-----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, J5fa04ozgIcCM+WTfxzDF7sxFTc9KH8AqDWxkJsu7YuVqWROsr7he2DHHCl85jUA AKMWUh3wtb9Gxc4nslGlMg== 0000945723-96-000005.txt : 19960314 0000945723-96-000005.hdr.sgml : 19960314 ACCESSION NUMBER: 0000945723-96-000005 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960313 EFFECTIVENESS DATE: 19960401 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: KASH N KARRY FOOD STORES INC CENTRAL INDEX KEY: 0000842913 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 954161591 STATE OF INCORPORATION: DE FISCAL YEAR END: 0730 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-01683 FILM NUMBER: 96534407 BUSINESS ADDRESS: STREET 1: 6422 HARNEY RD CITY: TAMPA STATE: FL ZIP: 33610 BUSINESS PHONE: 8136210276 S-8 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 _________________ FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 _________________ KASH N' KARRY FOOD STORES, INC. (exact name of issuer as specified in its charter) Delaware 95-4161591 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 6422 Harney Road Tampa, Florida 33610 (Address of Principal Executive Offices and Zip Code) KASH N' KARRY FOOD STORES, INC. 1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (Full title of the plan) ROBERT S. BOLT, ESQ. Barnett, Bolt, Kirkwood & Long, P.A. 601 Bayshore Boulevard Suite 700 Tampa, Florida 33606 (813) 253-2020 (Name, address and 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 share* price* fee ================================================================ Common Stock 54,000 (par value shares $ 22.50 $1,215,000 $ 418.97 $0.01) ================================================================ *Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of 1933 based upon the average of the high and low prices reported on the composite transactions reporting system of the Nasdaq National Market on March 11, 1996. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by References The following documents filed or to be filed with the Securities and Exchange Commission are incorporated by reference in this Registration Statement: (a) the latest annual report of Kash n' Karry Food Stores, Inc. (the "Company") filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "1934 Act") which contains, either directly or indirectly by incorporation by reference, certified financial statements for the Company's latest fiscal year for which such statements have been filed; (b) all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in paragraph (a) above; and (c) the description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A, filed under the 1934 Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 by reference in this Registration Statement and to be a part hereof from the date of filing 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 Section 145 of the Delaware General Corporation Law ("DGCL") permits a Delaware corporation to indemnify any person who is or was a director, officer, employee and agent of the corporation, or who is or was serving at the request of the corporation as a -2- director, officer, employee or agent of another corporation or enterprise, against actual and reasonable expenses (including attorneys' fees) incurred by such person in connection with any action, suit or proceeding if (i) he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and (ii) in the case of a criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. Except as ordered by a court, no indemnification shall be made in connection with any proceeding brought by or in the right of the Company where the person involved is adjudged to be liable to the Company. Article XV of the Bylaws of the Company provides for indemnification of the officers and directors of the Company to the full extent permitted by law, as now in effect or later amended. The Company has entered into indemnity agreements with each of its directors and executive officers. The indemnity agreements generally indemnify such persons against liabilities arising out of their service in their capacities as directors, officers, employees or agents of the Company. The Company may from time to time enter into indemnity agreements with additional individuals who become officers and/or directors of the Company. Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145. The Company maintains policies insuring the Company's directors and executive officers against certain liabilities for actions taken in such capacities, including liabilities under the Securities Act. Article Seventh of the Company's Restated Certificate of Incorporation limits under certain circumstances the liability of the Company's directors for a breach of their fiduciary duty as directors. These provisions do not eliminate the liability of a director (i) for a breach of the director's duty of loyalty to the Company or its shareholders, (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 DGCL (relating to the declaration of dividends and purchase or redemption of shares in violation of the DGCL), or (iv) for any transaction from which the director derived an improper personal benefit. -3- At present, there is no pending litigation or proceeding involving a director or officer of the Company as to which indemnification is being sought nor is the Company aware of any threatened litigation that may result in claims for indemnification by any officer, director or employee of the Company. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits 3(i)(a) Restated Certificate of Incorporation filed with the Delaware Secretary of State on December 29, 1994 (previously filed as Exhibit 3(i) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(i)(b) Certificate of Designations of Series A Junior Participating Preferred Stock filed with the Secretary of State of the State of Delaware on April 26, 1995 (previously filed as Exhibit 3(i)(b) to the Company's Registration Statement on Form S-1, Registration No. 33-58999, which exhibit is hereby incorporated by reference). 3(ii)(a) Bylaws adopted October 12, 1988 (previously filed as Exhibit 3(ii)(a) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(ii)(b) First Amendment to Bylaws adopted July 30, 1991 (previously filed as Exhibit 3(ii)(b) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(ii)(c) Second Amendment to Bylaws adopted December 29, 1994 (previously filed as Exhibit 3(ii)(c) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(ii)(d) Third Amendment to Bylaws adopted April 13, 1995 (previously filed as Exhibit 3(ii)(d) to the Company's Quarterly Report on Form 10-Q for the period ended April 30, 1995, which exhibit is hereby incorporated by reference). -4- 4 Kash n' Karry Food Stores, Inc. 1995 Non-Employee Director Stock Option Plan (previously filed as Exhibit 10.7(a) to the Company's Registration Statement on Form S-1, Registration No. 33-58999, which exhibit is hereby incorporated by reference). 5 Opinion of Barnett, Bolt, Kirkwood & Long (filed herewith). 23 (a) Consent of Coopers & Lybrand, LLP. (filed herewith). 23 (b) Consent of KPMG Peat Marwick, L.L.P. (filed herewith). 23 (c) Consent of Barnett, Bolt, Kirkwood & Long (included in Exhibit 5). 24 Powers of Attorney (included on signature page). 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 (the "Securities Act"); (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 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (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; -5- provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 SEC by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 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 SEC such indemnification is against public policy as expressed in the Securities 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 whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. -6- 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 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 Tampa and the State of Florida, on the 13th day of March, 1996. KASH N' KARRY FOOD STORES, INC. By: /s/ Ronald E. Johnson ------------------------------- Ronald E. Johnson Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby authorizes Ronald E. Johnson, Richard D. Coleman, or the agent for service named in this Registration Statement to file one or more amendments (including post-effective amendments) to this Registration Statement, which amendments may make such changes in this Registration Statement as Ronald E. Johnson, Richard D. Coleman or such agent for service deems appropriate, and each such person hereby appoints Ronald E. Johnson, Richard D. Coleman or such agent for service as attorney-in-fact to execute in the name and on behalf of each such person, individually and in each capacity stated below, any such amendments to this Registration Statement. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below on March 13, 1996, by the following persons in the capacities indicated. Signature Title /s/ Ronald E. Johnson Director, Chairman of the - ----------------------------- Board, President and Chief RONALD E. JOHNSON Executive Officer (Principal Executive Officer) /s/ Richard D. Coleman Senior Vice President, - ----------------------------- Administration, Chief RICHARD D. COLEMAN Financial Officer (Principal Financial Officer) /s/ Marvin H. Snow, Jr. - ----------------------------- Vice President, Controller MARVIN H. SNOW, JR. (Principal Accounting Officer) /s/ Everett L. Buckardt - ----------------------------- Director EVERETT L. BUCKARDT /s/ John G. Danhakl - ----------------------------- Director JOHN G. DANHAKL - ----------------------------- Director JOHN J. DELUCCA - ----------------------------- Director JENNIFER HOLDEN DUNBAR /s/ Ben Evans - ----------------------------- Director BEN EVANS /s/ Thomas W. Harberts - ----------------------------- Director THOMAS W. HARBERTS /s/ Robert Spiegel - ----------------------------- Director ROBERT SPIEGEL /s/ Peter Zurkow - ----------------------------- Director PETER ZURKOW INDEX TO EXHIBITS Exhibit No. Document Page - ----------- -------- ---- 3(i)(a) Restated Certificate of Incorporation filed with the Delaware Secretary of State on December 29, 1994 (previously filed as Exhibit 3(i) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(i)(b) Certificate of Designations of Series A Junior Participating Preferred Stock filed with the Secretary of State of the State of Delaware on April 26, 1995 (previously filed as Exhibit 3(i)(b) to the Company's Registration Statement on Form S-1, Registration No. 33-58999, which exhibit is hereby incorporated by reference). 