-----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, M0QhbR2b0P8KneWRNmu6SOTR0VrE3A9K1nI8p2jTZgiPohoYdmQPb0weansZY/lH by5lO7MXsypZsYh8jgX/Nw== 0000081061-98-000027.txt : 19980903 0000081061-98-000027.hdr.sgml : 19980903 ACCESSION NUMBER: 0000081061-98-000027 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980902 EFFECTIVENESS DATE: 19980902 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PUBLIX SUPER MARKETS INC CENTRAL INDEX KEY: 0000081061 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 590324412 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62705 FILM NUMBER: 98702767 BUSINESS ADDRESS: STREET 1: PO BOX 407 CITY: LAKELAND STATE: FL ZIP: 33802-0407 BUSINESS PHONE: 9416887407 MAIL ADDRESS: STREET 2: P O BOX 407 CITY: LAKELAND STATE: FL ZIP: 33802 S-8 1 As filed with the Securities and Exchange Commission on September 2, 1998 Registration Statement No.333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ______________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PUBLIX SUPER MARKETS, INC. (Exact name of Registrant as specified in its charter) Florida 59-0324412 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 1936 George Jenkins Boulevard Lakeland, Florida 33815 (941) 688-1188 (Address, including zip code, of Registrant's principal executive offices) PUBLIX SUPER MARKETS, INC. EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) S. Keith Billups, Secretary Publix Super Markets, Inc. 1936 George Jenkins Boulevard Lakeland, Florida 33815 (941) 688-1188 (Name, address, including zip code, and telephone number including area code, of agent for service) CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount Securities be Maximum Maximum of to be Registered Offering Price Aggregate Registration Registered Per Share(1) Offering Price Fee ---------- ---------- ------------ -------------- --- Common Stock 10,000,000 shs. $38.25 $382,500,000 $112,838.00
(1) Estimated pursuant to Rule 457(c), solely for the purpose of calculating the registration fee, based upon the most recently available appraisal of the fair market value of the common stock. PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 3. Incorporation of Documents by Reference. By this reference, the following documents filed or to be filed by Publix Super Markets, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated into and made a part of this Registration Statement: 1. The Company's Annual Report on Form 10-K (Commission file No. 000-00981) for the Year Ended December 27, 1997. 2. The Company's Quarterly Reports on Form 10-Q (Commission file No. 000-00981) for the Quarters Ended March 28, 1998 and June 27, 1998. 3. Page 2 of the Company's Amendment on Form 8 dated September 15, 1992 (amending Item 14 of the Company's Registration Statement on Form 10 dated April 28, 1965 describing the Company's Common Stock). 4. All documents filed by the Company with the Commission subsequent to the date of this Registration Statement pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 be deemed to be incorporated into and made a part of this Registration Statement from the date of filing of such documents with the Commission. 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 Florida Business Corporation Act, as amended (the "Florida Act"), provides that, in general, a business corporation may indemnify any person who is or was a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that he or she is or was a director or officer of the corporation, against liability incurred in connection with such proceeding, including any appeal thereof, provided certain standards are met, including that such officer or director acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and provided further that, with respect to any criminal action or proceeding, the officer or director had no reasonable cause to believe his or her conduct was unlawful. In the case of proceedings by or in the right of the corporation, the Florida Act provides that, in general, a corporation may indemnify any person who was or is a party to any such proceeding by reason of the fact that he or she is or was a director or officer of the corporation against expenses and amounts paid in settlement actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof, provided that such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim as to which such person is adjudged liable unless a court of competent jurisdiction determines upon application that such person is fairly and reasonably entitled to indemnity. To the extent that any officers or directors are successful on the merits or otherwise in the defense of any of the proceedings described above, the Florida Act provides that the corporation is required to indemnify such officers or directors against expenses actually and reasonably incurred in connection therewith. However, the Florida Act further provides that, in general, indemnification or advancement of expenses shall not be made to or on behalf of any officer or director