-----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, M6xu7pU5xSgx71l69YjzaxAG7OB1EcaL07d8jRH40El9Krq28UNat4cci0xKXhTu X3VQCojyfnJ76ULoozQpPg== 0000906287-95-000069.txt : 19951206 0000906287-95-000069.hdr.sgml : 19951206 ACCESSION NUMBER: 0000906287-95-000069 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19951205 EFFECTIVENESS DATE: 19951224 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GIANT FOOD INC CENTRAL INDEX KEY: 0000041289 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 530073545 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-64745 FILM NUMBER: 95599147 BUSINESS ADDRESS: STREET 1: 6400 SHERIFF RD STREET 2: DEPT 593 CITY: LANDOVER STATE: MD ZIP: 20785 BUSINESS PHONE: 3013414100 MAIL ADDRESS: STREET 1: P O BOX 1804 DEPT 593 STREET 2: 6400 SHERIFF ROAD CITY: LANDOVER STATE: MD ZIP: 20785 S-8 1 As filed with the Securities and Exchange Commission on December 4, 1995 Registration No. 33- __________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form S-8 Registration Statements Under the Securities Act of 1933 GIANT FOOD INC. (Exact Name of Registrant as Specified in Its Charter) Delaware (State or Other Jurisdiction of Incorporation or Organization) 53-0073545 (I.R.S. Employer Identification No.) 6300 Sheriff Road Landover, Maryland 20785 (Address of Principal Executive Office) GIANT FOOD INC. 1989 NON-QUALIFIED STOCK OPTION PLAN (Full Title of Plan) Wayne K. Johnson, Esquire Jorden Burt Berenson & Johnson LLP 1025 Thomas Jefferson Street, N.W. Suite 400-E Washington, D.C. 20007 (Name and Address of Agent for Service) (202) 965-8100 (Telephone Number, Including Area Code, of Agent for Service)
Calculation of Registration Fee Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Per Offering Registration Registered Registered Unit/1/ Price Fee Common 2,500,000 $33.625 $84,062,500 $28,987 Stock A shares Non-Voting
/1/ Pursuant to Rule 457 under the Securities Act of 1933, this amount is calculated based upon the average of the high and low prices reported on the American Stock Exchange on November 29, 1995. ___________________ The registration statement shall hereafter become effective in accordance with the provisions of Section 8(a) of the Securities Act of 1933 and general instruction D to Form S-8. Explanatory Note The Form S-8 prospectus herein incorporates the contents of an earlier Registration Statement on Form S-8 (File No. 33-33049). The purpose of this Form S-8 Registration Statement is to register an additional 2,500,000 shares which have been reserved for issuance under the Giant Food Inc. 1989 Non-Qualified Stock Option Plan. A revised reoffer prospectus, which is prepared in accordance with Part I of Form S-3, is included herewith. THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED GIANT FOOD INC. 5,000,000 Shares COMMON STOCK A NON-VOTING ($1.00 par value) ______________________ The 5,000,000 shares of Non-Voting Common Stock A ("Common Stock") offered hereby will be sold by officers and directors of the Company who may be deemed affiliates and associates of the Giant Food Inc. (the "Company") acquired upon the exercise of options granted under the Company's 1989 Non-Qualified Plan (the "Non-Qualified Plan" or "Plan"). Of the aggregate 5,000,000 reserved for issuance under the Plan, 2,500,000 were previously registered in 1990. To date, the total number of shares offered in this reoffer prospectus by affiliates and associates is not ascertainable; however, it shall not exceed 5,000,000 shares, unless the Plan is amended. (See "Selling Stockholders"). Such shares will be sold in the regular way on the American, Philadelphia or Pacific Stock Exchanges, at the prices prevailing at the time of such sales, and the commissions payable will be the regular commissions of brokers for effecting such sales. The net proceeds to the Selling Stockholders will be the proceeds received by them upon such sales less such brokerage commissions. The outstanding shares of Common Stock are listed on the American, Philadelphia and Pacific Stock Exchanges. The high and low price of the Company's Common Stock on the American Stock Exchange on November 29, 1995 (as reported by The Wall Street Journal), was $34 and $33.25, respectively. ______________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The Date of this Prospectus is December 4, 1995 AVAILABLE INFORMATION The Company is subject to the informational reporting requirements of the Securities Exchange Act of 1934 and in accordance therewith files reports and other information with the Securities and Exchange Commission. Information concerning directors and executive officers, their remuneration and options granted to them is