As
filed with the Securities and Exchange Commission on March 18, 2010
Registration
No. ______________
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
___________
DUCKWALL-ALCO
STORES, INC.
(Exact
name of registrant as specified in its charter)
___________
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Kansas
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48-0201080
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|
(State
of Incorporation)
|
(I.R.S.
Employer Identification No.)
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401
Cottage Street
Abilene,
Kansas 67410
(785)
263-3350
(Address
and telephone number of principal executive offices)
____________
DUCKWALL-ALCO
STORES, INC.
NON-QUALIFIED
STOCK
OPTION AGREEMENT
AND
DUCKWALL-ALCO
STORES, INC.
INCENTIVE
STOCK OPTION PLAN
(Full
Title of Plans)
___________
Richard
E. Wilson
Duckwall-ALCO
Stores, Inc.
401
Cottage Street
Abilene,
Kansas 67410
(785)
263-3350
(Name,
address and telephone number of registrant’s agent for service)
___________
with
copies to:
Brett
C. Bogan, Esq.
Lathrop &
Gage LLP
10851
Mastin Boulevard, Suite 1000
Overland
Park, Kansas 66210
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 "large accelerated filer," ‘accelerated filer" and
"smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
o
Accelerated
filer
x
Non-accelerated
filer
o
(Do
not check if smaller reporting company)
Smaller reporting company
o
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CALCULATION
OF REGISTRATION FEE
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|
Title
of Each
Class
of Securities
To
Be Registered
(1)
|
Amount
To Be
Registered
(2)
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Proposed
Maximum
Offering
Price
Per
Share
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
Common
Stock issuable under the Non-Qualified Stock Option
Agreement
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10,000
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$14.56(3)
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$145,600(3)
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$10.38
|
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CALCULATION
OF REGISTRATION FEE
|
|
Title
of Each
Class
of Securities
To
Be Registered
(1)
|
Amount
To Be
Registered
(2)
|
Proposed
Maximum
Offering
Price
Per
Share
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
Common
Stock issuable under the Incentive Stock Option Plan
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500,000
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$14.56(3)
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$7,280,000(3)
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$519.07(4)
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(1)
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Includes
associated
rights (the
“Rights”) to purchase the registrant’s common stock. Until the
occurrence of certain prescribed events, none of which has occurred, the
Rights are not exercisable.
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(2)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended, (the
“Securities Act”) this registration statement also covers any additional
shares of the registrant’s common stock that may become issuable under
stock options granted by the registrant under the Duckwall-ALCO Stores,
Inc. Non-Qualified Stock Option Agreement or the Duckwall-ALCO Stores,
Inc. Incentive Stock Option Plan (the “Plans”) by reason of any stock
split, stock dividend, recapitalization or similar transaction effective
without the registrant’s receipt of consideration that results in an
increase in the number of the registrant’s outstanding shares of common
stock.
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(3)
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Pursuant
to Rule 457(c) and (h) under the Act, the proposed maximum offering price
per share and the proposed maximum aggregate offering price are estimated
solely for purposes of calculating the registration fee, and are based
upon the average of the closing price of the registrant’s common stock as
reported on the NASDAQ National Market on March 12, 2010, which was $14.56
per share.
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(4)
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The
total registration fee for both Plans registered under this Form S-8 is
$529.45.
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The following documents are
incorporated by reference in this registration statement: (i) the latest annual
report of Duckwall-ALCO Stores, Inc. (the "Registrant") filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); (ii) all other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the annual
report referred to in clause (i) above (other than any Current Reports on Form
8-K containing Regulation FD disclosure furnished under Item 7.01 (or its
successor) or Results of Operations and Financial Condition disclosure furnished
under Item 2.02 (or its successor) and exhibits relating to such disclosures,
unless otherwise specifically stated in such Current Reports on Form 8-K); and
(iii) the description of the Registrant's common stock set forth in the
Registrant's Registration Statement on Form S-1 relating thereto, including any
amendment or report filed for the purpose of updating such
description. 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 all securities offered
have been sold or which deregisters all securities then remaining unsold (other
than any Current Reports on Form 8-K containing Regulation FD disclosure
furnished under Item 7.01 (or its successor) or Results of Operations and
Financial Condition disclosure furnished under Item 2.02 (or its successor) and
exhibits relating to such disclosures, unless otherwise specifically stated in
such Current Reports on Form 8-K), shall be deemed to be incorporated by
reference in this registration statement and to be a 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 17-6002
(a)(8) of the Kansas General Corporation Code provides that a Kansas corporation
may include in its articles of incorporation a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (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 17-6424 of the Kansas General Corporation Code (relating to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock); or (iv) for any transaction from which the director derived
an improper personal benefit. The Registrant's restated and amended
certificate of incorporation contains a provision, as permitted by
Section 17-6002 of the Kansas General Corporation Code, that eliminates the
Registrant's and its stockholders' rights (through stockholders' derivative
suits on behalf of the Registrant) to recover monetary damages against a
director for breach of the fiduciary duty of care as a director except in the
situations described in clauses (i) through (iv) above. The
limitations described above, however, do not affect the ability of the
Registrant or its stockholders to seek non-monetary based remedies, such as an
injunction or rescission, against a director for breach of his fiduciary duty
nor would such limitations limit liability under the federal securities
laws.
