-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ww3yTLhrmYrUzNehS9/BhnuqMJpoVudcmw0QU8jFa5a91YR6ahQEBYRFoNSMSBis nVwMs6IpumFl4fk65FcXFw== /in/edgar/work/20000913/0001012870-00-004767/0001012870-00-004767.txt : 20000922 0001012870-00-004767.hdr.sgml : 20000922 ACCESSION NUMBER: 0001012870-00-004767 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000913 EFFECTIVENESS DATE: 20000913 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COST PLUS INC/CA/ CENTRAL INDEX KEY: 0000798955 STANDARD INDUSTRIAL CLASSIFICATION: [5331 ] IRS NUMBER: 941067973 STATE OF INCORPORATION: CA FISCAL YEAR END: 0130 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-45710 FILM NUMBER: 722279 BUSINESS ADDRESS: STREET 1: 201 CLAY ST STREET 2: P O BOX 23350 CITY: OAKLAND STATE: CA ZIP: 94607 BUSINESS PHONE: 4158937300 MAIL ADDRESS: STREET 1: P O BOX 23350 STREET 2: P O BOX 23350 CITY: OAKLAND STATE: CA ZIP: 94623 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on September 13, 2000 Registration No. 333-________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________ FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ________________ COST PLUS, INC. (Exact name of Registrant as specified in its charter) California 94-1067973 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 200 4th Street Oakland, California 94607 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ________________ 1995 STOCK OPTION PLAN 1996 DIRECTOR OPTION PLAN (Full title of the plans) ________________ JOHN F. HOFFNER Chief Financial Officer, Executive Vice President, Administration and Secretary COST PLUS, INC. 200 4th Street Oakland, CA 94607 (510) 893-7300 (Name, address and telephone number of agent for service) ________________ Copies to: HENRY P. MASSEY, JR., ESQ Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 (650) 493-9300 CALCULATION OF REGISTRATION FEE
============================================================================================================== Proposed Proposed Maximum Maximum Maximum Title of Amount Offering Aggregate Amount of Securities to to be Price Offering Registration be Registered Registered (1) Per Share(2) Price Fee - -------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value, to be issued under 1995 Stock Option Plan ................ 350,000 shares $35.78 $12,523,700 $3,306.26 - -------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value, to be issued under 1996 Director Option Plan ............. 100,000 shares $35.78 $ 3,578,000 $ 944.59 Total ............................................................ $16,101,700 $4,250.85 ==============================================================================================================
(1) For the sole purpose of calculating the registration fee, the number of shares to be registered under this registration statement (the "Registration Statement") is the number of additional shares authorized to be issued under the 1995 Stock Option Plan, and the number of additional shares authorized to be issued under the 1996 Director Option Plan. (2) Estimated in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the total registration fee. Computation based upon the average of the high and low prices of the Common Stock as reported on the Nasdaq National Market on September 8, 2000 because the price at which the options to be granted in the future may be exercised is not currently determinable. PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3 INFORMATION INCORPORATED BY REFERENCE ------------------------------------- The following documents and information heretofore filed with the Securities and Exchange Commission are hereby incorporated by reference: Item 3(a) The Registrant's Annual Report on Form 10K, file no. 000-14970, filed on April 27, 2000, which contains audited financial statements for the Registrant's fiscal year ended January 29, 2000, the latest fiscal year for which such statements have been filed. Item 3(b) The Registrant's Quarterly Report on Form 10Q, file no. 000-14970, filed June 13, 2000, which contains unaudited financial statements for the Registrant's quarter ended April 29, 2000. The Registrant's Quarterly Report on Form 10Q, file no. 000-14970, filed September 11, 2000, which contains unaudited financial statements for the Registrant's quarter ended July 29, 2000. Item 3(c) Items 1 and 2 of the Registrant's registration statement on Form 8-A filed on March 1, 1996, as amended by Amendment No. 1 to Form 8-A filed on March 27, 1996, pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post- effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Item 4 DESCRIPTION OF SECURITIES ------------------------- Not Applicable. Item 5 INTERESTS OF NAMED EXPERTS AND COUNSEL -------------------------------------- Not Applicable. Item 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS ----------------------------------------- Section 317 of the California Corporations Code makes provisions for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons, under certain circumstances, for liabilities (including reimbursement of expenses incurred) arising under the Securities Act. The Registrant has entered into indemnification agreements to such effect with its officers and directors. Article FIFTH of Registrant's Restated Articles of Incorporation and Article XIV, Section 14.9 of the By-laws of Registrant provide that the Registrant shall indemnify certain agents of the Registrant to the maximum extent permitted by the California Corporations Code. Persons covered by this indemnification provision include current and former directors, officers, employees and other agents of the Registrant as well as persons who serve at the request of the Registrant as directors, officers, employees or agents of another enterprise. II-1 The Registrant has the power, to the extent and in the manner permitted by Section 317 of the California Corporations Code, to indemnify each of its employees and agents (other than