disclosed in the Company's Annual Report on Form 10-K and in certain Registration Statements filed with the SEC. Reports, proxy statements and other information pertaining to the Company can be inspected at the public reference facilities maintained by the SEC at 450 5th Street, N.W., Washington, D.C. 20549 and at the SEC's regional office at Seven World Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street, Chicago, Illinois 60604. Copies of such material can be obtained at prescribed rates from the Public Reference Section of the SEC, 450 5th Street, N.W., Washington D.C. 20549. The Company has filed with the Commission a registration statement on Form S-8 (herein together with all amendments and exhibits, referred to as the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act") with respect to the Common Stock being offered pursuant to this Prospectus. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. The Registration Statement may be inspected and copied at the public reference facilities maintained by the Commission at the addresses set forth in the preceding paragraph. Statements contained herein concerning the provisions of any document are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. The outstanding shares of Common Stock are listed on the American, Philadelphia and Pacific Stock Exchanges, where reports, proxy statements and other information concerning the Company can be inspected. DOCUMENTS INCORPORATED BY REFERENCE The following documents previously filed by the Company with the Commission under the Exchange Act are incorporated by reference: (i) the Company's Annual Report on Form 10-K for the fiscal year ended February 25, 1995 and those portions of the Company's Annual Report to Shareholders incorporated by reference therein; (ii) all reports filed by the Company pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 since February 25, 1995; (iii) the Company's Registration Statement on Form 10 under the Securities Exchange Act of 1934 and all amendments thereto; and (iv) all reports filed by the Company pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this Prospectus. Copies of the foregoing documents without exhibits (unless such exhibit is specifically incorporated by reference herein) may be obtained without charge upon written or oral request communicated to the Law Department, c/o Giant Food Inc., 6300 Sheriff Road, Landover, Maryland 20785 (Telephone 301/341-4100). THE COMPANY The Company, together with its subsidiaries, operate a chain of supermarkets selling, at retail, food, pharmacy and general merchandise in Washington, D.C., Maryland, Virginia and Delaware. The Company's supermarkets are all self-service and offer a full line of nationally advertised groceries, meat, produce, dairy products, seafood, tobacco, flowers, prepared foods and household and non-food items. The majority of the Company's stores are located in shopping centers. The Company also operates freestanding drug stores. The Company's principal executive offices are located at 6300 Sheriff Road, Landover, Maryland 20785, Telephone (301) 341-4100. SELLING STOCKHOLDERS The table below sets forth the names and present positions held by the present Selling Stockholders, all of whose addresses are c/o Giant Food Inc., 6300 Sheriff Road, Landover, Maryland 20785. Further information concerning the Selling Stockholders, their remuneration, the number of shares of the Company's Common Stock owned beneficially by them and the number of options granted to them, is disclosed in the Company's Annual Report on Form 10-K. The shares that the Selling Stockholders may offer from time to time are shares acquired or to be acquired by them upon the exercise-of- options that have been or may in the future be granted to them by the Company pursuant to its Non-Qualified Plan. While approximately 1,541 persons hold options to purchase the Company's Common Stock under the Company's Plan, the following table lists only those persons holding options who may be deemed to be (without necessarily admitting that they are) "affiliates" or "associates" of the Company by reason of their positions with the Company. In the event that additional shares are issued pursuant to future stock splits or stock dividends, the number of shares which may be acquired pursuant to each option shall be increased proportionately. In the future, additional persons not identified in the table below may become Selling Stockholders. Under the Non-Qualified Plan, not more than 5,000,000 shares (as may be adjusted for future dividends or stock splits) can be optioned in the aggregate to officers and key employees of the Company, unless the Plan is amended.