Under
Section 17-6303 of the Kansas General Corporation Code, a Kansas
corporation has the power, under specified circumstances to indemnify its
directors, officers, employees and agents in connection with actions, suits or
proceedings brought against them by a third party or in the right of the
corporation, because they were or are directors, officers, employees or agents
of the Registrant, against expenses, judgments and other amounts incurred in any
such action, suit or proceeding. The Registrant's bylaws provide that
each person who is or was a director or officer of the Registrant or is or was
serving at the request of the Registrant as a director or officer of another
corporation (including the heirs, executors, administrators and estate of such
person) will be indemnified by the Registrant to the full extent permitted or
authorized by the laws of the State of Kansas, as now in effect and as hereafter
amended, against any expenses, judgments, fines and amounts paid in settlement
(including attorneys' fees) actually and reasonably incurred by such person in
his capacity as or arising out of his status as a director or officer of the
Registrant or, if serving at the request of the Registrant, as a director or
officer of another corporation. The indemnification provided by the
Registrant's bylaws is not exclusive of any other rights to which those
indemnified may be entitled under the Registrant’s articles of incorporation,
under any other of the Registrant’s bylaws or under any agreement, vote of
stockholders or disinterested directors or otherwise, and will not limit in any
way any right which the Registrant may have to provide different or further
indemnification benefits with the respect to the same or different persons or
classes of persons.
The
Registrant’s bylaws further provide that no person will be liable to the
Registrant for any loss, damage, liability or expense suffered by the Registrant
due to any action taken or omitted to be taken by the person as a director or
officer of the Registrant or of any other corporation which he serves as a
director or officer at the request of the Registrant, if such person (i)
exercised the same degree of care and skill as a prudent person would have
exercised under the circumstances in the conduct of the person’s own affairs, or
(ii) took or omitted to take such action in reliance upon advice of counsel for
the Registrant, or for such other corporation, or upon statements made or
information furnished by directors, officers, employees or agents of the
Registrant, or of such other corporation, which the person had no reasonable
grounds to disbelieve.
The
Registrant has purchased directors’ and officers’ liability insurance
coverage.
Item
7. Exemption from Registration Claimed.
Not applicable.
Item
8. Exhibits.
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4.1
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Amended
and Restated Articles of Incorporation (filed as Exhibit 3(a) to
Duckwall-ALCO Stores, Inc.’s Registration Statement on Form S-1 and hereby
incorporated herein by reference).
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4.2
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Certificate
of Amendment to the Articles of Incorporation (filed as Exhibit 3(b) to
Duckwall-ALCO Stores, Inc.’s Annual Report on Form 10-K for the fiscal
year ended January 29, 1995, and incorporated herein by reference) (filed
as Exhibit 3(b) to Duckwall-ALCO Stores, Inc.’s Annual Report on Form 10-K
for the fiscal year ended January 29, 1995, and incorporated herein by
reference).
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4.3
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Bylaws
(filed as Exhibit 3(b) to Duckwall-ALCO Stores, Inc.’s Registration
Statement on Form S-1 and hereby incorporated herein by
reference).
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4.4
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Specimen
Common Stock Certificates (filed as Exhibit 4.1 to Duckwall-ALCO Stores,
Inc.’s Registration Statement on Form S-1 and incorporated herein by
reference).