3(ii)(a) Bylaws adopted October 12, 1988 (previously filed as Exhibit 3(ii)(a) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(ii)(b) First Amendment to Bylaws adopted July 30, 1991 (previously filed as Exhibit 3(ii)(b) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(ii)(c) Second Amendment to Bylaws adopted December 29, 1994 (previously filed as Exhibit 3(ii)(c) to the Company's Quarterly Report on Form 10-Q for the period ended January 29, 1995, which exhibit is hereby incorporated by reference). 3(ii)(d) Third Amendment to Bylaws adopted April 13, 1995 (previously filed as Exhibit 3(ii)(d) to the Company's Quarterly Report on Form 10-Q for the period ended April 30, 1995, which exhibit is hereby incorporated by reference). 4 Kash n' Karry Food Stores, Inc. 1995 Non- Employee Director Stock Option Plan (previously filed as Exhibit 10.7(a) to the Company's Registration Statement on Form S-1, Registration No. 33-58999, which exhibit is hereby incorporated by reference). 5 Opinion of Barnett, Bolt, Kirkwood & Long (filed herewith). 23 (a) Consent of Coopers & Lybrand, LLP. (filed herewith). 23 (b) Consent of KPMG Peat Marwick, L.L.P. (filed herewith). 23 (c) Consent of Barnett, Bolt, Kirkwood & Long (included in Exhibit 5). 24 Powers of Attorney (included on signature page). EX-5 2 EXHIBIT 5 ========= March 13, 1996 Kash n' Karry Food Stores, Inc. 6422 Harney Road Tampa, Florida 33610 Re: Registration Statement on Form S-8 of Kash n' Karry Food Stores, Inc. (1995 Non-Employee Director Stock Option Plan) Ladies and Gentlemen: We have acted as special counsel to Kash n' Karry Food Stores, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the "Registration Statement") providing for the registration on behalf of the Company of 54,000 shares of common stock of the Company, par value $.01 per share (the "Common Stock"), that may be issued pursuant to an exercise of options granted under the Company's 1995 Non-Employee Director Stock Option Plan. In rendering the opinion expressed below, we have examined (i) the Restated Certificate of Incorporation and ByLaws of the Company as currently in effect; (ii) the Registration Statement; (iii) certain resolutions adopted by the Board of Directors of the Company; and (iv) such other documents, records and papers as we have deemed necessary as a basis for the opinions expressed below. We are familiar with the corporate proceedings heretofore taken by the Company in connection with the authorization of the Common Stock. As to various questions of fact material to such opinion we have, when relevant facts were not independently established, relied upon certifications by officers of the Company and other appropriate persons and statements contained in the Registration Statement. Based on the foregoing, and having regard to legal considerations we deem relevant, we are of the opinion that the Kash n' Karry Food Stores, Inc. March 13, 1996 Page 2 Common Stock will, when sold, be legally issued, fully paid and nonassessable. The foregoing opinion is limited to matters involving the General Corporation Law of the State of Delaware, and we do not express any opinion as to the laws of any other jurisdiction. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, without admitting that we are experts, within the meaning of the Act or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this exhibit. Very truly yours, BARNETT, BOLT, KIRKWOOD & LONG, P.A. /s/ Barnett, Bolt, Kirkwood & Long RSB/LWH EX-23.A 3 EXHIBIT 23(a) CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of Kash n' Karry Food Stores, Inc. on Form S-8 related to the 1995 Non-Employee Director Stock Option Plan, of our report dated September 15, 1995, on our audit of the financial statements of Kash n' Karry Food Stores, Inc. as of July 30, 1995 and for the thirty weeks ended July 30, 1995 and the twenty-two weeks ended January 1, 1995, which report is included in the annual report on Form 10-K. /s/ Coopers & Lybrand L.L.P. - --------------------------- Tampa, Florida March 12, 1996 EX-23.B 4 EXHIBIT 23(b) The Board of Directors Kash n' Karry Food Stores, Inc.: We consent to the use of our report incorporated by reference herein. Our report dated September 16, 1994, except with respect to Note 1, which is as of November 9, 1994, contains an explanatory paragraph that states that "the Company has suffered recurring losses from operations and has a net capital deficiency. As discussed in Note 1 to the financial statements, Kash n' Karry Food Stores, Inc. filed a pre-packaged petition under Chapter 11 of the United States Bankruptcy Code on November 9, 1994 and these matters raise substantial doubt about its ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty." /s/ KPMG Peat Marwick LLP - --------------------------- Tampa, Florida March 12, 1996 -----END PRIVACY-ENHANCED MESSAGE-----