directors and officers) against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that such person is or was an agent of the Company. For this purpose, an "employee" or "agent" of the Registrant includes any person (i) who is or was an employee or agent of Registrant, (ii) who is or was serving at the request of Registrant as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or agent of a corporation which was a predecessor corporation of Registrant or of another enterprise at the request of such predecessor corporation. The Registrant has entered into separate indemnification agreements with its directors and officers, which may require the Registrant, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers (other than liabilities arising from willful misconduct of a culpable nature), and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. Item 7 EXEMPTION FROM REGISTRATION CLAIMED ----------------------------------- Not Applicable. Item 8 EXHIBITS --------
Exhibit Sequential Page Number Description Number - ---------- ----------------------------------------------------------------- --------------- 4.1 Amended and Restated Articles of Incorporation, as filed with the California Secretary of State on April 1, 1996, incorporated by reference to Exhibit 3.1 to the Form 10K filed for the fiscal year ended February 1, 1997. Certificate of Amendment of Restated Articles of Incorporation, as filed with the California Secretary of State on September 24, 1999, incorporated by reference to Exhibit 3.1.2 to the Form 10K filed for the fiscal year ended January 29, 2000. Certificate of Amendment of Restated Articles of Incorporation, as filed with the California Secretary of State on February 25, 1999, incorporated by reference to Exhibit 3.1 to the Form 10Q filed for the quarter ended May 1, 1999. Certificate of Determination, as filed with California Secretary of State on July 27, 1998, incorporated by reference to Exhibit 3.2 to the Form 10K filed for the fiscal year ended January 30, 1999. 4.2 Amended and Restated By-laws, dated November 17, 1999, incorporated by reference to Exhibit 3.3 to the Form 10k filed for the year ended January 29, 2000. 5.1 Opinion of Counsel as to Legality of Securities Being Registered.
II-2
Exhibit Sequential Page Number Description Number - ---------- ----------------------------------------------------------------- --------------- 23.1 Independent Auditors' Consent. 23.2 Consent of Counsel (contained in Exhibit 5.1 hereto). 24.1 Power of Attorney (see page II-5).
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 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, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, Cost Plus, Inc., a corporation organized and existing under the laws of the State of California, 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 Oakland, State of California, on September 13, 2000. COST PLUS, INC. By: /s/ John F. Hoffner ------------------------------------ John F. Hoffner, Chief Financial Officer, Executive Vice President, Administration and Secretary II-4 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Murray H. Dashe and John F. Hoffner, jointly and severally, his or her attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - ---------------------------------------- --------------------------------------- ------------------ /s/ Murray H. Dashe Chairman, President, Chief September 11, 2000 ________________________________________ Executive Officer and Director (Murray H. Dashe) /s/ John F. Hoffner Chief Financial Officer, Executive Vice September 6, 2000 ________________________________________ President, Administration and Secretary (John F. Hoffner) /s/ John Luttrell ________________________________________ Vice President/Controller September 11, 2000 (John Luttrell) /s/ Joseph H. Coulombe ________________________________________ Director September 11, 2000 (Joseph H. Coulombe) /s/ Danny W. Gurr ________________________________________ Director September 5, 2000 (Danny W. Gurr) /s/ Fredric M. Roberts ________________________________________ Director September 6, 2000 (Fredric M. Roberts) /s/ Kim D. Robbins ________________________________________ Director September 5, 2000 (Kim D. Robbins) /s/ Thomas D. Willardson ________________________________________ Director September 11, 2000 (Thomas D. Willardson)
II-5 EX-5.1 2 0002.txt OPINION OF COUNSEL AS TO LEGALITY OF SECURITIES EXHIBIT 5.1 [WILSON SONSINI GOODRICH & ROSATI LETTERHEAD] September 12, 2000 Cost Plus, Inc. 200 4th Street Oakland, CA 94607 Re: Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We have examined the registration statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about September 12, 2000 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of an additional 350,000 shares of Common Stock reserved for issuance under the 1995 Stock Option Plan, as amended, and 100,000 shares of Common Stock reserved for issuance under the 1996 Director Option Plan, as amended (together, the "Plans"). As legal counsel for Cost Plus, Inc., we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the shares of Common Stock under the Plans. It is our opinion that, when issued and sold in the manner referred to in the Plans and pursuant to the respective agreement which accompanies each grant under the Plans, the Shares will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever it appears in the Registration Statement and any amendments to it. Sincerely, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati EX-23.1 3 0003.txt INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1 [DELOITTE & TOUCHE LLP LETTERHEAD] INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Cost Plus, Inc. on Form S-8 of our report dated March 10, 2000 appearing in the Annual Report on Form 10-K of Cost Plus, Inc. for the fiscal year ended January 29, 2000. /s/ Deloitte & Touche LLP San Francisco, California September 12, 2000 -----END PRIVACY-ENHANCED MESSAGE-----