the date of accrual of such cause of action. Similar indemnification agreements may be entered into from time to time with additional officers of Registrant. In addition, Registrant has purchased a directors and officers liability insurance policy.

 

 

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
  4.1   Collective Brands 401(k) Profit Sharing Plan, as amended and restated effective August 15, 2011*
 
  4.2   Collective Brands Performance + Lifestyle Group Employee Savings & Investment Plan, as amended and restated effective October 1, 2011*
 
  4.3   Collective Brands Puerto Rico Profit Sharing Plan as Amended Effective January 1, 2007, or as otherwise specified*
 
  4.4   Amendment to the Collective Brands Puerto Rico Profit Sharing Plan effective September 1, 2011*
 
  23.1   Consent of Deloitte & Touche LLP.*
 
*   Filed Herewith
ITEM 9. UNDERTAKINGS.
     (a) The 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 a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 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 post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
     (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
     (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act 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, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

 

SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Topeka, State of Kansas, on the 31st day of August, 2011.
         
  COLLECTIVE BRANDS, INC.
 		  
  By:   /s/ Douglas G. Boessen    
    Name:   Douglas G. Boessen   
    Title:   Division Senior Vice President,
Chief Financial Officer 		  

 

 

         
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated:
         
By:
  /s/ Michael J. Massey   Date: August 31, 2011
 
       
 
  Michael J. Massey    
 
  Chief Executive Officer & President
(Principal Executive Officer)		    
 
        
By:
  /s/ Douglas G. Boessen   Date: August 31, 2011
 
       
 
  Douglas G. Boessen    
 
  Division Senior Vice President,
Chief Financial Officer (Principal Financial and Accounting Officer)		    
 
        
By:
  /s/ D. Scott Olivet   Date: August 31, 2011
 
       
 
  D. Scott Olivet    
 
  Chairman of the Board and Director    
 
        
By:
  /s/ Daniel Boggan Jr.   Date: August 31, 2011
 
       
 
  Daniel Boggan Jr.    
 
  Director    
 
        
By:
  /s/ Mylle H. Mangum   Date: August 31, 2011
 
       
 
  Mylle H. Mangum    
 
  Director    
 
        
By:
  /s/ John F. McGovern   Date: August 31, 2011
 
       
 
  John F. McGovern    
 
  Director    
 
        
By:
  /s/ Robert F. Moran   Date: August 31, 2011
 
       
 
  Robert F. Moran    
 
  Director    
 
        
By:
  /s/ Richard L. Markee   Date: August 31, 2011
 
       
 
  Richard L. Markee    
 
  Director    
 
        
By:
  /s/ Matt Ouimet   Date: August 31, 2011
 
       
 
  Matt Ouimet    
 
  Director    
 
        
By:
  /s/ Michael A. Weiss   Date August 31, 2011
 
       
 
  Michael A. Weiss    
 
  Director    
 
        
By:
  /s/ Robert C. Wheeler   Date: August 31, 2011
 
       
 
  Robert C. Wheeler    
 
  Director    

 

 

The Plan. Pursuant to the requirements of the Act, the Administrative Committee of the Plans has duly caused this Post-Effective Amendment No. 1 to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Topeka, State of Kansas, on the 31st day of August, 2011.
COLLECTIVE BRANDS 401(K) PROFIT SHARING PLAN
         
By:   /s/ Betty J. Click    
  Betty Click   
  Senior Vice President   
COLLECTIVE BRANDS PUERTO RICO PROFIT SHARING PLAN
         
By:   /s/ Sally J. Burk    
  Sally Burk   
  Vice President   
COLLECTIVE BRANDS PERFORMANCE + LIFESTYLE GROUP EMPLOYEE SAVINGS & INVESTMENT PLAN
         
By:   /s/ Sally J. Burk    
  Sally Burk   
  Vice President   

 

 

         
EXHIBIT INDEX
     
4.1
  Collective Brands 401(k) Profit Sharing Plan, as amended and restated effective August 15, 2011*
 
4.2
  Collective Brands Performance + Lifestyle Group Employee Savings & Investment Plan, as amended and restated effective October 1, 2011*
 
4.3
  Collective Brands Puerto Rico Profit Sharing Plan, as Amended Effective January 1, 2007, or as otherwise specified*
 
4.4
  Amendment to the Collective Brands Puerto Rico Profit Sharing Plan effective September 1, 2011*
 
23.1
  Consent of Deloitte & Touche LLP.*
 
*   Filed Herewith