As filed with the Securities and Exchange Commission on August 8, 2002
Registration Statement No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
LOWE'S COMPANIES, INC.
(Exact name of Registrant as specified in its Charter)
North Carolina 56-0578072
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
1605 Curtis Bridge Road
Wilkesboro, North Carolina 28697
(Address of principal executive office, including zip code)
LOWE'S COMPANIES BENEFIT RESTORATION PLAN
(Full title of the Plan)
_______________________
Stephen A. Hellrung
Senior Vice President, General Counsel and Secretary
Lowe's Companies, Inc.
1605 Curtis Bridge Road
Wilkesboro, North Carolina 28697
336-658-5445
(Name, address and telephone number including, area code, of agent for service)
Copy to:
Laura G. Thatcher
Alston & Bird LLP
1201 West Peachtree Street, NW
Atlanta, Georgia 30309-3424
404-881-7546
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of Amount of
to be registered registered per share offering price registration fee
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Common Stock, $0.50 par value 2,500,000 (1) $33.78 (2) $84,450,000 (2) $7,770.00
Preferred Stock Purchase Rights (3) -- -- -- --
Deferred Compensation Obligations (4) $100,000,000 -- $100,000,000 $9,200.00
Total -- -- -- $16,970.00
===== ==========
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(1) This registration statement covers the maximum number of shares of
Common Stock of the registrant with respect to which participants may make
phantom stock investments under the Lowe's Companies Benefit Restoration Plan
(the "Plan"), including any shares that may be offered as a result of any stock
split, stock dividend or similar adjustment in the number of shares of Common
Stock from time to time outstanding. 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 Plan.
(2) Estimated solely for the purpose of computing the registration fee.
This amount was calculated pursuant to Rule 457(h) on the basis of $33.78 per
share, which was the average of the high and low sales prices of the Common
Stock as reported on the New York Stock Exchange on August 2, 2002.
(3) The Rights to purchase Participating Cumulative Preferred Stock,
Series A, will be attached to and will trade with shares of the Common Stock of
the registrant.
(4) The Deferred Compensation Obligations to which this registration
statement relates are unsecured obligations of the registrant to pay deferred
compensation in the future in accordance with the terms of the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Lowe's Companies, Inc. (the "Company")
with the Commission (file No. 1-7898) are incorporated herein by reference and
made a part hereof:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
February 1, 2002, filed on April 26, 2002;
(ii) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended May 3, 2002, filed on June 13, 2002;
(iii) all other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since February 1, 2002;
(iv) the descriptions of the Company's Common Stock (the "Common
Stock") and preferred stock purchase rights contained in the Company's
registration statements on Form 8-A filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such descriptions.
All documents filed by the Company or the Plan pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
registration statement and prior to the filing of a post-effective amendment
that indicates that all securities offered have been sold or that deregisters
all securities then remaining unsold, 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. Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
the registration statement to the extent that a statement contained herein or in
any other subsequently filed document that is incorporated by reference herein
modifies or supersedes such earlier statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of the registration statement.
Item 4. Description of Securities.
This registration statement covers (i) shares of the Company's
Common Stock that may be offered as notional investments under the Lowe's
Companies Benefit Restoration Plan, as amended and restated effective August 3,
2002 (the "Plan"), which will be settled in cash, (ii) deferred compensation
obligations that may be offered under the Plan, and (iii) and indeterminate
amount of plan interests to be offered or sold pursuant to the Plan. The
following summary of the notional share investments and deferred compensation
obligations is qualified in its entirety by reference to the Plan document, a
copy of which has been filed as an exhibit to this registration statement.
Under the Plan, the Company will provide a select group of
management and highly-compensated employees the opportunity to elect to defer
compensation and to receive Company deferred compensation credits equal to
amounts that the employees could have received under the Lowe's Companies 401(k)
Plan (the "401(k) Plan"), but for certain limitations imposed under the Internal
Revenue Code of 1986, as amended (the "Code"). The Company's obligations under
the Plan are contractual in nature and represent the Company's unsecured general
obligations to pay deferred compensation in the future in accordance with the
terms of the Plan. The Plan is unfunded, and participants and their
beneficiaries have no right, title, or interest in the benefits deferred under
the Plan or any claim against such benefits. The Company will not segregate any
funds or assets for deferred benefits or issue any notes or security for the
payment of any deferred benefits.