Name Present Position With The Company _____ __________________________________ Estate of Israel Cohen Pete L. Manos President David B Sykes Senior Vice-President-Finance, Secretary and Treasurer Alvin Dobbin Senior Vice-President-Operations David N. Freedman Senior Vice President-Corporate Facilities Roger D. Olson Senior Vice-President-Labor Relations & Personnel David W. Rutstein Senior Vice-President-General Counsel Robert W. Schoening Senior Vice-President-Information Systems Samuel E. Thurston Senior Vice-President-Distribution Michael J. Bush Vice-President-Real Estate Winston doCarmo Vice-President-Personnel Russell B. Fair Vice President-Pharmacy Operations James L. Frazetti Vice President-Food Store Operations Terry A. Gans Vice-President-Advertising and Sales Promotion George W. Hannis, Jr. Vice-President-Dairy, Deli, Meat and Seafood Operations M. Davis Herriman Vice-President-Grocery Operations David A. Larson Vice-President-Manufacturing Albert J. Lechert, Jr. Vice-President-Construction Odonna Mathews Vice-President-Consumer Affairs Stephen L. Oseroff Vice-President-Shopping Centers M. David Richman Vice-President-Quality Assurance Barry F. Scher Vice-President- Public Affairs Anthony E. Dahm Controller
At October 31, 1995 (except where otherwise indicated), the shares that the Selling Stockholders own and that may be offered from time to time and shares acquirable upon exercise of options granted to them by the Company pursuant to its Non- Qualified Plan are as follows.
Acquirable Shares Shares that Upon Exercise Name of Stockholder Owned(1) May be Sold Options Owned Estate of Israel Cohen(2) 2,806,769 -0- 107,500 Pete L. Manos 101,559 -0- 77,500 David B Sykes 234,356 -0- 62,500 Alvin Dobbin 132,669 -0- 38,500 David N. Freedman 113,265 -0- 38,500 Roger D. Olson 73,922 -0- 38,500 David W. Rutstein(2) 117,709 -0- 38,500 Robert W. Schoening 51,000 -0- 38,500 Samuel E. Thurston 101,860 -0- 38,500 Michael J. Bush 36,911 -0- 32,500 Winston doCarmo 48,491 -0- 32,500 Russell B. Fair 27,975 -0- 31,000 James L. Frazetti 25,021 1,800 10,800 Terry A. Gans 71,327 -0- 32,500 George W. Hannis, Jr. 66,775 -0- 32,500 M. Davis Herriman 62,855 -0- 32,500 David A. Larson 54,699 -0- 32,500 Albert J. Lechert, Jr. 52,548 -0- 32,500 Odonna Mathews 53,415 -0- 32,500 Stephen L. Oseroff 51,039 -0- 32,500 M. David Richman 63,189 -0- 32,500 Barry F. Scher 37,428 -0- 32,500 Anthony E. Dahm 8,265 -0- 8,700
(1) Includes shares held of record and beneficially, certain of which are held indirectly. (2) Mr. David Rutstein and Ms. Lillian Cohen Solomon are the personal representatives of the Estate of Israel Cohen and, as such, may be deemed to have beneficial ownership of the Estate's shares under the Federal Securities Laws. Mr. Rutstein and Ms. Solomon disclaim beneficial ownership of the Estate's shares. PLAN OF DISTRIBUTION The Selling Stockholders may from time to time offer all or part of the shares acquired by them upon the exercise of options granted or to be granted to them by the Company in the regular way on the American, Philadelphia or Pacific Stock Exchanges. The Company will pay all expenses of preparing and reproducing this Prospectus, but will not receive any part of the proceeds of the sale of any such shares. The Selling Stockholders will pay the brokerage commissions charged to sellers in connection with sales. EXPERTS The consolidated financial statements incorporated herein by reference to the Annual Report on Form 10-K of Giant Food Inc. for the year ended February 25, 1995 have been so incorporated in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. LEGAL OPINIONS Legal matters in connection with the Common Stock offered hereby are being passed upon by Jorden Burt Berenson & Johnson LLP, 1025 Thomas Jefferson Street, N.W., Suite 400-E, Washington, D.C. 20007. INDEMNIFICATION Pursuant to paragraph 47 of the Company's By-Laws, every director or officer shall be indemnified for any expenses reasonably incurred in connection with any action, suit or proceeding unless found to be liable for negligence or misconduct. Insofar as indemnification for liabilities arising under the of 1933 Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the 1933 Act and is therefore unenforceable. No dealer, salesman or any other person has been authorized by the Company to give any information or to make any representation other than those contained in this Prospectus in connection with the offer contained in this Prospectus. This Prospectus does not constitute an offering of any securities other than the shares of the Company's Common Stock specifically offered hereby nor of those shares in any jurisdiction in which such offering may not lawfully be made. Neither the delivery of this Prospectus nor any exchange or sale made hereunder shall, under any circumstances, create any implication that there has been no change in the facts herein set forth since the date hereof.