if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (i) a violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a transaction from which the director or officer derived an improper personal benefit; (iii) in the case of a director, a circumstance under which the director has voted for or assented to a distribution made in violation of the Florida Act or the corporation's articles of incorporation; or (iv) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder. Under the terms of the Company's Articles of Incorporation and Bylaws, the Company shall indemnify any director or officer or any former director and officer, and may indemnify any employee or former employer, in each case to the fullest extent permitted by law. Item 7. Exemption From Registration Claimed. Not Applicable. Item 8. Exhibits. Exhibit Number Description 4(a) Articles of Incorporation of the Company, together with all amendments thereto, are incorporated by reference to the exhibits to the Annual Report of the Company on Form 10-K for the year ended December 25, 1993. 4(b) Amended and Restated By-laws of the Company are incorporated by reference to the exhibits to the Annual Report of the Company on Form 10-K for the year ended December 28, 1996. 4(c) Form of Common Stock Certificate. 5. Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association, as to the legality of the Common Stock being registered. 23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association (contained in Exhibit 5). 23.2 Consent of KPMG Peat Marwick LLP. 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: (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) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the 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. (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. (h) 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 provisions described in Item 6, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act 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 Securities Act of 1933 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 the City of Lakeland, State of Florida, on the 27th day of August 1998. Publix Super Markets, Inc. By:/s/ S.Keith Billups S. Keith Billups Secretary KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and directors of Publix Super Markets, Inc., a Florida corporation, for himself or herself and not for one another, does hereby constitute and appoint S. Keith Billups and Tina P. Johnson, and each of them, a true and lawful attorney in his name, place and stead, in any and all capacities, to sign his or her name to any and all amendments, including post-effective amendments, to this registration statement, with respect to the proposed issuance, sale and delivery of shares of its Common Stock, and to cause the same to be filed with the Securities and Exchange Commission, granting unto said attorneys and each of them full power and authority to do and perform any act and thing necessary and proper to be done in the premises, as fully to all intents and purposes as the undersigned could do if personally present, and each of the undersigned for himself or herself hereby ratifies and confirms all that said attorneys or any one of them shall lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/Howard M. Jenkins Chairman of the Board, August 27, Howard M. Jenkins Chief Executive 1998 Officer and Director (Principal Executive Officer) /s/Charles H. Jenkins, Jr. Chairman of the August 27, Charles H. Jenkins, Jr. Executive Committee 1998 and Director /s/W. Edwin Crenshaw President and Director August 27, W. Edwin Crenshaw 1998 /s/William H. Vass Executive Vice August 27, William H. Vass President and Director 1998 /s/Hoyt R. Barnett Executive Vice August 27, Hoyt R. Barnett President and 1998 Director /s/Tina P. Johnson Senior Vice President August 27, Tina P. Johnson and Director 1998 /s/Carol Jenkins Barnett Director August 27, Carol Jenkins Barnett 1998 /s/Mark C. Hollis Director August 27, Mark C. Hollis 1998 /s/E.V. McClurg Director August 27, E. V. McClurg 1998 /s/David P. Phillips Vice President August 27, David P. Phillips Finance and Treasurer 1998 (Principal Financial Officer and Principal Accounting Officer) EXHIBIT INDEX Exhibit Number Description 4(a) Articles of Incorporation of the Company, together with all amendments thereto, are incorporated by reference to the exhibits to the Annual Report of the Company on Form 10-K for the year ended December 25, 1993. 4(b) Amended and Restated By-laws of the Company are incorporated by reference to the exhibits to the Annual Report of the Company on Form 10-K for the year ended December 28, 1996. 4(c) Form of Common Stock Certificate. 5. Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association, as to the legality of the Common Stock being registered. 23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Professional Association (contained in Exhibit 5). 