-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, qmlDeq0wO2BQDVf+XOTL5nmVcn5EVRwrz1ds1eP2Ih2IqCKGeh65RvfrkDSKACq3 HnZyfNtMLCvghXx3UfpQgA== 0000906280-94-000026.txt : 19940517 0000906280-94-000026.hdr.sgml : 19940517 ACCESSION NUMBER: 0000906280-94-000026 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19940516 EFFECTIVENESS DATE: 19940604 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELCHAMPS INC CENTRAL INDEX KEY: 0000729970 STANDARD INDUSTRIAL CLASSIFICATION: 5411 IRS NUMBER: 630245434 STATE OF INCORPORATION: AL FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-53653 FILM NUMBER: 94528905 BUSINESS ADDRESS: STREET 1: 305 DELCHAMPS DR STREET 2: P O BOX 1668 CITY: MOBILE STATE: AL ZIP: 36602 BUSINESS PHONE: 2054330431 MAIL ADDRESS: STREET 1: 305 DELCHAMPS DR STREET 2: PO BOX 1668 CITY: MOBILE STATE: AL ZIP: 36602 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on May 16, 1994. Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 __________ FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 __________ DELCHAMPS, INC. (Exact name of Registrant as specified in its charter) Alabama 63-0245434 (State or other jurisdiction (I.R.S. Employer of incorporation) Identification Number) 305 Delchamps Drive Mobile, Alabama 36602 (Address, including zip code, of Registrant's principal executive offices) Delchamps, Inc. Retirement Savings Plan (Full title of the Plan) __________ James H. McDonald, Jr. Vice President and General Counsel Delchamps, Inc. 305 Delchamps Drive Mobile, Alabama 36602 (205) 433-0431 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copy to: Margaret F. Murphy Jones, Walker, Waechter, Poitevent, Carrere & Denegre 201 St. Charles Avenue New Orleans, Louisiana 70170-5100 CALCULATION OF REGISTRATION FEE
======================================================================================================= Amount Proposed Maximum Prosposed Maximum Amount of on Title of Securities to be Offering Price Aggregate Registration to be Registered Registered Per Share Offering Price Fee - ------------------------------------------------------------------------------------------------------- Common Stock 25,000 shares $ 21.125 $528,125 $ 182.11 ($.01 par value per share) 5 $ 182.11 ($.01 par value per share) Participation interests $ 0 in the Plan ======================================================================================================= Upon a stock split, stock dividend or similar transaction in the future and during the effectiveness of this Registration Statement involving Common Stock of the Company, the number of shares registered shall be automatically increased to cover the additional shares in accordance with Rule 416(a) under the Securities Act of 1933. Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based on the average of the high and low price per share of the Common Stock on the Nasdaq Stock Market on May 10, 1994. =======================================================================================================
PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 3. Incorporation of Documents by Reference. The following documents, which have been filed by Delchamps, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission"), are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended July 3, 1993 filed pursuant to Section 13 of the Securities Exchange Act of 1934 (the "1934 Act"); (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended October 2, 1993, January 1, 1994 and April 2, 1994 filed pursuant to Section 13 of the 1934 Act; and (c) The description of the Common Stock included in Item 1 of the Company's Registration Statement on Form 8-A dated October 24, 1984 and the description of the fair price provision of the Company's Articles of Incorporation appearing under the caption "Proposed Amendments Concerning Certain Business Combinations and Related Matters" beginning on page 13 and ending on page 18 of the Company's Proxy Statement dated September 5, 1984, filed as Exhibit 3 to the Registration Statement on Form 8-A. All reports filed by the Company or the Plan with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall, except to the extent otherwise provided by Regulation S-K or any other rule promulgated by the Commission, be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Alabama Business Corporation Act gives Alabama corporations broad powers to indemnify their present and former directors and officers against expenses incurred in the defense of any lawsuit to which they are made parties by reason of being or having been such directors or officers. Subject to specific conditions and exclusions, Alabama law gives a director or officer who successfully defends an action the right to be so indemnified and authorizes Alabama corporations to buy directors' and officers' liability insurance. Such indemnification is not exclusive of any other rights to which those indemnified may be entitled under any statute, provision of the articles of incorporation, by-law, agreement, vote of shareholders or disinterested directors or otherwise. The Company's by-laws require, in the case of officers and directors, and permit, in the case of employees and agents, the indemnification expressly authorized under Alabama law. The standard applicable in all cases (excepting indemnification in connection with the successful defense of any proceeding which is mandatory under Alabama law without reference to any such standard) is that the individual shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that no indemnification is permitted with respect to litigation brought by or in the right of the Company in respect of any claim, issue or matter as to which the director or officer is adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless and only to the extent that the court in which the action is brought determines that such person is entitled to indemnity for such expenses which the court deems to be proper. The Company has in effect a directors' and officers' liability policy that provides for indemnification of its officers and directors against losses arising from claims asserted against them in their capacities as officers and directors, subject to limitations and conditions set forth in the policy. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Articles of Amendment to the Articles of Incorporation and Restated Articles of Incorporation of the Company each dated October 5, 1984 (incorporated by reference to Exhibit 3(a) to the Company's Report on Form 10-K for the fiscal year ended June 29, 1985). 4.2 By-laws of the Company, as amended on July 28, 1989 (incorporated by reference to Exhibit 3(b) of the Company's Report on Form 10-K for the fiscal year ended July 1, 1989). 5 In lieu of filing an opinion of counsel as to compliance with ERISA or an Internal Revenue Service determination letter that the Plan is qualified under Section 401 of the Internal Revenue Code, the undertaking permitted by Item 8.(b) of Form S-8 is included in Item 9.(d) of this Registration Statement. 23 Consent of KPMG Peat Marwick. __________ 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 regis- tration statement to include any material information with re- spect 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 amend- ment 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, 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification 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 proceedings) 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. (d) The registrant will submit the Delchamps, Inc. Retirement Savings Plan (the "Plan") and any amendments thereto to the Internal Revenue Service (the "IRS") for qualification under Section 401 of the Internal Revenue Code in a timely manner and will make all changes required by the IRS in order to qualify the Plan. 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 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 Mobile, State of Alabama, on May 12, 1994. DELCHAMPS, INC. /s/ Randy Delchamps _____________________________________ Randy Delchamps Chairman of the Board President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Randy Delchamps and James H. McDonald, Jr., or either one of them, his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and 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 attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/J. Thomas Arendall, Jr. __________________________ Director May 9, 1994 J. Thomas Arendall, Jr. /s/Carl F. Bailey __________________________ Director May 12, 1994 Carl F. Bailey __________________________ Director ____ ___, 1994 __________________________ Director ____ ___, 1994 /s/James M. Cain __________________________ Director May 9, 1994 James M. Cain __________________________ Director _____ ___, 1994 /s/Randy Delchamps __________________________ Chairman of the May 12, 1994 Randy Delchamps Board, President and Chief Executive Officer (Principal Executive Officer) /s/T. W. Mitchell __________________________ Director May 12, 1994 T. W. Mitchell /s/Roy W. Henderson __________________________ Vice President, May 12, 1994 Roy W. Henderson Finance, and Treasurer (Principal Financial and Accounting Officer) The Plan. Pursuant to the requirements of the Securities Act of 1933,the Plan Administrator has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mobile, State of Alabama, on May 12, 1994. DELCHAMPS, INC. RETIREMENT SAVINGS PLAN /s/ Heidi E. Finchem _______________________________________ By: Heidi E. Finchem Title: Plan Administrator EXHIBIT INDEX Exhibit Number Description 4.1 Articles of Amendment to the Articles of Incorporation and Restated Articles of Incorporation of the Company each dated October 5, 1984 (incorporated by reference to Exhibit 3(a) to the Company's Report on Form 10-K for the fiscal year ended June 29, 1985). 4.2 By-laws of the Company, as amended on July 28, 1989 (incorporated by reference to Exhibit 3(b) of the Company's Report on Form 10-K for the fiscal year ended July 1, 1989). 5 In lieu of filing an opinion of counsel as to compliance with ERISA or an Internal Revenue Service determination letter that the Plan is qualified under Section 401 of the Internal Revenue Code, the undertaking permitted by Item 8.(b) of Form S-8 is included in Item 9.(d) of this Registration Statement. 23 Consent of KPMG Peat Marwick. EX-23 2 EXHIBIT 23 The Board of Directors Delchamps, Inc We consent to the incorporation by reference in the registration statement regarding Delchamps, Inc. 1994 Retirement Savings Plan on Form S-8 of Delchamps, Inc. of our reports dated July 30, 1993, relating to the consolidated balance sheets of Delchamps, Inc. and subsidiary as of July 3, 1993, and June 27, 1992, the related consolidated statements of earnings, stockholder's equity, and cash flows, and the supplementary financial statement schedules for each of the years in the three-year period ended July 3, 1993, which reports appear in the July 3, 1993, annual report on Form 10-K of Delchamps, Inc. /s/ KPMG Peat Marwick Atlanta, Georgia May 12, 1994 -----END PRIVACY-ENHANCED MESSAGE-----