TABLE OF CONTENTS Page The Company . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Selling Stockholders . . . . . . . . . . . . . . . . . . . . . 1 Plan of Distribution . . . . . . . . . . . . . . . . . . . . . 3 Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . 3 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 4
INCORPORATION OF DOCUMENTS BY REFERENCE The following documents previously filed by the Company with the Commission under the Exchange Act are incorporated by reference: (i) the Company's Annual Report on Form 10-K for the fiscal year ended February 25, 1995 and those portions of the Company's Annual Report to Shareholders incorporated by reference therein; (ii) all reports filed by the Company pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 since February 25, 1995; (iii) the Company's Registration Statement on Form 10 under the Securities Exchange Act of 1934 and all amendments thereto; and (iv) all reports filed by the Company pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this Prospectus. EXHIBITS EXHIBIT NUMBER DESCRIPTION ______ __________________________________________________ 4 Amended and Restated 1989 Non-Qualified Stock Option Plan 5 Opinion of Jorden Burt Berenson & Johnson LLP as to the legality of the securities being registered, including consent. 23 Consent of Price Waterhouse LLP for financial statements in the Form 10-K and Annual Report for the fiscal year ended February 25, 1995. UNDERTAKINGS 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 of 1933, 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. (4) 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 plans annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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. (5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of 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 Landover, Maryland, on the 30th day of November, 1995. GIANT FOOD INC. By: /s/ Peter L. Manos Peter L. Manos, President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated: Name Position Date /s/ Peter L. Manos Peter L. Manos Principal Executive Officer November 30, 1995 /s/ David B. Sykes* David B. Sykes Senior Vice President-Finance, Chief Financial Officer and Principal Accounting Officer November 30, 1995 ___________________ David Sainsbury Director November __, 1995 _____________________ Dino Adriano Director November __, 1995 /s/ Harry Beckner* Harry Beckner Director November 30, 1995 /s/ Constance M. Unseld* Constance M. Unseld Director November 30, 1995 /s/ Peter F. O'Malley* Peter F. O'Malley Director November 30, 1995
* A majority of Directors of the Company EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION ______ __________________________________________________ 4 Amended and Restated 1989 Non-Qualified Stock Option Plan 5 Opinion of Jorden Burt Berenson & Johnson LLP as to the legality of the securities being registered, including consent. 23 Consent of Price Waterhouse LLP for financial statements in the Form 10-K and Annual Report for the fiscal year ended February 25, 1995. EX-4 2 EXHIBIT 4 (Composite document reflecting amendments to November __, 1993) GIANT FOOD INC. 1989 NON-QUALIFIED STOCK OPTION PLAN 1. Purpose of the Plan This 1989 Non-Qualified Stock Option Plan, as amended (hereinafter called the "Plan") for GIANT FOOD INC. (hereinafter called the "Company") is intended to advance the interests of the Company by providing officers and other key employees who have substantial responsibility for the direction and management of the Company with additional incentive for them to promote the success of the business, to increase their proprietary interest in the success of the Company, and to encourage them to remain in its employ. The above aims will be effectuated through the granting of certain non-qualified stock options. 2. Administration of the Plan The Board of Directors (hereinafter called the "Board") shall appoint a Stock Option Plan Committee (hereinafter called the "Committee") which shall consist of not less than three (3) members, at least one of whom shall be a Director of the Company. Subject to the provisions of the Plan, the Committee shall have plenary authority, in its discretion: (a) to determine the employees of the Company and its subsidiaries to whom options shall be granted; (b) to determine the time or times at which options shall be granted; (c) to determine the option price of the shares subject to each option, which price shall not be less than the minimum specified in Section 5; (d) to determine the time or times when each option becomes exercisable and the duration of the exercise period; and (e) to interpret the Plan and to prescribe, amend, and rescind rules and regulations relating to it. The Board may from time to time appoint members of the Committee in substitution for members previously appointed and may fill vacancies, however caused, in the Committee; provided, however, that at all times at least one member shall be a Director of the Company. The Committee shall select one of its members as its Chairman and shall hold its meetings at such times and places as it shall deem advisable. All action of the Committee shall be taken by unanimous vote of its members. Any action may be taken by a written instrument signed by all the members of the Committee, and action so taken shall be fully as effective as if it had been taken by a unanimous vote of the members at a meeting duly called and held. The Committee may appoint a secretary to keep minutes of its meetings and shall make such rules and regulations for the conduct of its business as it shall deem advisable. 3. Eligibility and Limitations on Options Granted Under the Plan Options will be granted only to persons who are employees of the Company or a subsidiary corporation of the Company who agree, in writing, to remain in the employ of, and render services to, the Company or a subsidiary corporation of the Company for a period of at least one (1) year from the date of the granting of the option. The term "employees" shall include officers, directors, executives, and supervisory personnel, as well as 2 other employees of the Company. The term "subsidiary corporation" shall, for the purposes of this Plan be defined in the same manner as such term is defined in Section 425(f) of the Internal Revenue Code of 1986. 4. Shares of Stock Subject to the Plan There will be reserved for use upon the exercise of options to be granted from time to time under the Plan (subject to the provisions of Section 12) an aggregate of 5.0 million shares of the Class A Non-Voting Common Stock of the par value of $1.00 per share (hereinafter called the "Common Stock") of the Company, which shares may be in whole or in part, as the Board of the Company shall from time to time determine, authorized but unissued shares of the Common stock or issued shares of the Common Stock or issued shares of the Common Stock which shall have been reacquired by the Company. Any shares subject to an option under the Plan, which option for any reason expires or is terminated unexercised as to such shares, may again be subjected to an option under the Plan. 5. Option Price The purchase price under each option issued shall be determined by the Committee at the time the option is granted, but in no event shall such purchase price be less than 100 percent of the fair market value of the Company's Common Stock on the date of grant. The term "fair market value" shall be defined as the average of the highest and lowest market price of said Common Stock on 3 the American Stock Exchange on the date of the grant of the option, or, if there be no sales on such date, on the most recent date upon which such stock was traded. 6. Dilution or Other Adjustment In the event that additional shares of Common Stock are issued pursuant to a stock split or a stock dividend, the number of shares of Common Stock then covered by each outstanding option granted hereunder shall be increased proportionately with no increase in the total purchase price of the shares then so covered, and the number of shares of Common Stock reserved for the purposes of the Plan shall be increased by the same proportion. In the event that the shares of Common Stock of the Company from time to time issued and outstanding are reduced by a combination of shares, the number of shares of Common Stock then covered by each outstanding option granted hereunder shall be reduced proportionately with no reduction in the total purchase price of the shares then so covered, and the number of shares of Common Stock reserved for the purposes of the Plan shall be reduced by the same proportion. In the event that the Company should transfer assets to another corporation and distribute the stock of such other corporation without the surrender of Common Stock of the Company, and if such distribution is not taxable as a dividend and no gain or loss is recognized by reason of Section 355 of the Internal Revenue Code of 1986, or some similar section, then the total purchase price of the shares then covered by each outstanding option shall be reduced by an amount which 4 bears the same ratio to the total purchase price then in effect as the market value of the stock distributed in respect of a share of the Common Stock of the Company, immediately following the distribution, bears to the aggregate of the market value at such time of a share of the Common Stock of the Company and the stock distributed in respect thereof. All such adjustments shall be made by the Committee, whose determination upon the same shall be final and binding upon the optionees. No fractional shares shall be issued, and any fractional shares resulting from the computations pursuant to this Section 6 shall be eliminated from the respective option. No adjustment shall be made for cash dividends or the issuance to stockholders of rights to subscribe for additional Common Stock or other securities. 