AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 2004
REGISTRATION NO. 333-________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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RETAIL VENTURES, INC.
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(Exact name of registrant as specified in its charter)
Ohio 20-0090238
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3241 Westerville Road, Columbus, Ohio 43224
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(Address of Principal Executive Offices) (Zip Code)
The Profit Sharing and 401(k) Plan
(as Amended and Restated Effective January 1, 2000)
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(Full title of the plan)
James A. McGrady
Executive Vice President, Chief Financial Officer, Treasurer and Secretary
Retail Ventures, Inc.
3241 Westerville Road
Columbus, Ohio 43224
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(Name and address of agent for service)
(614) 471-4722
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(Telephone number, including area code, of agent for service)
COPIES TO:
Susan E. Brown, Esq.
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street, P.O. Box 1008
Columbus, Ohio 43216-1008
(614) 464-6400
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CALCULATION OF REGISTRATION FEE
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Title of Proposed maximum
securities to be Amount to be offering price per Proposed maximum aggregate Amount of
registered (1) registered share (2) offering price (2) registration fee
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Common Shares, without 1,200,000 $6.825 $8,190,000 $1,038
par value
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) and 457(h)
promulgated under the Securities Act of 1933, as amended, and computed on
the basis of $6.825, which is the average of the high and low sales
prices of the Common Shares as reported on The New York Stock Exchange on
July 9, 2004.
Index Exhibit begins at Page II-12.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Retail Ventures, Inc. (the "Company" or "Registrant") and The Profit
Sharing and 401(k) Plan (the "Plan") hereby incorporate by reference into this
Registration Statement the following documents filed by the Company and the Plan
with the Securities and Exchange Commission (the "Commission") pursuant to the
requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"):
1. The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 2004;
2. The Plan's Annual Report on Form 11-K for the fiscal year
ended December 31, 2003;
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended May 1, 2004;
4. The Company's Current Report on Form 8-K filed on May 6, 2004;
and
5. The Company's Current Report on Form 8-K filed on June 7,
2004.
Any definitive proxy statement or information statement filed pursuant
to Section 14 of the Exchange Act, and all documents which may be filed by the
Company or the Plan with the Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act subsequent to the date hereof and prior to the completion of
the offering contemplated hereby, shall also be deemed to be incorporated herein
by reference and to be made a part hereof from the date of filing of such
documents.
Additional information may be obtained about any of the documents
incorporated by reference in this Registration Statement, excluding any exhibits
to those documents unless the exhibit is specifically incorporated by reference
in this Registration Statement, without charge, by writing or phoning us at the
following address and phone number: Retail Ventures, Inc., 3241 Westerville
Road, Columbus, Ohio 43224, (614) 471-4722, Attn: James A. McGrady.
Item 4. Description of Securities.
The following paragraphs provide a summary of the material attributes
of the common shares of the Company. The following statements are brief
summaries of the provisions of the Amended and Restated Articles of
Incorporation of the Company (the "Articles") and the Amended and Restated Code
of Regulations of the Company (the "Regulations"), and such statements are
qualified in their entirety by reference to the Articles and Regulations and to
applicable Ohio law.
Generally
The authorized capital stock of the Company consists of 160,000,000
common shares, without par value. As of July 9, 2004, the Company had
approximately 34,003,557 common shares issued
and outstanding. The common shares are traded on the New York Stock Exchange
under the symbol "RVI".
Holders of the common shares are entitled to:
o one vote for each common share held of record on all matters
presented to a vote of shareholders, including the election of
directors;
o receive dividends pro rata on a per share basis, if and when
declared by the Board of Directors from funds legally
available therefor; and
o share ratably in the Company's net assets, legally available
to the shareholders in the event of the Company's liquidation,
dissolution, or winding up, after payment in full of all
amounts required to be paid to creditors or provision for such
payment.
Holders of the Company's common shares have no preemptive,
subscription, redemption, conversion or cumulative voting rights. The Company's
common shares are fully paid and non-assessable.
Voting Requirements
The Articles of the Company provide that, notwithstanding any provision
of the Ohio General Corporation Law requiring for any purpose the vote or
consent of the holders of shares entitling them to exercise two-thirds, or any
other proportion, of the voting power of the Company, such action, unless
otherwise expressly required, may be taken by the vote or consent of the holders
of shares entitling them to exercise a majority of the voting power of the
Company.
