-----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, Q4Qr9JHeZa1YR79ghBg4ar0qcExt8Gw5j8W3pmUlKKYaa2X/U0xXCNeU5uRnkSDK b+HYsbVKgGPOqijzETNYCw== 0000950134-97-009369.txt : 19971218 0000950134-97-009369.hdr.sgml : 19971218 ACCESSION NUMBER: 0000950134-97-009369 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971217 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FURRS BISHOPS INC CENTRAL INDEX KEY: 0000872548 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 752350724 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: SEC FILE NUMBER: 333-04576 FILM NUMBER: 97739568 BUSINESS ADDRESS: STREET 1: 6901 QUAKER AVE CITY: LUBBOCK STATE: TX ZIP: 79413 BUSINESS PHONE: 8067927151 MAIL ADDRESS: STREET 1: 6901 QUAKER AVE CITY: LUBBOCK STATE: TX ZIP: 79413 POS AM 1 POST-EFFECTIVE AMENDMENT NO. 2 TO FORM S-1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 1997 REGISTRATION NO. 333-4576 PURSUANT TO RULE 401(e) UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS CONTAINED IN THIS POST-EFFECTIVE AMENDMENT HAS BEEN PREPARED IN ACCORDANCE WITH THE REQUIREMENTS OF FORM S-3. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- POST-EFFECTIVE AMENDMENT NO. 2 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- FURR'S/BISHOP'S, INCORPORATED (Exact name of Registrant as specified in its charter) --------------------- DELAWARE 5812 75-2350724 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of incorporation or Classification Code Number) Identification No.) organization)
--------------------- 6901 QUAKER AVENUE LUBBOCK, TEXAS 79413 (806) 792-7151 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) THEODORE J. PAPIT FURR'S/BISHOP'S, INCORPORATED 6901 QUAKER AVENUE LUBBOCK, TEXAS 79413 (806) 792-7151 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- with a copy to: KENNETH L. STEWART, ESQ. FULBRIGHT & JAWORSKI L.L.P. 2200 ROSS AVENUE, SUITE 2800 DALLAS, TEXAS 75201 (214) 855-8000 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC: From time to time after this Registration Statement becomes effective. If the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: [X] ================================================================================ 2 PROSPECTUS FURR'S/BISHOP'S, INCORPORATED 42,060,043 SHARES OF COMMON STOCK --------------------- This Prospectus relates to the public offering by the selling security holders (the "Selling Security Holders") of 42,060,043 shares (the "Shares") of common stock, par value $.01 per share ("Common Stock"), of Furr's/Bishop's, Incorporated, a Delaware corporation (the "Company"). On December 15, 1997, the last reported sale price of a share of Common Stock on the New York Stock Exchange was $ 9/16. SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN RISKS INVOLVED IN THE PURCHASE OF THE SHARES. --------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------------- The Selling Security Holders directly or through agents, dealers or underwriters may sell the Shares from time to time on terms to be determined at the time of sale. To the extent required, the specific Shares to be sold, the names of the Selling Security Holders, the respective purchase prices and public offering prices, the names of any agent, dealer or underwriter and applicable commissions or discounts with respect to a particular offering will be set forth in an accompanying Prospectus Supplement or, if appropriate, a post-effective amendment to the Registration Statement of which this Prospectus is a part. See "Plan of Distribution." Each of the Selling Security Holders reserves the sole right to accept or to reject, in whole or in part, any proposed purchase of the Shares. The Company will not receive any proceeds from this offering but, by agreement, will pay substantially all expenses of this offering, other than the commissions or discounts of underwriters, dealers or agents, but including the fees and disbursements of one counsel to certain of the Selling Security Holders. The Selling Security Holders, and any underwriters, dealers or agents that participate with the Selling Security Holders in the distribution of the Shares, may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), and any commissions received by them and any profit on the resale of the Shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. See "Plan of Distribution" for a description of indemnification arrangements between the Company and the Selling Security Holders and indemnification arrangements for underwriters. --------------------- The date of this Prospectus is December 17, 1997. 3 NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO PURCHASE ANY SECURITY OTHER THAN THE SECURITIES OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO PURCHASE ANY SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT WOULD BE UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY DISTRIBUTION OF THE SECURITIES OFFERED HEREBY SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION SET FORTH HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements, and other information with the Securities and Exchange Commission (the "Commission"). The Registration Statement, the exhibits and schedules forming a part thereof, and the reports, proxy statements and other information filed by the Company with the Commission in accordance with the Exchange Act can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024 Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of the Commission at Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York 10048 and are available at http://www.sec.gov on the world wide web. Copies of such material also can be obtained from the Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at its public reference facilities in New York, New York and Chicago, Illinois at prescribed rates. In addition, material filed by the Company can also be inspected at the offices of the New York Stock Exchange ("NYSE"), 20 Broad Street, Seventh Floor, New York, New York 10005. The Company has filed with the Commission a Registration Statement (of which this Prospectus is a part) on Form S-1 (together with any amendments thereto, the "Registration Statement") under the Securities Act with respect to the Shares. Pursuant to Rule 401(e) under the Securities Act, this Prospectus has been prepared in accordance with the requirements for a Registration Statement on Form S-3. This Prospectus does not contain all the information set forth or incorporated by reference in the Registration Statement and the exhibits and schedules relating thereto, certain portions of which have been omitted as permitted by the rules and regulations of the Commission. For further information, reference is made to the Registration Statement and the exhibits filed or incorporated as a part thereof, which are on file at the offices of the Commission and may be obtained upon payment of the fee prescribed by the Commission, or may be examined without charge at the offices of the Commission. Statements contained in this Prospectus as to the contents of other documents referred to herein are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement or such other document, and each such statement is qualified in all respects by such reference. AFFILIATE FILING Cafeteria Operators, L.P., a Delaware limited partnership and direct and indirect wholly owned partnership subsidiary of the Company ("Cafeteria Operators"), has filed post-effective amendments to a separate Registration Statement (File No. 333-4578) with the Commission with respect to up to $31,620,870.04 aggregate principal amount of 12% Senior Secured Notes ("12% Notes"), which may be offered from time to time for the accounts of certain holders of the 12% Notes. Such holders include certain of the Selling Security Holders. 