7. Period of Option and Certain Limitations on Right to Exercise (a) All options issued under the Plan shall be for such period as the Committee shall determine, but for not more than ten (10) years from the date of grant thereof. (b) The period of the option, once it is granted, may be reduced only as provided for in Section 9 in connection with the termination of employment, retirement or death of the optionee or in Section 7(c) in the case of less than satisfactory performance. (c) Except as provided in Section 9(b), each option granted under this Plan shall become exercisable only after the later of (i) one (1) year from the date of grant of the option, or (ii) the completion of two (2) years continued employment of the 5 optionee with the Company or one of its subsidiary corporations (including continuous service prior to the grant of the option). For the first year following the date that an option first becomes exercisable, it shall be exercisable only to the extent of one-fifth of the total number of optioned shares. For the second year following the date that an option first becomes exercisable, it shall be exercisable only to the extent of two- fifths of the total number of optioned shares. For the third year following the date that an option first becomes exercisable, it shall be exercisable only to the extent of three-fifths of the total number of optioned shares. For the fourth year following the date that an option first becomes exercisable, it shall be exercisable only to the extent of four-fifths of the total number of optioned shares. After the fourth year following the date that an option first becomes exercisable, it shall, subject to the other provisions of this Plan and the option agreement, be exercisable in full. The foregoing limitations shall be calculated, in the case of any resulting fraction, to the nearest lower whole number of shares. In addition, notwithstanding the foregoing, the Committee may, in its sole discretion, (i) prescribe longer time periods and additional requirements with respect to the exercise of an option and (ii) terminate in whole or in part such portion of any option as has not yet become exercisable at the time of termination if it determines that the optionee is not performing satisfactorily the duties to which he was assigned on the date the option was granted or duties of at 6 least equal responsibility. No option may be exercised unless the optionee is at the time of such exercise in the employ of the Company or of a subsidiary corporation of the Company and shall have been continuously so employed since the grant of his option. Absence or leave approved by the management of the Company or disability of the optionee shall not be considered an interruption of employment for any purpose under the Plan. The term "disability" shall, for the purposes of this Plan, be defined in the same manner as such term is defined in Section 105(d)(4) of the Internal Revenue Code of 1986. (d) In no event may an option be exercised after the expiration of its term. (e) No optionee or his legal representative, legatees, or distributees, as the case may be, will be deemed to be, a holder of any share subject to an option unless and until certificates for such shares are issued to him or them under the terms of the Plan. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued. The exercise of any option shall be contingent upon receipt by the Company of cash or bank check to its order, shares of the Company's Class A Common Stock, or any combination of the foregoing in an amount equal to the full option price of the shares being purchased. For purposes of this paragraph, shares of the Company's Class A Common Stock that are delivered in payment of the option price shall be valued at their fair market value determined under the method set forth in 7 Section 5 of this plan applied as of the date of the exercise of the option. Exercise of an option in any manner shall result in a decrease in the number of shares of Common Stock which thereafter may be available under the Plan by the number of shares as to which the option is exercised. (f) Because the amount of income realized by an optionee on the exercise of an option under the Plan represents compensation for services provided by an employee, the Company is required to withhold income taxes from this income even though the compensation will not be paid in cash. Because no cash payment will be made to an employee in connection with the exercise of an option, the Company will (i) reduce the amount of the stock issued to reflect the necessary withholding, (ii) withhold the appropriate tax from other compensation due to the optionee, or (iii) condition the transfer of any stock to the optionee on the payment to the Company of an amount equal to the taxes required to be withheld. 