Anti-Takeover Effects of the Articles, Regulations and the Ohio General
Corporation Law
The following provisions in the Articles and Regulations of the Company
could have the effect of discouraging potential takeover attempts and/or making
attempts by shareholders to change the Company's Board of Directors and
management more difficult:
Removal of Directors. The Regulations of the Company provide that a
director or directors may be removed from office at any time, with or without
cause, but only by the affirmative vote of the holders of at least three-fourths
of the outstanding shares of the Company entitled to vote on the election of
directors at a meeting of shareholders called for that purpose, except that if
the Board of Directors, by an affirmative vote of at least three-fourths (3/4)
of the entire Board, recommends removal of a director to the shareholders, such
removal may be effected by the affirmative vote of a majority of the outstanding
shares of the Company.
Nomination Procedures. The Regulations of the Company provide that
nominees for election to the Board of Directors, other than those nominated by
or at the direction of the Board of Directors, must be made in writing and
delivered to or mailed and received at the principal executive offices of the
Company not less than 60 nor more than 90 days prior to any meeting of
shareholders called for the purpose of electing directors. However, if less than
75 days' notice or public disclosure of the date of the meeting is given or made
to shareholders, then the nomination must be received not later than the close
of business on the fifteenth (15th) day following the day on which the meeting
date was disclosed.
The Company has expressly opted out of the following anti-takeover
provisions of the Ohio General Corporation Law:
Control Share Acquisition Act. Section 1701.831 of the Ohio Revised
Code, known as the "Control Share Acquisition Act," provides that certain notice
and informational filings, and special shareholder meeting and voting
procedures, must occur prior to any person's acquisition of an issuer's shares
that would entitle the acquirer to exercise or direct the exercise of the voting
power of the issuer in the election of directors within any of the following
ranges:
o one-fifth or more but less than one-third of such voting
power;
o one-third or more but less than a majority of such voting
power; or
o a majority or more of such voting power.
The Control Share Acquisition Act does not apply to a corporation if
its articles of incorporation or code of regulations so provide. The Articles of
the Company expressly state that none of the provisions of the Control Share
Acquisition Act shall be applicable to the Company.
Merger Moratorium Statute. If a person becomes the beneficial owner of
10% or more of an issuer's shares without the prior approval of its board of
directors, Chapter 1704 of the Ohio Revised Code, known as the "Merger
Moratorium Statute," prohibits the following transactions for at least three
years if they involve both the issuer and either the acquirer or anyone
affiliated or associated with the acquirer:
o the disposition or acquisition of any interest in assets;
o mergers, consolidations, combinations and majority share
acquisitions;
o voluntary dissolutions; and
o the issuance or transfer of shares or any rights to acquire
shares in excess of 5% of the outstanding shares.
The prohibition imposed by Chapter 1704 continues indefinitely after
the initial three-year period unless the transaction is approved by the holders
of at least two-thirds of the voting power of the issuer or satisfies statutory
conditions relating to the fairness of the consideration to be received by the
shareholders.
The Merger Moratorium Statute does not apply to a corporation if its
articles of incorporation or code of regulations so provide. The Articles of the
Company expressly state that none of the provisions of Chapter 1704 of the Ohio
Revised Code shall be applicable to the Company.
Transfer Agent
National City Bank serves as the transfer agent for the Company's
common shares.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article SEVENTH of the Registrant's First Amended and Restated Articles
of Incorporation provides as follows:
SEVENTH: Indemnification and Insurance
The Corporation shall indemnify any director, officer,
incorporator, or any former director or officer of the Corporation or
any person who is or has served at the request of the Corporation as a
director, officer or trustee of another corporation, partnership, joint
venture, trust or other enterprise (and his heirs, executors and
administrators) against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement, actually and reasonably incurred
by him by reason of the fact that he is or was such director, officer,
incorporator or trustee in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, to the full extent and according to
the procedures and requirements set forth in the Ohio General
Corporation Law as the same may be in effect from time to time,
provided that he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the
Corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The
indemnification provided for herein shall not be deemed to restrict the
right of the Corporation to (i) indemnify employees, agents and others
as permitted by such Law, (ii) purchase and maintain insurance or
provide similar protection on behalf of the directors, officers, or
such other persons against liabilities asserted against them or
expenses incurred by them arising out of their service to the
Corporation as contemplated herein, and (iii) enter into agreements
with such directors, officers, incorporators, employees, agents or
others indemnifying them against any and all liabilities (or such
lesser indemnification as may be provided in such agreements) asserted
against them or incurred by them arising out of their service to the
Corporation as contemplated herein.
Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if
he had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, he had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the right
of the corporation to procure a judgment in its favor, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such
person is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and
only to the extent that, the court of common pleas or the
court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened with the action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation
or any person to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in
which the action, suit, or proceeding referred to in division
(E)(1) or (2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that
is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the regulations
of a corporation state, by specific reference to this division, that
the provisions of this division do not apply to the corporation and
unless the only liability asserted against a director in an action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney's fees, incurred by a director in defending the
action, suit or proceeding shall be paid by the corporation as they are
incurred, in advance of the final disposition of the action, suit, or
proceeding, upon receipt of an undertaking by or on behalf of the
director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation
concerning the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, may be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding, as authorized by the directors in the specific case,
upon receipt of an undertaking by or on behalf of the director,
trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of or for any person
who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee,
officer, employee, member, manager, or agent of another corporation,
domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability under this section. Insurance may be purchased from or
maintained with a person in which the corporation has a financial
interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions
(E)(5), (6), and (7) of this section. Divisions (E)(1) and (2) of this
section do not create any obligation to repay or return payments made
by the corporation pursuant to division (E)(5), (6) or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, a partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
In addition, the Registrant has purchased insurance coverage under a
policy which insures directors and officers against certain liabilities which
might be incurred by them in such capacities.
The Registrant has also entered into indemnification agreements with
its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Index to Exhibits attached hereto at page II-12.
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 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 the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933,
each such post-effect 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 each filing of an annual
report pursuant to Section 15(d) of the Exchange Act on behalf of The Profit
Sharing and 401(k) Plan) 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 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 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 on following page)
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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on the 13th day of
July, 2004.
RETAIL VENTURES, INC.
By: /s/ James A. McGrady
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James A. McGrady
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
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
--------- ----- ----
* Chairman of the Board of Directors July 13, 2004
---------------------------------
Jay L. Schottenstein
* President and Chief Executive Officer July 13, 2004
--------------------------------- (Principal Executive Officer)
John C. Rossler
/s/ James A. McGrady Executive Vice President, Chief Financial July 13, 2004
--------------------------------- Officer, Treasurer and Secretary (Principal
James A. McGrady Financial Officer and Principal Accounting
Officer)
* Director July 13, 2004
---------------------------------
Henry L. Aaron
* Director July 13, 2004
---------------------------------
Ari Deshe
* Director July 13, 2004
---------------------------------
Jon P. Diamond
* Director July 13, 2004
---------------------------------
Elizabeth M. Eveillard
* Director July 13, 2004
---------------------------------
Harvey L. Sonnenberg
* Director July 13, 2004
---------------------------------
James L. Weisman
*By James A. McGrady pursuant to Powers of Attorney executed by the directors
and executive officers listed above and filed as exhibits to this Registration
Statement.
/s/ James A. McGrady
---------------------------------
James A. McGrady
Attorney-In-Fact
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 registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Columbus, State of Ohio
on the 13th day of July, 2004.
THE PROFIT SHARING AND 401(K) PLAN
(AS AMENDED AND RESTATED EFFECTIVE
JANUARY 1, 2000)
By: /s/ George Dailey
---------------------------------
Name: George Dailey
-------------------------------
Title: Plan Administrator
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INDEX TO EXHIBITS
Exhibit
Number Description Location
------- ----------- --------
4(a) Amended and Restated Articles of Incorporated herein by reference to
Incorporation of the Registrant Exhibit 3(a) to the Registrant's
Current Report on Form 8-K (file no.
1-10767) filed on October 8, 2003.
4(b) Amended and Restated Code of Regulations Incorporated herein by reference to
of the Registrant Exhibit 3(b) to the Registrant's
Current Report on Form 8-K (file no.
1-10767) filed on October 8, 2003.
10(a) Form of Indemnification Agreement, dated 1991, Incorporated by reference to Exhibit
between the Company and its directors and 10.7 to Amendment No. 1 to Form
executive officers S-1 Registration Statement (file no.
33-40214) filed June 6, 1991.
10(b) Form of Indemnification Agreement between the Included herewith.
Company and its directors and executive officers
23 Consent of Independent Registered Public Included herewith.
Accounting Firm
24 Powers of Attorney Included herewith.