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*4.5
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Amended
and Restated Bylaws of Duckwall-ALCO Stores, Inc. dated June 6,
2007
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*4.6
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Duckwall-ALCO
Stores, Inc. Non-Qualified Stock Option Agreement.
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*4.7
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Duckwall-ALCO
Stores, Inc. Incentive Stock Option Plan.
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*5.1
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Opinion
of Lathrop & Gage LLP.
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*23.1
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Consent
of Independent Registered Public Accounting Firm.
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*23.2
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Consent
of Counsel (included in the opinion filed as Exhibit 5.1 to this
Registration Statement).
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*24.1
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Powers
of Attorney executed by officers and directors of Duckwall-ALCO Stores,
Inc., who have signed the Registration
Statement.
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* Filed
Herewith
Item
9. Undertakings.
(a) The
undersigned Registrant undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
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(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration
statement;
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(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.
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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 reports filed 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;
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(2)
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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; and
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(3)
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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.
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(b) The
undersigned Registrant 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 (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 Abilene, Kansas, on the 18
th
day
of March, 2010.
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DUCKWALL-ALCO
STORES, INC.
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By:
/s/ Richard E.
Wilson
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Name: Richard E.
Wilson
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Title: President and
Chief Executive Officer
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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:
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/s/ Donny
R.
Johnson
Donny
R. Johnson
Executive
Vice President – Chief Financial Officer
(Principal
Financial and Accounting Officer)
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March
18, 2010
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/s/ Royce
Winsten
Royce
Winsten
Director
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March
18, 2010
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/s/
Raymond A.D.
French
Raymond
A.D. French
Director
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March
18, 2010
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/s/ Lolan
C.
Mackey
Lolan
C. Mackey
Director
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March
18, 2010
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/s/
Dennis E.
Logue
Dennis
E. Logue
Director
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March
18, 2010
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Brett C. Bogan, by signing his name
hereto, does hereby sign this Registration Statement on behalf of each of the
above referenced directors and officers of Duckwall-ALCO Stores, Inc. pursuant
to powers of attorney executed by each of such persons and filed herewith as
Exhibit 24.1.
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*By
/s/ Brett
C.
Bogan
Brett
C. Bogan
Corporate
Secretary
|
March
18, 2010
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EXHIBIT
INDEX
|
4.1
|
Amended
and Restated Articles of Incorporation (filed as Exhibit 3(a) to
Duckwall-ALCO Stores, Inc.’s Registration Statement on Form S-1 and hereby
incorporated herein by reference).
|
|
|
|
|
4.2
|
Certificate
of Amendment to the Articles of Incorporation (filed as Exhibit 3(b) to
Duckwall-ALCO Stores, Inc.’s Annual Report on Form 10-K for the fiscal
year ended January 29, 1995, and incorporated herein by reference) (filed
as Exhibit 3(b) to Duckwall-ALCO Stores, Inc.’s Annual Report on Form 10-K
for the fiscal year ended January 29, 1995, and incorporated herein by
reference).
|
|
|
|
|
4.3
|
Bylaws
(filed as Exhibit 3(b) to Duckwall-ALCO Stores, Inc.’s Registration
Statement on Form S-1 and hereby incorporated herein by
reference).
|
|
|
|
|
4.4
|
Specimen
Common Stock Certificates (filed as Exhibit 4.1 to Duckwall-ALCO Stores,
Inc.’s Registration Statement on Form S-1 and incorporated herein by
reference).
|
|
|
|
|
*4.5
|
Amended
and Restated Bylaws of Duckwall-ALCO Stores, Inc. dated June 6,
2007
|
|
|
|
|
*4.6
|
Duckwall-ALCO
Stores, Inc. Non-Qualified Stock Option Agreement.
|
|
|
|
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*4.7
|
Duckwall-ALCO
Stores, Inc. Incentive Stock Option Plan.
|
|
|
|
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*5.1
|
Opinion
of Lathrop & Gage LLP.
|
|
|
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*23.1
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Consent
of Independent Registered Public Accounting Firm.
|
|
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*23.2
|
Consent
of Counsel (included in the opinion filed as Exhibit 5.1 to this
Registration Statement).
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*24.1
|
Powers
of Attorney executed by officers and directors of Duckwall-ALCO Stores,
Inc. who have signed the Registration
Statement.
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* Filed
Herewith