<PAGE>
As filed with the Securities and Exchange Commission on April 9, 1997
Registration No. 333-___________________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PEERLESS GROUP, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 75-2275966
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1212 EAST ARAPAHO ROAD
RICHARDSON, TEXAS 75081
- ---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
PEERLESS GROUP, INC. 1997 STOCK OPTION PLAN
PEERLESS GROUP, INC. AMENDED AND RESTATED STOCK OPTION PLAN
PEERLESS GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN
STOCK OPTION AGREEMENT WITH JOHN C. ANDREWS
STOCK OPTION AGREEMENTS WITH ALLEN D. FLEENER
STOCK OPTION AGREEMENT WITH DAVID O'CONNOR
STOCK OPTION AGREEMENT WITH JANE C. WALSH
- --------------------------------------------------------------------------------
(Full titles of the Plans)
RODNEY L. ARMSTRONG, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
PEERLESS GROUP, INC.
1212 EAST ARAPAHO ROAD
RICHARDSON, TEXAS 75081
---------------------------------------
(Name and address of agent for service)
(972) 497-5500
----------------------------------------------------------------
(Telephone number, including area code, of agent for service)
With a copy to:
WILLIAM R. HAYS, III
ROBERT R. KIBBY
Haynes and Boone, LLP
901 Main Street
Suite 3100
Dallas, Texas 75202-3789
(214) 651-5000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount Offering Price Aggregate Registration
To Be Registered To Be Registered Per Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.01 par value(1)... 1,500,000 shares(2) $5.6782(2) $8,517,362.50(2) $2,581.02(2)
- -----------------------------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement covers an indeterminate amount of interests to be
offered or sold pursuant to the Peerless Group, Inc. Employee Stock
Purchase Plan.
(2) The 1,500,000 shares of Common Stock registered hereby represent (i) the
maximum number of shares (137,800) which could be purchased upon the
exercise of all stock options now outstanding and granted on or after
October 3, 1996 (the date of the Company's initial public offering of its
Common Stock) and (ii) the maximum number of shares (1,362,200) which may
hereafter be issued pursuant to options granted after the date of this
Registration Statement under the Amended and Restated Stock Option Plan and
1997 Stock Option Plan (including shares expected to be added in subsequent
years pursuant to the terms of such Plan) and pursuant to purchases that
may be made under the Employee Stock Purchase Plan. For purposes of
computing the aggregate offering price and the registration fee, such
computation has been made in accordance with paragraphs (c) and (h) of Rule
457 on the basis of (i) the prices at which options previously granted
under the above plans may be exercised and (ii) the average high and low
sale prices for the Company's Common Stock on April 2, 1997, as reported in
NASDAQ National Market Issues with respect to options which have not been
granted under the plans as of the date of this Registration Statement and
Common Stock which could be granted under the above plans.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Peerless Group, Inc. (the "Company") hereby incorporates by reference
the following documents filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1996; and
(b) The description of Common Stock included in the Company's Registration
Statement on Form 8-A (No. 000-21399) as filed with the Commission on
September 19, 1996.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the filing of a post-effective amendment that indicates that all securities
offered hereunder have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date such documents are filed.
Item 5. Interests of Named Experts and Counsel.
Legal Matters
The validity of the shares of Common Stock being sold in this offering will
be passed upon for the Company by Haynes and Boone, LLP of Dallas, Texas,
special counsel to the Company.
Experts
The consolidated financial statements of Peerless Group, Inc. at December
31, 1995 and 1996, and for each of the three years in the period ended December
31, 1996, incorporated by reference in this Registration Statement have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon also incorporated herein by reference. Such consolidated financial
statements have been incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation (the "Certificate") provides
that the Company shall indemnify and advance expenses, to the fullest extent
permitted by law, to any person against liabilities arising from such person's
service as a director, officer, employee or agent of the Company. Further, if
applicable laws shall be altered to further permit indemnification and
advancement of expenses, the Company may indemnify and advance expenses to the
fullest extent permitted by such laws as so amended. Section 145 of the
Delaware General Corporation Law (the
II-1
<PAGE>
"DGCL") empowers a corporation to 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 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, partnership, joint
ventre, trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
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.
Section 145 also empowers a corporation to indemnify 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 such person acted in any of the
capacities set forth above, against expenses (including attorney's fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may 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 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 further provides that the indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled, and that the corporation is empowered to
purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liabilities under Section 145.
The Certificate provides that no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company 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 of the DGCL, or (iv) for any
transaction from which the director's liability shall not adversely affect any
right or protection of a director of the Company existing immediately prior to
such repeal or modification. Further, if applicable laws shall be repealed or
modified, the elimination of liability of a director provided in the Certificate
shall be to the fullest extent permitted by such laws as so amended.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
II-2
<PAGE>
The Company has purchased directors and officers liability which would
indemnify the directors and officers of the Company against damages arising out
of certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
For the undertaking with respect to indemnification, see Item 9 herein.