1 4 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents, which have been filed with the Commission by the Company, are incorporated herein by reference and made a part hereof: (i) Annual Report on Form 10-K for the year ended December 31, 1996; (ii) Amendment No. 1 on Form 10-K/A to Annual Report on Form 10-K for the year ended December 31, 1996; (iii) Amendment No. 2 on Form 10-K/A to Annual Report on Form 10-K for the year ended December 31, 1996; (iv) Quarterly Report on Form 10-Q for the 13 weeks ended April 1, 1997; (v) Quarterly Report on Form 10-Q for the 13 weeks ended July 1, 1997; (vi) Quarterly Report on Form 10-Q for the 13 weeks ended September 30, 1997; and (vii) Registration Statement on Form 8-A (No. 1-10725), filed November 30, 1995. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date of this Prospectus and prior to the termination of the offering of Common Stock to be made hereunder shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing thereof. Any statement contained herein or in a document incorporated or deemed incorporated by reference herein shall be deemed to be modified or superseded for all purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide, without charge, to each person to whom a copy of this Prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the documents incorporated by reference in this Prospectus (other than exhibits and schedules thereto, unless such exhibits or schedules are specifically incorporated by reference into the information that this Prospectus incorporates). Written or telephonic requests for copies should be directed to the Company's principal office: Furr's/Bishop's, Incorporated, 6901 Quaker Avenue, Lubbock, Texas 79413, Attention: Alton R. Smith (telephone: (806) 792-7151). 2 5 TABLE OF CONTENTS
PAGE ---- Risk Factors.......................... 4 Recent Developments................... 6 Use of Proceeds....................... 7 Background; Restructuring............. 7 Selling Security Holders.............. 8
PAGE ---- Plan of Distribution.................. 10 Description of Capital Stock.......... 11 Legal Matters......................... 12 Experts............................... 12
3 6 RISK FACTORS In considering the matters set forth in this Prospectus, prospective investors should carefully consider, among other things, the significant factors described below which are associated with the Shares before making an investment in the Shares. CAPITAL EXPENDITURES The Company may make significant capital expenditures in each of the next three fiscal years to remodel existing cafeterias, implement special programs to enhance customer traffic and develop new restaurants. The Company believes that its capital expenditure program is necessary to enable the Company and its subsidiaries to increase revenues and attain profitability in order to service their respective remaining obligations under outstanding debt instruments. Such obligations and debt instruments limit the Company's ability to make future capital expenditures. There can be no assurance that the Company will be able to complete its capital expenditure program, service its financial obligations and meet the financial covenants contained in outstanding debt instruments. See "Management's Discussion and Analysis of Results of Operations and Financial Condition," included in the Company's most recent Annual Report on Form 10-K and its most recent Quarterly Report on Form 10-Q, if any, after such Annual Report on Form 10-K, previously filed with the Commission and incorporated by reference herein (the "Latest 10-K" and the "Latest 10-Q," respectively). LEVERAGE As of September 30, 1997, the Company's total consolidated indebtedness was approximately $69.1 million (including approximately $23.4 million of interest accrued through maturity). At such date, the Company's stockholders' deficit was approximately $41.6 million and the Company's consolidated total assets were approximately $66.0 million. In addition to certain customary affirmative covenants, the Indenture (hereinafter defined) contains covenants that, among other things, restrict the ability of Cafeteria Operators and each of its subsidiaries, subject to certain exceptions contained therein, to incur debt, make distributions to the Company or transfer assets. The restrictions may limit the ability of the Company to expand its business and take other actions that the Company considers to be in its best interest. The Company and its subsidiaries presently have significant annual interest expense payment obligations under outstanding debt instruments. The ability of the Company and its subsidiaries to satisfy their respective obligations are dependent upon their future performances, which will be subject to financial, business and other factors affecting the business and operations of the Company, including factors beyond the control of the Company and its subsidiaries, such as prevailing economic conditions. Over the long term, the Company's performance will depend on, among other things, the Company's ability to implement successfully its expansion strategies and control costs. See "Business -- Capital Expenditure Program" in the Latest 10-K and "Management's Discussion and Analysis of Results of Operations and Financial Condition -- Liquidity and Capital Resources," included in the Latest 10-K and the Latest 10-Q. If the Company is unable to comply with the terms of outstanding debt instruments and any future debt instruments and fails to generate sufficient cash flow from operations in the future, it may be required to refinance all or a portion of its existing debt or to obtain additional financing. There can be no assurance that any such refinancing would be possible or that any additional financing could be obtained, particularly in view of the Company's anticipated high levels of debt and the fact that a significant portion of Cafeteria Operators' assets, representing substantially all of the Company's consolidated tangible assets, have been pledged as collateral to secure indebtedness. These factors could have a material adverse effect on the marketability and value of the Shares. OWNERSHIP OF THE COMPANY As a result of the Restructuring (hereinafter defined) and subsequent sales of Common Stock by the Selling Security Holders, the Selling Security Holders own approximately 86.5% of the outstanding Common Stock. The Selling Security Holders, however, are 14 separate holders (or groups of affiliated holders) who are entitled to, and who the Company believes intend to, vote separately upon all matters submitted to a vote of 4 7 security holders of the Company (including any mergers, sales of all or substantially all of the assets of the Company or Cafeteria Operators and going private transactions). To the Company's knowledge there are no agreements, arrangements or understandings among any of the Selling Security Holders concerning the voting or disposition of any of such Common Stock or any other matter regarding the Company or which might be the subject of a vote of the Company's stockholders. Also, no Selling Security Holder (or affiliated group of Selling Security Holders) is a beneficial owner of more than 18% of the Common Stock; accordingly, no single Selling Security Holder or affiliated group could itself approve any matter regarding the Company or which might be the subject of a vote of the stockholders. Certain of the Selling Security Holders, who currently hold 12% Notes (hereinafter defined), were former 11% Noteholders (hereinafter defined). In addition, as a part of the Restructuring, certain 11% Noteholders designated for nomination certain of the members of the Board of Directors of the Company. These directors were duly nominated and elected by holders of the former