The deferred compensation program is available to employees who are
participating in the 401(k) Plan and who are considered to be "highly
compensated employees" with respect to the 401(k) Plan, as determined under the
Code. An eligible employee becomes a participant in the Plan by filing a
participation election form with the administrator.
If an employee elects to participate in the Plan for a given fiscal
year, then the employee must defer a certain percentage of his or her base pay
and any management bonus, less the maximum amount that the employee could have
contributed as a pre-tax salary deferral under the 401(k) Plan. In addition, the
Company will provide a deferred compensation credit equal to the amount of the
Company matching contributions the employee could have received under the 401(k)
Plan, but for certain limitations under the Code. The elective deferrals and
company credits are allocated at the same time that such amounts would have been
contributed to the 401(k) Plan, but for the Code limitations.
Elective deferrals and Company credits under the Plan are deemed to
be invested in the same manner as the participant's investment of 401(k) salary
deferrals and company matching contributions, respectively, under the 401(k)
Plan. The investment options under the 401(k) Plan include various types of
equity and fixed income investments, as well as investment in notional shares of
the company's Common Stock. Notional shares of Common Stock will be credited to
a participant's account in book-entry form, solely for the purpose of measuring
a return based on a hypothetical investment in Common Stock. Such notional
shares will be settled in cash at the end of the deferral period.
A participant's account under the Plan is immediately and fully
vested. A participant's account is payable not later than 120 days after the end
of the plan year in which the participant terminates employment. The account
will be distributed in a single lump sum, unless the participant elects
distribution in the form of annual installments over a period of five or ten
years following termination of employment.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article IV of the Company's Bylaws provides that any person who serves
or has served as a director or officer of the Company, or in such capacity at
the request of the Company for any other corporation, partnership, joint
venture, trust or other enterprise, will be indemnified by the Company to the
fullest extent permitted by law against (i) reasonable expenses, including
attorneys' fees, actually and necessarily incurred by such person in connection
with any threatened, pending or completed action, suit or proceeding seeking to
hold such person liable by reason of the fact that he or she is or was acting in
such capacity, and (ii) payments made by such person in satisfaction of any
judgment, money decree, fine, penalty or reasonable settlement for which he or
she may have become liable in any such proceeding. The Company may not, however,
indemnify any person against liability or litigation expense he or she may incur
on account of his or her activities which were at the time they were taken known
or believed by such person to be clearly in conflict with the best interests of
the Company. Also, the Company may not indemnify any director with respect to
any liability arising out of Section 55-8-33 of the North Carolina Business
Corporation Act (relating to unlawful declaration of dividends) or any
transaction from which the director derived an improper personal benefit as
provided in Section 55-2-02(b)(3) of the North Carolina Business Corporation
Act. The Company's Charter provides that, to the extent permitted by the North
Carolina Business Corporation Act, a director of the Company shall not be liable
for monetary damages for breach of his or her duty as a director.
The Company maintains an insurance policy for the benefit of directors
and officers insuring them against claims that are made against them by reason
of any wrongful act (as defined) committed in their capacity as directors or
officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
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4.1 Restated Charter of the Company, as amended (incorporated herein by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended August 3, 2001, filed on September 14,
2001).
4.2 Bylaws of the Company, as amended and restated (incorporated herein by
reference to Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended February 2, 2001, filed on April 13, 2001 and
amended on July 12, 2001).
4.3 Amended and Restated Rights Agreement dated December 2, 1999, between
the Company and Equiserve Trust Company, N.A., as Rights Agent
(incorporated herein by reference to Exhibit 2 of Amendment No. 2 to
the Company's Registration Statement on Form 8-A filed February 14,
2000, as
amended by Exhibit 1 of Amendment No. 3 to the Company's Registration
Statement on Form 8-A filed March 1, 2000).
4.4 Lowe's Companies Benefit Restoration Plan, as amended and restated
effective August 3, 2002.
5.1 Opinion of Alston & Bird LLP as to the legality of the securities being
registered.
15.1 Letter of Deloitte & Touche LLP re Unaudited Interim Financial
Information.