23.2 Consent of KPMG Peat Marwick LLP. EX-4 2 FORM OF COMMON STOCK CERTIFICATE EXHIBIT 4 NUMBER INCORPORATED UNDER THE LAWS SHARES OF THE STATE OF FLORIDA PUBLIX SUPER MARKETS, INC. THIS CERTIFIES THAT is the owner of FULLY-PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, OF THE PAR VALUE OF ONE DOLLAR ($1.00) EACH OF PUBLIX SUPER MARKETS, INC. transferable on the books of the Corporation by the holder hereof in person, or by Attorney upon surrender of this Certificate properly endorsed. In Witness Whereof, the said Corporation has caused this Certificate to be signed by its duly authorized officers and to be sealed with the Seal of the Corporation at Lakeland, Florida, this ___ day of ________, A.D., _________. /s/_______________________ /s/_____________________________ Secretary President For value received, ___________________ hereby sell, assign and transfer unto _______________________________________________________________________ shares of the Common Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint __________________________________ Attorney to transfer the said Stock on the books of the within named Corporation with full power of substitution in the premises. Dated ________________________ _______________________________________ owner ______________________________ _______________________________________ witness owner NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER. EX-5 3 OPINION RE LEGALITY EXHIBIT 5 August 24,1998 Via EDGAR Securities and Exchange Commission 450 5th Street, N.W. Judiciary Plaza Washington, DC 20549 Re: Publix Super Markets, Inc. Employee Stock Purchase Plan Registration Statement on Form S-8 Ladies and Gentlemen: We have represented Publix Super Markets, Inc. (the "Company") in connection with the Company's Registration Statement on Form S-8 (the "S-8 Registration Statement") relating to the offering by the Company (the "Offering") of 10,000,000 shares of the Company's Common Stock under the Company's Employee Stock Purchase Plan (the "Plan"). This opinion is being provided as Exhibit 5 to the S-8 Registration Statement. In our capacity as counsel to the Company in connection with the Registration Statement and the Offering, we have examined and are familiar with: (1) the Company's Articles of Incorporation and bylaws, as currently in effect, (2) the Plan, (3) the S-8 Registration Statement and (4) such other corporate records and documents and instruments as in our opinion are necessary or relevant as the basis for the opinions expressed below. As to various questions of fact material to our opinion, we have relied without independent investigation on statements or certificates of officials and representatives of the Company, the Department of State of the State of Florida and others. In all such examinations, we have assumed the genuineness of all signatures on original and certified documents and the conformity to original and certified documents of all copies submitted to us as conformed, photostatic or other exact copies. We express no opinion as to the law of any jurisdiction other than of the State of Florida and the Federal laws of the United States of America. Based upon and in reliance on the foregoing, we are of the opinion that: 1. The Company is a duly incorporated and existing corporation under the laws of the State of Florida and its status is active. 2. The Plan has been duly and legally authorized by all required corporate action. 3. When the following events shall have occurred: a. the S-8 Registration Statement shall have become effective in accordance with the Securities Act of 1933, as amended; b. the shares of Common Stock shall have been offered and sold as contemplated in the Plan; c. the consideration specified in the Plan shall have been received; and d. the certificates representing such shares shall have been duly executed, counter-signed and issued by or on behalf of the Company, the shares of Common Stock so offered and sold in the Offering will be duly authorized, validly issued, fully paid and non- assessable shares of the capital stock of the Company. This firm hereby consents to the filing of this opinion as an Exhibit to the S-8 Registration Statement. Sincerely, TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O'NEILL & MULLIS Professional Association By: /s/ ALBERT C. O'NEILL, JR. EX-23 4 CONSENT OF KPMG PEAT MARWICK LLP ACCOUNTANTS' CONSENT The Board of Directors Publix Super Markets, Inc.: We consent to incorporation by reference in the registration statement on Form S-8 of Publix Super Markets, Inc. of our report dated February 25, 1998, relating to the consolidated balance sheets of Publix Super Markets, Inc. and subsidiaries as of December 27, 1997 and December 28, 1996, and the related consolidated statements of earnings, stockholders' equity, and cash flows for each of the years in the three-year period ended December 27, 1997, and all related schedules, which report appears in the December 27, 1997 annual report on Form 10-K of Publix Super Markets, Inc. /s/ KPMG Peat Marwick LLP Tampa, Florida August 31, 1998 -----END PRIVACY-ENHANCED MESSAGE-----