classes of the Company's capital stock at a meeting of the stockholders held prior to certain 11% Noteholders having exercised the Put Option (hereinafter defined). Certain of these directors continue to serve on the Board of Directors, and such directors may have the power to direct the Company's operations. None of such directors, however, is affiliated with any former 11% Noteholder and to the Company's knowledge there is no agreement, understanding or arrangement among any of the former 11% Noteholders or any such director concerning any matter regarding the governance of the Company. In addition, E.W. Williams, Jr., a director of the Company, and KL Group, Inc., a corporation controlled by Kevin E. Lewis, Chairman of the Board of Directors of the Company, are Selling Security Holders. HISTORY OF OPERATING LOSSES Through fiscal year 1995, the Company had not reported net income since its inception in 1991. The Company has reported net losses from operations of approximately $2.4 million, $166.1 million and $21.3 million for the fiscal years 1992, 1993 and 1994, respectively. After giving effect to the Restructuring, but before the extraordinary credit associated therewith, the Company reported net loss from operations of approximately $38.9 million for fiscal year 1995. Although the Company reported net income from operations of $8.4 million for fiscal year 1996, the Company reported net loss from operations of $6.5 million for the 39-week period ended September 30, 1997. NO ANTICIPATED STOCKHOLDER DISTRIBUTIONS The Company does not anticipate paying cash distributions to stockholders in the foreseeable future. The Company's ability to pay cash dividends on the Common Stock will depend on the future performance of the Company and its subsidiaries. Such future performance will be subject to financial, business and other factors affecting the business and operations of the Company and its subsidiaries, including factors beyond the control of the Company and its subsidiaries, such as prevailing economic conditions. In addition, under terms of the Indenture, Cafeteria Operators and its subsidiaries may not distribute funds to the Company, unless, immediately after giving effect to such distribution, (i) no default or event of default shall have occurred or be continuing and (ii) the aggregate amount of all outstanding restricted payments and restricted investments as of such date does not exceed the difference of (a) fifty percent (50%) of consolidated net income for the period beginning January 2, 1996 and ending the last day of the last full fiscal quarter and (b)(x) one hundred percent (100%) of consolidated net income for the last four full fiscal quarters (or, under certain circumstances, a shorter period) if consolidated net income for such period is a loss, or (y) zero, if consolidated net income for such period is not a loss. The Company believes that any refinancing or other indebtedness incurred by the Company or its subsidiaries would contain restrictions on the payment of dividends and making of cash distributions on equity securities generally similar to those in the Indenture. See "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Liquidity and Capital Resources," included in the Latest 10-K and the Latest 10-Q. HOLDING COMPANY STRUCTURE The Company is a holding company with no operations, the principal assets of which are general and limited partnership interests in and capital stock of its subsidiaries. The operations of the Company are 5 8 conducted through its subsidiaries, including Cafeteria Operators and, therefore, the Company is and will continue to be dependent on dividends, distributions or other intercompany transfers of funds from its subsidiaries to allow the Company to meet its obligations and pay dividends, if any, on the Common Stock. The Indenture contains restrictions on the ability of Cafeteria Operators to make distributions or other intercompany transfers to the Company, and it is likely that any refinancing or other indebtedness incurred by subsidiaries will contain similar restrictions. There can be no assurance that funds generated from future operations of the Company and its subsidiaries will be sufficient to meet debt service and other obligations or that the performances of its subsidiaries will be sufficient to satisfy the financial covenants contained in the Indenture or to allow the Company to pay dividends on the Common Stock. In addition, the Company does not anticipate cash being available to pay dividends in the foreseeable future because Cafeteria Operators will retain its earnings to fund capital expenditures. SHARES AVAILABLE FOR FUTURE ISSUANCE As part of the Restructuring, the Company issued to stockholders an aggregate of approximately 40,527,933 five-year warrants, each whole warrant being entitled to purchase one share of Common Stock at an exercise price of $.074 per Share (the "Warrants"). The Warrants expire on January 2, 2001. After giving effect to the fifteen-to-one reverse stock split on March 22, 1996, the Warrants are exercisable into approximately 2,701,862 shares of Common Stock at an exercise price of $1.11 per share. In addition, the Company has 2,702,720 shares of Common Stock, after giving effect to the reverse stock split, available for issuance pursuant to the 1995 Stock Option Plan of the Company. No prediction can be made as to the effect, if any, that future issuances of shares, the availability of shares for future issuance or the Warrants may have on the prevailing market prices of the Common Stock from time to time. The Selling Security Holders own approximately 86.5% of the outstanding Common Stock. Any of the Selling Security Holders may from time to time determine to sell Shares for any reason, subject to compliance with federal securities laws. Issuance or sales of substantial amounts of Common Stock, or the perception that such sales or issuances could occur, could adversely effect prevailing market prices for the Common Stock. RESIGNATION OF CHIEF EXECUTIVE OFFICER Theodore J. Papit has announced that he will resign his position as Chief Executive Officer and President of the Company effective March 31, 1998, based on personal reasons and desire to pursue other long-term professional opportunities. If the Company is unable to hire a full-time replacement for Mr. Papit reasonably soon, the failure to have a full time Chief Executive Officer could have a material adverse effect on the Company. RECENT DEVELOPMENTS The Company and Theodore J. Papit, its President and Chief Executive Officer, have reached an agreement for Mr. Papit to remain as President and Chief Executive Officer through the first quarter of 1998. Mr. Papit had previously announced his resignation from these positions, effective October 29, 1997, but, at the request of the Board of Directors, agreed to remain through December 15, 1997. In connection with his agreement to extend his term of office through the first quarter of 1998, Mr. Papit agreed to terminate, effective December 15, 1997, all existing compensation and contractual obligations of the Company regarding his employment, including termination of all stock options. Mr. Papit will be compensated from December 15, 1997, through the end of the first quarter of 1998 at a flat rate of $50,000 per month, and will be reimbursed for normal out-of-pocket expenses. The Company is continuing its search for a permanent replacement for Mr. Papit. 