-----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, KSIOhWgn7AKMYDA/lUXEUaLjIKF58KR/FBe6981g6oA67J59ky5gFdT3WErl1viL wI1jZtGnnQZ/spBD3yQriQ== 0000906280-96-000114.txt : 19961027 0000906280-96-000114.hdr.sgml : 19961027 ACCESSION NUMBER: 0000906280-96-000114 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19961024 EFFECTIVENESS DATE: 19961024 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELCHAMPS INC CENTRAL INDEX KEY: 0000729970 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [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: 333-14747 FILM NUMBER: 96647368 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 As filed with the Securities and Exchange Commission on October 24, 1996. Registration No. 333- 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. Directors' Stock Option Plan (Full title of the Plan) __________ David W. Morrow Chairman of the Board and Chief Executive Officer Delchamps, Inc. 305 Delchamps Drive Mobile, Alabama 36602 (334) 433-0437 (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, L.L.P. 201 St. Charles Avenue New Orleans, Louisiana 70170-5100 CALCULATION OF REGISTRATION FEE =============================================================================== Proposed Amount Proposed Maximum Maximum Amount of Title of Securities to be Offering Price Aggregate Registration to be Registered Registered Per Share Offering Price Fee ______________________________________________________________________________ Common Stock 30,000 shares $23.00 $690,000 $237.93 ($.01 par value per 10,000 shares 20.75 207,500 71.55 share) ___________ __________ ___________ 40,000 shares $897,500 $309.48 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. Computed in accordance with Rule 457, based upon price at which currently outstanding options granted under the Plan are exercisable. 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 October 21, 1996. 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 1, 1996 filed pursuant to Section 13 of the Securities Exchange Act of 1934 (the "1934 Act"); (b) 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 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. 5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP. 23.1 Consent of KPMG Peat Marwick. 23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP included in Exhibit 5. __________ Item 9. Undertakings. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement 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. (b) The undersigned registrant hereby undertakes that, for pur- poses 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. 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 October 22, 1996. DELCHAMPS, INC. /s/David W. Morrow ______________________ David W. Morrow Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David W. Morrow and Timothy E. Kullman, 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/David W. Morrow Chairman of the Board October 22, 1996 David W. Morrow and Chief Executive Officer (Principal Executive Officer) /s/Timothy E. Kullman Senior Vice President, October 22, 1996 _________________________ Chief Financial Officer, Timothy E. Kullman Treasurer and Secretary (Principal Financial Officer and Principal Accounting Officer) /s/J. Thomas Arendall, Jr. Director October 22, 1996 __________________________ J. Thomas Arendall, Jr. /s/Carl F. Bailey Director October 22, 1996 __________________________ Carl F. Bailey /s/E. E. Bishop Director October 22, 1996 _________________________ E. E. Bishop /s/John A. Caddell Director October 22, 1996 __________________________ John A. Caddell /s/James M. Cain Director October 22, 1996 __________________________ James M. Cain __________________________ Director _________ ___, 1996 William W. Crawford /s/Richard W. LaTrace Director and President October 22, 1996 __________________________ Richard W. LaTrace EX-5 2 EXHIBIT 5 October 24, 1996 Delchamps, Inc. 305 Delchamps Drive Mobile, Alabama 36602 Gentlemen: We have acted as counsel for Delchamps, Inc., an Alabama corporation (the "Company"), in connection with the Company's registration statement on Form S-8 (the "Registration Statement") with respect to the offering by the Company of up to 40,000 shares of the common stock of the Company, $.01 par value per share (the "Common Stock") to its non-employee directors pursuant to the terms of the Delchamps, Inc. Director's Stock Option Plan. Based upon the foregoing, and upon our examination of such matters as we deem necessary in order to furnish this opinion, we are of the opinion that the shares of Common Stock referred to herein, when issued according to the terms of the Delchamps, Inc. Director's Stock Option Plan, will be legally issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, L.L.P. By: /s/ Margaret F. Murphy ________________________________ Margaret F. Murphy EX-23 3 [KPMG Peat Marwick LLP Letterhead] The Board of Directors Delchamps, Inc.: We consent to the use of our report incorporated herein by reference. KPMG Peat Marwick LLP Atlanta, Georgia October 24, 1996 -----END PRIVACY-ENHANCED MESSAGE-----