23.1 Consent of Alston & Bird LLP (included in the opinion filed as Exhibit
5 to the registration statement).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney for Officers and Directors (included on signature
page of the registration statement).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales
are 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, as amended (the "Securities Act");
(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 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change in 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
Exchange Act that are incorporated by reference 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 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 provisions described under Item 6 above, 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.
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 County of Wilkes, State of North Carolina, on August 7,
2002.
LOWE'S COMPANIES, INC.
(Registrant)
By: /s/ Stephen A. Hellrung
----------------------------------------
Stephen A. Hellrung, Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on August 7, 2002. Each of the directors and/or officers of
Lowe's Companies, Inc. whose signature appears below hereby appoints Stephen A.
Hellrung, Senior Vice President, General Counsel and Secretary, Lowe's
Companies, Inc., and Robert A. Niblock, Executive Vice President and Chief
Financial Officer, and each of them severally, as his or her attorney-in-fact to
sign in his or her name and behalf, in any and all capacities stated below, and
to file with the Securities and Exchange Commission any and all amendments,
including post-effective amendments, to this registration statement, making such
changes in the registration statement as appropriate, and generally to do all
the things in their behalf in their capacities as officers and directors to
enable Lowe's Companies, Inc. to comply with the provisions of the Securities
Act of 1933, and all requirements of the Securities and Exchange Commission.
Signature Title
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/s/ Robert L. Tillman Chairman of the Board of Directors, President,
------------------------------
Robert L. Tillman Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Robert A. Niblock Executive Vice President and Chief Financial Officer
------------------------------
Robert A. Niblock (Principal Financial Officer)
/s/ Kenneth W. Black, Jr. Senior Vice President and Chief Accounting Officer
------------------------------
Kenneth W. Black, Jr. (Principal Accounting Officer)
/s/ Leonard L. Berry, Ph.D. Director
--------------------------------------
Leonard L. Berry, Ph.D.
/s/ Peter C. Browning Director
--------------------------------------
Peter C. Browning
/s/ Paul Fulton Director
--------------------------------------
Paul Fulton
/s/ Dawn E. Hudson Director
--------------------------------------
Dawn E. Hudson
/s/ Robert A. Ingram Director
--------------------------------------
Robert A. Ingram
/s/ Kenneth D. Lewis Director
--------------------------------------
Kenneth D. Lewis
/s/ Richard K. Lochridge Director
--------------------------------------
Richard K. Lochridge
/s/ Claudine B. Malone
-------------------------------------- Director
Claudine B. Malone
/s/ Thomas D. O'Malley Director
--------------------------------------
Thomas D. O'Malley
/s/ Robert G. Schwartz Director
--------------------------------------
Robert G. Schwartz
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the County of Wilkes, State of
North Carolina, on August 7, 2002.
LOWE'S COMPANIES
BENEFIT RESTORATION PLAN
(Plan)
By: /s/ John W. Vining, Jr.
---------------------------------------------------
John W. Vining, Jr.
Chair of the Administrative Committee for the Plan
EXHIBIT INDEX
Exhibit No. Description
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4.1 Restated Charter of the Company, as amended (incorporated
herein by reference to Exhibit 3.1 to the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended August 3,
2001, filed on September 14, 2001).
4.2 Bylaws of the Company, as amended and restated (incorporated
herein by reference to Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended February 2,
2001, filed on April 13, 2001 and amended on July 12, 2001).
4.3 Amended and Restated Rights Agreement dated December 2, 1999,
between the Company and Equiserve Trust Company, N.A., as
Rights Agent (incorporated herein by reference to Exhibit 2 of
Amendment No. 2 to the Company's Registration Statement on
Form 8-A filed February 14, 2000, as amended by Exhibit 1 of
Amendment No. 3 to the Company's Registration Statement on
Form 8-A filed dated March 1, 2000).
4.4 Lowe's Companies Benefit Restoration Plan, as amended and
restated effective August 3, 2002.
5.1 Opinion of Alston & Bird LLP as to the legality of the
securities being registered.
15.1 Letter of Deloitte & Touche LLP re Unaudited Interim Financial
Information.
23.1 Consent of Alston & Bird LLP (included in the opinion filed as
Exhibit 5 to the registration statement).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney for Officers and Directors (included on
signature page of the registration statement).