6 9 USE OF PROCEEDS The Company will not receive any proceeds from the sale of the Common Stock offered pursuant to this Prospectus. The Selling Security Holders will receive all of the net proceeds from any sale of the Shares offered hereby. BACKGROUND; RESTRUCTURING GENERAL In 1996, the Company continued to streamline its operating focus after completing a major restructuring of its financial position in fiscal 1995 (the "Restructuring"). On January 2, 1996, the Company received the approval of its lenders and stockholders on a recapitalization resulting in a reduction of the Company's debt and other obligations by over $200 million, a significant reduction in interest expense and an increase in net worth. Approval of the Restructuring concluded nearly three years of discussions aimed at providing the Company with greater financial stability and the resources to compete in an increasingly competitive industry. As part of the Restructuring, Cafeteria Operators executed the Amended and Restated Indenture (the "Indenture") dated as of November 15, 1995 between Cafeteria Operators and Fleet National Bank of Massachusetts (f/k/a Shawmut Bank, N.A.), as trustee, pursuant to which, among other things, the terms of $40.0 million aggregate principal amount outstanding under Cafeteria Operators' 11% Senior Secured Notes due June 30, 1998 (the "11% Notes") issued pursuant to the Indenture dated as of March 27, 1992 between the Company and Shawmut Bank, N.A., as collateral agent (the "Old Indenture"), were amended, with the consent of the holders of the 11% Notes at such time (the "Original 11% Noteholders"), to constitute $40.0 million (subject to the issuance of additional notes in payment of the first interest installment) aggregate principal amount of 12% Senior Secured Notes ("12% Notes") issued pursuant to the Indenture. In addition, Cafeteria Operators issued a 12% Note in the original principal amount of $1.7 (plus interest) million to the Trustees of General Electric Pension Trust ("GEPT") in settlement of a $5.4 million judgment against Furr's/Bishop's Cafeterias, L.P., a Delaware limited partnership and indirect wholly owned partnership subsidiary of the Company ("FBLP"). As part of the Restructuring, Wells Fargo Bank, National Association ("Wells Fargo") received an option to purchase 2.5% of the outstanding Common Stock (the "Wells Fargo Option") in satisfaction of approximately $6.1 million principal amount (plus approximately $1.6 million of accrued and unpaid interest) of indebtedness of a subsidiary of the Company. State Street Bank and Trust Company is currently the trustee under the Indenture. As a result of the Restructuring, indebtedness of Cafeteria Operators in the amount of approximately $153 million aggregate principal amount (plus approximately $46.6 million in accrued and unpaid interest) outstanding under the Old Indenture was exchanged by holders on January 2, 1996 of the 11% Notes (the "Exchanging 11% Noteholders" and together with the Original 11% Noteholders, the "former 11% Noteholders") for an aggregate of 95% of the limited partnership interests of Cafeteria Operators and the right to put to the Company their 95% limited partnership interests in Cafeteria Operators in exchange for 95% of the outstanding Common Stock (the "Put Option"). In addition, outstanding warrants to purchase capital stock of the Company held by certain of the Exchanging 11% Noteholders were cancelled. On March 12, 1996, a majority of the Exchanging 11% Noteholders exercised the Put Option and, accordingly, all Exchanging 11% Noteholders put their aggregate 95% limited partnership interests to the Company in exchange for 95% of the outstanding Common Stock. On March 15, 1996, Wells Fargo exercised the Wells Fargo Option thereby becoming the beneficial owner of 2.5% of the outstanding Common Stock. On March 22, 1996, a fifteen-to-one reverse stock split became effective upon the filing of an amendment to the Company's Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware. CERTAIN INCOME TAX RAMIFICATIONS OF THE RESTRUCTURING As described above, the Restructuring was a complex series of transactions which had a variety of federal income tax implications for the Company. The Restructuring likely resulted in an ownership change (within 7 10 the meaning of Section 382 of the Internal Revenue Code), which is likely to substantially restrict the ability of the Company to utilize existing net operating loss carryovers to offset future income. In addition, although the Company believes that such possibility is unlikely, no assurance can be given that the Internal Revenue Service might not successfully recharacterize the Restructuring in a manner which would reduce certain tax attributes of the Company and the other partners of Cafeteria Operators (all of which are subsidiaries of the Company) in an amount equal to the excess of the outstanding amount of 11% Notes outstanding prior to the Restructuring over the fair market value of the 11% Notes at such time. SELLING SECURITY HOLDERS The following table provides certain information with respect to the Shares held by each Selling Security Holder. As a result of the restructuring and subsequent sales of Common Stock by the Selling Security Holders, the Selling Security Holders own approximately 86.5% of the outstanding Common Stock. Since the Selling Security Holders may sell all or some of their Shares, no estimate can be made of the aggregate amount of Shares that are to be offered hereby or that will be owned by each Selling Security Holder upon completion of the offering to which this Prospectus relates. The Selling Security Holders are 14 separate holders (or groups of affiliated holders) who are entitled to, and who the Company believes intend to, vote separately upon all matters submitted to a vote of security holders of the Company (including any mergers, sales of all or substantially all of the assets of the Parent or the Company and going private transactions). To the Company's knowledge, there are no agreements, arrangements or understandings among any of the Selling Security Holders concerning the voting or disposition of any of such Common Stock or any other matter regarding the Company or which might be the subject of a vote of the Company's stockholders. Also, no Selling Security Holder (or affiliated group of Selling Security Holders) is a beneficial owner of more than 18% of the Common Stock; accordingly, no single Selling Security Holder or affiliated group could itself approve any matter regarding the Company or which might be the subject of a vote of the stockholders. Certain of the Selling Security Holders, who currently hold 12% Notes, were former 11% Noteholders. See "Background; Restructuring." In addition, as a part of the Restructuring, certain 11% Noteholders nominated certain of the members of the Board of Directors of the Company. Certain of these directors continue to serve on the Board of Directors, and such directors may have the power to direct the Company's operations. None of such directors, however, is affiliated with any former 11% Noteholder and to the Company's knowledge there is no agreement, understanding or arrangement among any of the former 11% Noteholders or any such director concerning any matter regarding the governance of the Company. In addition, E.W. Williams, Jr., a director of the Company, and KL Group, Inc., a corporation controlled by Kevin E. Lewis, Chairman of the Board of Directors of the Company, are Selling Security Holders. 8 11 The Shares offered by this Prospectus may be offered from time to time by the Selling Security Holders named below:
