-----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, K20/u2MMKoBkovSXfIdRcR+z1VKFXTaJPO4b86CuMcGJ1sBBIS1paZEyeaE0s9LF RPKsOyyDCuzHIeZzMQSZNQ== 0000912057-97-018521.txt : 19970522 0000912057-97-018521.hdr.sgml : 19970522 ACCESSION NUMBER: 0000912057-97-018521 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970521 EFFECTIVENESS DATE: 19970521 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NASH FINCH CO CENTRAL INDEX KEY: 0000069671 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & RELATED PRODUCTS [5140] IRS NUMBER: 410431960 STATE OF INCORPORATION: DE FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-27563 FILM NUMBER: 97612615 BUSINESS ADDRESS: STREET 1: 7600 FRANCE AVE STREET 2: PO BOX 355 CITY: SOUTH MINNEAPOLIS STATE: MN ZIP: 55435-0355 BUSINESS PHONE: 6128320534 FORMER COMPANY: FORMER CONFORMED NAME: NASH CO DATE OF NAME CHANGE: 19710617 S-8 1 S-8 As filed with the Securities and Exchange Commission on May 21, 1997 Registration No. 333-_______ - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _____________________ NASH-FINCH COMPANY (Exact name of registrant as specified in its charter) DELAWARE 41-0431960 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) _____________________ 7600 France Avenue South P.O. Box 355 Minneapolis, Minnesota 55440-0355 (612) 832-0534 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) _____________________ NASH-FINCH COMPANY 1997 NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN (Full title of the plan) ______________________ NORMAN R. SOLAND VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL NASH-FINCH COMPANY 7600 FRANCE AVENUE SOUTH P.O. BOX 355 MINNEAPOLIS, MINNESOTA 55440-0355 (612) 832-0534 (Name and address, including zip code, and telephone number, including area code, of agent for service) _________________________ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT _____________________________ CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------- Common Stock, par value $1.66-2/3 per share. . . . . . 100,000 shares $18.75 $1,875,000.00 $569.00 - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement includes an indeterminate number of additional shares as may be issuable as a result of anti-dilution provisions described in the Nash-Finch Company 1997 Non-Employee Director Stock Compensation Plan. (2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended, on the basis of the average between the high and low reported sale prices of the Registrant's Common Stock on May 14, 1997 on the national over-the-counter market, as reported by the Nasdaq National Market. - ------------------------------------------------------------------------------- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Nash-Finch Company (the "Company" or the "Registrant") (File No. 0-785) with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (1) Annual Report on Form 10-K for the year ended December 28, 1996; (2) Quarterly Report on Form 10-Q for the quarter ended March 22, 1997; (3) all other reports filed by the Company pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 28, 1996; (4) the description of the Company's Common Stock contained in its Registration Statement on Form 10, including any amendments or reports filed for the purpose of updating such description; and (5) the description of the common stock purchase rights contained in the Company's Registration Statement on Form 8-A, including any amendments or reports filed for the purpose of updating such description. All documents filed by the Company with the Commission pursuant to Sections 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 which indicates that all shares of Common Stock offered pursuant to this Registration Statement have been sold or that de-registers all shares of Common Stock 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. The consolidated financial statements and financial statement schedule of the Company as of December 28, 1996 and December 30, 1995 incorporated by reference or appearing in the Company's Annual Report (Form 10-K) for the year ended December 28, 1996, have been audited by Ernst & Young LLP, independent auditors, and for the year ended December 31, 1994, by KPMG Peat Marwick LLP, independent auditors, as set forth in their respective reports thereon incorporated by reference therein and incorporated herein by reference. Such financial statements and schedule are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the respective reports of Ernst & Young LLP and KPMG Peat Marwick LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given upon the authority of such firms as experts in accounting and auditing. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable - The Company's Common Stock and common stock purchase rights to be offered pursuant to this Registration Statement have been registered under Section 12 of the Exchange Act as described in Item 3 of this Part II. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. 2 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware Corporation Law provides generally that a person sued as a director, officer, employee or agent of a corporation may be indemnified by the corporation in nonderivative suits for expenses (including attorney's fees), judgments, fines and amounts paid in settlement if such person acted in good faith and in a manner he or she 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 that his or her conduct was unlawful. Indemnification of expenses (including attorney's fees) is authorized in stockholder derivative suits where such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interest of the corporation and so long as he or she had not been found liable to the corporation. Even in this latter instance, the court may determine that in view of all the circumstances such person is entitled to indemnification for such expenses as the court deemed proper. Section 145 contains detailed terms regarding such right of indemnification and reference is made thereto for a complete statement of such indemnification rights. Article XV of the Company's Restated Certificate of Incorporation, as amended, provides that no director of the Company shall be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty by such director as a director; provided, however, that personal liability shall not be eliminated or limited to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, dealing with the unlawful payment of dividends or unlawful stock purchases or redemptions, or (iv) for any transaction in which the director received an improper personal benefit. In addition, the personal liability of directors is further limited to the fullest extent permitted to the General Corporation Law of Delaware, as amended from time to time. Article V of the Company's Restated Bylaws, as amended (the "Bylaws"), provides that directors, officers and employees, past or present, of the Company, and persons serving as such of another corporation or entity at the request of the Company, shall be indemnified by the Company against reasonable expenses incurred in connection with or resulting from any claim, action, suit or proceeding, civil or criminal, in which such person may be involved by reason of any action taken or not taken in such person's capacity as a director, officer or employee of the Company, provided that such person acted in good faith in what was reasonably believed to be in the best interests of the Company, and, with respect to criminal proceedings, reasonably believed that such conduct was lawful. Article V of the Bylaws further provides that directors, officers and employees will be indemnified to the fullest extent permitted by Delaware law. The Company maintains directors' and officers' liability insurance, including a reimbursement policy in favor of the Company. The Company has also entered into indemnification agreements with each of its directors providing such directors with indemnification to the fullest extent permitted by the General Corporation Law of Delaware. The foregoing represents a summary of the general effect of the DGCL, the Company's By-Laws and Restated Certificate of Incorporation, the Company's directors and officers liability insurance coverage and the indemnification agreements for purposes of general description only. 3 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable - no securities are to be re-offered or resold pursuant to this Registration Statement. ITEM 8. EXHIBITS. 4.1 Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended December 28, 1985 (File No. 0-785)). 4.2 Amendment to Restated Certificate of Incorporation of the Company, effective May 29, 1986 (incorporated by reference to Exhibit 19.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended October 4, 1986 (File No. 0-785)). 4.3 Amendment to Restated Certificate of Incorporation of the Company, effective May 15, 1987 (incorporated by reference to Exhibit 4.5 to the Company's Registration Statement on Form S-3 (File No. 33-14871)). 4.4 Amended Bylaws of the Company (incorporated by reference to Exhibit 3.4 to the Company's Annual Report on Form 10-K for the fiscal year ended December 30, 1995 (File No. 0-785)). 4.5 Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company's Annual Report on Form 10-K for the year ended December 30, 1989 (File No. 0-785)). 4.6 Stockholder Rights Agreement, dated February 13, 1996, between the Company and Norwest Bank Minnesota, National Association (incorporated by reference to Exhibit 4 to the Company's Annual Report on Form 8-K, dated February 13, 1996 (File No. 0-785)). 5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly (filed herewith electronically). 23.1 Consent of Oppenheimer Wolff & Donnelly (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP (filed herewith electronically). 23.3 Consent of KPMG Peat Marwick LLP (filed herewith electronically). 24.1 Power of Attorney (included on page 6 of this Registration Statement). ITEM 9. 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: (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. 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) under the Securities Act of 1933 if, in the aggregate, the changes in volume and price represent no more than a 20% change in the 4 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 to such information in the registration statement; PROVIDED, HOWEVER, that paragraphs (1)(i) and (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-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. 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, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in 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. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant, 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 of 1933 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. 5 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 the City of Minneapolis, State of Minnesota, on May 21, 1997. NASH-FINCH COMPANY By: /s/ Alfred N. Flaten ------------------------------------- Alfred N. Flaten President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Alfred N. Flaten and Norman R. Soland and each or any one of them, his or her true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on May 21, 1997 by the following persons in the capacities indicated. /s/ Alfred N. Flaten /s/ John R. Scherer ___________________________________ _________________________________________ Alfred N. Flaten John R. Scherer, Vice President and Chief President, Chief Executive Officer Financial Officer (Principal Executive Officer) and (Principal Financial Officer) Director /s/ Lawrence A. Wojtasiak /s/ Richard A. Fisher ___________________________________ _________________________________________ Lawrence A. Wojtasiak, Controller Richard A. Fisher, Director (Principal Accounting Officer) ___________________________________ _________________________________________ Carole F. Bitter, Director John H. Grunewald, Director /s/ Allister P. Graham /s/ Jerry L. Ford ___________________________________ _________________________________________ Allister P. Graham, Director Jerry L. Ford, Director /s/ Richard G. Lareau /s/ Donald R. Miller ___________________________________ _________________________________________ Richard G. Lareau, Director Donald R. Miller, Director 6 /s/ Don E. Marsh /s/ Jerome O. Rodysill ___________________________ ________________________________ Don E. Marsh, Director Jerome O. Rodysill, Director /s/ Robert F. Nash ___________________________ Robert F. Nash, Director 7 INDEX TO EXHIBITS ITEM DESCRIPTION METHOD OF FILING - ---- ----------- ---------------- NO. - ---- 4.1 Restated Certificate of Incorporation of Incorporated by reference to the Company ............................ Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended December 28, 1985 (File No. 0-785). 4.2 Amendment to Restated Certificate of Incorporated by reference to Incorporation of the Company, Exhibit 19.1 to the Company's effective May 29, 1986.................. Quarterly Report on Form 10-Q for the quarter ended October 4, 1986 (File No. 0-785). 4.3 Amendment to Restated Certificate of Incorporated by reference to Incorporation of the Company, Exhibit 4.5 to the Company's effective May 15, 1987.................. Registration Statement on Form S-3(File No. 33-14871). 4.4 Amended Bylaws of the Company........... Incorporated by reference to Exhibit 3.4 to the Company's Annual Report on Form 10-K for the fiscal year ended December 30, 1995 (File No. 0-785). 4.5 Form of Common Stock Certificate........ Incorporated by reference to Exhibit 4.1 to the Company's Annual Report on Form 10-K for the year ended December 30, 1989 (File No. 0-785). 4.6 Stockholder Rights Agreement, Incorporated by reference to dated February 13, 1996, between the Exhibit 4 to the Company's Company and Norwest Bank Annual Report on Form 8-K, Minnesota, National Association dated February 13, 1996 (File No. 0-785). 5.1 Opinion and Consent of Oppenheimer Filed herewith electronically. Wolff & Donnelly........................ 23.1 Consent of Oppenheimer Wolff.......... Included in Exhibit 5.1. & Donnelly 23.2 Consent of Ernst & Young LLP.......... Filed herewith electronically. 23.3 Consent of KPMG Peat Marwick LLP...... Filed herewith electronically. 24.1 Powers of Attorney.................... Included on page 6 of this Registration Statement. 8 EX-5.1 2 EXHIBIT 5.1 EXHIBIT 5.1 OPPENHEIMER WOLFF & DONNELLY Plaza VII 45 South Seventh Street Suite 3400 Minneapolis, MN 55402-1609 (612) 344-9300 FAX (612) 344-9376 May 21, 1997 Nash-Finch Company 7600 France Avenue South P.O. Box 355 Minneapolis, Minnesota 55440 Re: Nash-Finch Company/ Registration Statement on Form S-8 Ladies/Gentlemen: We have acted as counsel to Nash-Finch Company, a Delaware corporation (the "Company"), in connection with the registration by the Company of 100,000 shares of the Company's Common Stock, $1.66-2/3 par value (the "Shares"), issuable under the Company's 1997 Non-Employee Director Stock Compensation Plan (the "Plan"), pursuant to the Company's Registration Statement on Form S-8 filed with the Securities and Exchange Commission on May 21, 1997 (the "Registration Statement). In acting as counsel for the Company and arriving at the opinions expressed below, we have examined and relied upon original or copies, certified or otherwise identified to our satisfaction, of such records of the Company, agreements and other instruments, certificates of officers and representatives of the Company, certificates of public official and other documents as we have deemed necessary or appropriate as a basis for the opinions expressed herein. In connection with our examination, we have assumed the genuineness of all signatures, the authenticity of all documents tendered to us as originals, the legal capacity of all natural persons and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based on the foregoing, and subject to the qualifications and limitations stated herein, it is our opinion that: 1. The Company has the corporate authority to issue the Shares in the manner and under the terms set forth in the Registration Statement. [OPPENHEIMER WOLFF & DONNELLY LETTERHEAD] Nash-Finch Company May 21, 1997 Page 2 2. The Shares have been duly authorized and, when issued, delivered and paid for in accordance with the Plan referred to in the Registration Statement, will be validly issued, fully paid and nonassessable. We express no opinion with respect to laws other than those of the State of Delaware and the federal laws of the United States of America, and we assume no responsibility as to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to its use as part of the Registration Statement. We are furnishing this opinion to the Company solely for its benefit in connection with the Registration Statement as described above. It is not to be used, circulated, quoted or otherwise referred to for any other purpose. Other than the Company, no one is entitled to rely on this opinion. Very truly yours, /s/ OPPENHEIMER WOLFF & DONNELLY EX-23.2 3 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG Exhibit 23.2 Consent of Independent Auditors We consent to the reference to our firm under the caption "Incorporation of Documents by Reference" in the Registration Statement on Form S-8 pertaining to the 1997 Non-Employee Director Stock Compensation Plan of Nash Finch Company and to the incorporation by reference therein of our reports dated February 19, 1997, with respect to the consolidated financial statements of Nash Finch Company incorporated by reference in its Annual Report (Form 10-K) for the year ended December 28, 1996 and the related financial statement schedule included therein, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Minneapolis, Minnesota May 16, 1997 EX-23.3 4 EXHIBIT 23.3 CONSENT OF KPMG PEAT MARWICK Exhibit 23.3 INDEPENDENT AUDITORS' CONSENT The Board of Directors Nash Finch Company: We consent to incorporation by reference in the Registration Statement on Form S-8 of Nash Finch Company, pertaining to its 1997 Non-Employee Director Stock Compensation Plan, of our reports dated March 3, 1995, relating to the consolidated earnings, stockholders' equity, and cash flows of Nash Finch Company and subsidiaries and the related consolidated financial statement schedule for the year ended December 31, 1994, which reports are included in or incorporated by reference in the December 28, 1996 annual report on Form 10-K of Nash Finch Company, and to the reference to our Firm under the heading "Incorporation of Documents by Reference" in the Registration Statement. /s/ KPMG Peat Marwick Minneapolis, Minnesota May 16, 1997 -----END PRIVACY-ENHANCED MESSAGE-----