8. Assignability No option granted under this Plan shall be transferrable in any manner other than by will or the laws of descent and distribution and shall be exercisable, during his lifetime, only by the employee to whom the option is granted. Except as permitted by the preceding sentence, each option granted under the Plan and the rights and privileges thereby conferred shall not be transferred, assigned, pledged, or hypothecated in any way (whether by operation of law or otherwise), and shall not be 8 subject to execution, attachment, or similar process. Upon any attempt to so transfer, assign, pledge, hypothecate, or otherwise dispose of the option, or of any right or privilege conferred thereby, contrary to the provisions hereof, or upon the levy of any attachment or similar process upon such option, rights and privileges, the option and such rights and privileges shall immediately become null and void. 9. Effect of Termination of Employment, Retirement or Death (a) If any optionee holding any options under this Plan is discharged for cause at any time, then all options held by such optionee shall be cancelled as of the date of the discharge. (b) If the employment of an optionee holding any options under this Plan is terminated by the retirement of such optionee, and such optionee is entitled to benefits under the Giant Food Inc. Retirement Plan and has rendered services to the Company or a subsidiary of the Company for a period of 25 years or more (such optionee being referred to hereinafter as an "Eligible Retiree"), then the following rules shall apply to the exercise of options granted under this Plan to such Eligible Retiree: (1) If the Eligible Retiree retires at age fifty-five (55) to age sixty-one (61), then, if any options or portions thereof are otherwise exercisable as of the date of retirement under all the terms of the Plan, including the waiting period restrictions set forth in Section 7(c), the Eligible Retiree shall be permitted to exercise such options to the extent of twice the 9 portion of the options which are otherwise exercisable as of the date of retirement, up to and including the total number of optioned shares specified in such options, for a period of ninety (90) days from the date of retirement. The death of the Eligible Retiree during said ninety (90) day period shall not alter the rights of said optionee under this Section 9(b)(1). (2) If the Eligible Retiree retires at age sixty-two (62) or older, then, if any options or portions thereof are otherwise exercisable as of the date of retirement under all the terms of the Plan, including the waiting period restrictions set forth in Section 7(c), the Eligible Retiree shall be permitted to exercise such options to the extent of the total number of optioned shares specified in such options for a period of ninety (90) days from the date of retirement. The death of the Eligible Retiree within said ninety (90) day period shall not alter the rights of said optionee under this Section 9(b)(2). (c) If the employment of an optionee holding any options under this Plan is terminated by the death of such optionee, then to the extent that such options or portions thereof are otherwise exercisable as of the date of death under all of the terms of the Plan, including the waiting period restrictions set forth in Section 7(c), the personal representative of the 10 deceased optionee shall be permitted to exercise such options or portions thereof for a period of nine (9) months following the death. Thereafter, all remaining options of the deceased optionee shall be cancelled. If the employment of an optionee holding any options under this Plan is terminated by the death of such optionee but such optionee would be an Eligible Retiree if the optionee had retired on the date of the death, then, to the extent that such options would be exercisable under Section 9(b), the personal representative of the deceased optionee shall be permitted to exercise such options for a period of nine (9) months following the death. Thereafter, all remaining options of the deceased optionee shall be cancelled. (d) If the employment of an optionee holding options under this Plan is terminated for any reason other than the optionee's discharge for cause, retirement as an Eligible Retiree or death, then, to the extent that such options or portions thereof are otherwise exercisable as of the date of the termination of employment under all of the terms of the Plan, including the waiting period restrictions set forth in Section 7(c), the optionee shall be permitted to exercise such options or portions thereof for a period of thirty (30) days following the termination of 11 employment. Thereafter, all remaining options of such optionee shall be cancelled. 