AGGREGATE AMOUNT OF SHARES ORIGINALLY BENEFICIALLY NAME OWNED AND REGISTERED SHARES OFFERED ---- -------------------------- -------------- Teachers Insurance and Annuity Association of America......................................... 8,607,637 8,607,637 EQ Asset Trust 1993............................... 8,499,857 8,499,857 John Hancock Mutual Life Insurance Company........ 5,477,994 5,477,994 The Northwestern Mutual Life Insurance Company.... 5,471,679 5,471,679 The Mutual Life Insurance Company of New York..... 4,105,339 4,105,339 Principal Mutual Life Insurance Company........... 3,286,701 3,286,701 SC Fundamental Value Fund, L.P. .................. 2,949,620 1,925,415 SC Fundamental Value BVI Ltd. .................... 1,502,322 1,148,427 Wells Fargo Bank, National Association............ 1,216,224 1,216,224 The Ohio National Life Insurance Company.......... 984,240 919,240 CUNA Mutual Life Insurance Company................ 956,271 956,271 Cerberus Partners, L.P............................ 657,053 -- The Copernicus Fund, L.P.......................... 479,290 419,090 KL Group, Inc..................................... 301,205 10,000 Mark Zucker....................................... 239,646 -- E.W. Williams, Jr................................. 16,169 16,169
Equitable Real Estate Investment Management, Inc. ("EREIMI"), a former affiliate of EQ Asset Trust 1993, is the owner of six properties in Illinois and Iowa which are leased by the Company. The aggregate amount paid by the Company to EREIMI in respect of periodic rental installments during fiscal 1996 was $537,034.75. Such lease was entered into by the Company and EREIMI prior to EQ Asset Trust 1993's acquisition of an interest in the Company in connection with the Restructuring. Such lease was negotiated at arm's length on terms no less favorable than the Company would have obtained from an unrelated landlord. 9 12 PLAN OF DISTRIBUTION The Company will receive none of the proceeds from this offering. The Shares may be sold from time to time to purchasers on the NYSE, in privately negotiated transactions or in the over-the-counter market. The Selling Security Holders may from time to time offer the Shares directly or through underwriters, brokers, dealers or agents, pursuant to (a) a block trade in which a broker or dealer will attempt to sell the Shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this Prospectus; (c) ordinary brokerage transactions and transactions in which the broker or dealer solicits purchasers. In effecting such sales, underwriters, brokers or dealers engaged by the Selling Security Holders may arrange for other brokers or dealers to participate in the resales. Such sales may be effected at market prices and on terms prevailing at the time of sale, at prices related to such market prices, at negotiated prices or at fixed prices. In addition, the Selling Security Holders may engage in hedging or other similar transactions, and may pledge the Shares being offered, and, upon default, the pledgee may effect sales of the pledged shares pursuant to this Prospectus. In connection with any hedging transactions, broker-dealers may engage in short sales of the Shares registered hereunder in the course of hedging the positions they assume with Selling Security Holders. The Selling Security Holders may also sell Common Stock short and redeliver the Shares to close out such short positions. The Selling Security Holders may also enter into option or other transactions with broker-dealers which require the delivery to the broker-dealer of the Shares registered hereunder. Underwriters, brokers, dealers and agents may receive compensation in the form of underwriting discounts, concessions or commissions from the Selling Security Holders or the purchasers of Shares for whom they may act as agent. The Selling Security Holders and any underwriters, dealers or agents that participate in the distribution of Shares may be deemed to be "underwriters" within the meaning of the Securities Act and any profit on the sale of Shares by them and any discounts, commissions or concessions received by any such underwriters, dealers or agents might be deemed to be underwriting discounts and commissions under the Securities Act. At the time a particular offering of Shares is made, a Prospectus Supplement or a post-effective amendment to the Registration Statement, if required, will be distributed which will set forth the aggregate amount and type of Shares being offered and the terms of the offering, including the name or names of any underwriters, dealers or agents, any discounts, commissions and other terms constituting compensation from the Selling Security Holders and any discounts, commissions or concessions allowed or reallowed or paid to dealers. To comply with the securities laws of certain jurisdictions, if applicable, the Shares will be offered or sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in certain jurisdictions the Shares may not be offered or sold unless they have been registered or qualified for sale in such jurisdictions or an exemption from registration or qualification is available and is complied with. There is no assurance that the Selling Security Holders will sell any of the Shares. In addition, any Shares covered by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold pursuant to Rule 144 rather than pursuant to this prospectus. Pursuant to the Exchange Agreement (the "Exchange Agreement") dated as of November 15, 1995, between the Company and former 11% Noteholders, some of which are Selling Security Holders, the Company will pay the expenses of former 11% Noteholders incident to the offering and sale of the Shares to the public, other than commissions, concessions and discounts of underwriters, dealers or agents, but including the fees and disbursements of one counsel to such Selling Security Holders. In addition, the Company has agreed to indemnify the Selling Security Holders, and, if requested, any underwriter they may utilize against certain civil liabilities, including liabilities under the Securities Act and, if such indemnification is unavailable, to contribute to payments required to be made by any of them in respect of such liabilities. The Exchange Agreement requires the Company to keep the Registration Statement of which this Prospectus is a part continuously effective until the earlier of (a) August 6, 1999, and (b) the date upon which all Shares have either (i) been disposed of under this Prospectus, (ii) been distributed to the public pursuant to Rule 144 or Rule 145 under the Securities Act, (iii) been otherwise transferred and subsequent disposition of them shall 10 13 not require registration or qualification of them under the Securities Act or any similar state law then in force, or (iv) ceased to be outstanding. DESCRIPTION OF CAPITAL STOCK GENERAL Set forth below is a summary of the terms of the Common Stock. This summary does not purport to be complete and is qualified in its entirety by reference to the provisions of the Amended and Restated Certificate of Incorporation of the Company (as amended, the "Certificate of Incorporation") as currently in effect. The Certificate of Incorporation currently authorizes for issuance 70 million shares of capital stock, consisting of 65 million shares of Common Stock and 5 million shares of preferred stock. The Board of Directors may authorize additional series of preferred stock and fix the voting powers, dividend rates, preferences and rights thereof. The Board of Directors has not authorized the issuance of any series of preferred stock. COMMON STOCK The Company is presently authorized to issue 65 million shares of Common Stock, par value $.01 per share. Holders of Common Stock have no preemptive rights to purchase or subscribe for securities of the Company and the Common Stock is not subject to redemption by the Company or convertible. The Common Stock is listed for trading on the NYSE under the symbol "CHI." Dividends. The holders of Common Stock are entitled to receive such dividends as may be declared by the Board of Directors out of funds legally available therefor. The Company does not currently anticipate paying dividends on its Common Stock in the foreseeable future. The Indenture restricts payments from Cafeteria Operators to the Company under certain circumstances thereby restricting the ability of the Company to issue dividends to its stockholders. See "Risk Factors -- No Anticipated Stockholder Distributions." Before declaring or paying any dividend on the Common Stock, the Board of Directors will consider the effect of any such declaration or payment on the Company's expansion program and the Company's ability to pay its other obligations in the future. See "Risk Factors -- Capital Expenditures" and "Business -- Capital Expenditure Program." In the event of the liquidation, dissolution or winding up of the Company, the holders of Common Stock will be entitled to share ratably in any assets of the Company remaining after satisfaction of outstanding liabilities. Voting Rights. Except as provided by the Delaware General Corporation Law ("DGCL") as described below, holders of Common Stock will be entitled to one vote for each share held on all matters submitted to a vote of the stockholders. The holders of a majority of the shares entitled to vote shall constitute a quorum at a meeting of stockholders. Cumulative voting for the election of directors is not permitted; therefore, the holders of a majority of the Company's voting securities can elect all members of the Board of Directors of the Company. The DGCL provides that the holders of the outstanding shares of a class of capital stock shall be entitled to vote as a class upon a proposed amendment to the Certificate of Incorporation, whether or not entitled to vote thereon by the Certificate of Incorporation, if the amendment would increase or decrease the aggregate number of authorized shares of such class, increase or decrease the par value of the shares of such class, or alter or change the powers, preferences, or special rights of the shares of such class so as to affect them adversely. The transfer agent and registrar for the Common Stock is Chemical Mellon Shareholder Services, 450 West 33rd Street, New York, NY 10001. LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS Under Section 145 of the DGCL, a Delaware corporation has the power, under specified circumstances, to indemnify its directors, officers, employees and agents in connection with actions, suits or proceedings brought against them by a third party or in the right of the corporation, by reason of the fact that they were or are such directors, officers, employees or agents, or against expenses incurred in any such action, suit or 11 14 proceedings. Article Fifth of the Certificate of Incorporation provides the mandatory indemnification of directors and officers to the fullest extent permitted by law, including Section 145 of the DGCL. Section 102(b)(7) of the DGCL provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation 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 (relating to liability for unauthorized acquisitions or redemption of, or dividends on, capital stock) of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. Article Fifth of the Certificate of Incorporation contains such a provision. THE DELAWARE BUSINESS COMBINATION ACT Section 203 of the DGCL (the "Delaware Business Combination Act") imposes a three-year moratorium on business combinations (as defined in the Delaware Business Combination Act) between a Delaware corporation and an "interested stockholder" (in general, a stockholder owning 15% or more of a corporation's outstanding voting stock) or an affiliate or associate thereof unless (i) prior to an interested stockholder becoming such, the board of directors of the corporation approved the business combination or the transactions resulting in the interested stockholder becoming such, (ii) upon consummation of the transaction resulting in an interested stockholder becoming such, the interested stockholder owns 85% of the voting stock outstanding at the time the transaction commenced (excluding from the calculation of outstanding shares those shares beneficially owned by management, directors and certain employee stock plans), or (iii) on or after the date an interested stockholder became an interested stockholder, such combination is approved by (a) the board of directors and (b) holders of at least 66 2/3% of the outstanding shares (other than those shares beneficially owned by the interested stockholder) at a meeting of stockholders. The Delaware Business Combination Act provides that the term "business combination" in general means (i) mergers or consolidations, (ii) sales, leases, exchanges or other transfers of 10% or more of the aggregate assets of the corporation, (iii) issuance or transfers by the corporation of any stock of the corporation which would have the effect of increasing the interested stockholder's proportionate share of the stock or any class or series of the corporation, (iv) any other transaction which has the effect of increasing the proportionate share of the stock of any class or series of the corporation which is owned by an interested stockholder, and (v) receipt by an interested stockholder of the benefit (except proportionately as a stockholder) of loans, advances, guarantees, pledges or other financial benefits provided by the corporation. LEGAL MATTERS Certain legal matters in connection with the Shares offered hereby have been passed upon for the Company by Fulbright & Jaworski L.L.P. EXPERTS The consolidated balance sheet as of January 2, 1996 and the related consolidated statements of operations, changes in stockholders' equity (deficit) and cash flows for the 52-week year ended January 2, 1996, and the 53-week year ended January 3, 1995, and appearing in the Company's Annual Report on Form 10-K for the year ended December 31, 1996, have been audited by Deloitte & Touche LLP, independent certified public accountants, as stated in their report thereon and incorporated herein by reference. Such financial statements are incorporated herein by reference in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. The consolidated financial statements and schedule of the Company as of and for the 52-week year ended December 31, 1996 have been incorporated by reference herein and in the Registration Statement in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. 12 15 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the costs and expenses, other than underwriting discounts and commissions, to be paid in connection with the sale of the Shares being registered, all of which will be paid by the registrant. All amounts are estimates except the registration fee. Registration Fee............................................ $ 26,757 Accounting Fees and Expenses................................ $ 15,000 Legal Fees and Expenses..................................... $ 75,000 Trustee Fees................................................ $ 5,000 Printing and Engraving Fees and Expenses.................... $ 5,000 Miscellaneous............................................... $ 10,000 -------- Total....................................................... $136,757 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 102(b)(7) of the Delaware General Corporation Law enables a Delaware corporation to provide in its certificate of incorporation, and the Company has so provided in its Amended and Restated Certificate of Incorporation, for the elimination or limitation of the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that a director's liability is not eliminated or limited: (1) for any breach of the director's duty of loyalty to the corporation or its stockholders; (2) for acts or omissions not in good faith or which involve an intentional misconduct or a knowing violation of law; (3) under Section 174 of the Delaware General Corporation Law (which imposes liability on directors for unlawful payment of dividends or unlawful stock purchases or redemptions); or (4) for any transaction from which the director derived an improper personal benefit. The Certificate of Incorporation further provides that if the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as amended. Section 145 of the Delaware General Corporation Law empowers a corporation to indemnify any person who was or is a party or witness or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (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, 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. Depending on the character of the proceeding, a corporation may indemnify against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified 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, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. If the person indemnified is not wholly successful in such action, suit or proceeding, but is successful, on the merits or otherwise, in one or more but less than all claims, issues or matters in such proceeding, he or she may be indemnified against expenses actually and reasonably incurred in connection with each successfully resolved claim, issue or matter. In the case of an action or suit by or in the right of the corporation, no indemnification may be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that despite the adjudication of liability such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 provides that to the extent a director, officer, employee or agent of a corporation has been successful in the defense of any action, suit or proceeding referred to above or in the II-1 16 defense of any claim, issue or manner therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith. The By-laws of the Company provide that, to the fullest extent permitted by the Delaware General Corporation Law, the Company shall indemnify any person who was or is a party or is threatened to be made a party to any action, suit or proceeding of the type described above by reason of the fact that he or she is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. No expenses will be paid in advance except, as authorized by the Board of Directors, to a director or officer for expenses incurred while acting in his or her capacity as a director or officer, who has delivered an undertaking to the Company to repay all amounts advanced if it should be later determined that such director or officer was not entitled to indemnification. The By-laws further provide that the above rights of indemnification are not exclusive of any other rights of indemnification that a director or officer may be entitled to from any other source. Each current director has entered into an Indemnification Agreement dated as of January 2, 1996 by and between the Company and such director pursuant to which the Company will indemnify such director and hold such director harmless from any and all losses, expenses and fines to the fullest extent authorized, permitted or not prohibited (i) by the Delaware General Corporation Law or any other applicable law (including judicial, regulatory or administrative interpretations or readings thereof), the Company's Certificate of Incorporation or By-laws as in effect on the date of execution of the agreement or other statutory provision authorizing such indemnification that is adopted after January 2, 1996. In the event that after the date of the agreements the Company provides that greater right of indemnification, in any respect, to any other person serving as an officer or director of the Company, then such greater right of indemnification shall inure to the benefit of the respective director and shall be deemed to be incorporated in the relevant agreement as a basis for indemnity, at each director's election, together with the indemnity expressly set forth therein. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (a) Exhibits
EXHIBITS DESCRIPTION -------- ----------- *4.1 -- Amended and Restated Certificate of Incorporation of Furr's/Bishop's, Incorporated. 4.2 -- By-laws of Furr's/Bishop's, Incorporated (as amended December 3, 1997). **4.3 -- Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Furr's/Bishop's, Incorporated. +4.3 -- Second Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Furr's/Bishop's, Incorporated. ++5.1 -- Opinion of Fulbright & Jaworski L.L.P. 23.1 -- Consent of KPMG Peat Marwick LLP as independent certified public accountants. 23.2 -- Consent of Deloitte & Touche LLP as independent certified public accountants. ++23.3 -- Consent of Fulbright & Jaworski L.L.P. (included in their opinion filed as Exhibit 5.1). ++24.1 -- Power of Attorney (included in the Signature Page to this Registration Statement).
- --------------- * Incorporated by reference from the Registrant's Registration Statement on Form S-4, File No. 33-38978. ** Incorporated by reference from the Registrant's Registration Statement on Form S-4, File No. 33-92236. + Incorporated by reference from the Registrant's Form 10-K for the fiscal year ended January 2, 1996. ++ Previously Filed. II-2 17 ITEM 17. 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; (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. (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 as of the termination of the offering. The undersigned Registrant hereby undertakes that: 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 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. The undersigned Registrant undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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. II-3 18 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-3 and has duly caused this Post-Effective Amendment No. 2 to Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lubbock, State of Texas, on December 16, 1997. FURR'S/BISHOP'S INCORPORATED By: /s/ THEODORE J. PAPIT ----------------------------------- Theodore J. Papit President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated:
SIGNATURE TITLE PAGE --------- ----- ---- /s/ THEODORE J. PAPIT President, Chief December 16, 1997 - ----------------------------------------------------- Executive Officer and Theodore J. Papit Director * Chairman of the Board of - ----------------------------------------------------- Directors Kevin E. Lewis * Director - ----------------------------------------------------- E.W. Williams, Jr. * Director - ----------------------------------------------------- Suzanne Hopgood * Director - ----------------------------------------------------- Gilbert C. Osnos * Director - ----------------------------------------------------- Kenneth R. Reimer /s/ ALTON R. SMITH Principal Accounting and December 16, 1997 - ----------------------------------------------------- Principal Financial Alton R. Smith Officer *By: /s/ KEVIN E. LEWIS December 16, 1997 ------------------------------------------------ Kevin E. Lewis Attorney-in-Fact
II-4 19 EXHIBIT INDEX
EXHIBITS DESCRIPTION -------- ----------- *4.1 -- Amended and Restated Certificate of Incorporation of Furr's/Bishop's, Incorporated. 4.2 -- By-laws of Furr's/Bishop's, Incorporated (as amended December 3, 1997). **4.3 -- Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Furr's/Bishop's, Incorporated. +4.3 -- Second Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Furr's/Bishop's, Incorporated. ++5.1 -- Opinion of Fulbright & Jaworski L.L.P. 23.1 -- Consent of KPMG Peat Marwick LLP as independent certified public accountants. 23.2 -- Consent of Deloitte & Touche LLP as independent certified public accountants. ++23.3 -- Consent of Fulbright & Jaworski L.L.P. (included in their opinion filed as Exhibit 5.1). ++24.1 -- Power of Attorney (included in the Signature Page to this Registration Statement).