10. Listing and Registration of Shares Each option shall be subject to the requirement that if at any time the Committee shall determine, in its discretion, that the listing, registration, or qualification of the shares covered thereby upon any securities exchange or under any state or federal law or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such option or the issue or purchase of shares thereunder, such option may not be exercised in whole or in part unless and until such listing, registration, qualification, consent, or approval shall have been effected free of any conditions not acceptable to the Committee. 11. Expiration and Termination of the Plan Options may be granted under the Plan at any time or from time to time as long as the total number of shares optioned or purchased under this Plan does not exceed 5.0 million shares of Common Stock. The Plan may be abandoned or terminated at any time by the Board of Directors of the Company except with respect to any options then outstanding under the Plan. No option shall be granted pursuant to the Plan after ten (10) years from the effective date of the Plan. 12. Amendment of Plan The Board of Directors may at any time and from time to time modify and amend the Plan (including such form of option 12 agreement) in any respect; provided, however, that no such amendment shall (i) materially increase the benefits accruing to participants under the plan, (ii) materially increase the number of securities which may be issued under the plan, or (iii) materially modify the requirements as to eligibility for participation in the plan without the approval by a majority of the Class AC Common Stock and by a majority of the Class AL Common Stock. The termination or any modification or amendment of the Plan shall not, without the consent of an employee, affect his rights under an option theretofore granted to him. 13. Applicability of Plan to Outstanding Stock Options This Plan shall not affect the terms and conditions of any restricted stock options or qualified stock options heretofore granted to any employee of the Company under any other plan relating to restricted or qualified stock options; nor shall it affect any of the rights of any employee to whom such a restricted stock option or qualified stock option was granted. 14. Effective Date of Plan This Plan shall become effective on the date of its adoption by the Board of Directors of the Company. 13 EX-5 3 Exhibit 5 December 4, 1995 Giant Food Inc. 6300 Sheriff Road Landover, Maryland 20785 Re: Registration Statement on Form S-8 Giant Food Inc. 1989 Non-Qualified Stock Option Plan Dear Sirs: We have acted as counsel to Giant Food Inc., a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of up to 2,500,000 shares of the Company's common stock, $1.00 par value (the "Shares"). In reaching the conclusions expressed in this opinion, we have examined and relied upon, among other things, the Registration Statement, including the exhibits thereto and the documents incorporated therein by reference, and the corporate records and other documents of the Company. We have also made such further examinations and inquiries as we have deemed necessary to enable us to express the opinions set forth herein. Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued and sold as contemplated in the Registration Statement, will constitute legally issued, fully paid and nonassessable capital stock of the Company. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the headings "Legal Opinions" and in the Prospectus. Very truly yours, /s/ Jorden Burt Berenson & Johnson LLP JORDEN BURT BERENSON & JOHNSON LLP EX-23 4 Exhibit 23 [Price Waterhouse LLP] Consent of Independent Accountants __________________________________ We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 27, 1995 appearing on page 16 of Giant Food Inc.'s Annual Report on Form 10-K for the year ended February 25, 1995. We also consent to the incorproation by reference of our report on the Financial Statement Schedule which appears on page 58 of such Annual Report on Form 10-K. We also consent to the references to us under the heading "Experts" in page 3 of this re-offer prospectus. /s/ Signature PRICE WATERHOUSE LLP Washington, D.C. December 4, 1995 -----END PRIVACY-ENHANCED MESSAGE-----