- --------------- * Incorporated by reference from the Registrant's Registration Statement on Form S-4, File No. 33-38978. ** Incorporated by reference from the Registrant's Registration Statement on Form S-4, File No. 33-92236. + Incorporated by reference from the Registrant's Form 10-K for the fiscal year ended January 2, 1996. ++ Previously Filed. EX-4.2 2 BYLAWS OF FURR'S / BISHOP'S 1 EXHIBIT 4.2 BY-LAWS OF FURR'S/BISHOP'S, INCORPORATED (HEREINAFTER CALLED THE "CORPORATION") (LAST AMENDED DECEMBER 3, 1997) ARTICLE I OFFICES Section 1. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of 2 Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 3. Special Meetings. Unless otherwise prescribed by law or by the Certificate of Incorporation, Special Meetings of Stockholders, for any purpose or purposes, may be called by either (i) the Chairman, if there be one, or (ii) the President, (iii) any Vice President, if there be one, (iv) the Secretary or (v) any Assistant Secretary, if there be one, and shall be called by any such person at the request in writing of a majority of the Board of Directors or at the request in writing of stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Written notice of a Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting. Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a 2 3 majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these By-Laws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a 3 4 longer period. The Board of Directors, in its discretion, the Chairman of the Board of Directors, in his discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot. Section 6. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 7. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination 4 5 of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present. Section 8. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. ARTICLE III DIRECTORS Section 1. Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than fifteen members, the exact number of which shall initially be fixed by the Incorporator and thereafter from time to time by the Board of Directors. Except as provided in Section 2 of this Article, directors shall be elected by a plurality of the votes cast at Annual Meetings of Stockholders, and each director so elected shall hold office until the next Annual 5 6 Meeting and until his successor is duly elected and qualified, or until his earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders. Section 2. Chairman of the Board of Directors. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders or from time to time may elect a Chairman of the Board of Directors, who must be a director. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors and shall perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors. The Chairman of the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors, and shall serve as Chairman of the Board of Directors until his successor is chosen and qualifies or until his earlier resignation or removal. Notwithstanding the foregoing, the Chairman of the Board of Directors shall not be deemed an officer of the Corporation solely because of his position as Chairman of the Board of Directors. If the Chairman of the Board of Directors is not also an officer or otherwise an employee of the Corporation, he shall have no duties to the Corporation other than his duties as a member of the Board of Directors and as Chairman of the Board of Directors. 6 7 Section 3. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier resignation or removal. Section 4. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders. Section 5. Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President, or any directors. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less that forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four (24) hours' notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. 7 8 Section 6. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. Section 8. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone 8 9 or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meeting. Section 9. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 10. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the 9 10 Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. Members of special or standing committees may be allowed like compensation for attending committee meetings. The Board of Directors shall have the authority to fix the compensation to be paid to directors, and the Chairman of the Board of Directors may be paid a salary or other compensation for serving as Chairman of the Board of Directors in excess of the compensation paid to the other directors. No payment to any director as provided in this Section 10 shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 11. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract 10 11 or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV OFFICERS Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these By-Laws. The officers of the Corporation need not be stockholders or directors of the Corporation. 11 12 Section 2. Election. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors. Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. 12 13 Section 4. President. The President shall, subject to the control of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. Unless otherwise designated by the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors. Section 5. Vice Presidents. At the request of the President or in his absence or in the event of his inability or refusal to act, the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice 13 14 President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Section 6. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the 14 15 Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be. Section 7. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. 15 16 Section 8. Assistant Secretaries. Except as may be otherwise provided in these By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary. Section 9. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. 16 17 Section 10. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation or to the Chairman of the Board of Directors the power to choose such other officers and to prescribe their respective duties and powers. ARTICLE V STOCK Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation. Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than the Corporation, the Chairman of the Board of Directors, or an employee of the Corporation, or (ii) a registrar other than the Corporation, the Chairman of the Board of Directors or an employee of the Corporation, any other signature on the certificate may be a facsimile. In case the Chairman of the 17 18 Board of Directors or any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be the Chairman of the Board of Directors or such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were the Chairman of the Board of Directors or such officer, transfer agent or registrar at the date of issue. Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued. 18 19 Section 5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law. 19 20 ARTICLE VI NOTICES Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex or cable. Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII GENERAL PROVISIONS Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the 20 21 Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII INDEMNIFICATION Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the 21 22 Corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if 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, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation may indemnify 22 23 any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if 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; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because 23 24 he has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he may be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case. Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records 24 25 given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be. Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because he has met the applicable standards of conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption 25 26 that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification may also be entitled to be paid the expense of prosecuting such application. Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-Law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that 26 27 indemnification of the persons specified in Sections 1 and 2 of this Article VIII may be made to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 1 or 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware, or otherwise. Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other 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 have the power or the obligation to indemnify him against such liability under the provisions of this Article VIII. Section 9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, 27 28 or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article VIII. Section 10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII may, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. 28 29 Section 11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. Section 12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX AMENDMENTS Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of stockholders or Board of Directors as the case may be. All such amendments must be approved by either the 29 30 holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. Section 2. Entire Board of Directors. As used in this Article IX and in these By-Laws generally, the term "entire Board of Directors" means the total number of directors which the Corporation would have if there were no vacancies. 30 EX-23.1 3 CONSENT OF KPMG PEAT MARWICK LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS The Board of Directors Furr's/Bishop's, Incorporated: We consent to the use of our report incorporated herein by reference and to the reference to our firm under the heading "Experts" in the Prospectus. The report of KPMG Peat Marwick LLP covering the December 31, 1996 consolidated financial statements refers to a change in method of accounting, effective January 2, 1996, for impairment of long-lived assets and for long-lived assets to be disposed of to conform to Statement of Financial Accounting Standards No. 121. KPMG PEAT MARWICK LLP Dallas, Texas December 15, 1997 EX-23.2 4 CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the incorporation by reference in this Post-Effective Amendment No. 2 to Registration Statement No. 333-4576 of Furr's/Bishop's, Incorporated on Form S-1 of our report dated March 28, 1996, appearing in the Annual Report on Form 10-K of Furr's/Bishop's, Incorporated for the 52 week year ended December 31, 1996 and to the reference to us under the heading "Experts" in the Prospectus, which is part of such Registration Statement. DELOITTE & TOUCHE LLP Dallas, Texas December 16, 1997 -----END PRIVACY-ENHANCED MESSAGE-----