Item 8. Exhibits
Exhibit No. Exhibit
- ----------- -------
4.1 - Certificate of Incorporation of Peerless Group, Inc. (the
"Company"), filed as Exhibit 3.1 to the Company's Registration
Statement on Form SB-2 (File No. 333-5058-D) dated September 9,
1996 (the "1996 Form SB-2") and incorporated by reference
herein.
4.2 - Bylaws of the Company, filed as Exhibit 3.2 to the 1996 Form
SB-2 and incorporated by reference herein.
4.3 - Specimen Common Stock Certificate, filed as Exhibit 4.3 to the
1996 Form SB-2 and incorporated by reference herein.
4.4 - Peerless Group, Inc. Amended and Restated Stock Option Plan,
filed asExhibit 10.20 to the 1996 Form SB-2 and incorporated by
reference herein.
4.5 - Peerless Group, Inc. 1997 Stock Option Plan, filed as Exhibit
10.47 to the Company's Form 10-K for its fiscal year ended
December 31, 1996 and incorporated by reference herein.
4.6 - Peerless Group, Inc. Employee Stock Purchase Plan, filed as
Exhibit 10.40 to the 1996 Form SB-2 and incorporated by
reference herein.
*4.7 - Non-Qualified Option Agreement dated January 27, 1995, between
TPG Holdings, Inc. (a predecessor to the Company) and Allen D.
Fleener.
*4.8 - Peerless Group, Inc. Non-Qualified Option Agreement dated
October 3,1996, between the Company and Allen D. Fleener. (The
Company has entered into substantially identical Non-Qualified
Option Agreements with John C. Andrews, David O'Connor and Jane
C. Walsh. These Option Agreements have been omitted, because
they only differ from Mr. Fleener's Option Agreement by the name
of the optionee.)
*5.1 - Opinion of Haynes and Boone, LLP with respect to validity of
issuance of securities.
*23.1 - Consent of Independent Auditors.
II-3
<PAGE>
*23.2 - Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
*24.1 - Power of Attorney (appears on the signature pages hereto).
- -----------------------
* Filed herewith.
Item 9. Undertakings
------------
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this 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; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
THE COMPANY:
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richardson, State of Texas on the 9th day of April,
1997.
PEERLESS GROUP, INC.
By: /s/ Rodney L. Armstrong, Jr.
----------------------------------------
Rodney L. Armstrong, Jr.
Chairman and Chief Executive Officer
PEERLESS GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN:
Pursuant to the requirements of the Securities Act of 1933, the
administrator of the Peerless Group, Inc. Employee Stock Purchase Plan has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Richardson, State of
Texas on the 9th day of April, 1997.
PEERLESS GROUP, INC. EMPLOYEE STOCK
PURCHASE PLAN
By: PEERLESS GROUP, INC. EMPLOYEE STOCK
PURCHASE PLAN COMMITTEE
By: /s/ Rodney L. Armstrong, Jr.
-----------------------------------
Rodney L. Armstrong, Jr.
Chairman
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Rodney L. Armstrong, Jr. and Gary J.
Austin, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign, execute and file with the Securities and
Exchange Commission and any state securities regulatory board or commission any
documents relating to the proposed issuance and registration of the securities
offered pursuant to this Registration Statement on Form S-8 under the Securities
Act of 1933, including any amendment or amendments relating thereto (and any
additional Registration Statement related hereto permitted by Rule 462(b)
promulgated under the Securities Act of 1933, including any amendment or
amendments relating thereto), with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done.
II-6
<PAGE>
In accordance with to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 was signed by the following persons in the
capacities stated below on the 9th day of April, 1997:
SIGNATURE TITLE
--------- -----
/s/ Rodney L. Armstrong, Jr. Chairman of the Board and
- ---------------------------- Chief Executive Officer
Rodney L. Armstrong, Jr. (Principal Financial Officer)
/s/ Gary J. Austin President and Director
- ----------------------------
Gary J. Austin
/s/ William F. Dunbar Director
- ----------------------------
William F. Dunbar
/s/ Allen D. Fleener Director
- ----------------------------
Allen D. Fleener
/s/ David O'Connor Director
- ----------------------------
David A. O'Connor
/s/ Jane C. Walsh Director
- ----------------------------
Jane C. Walsh
/s/ Douglas K. Hansen Treasurer and Controller
- ---------------------------- (Principal Accounting Officer)
Douglas K. Hansen
II-7
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- -------
4.1 - Certificate of Incorporation of Peerless Group, Inc. (the
"Company"), filed as Exhibit 3.1 to the Company's Registration
Statement on Form SB-2 (File No. 333-5058-D) dated September 9,
1996 (the "1996 Form SB-2") and incorporated by reference
herein.
4.2 - Bylaws of the Company, filed as Exhibit 3.2 to the 1996 Form SB-
2 and incorporated by reference herein.
4.3 - Specimen Common Stock Certificate, filed as Exhibit 4.3 to the
1996 Form SB-2 and incorporated by reference herein.
4.4 - Peerless Group, Inc. Amended and Restated Stock Option Plan
(the"Option Plan"), filed as Exhibit 10.20 to the 1996 Form SB-2
and incorporated by reference herein.
4.5 - Peerless Group, Inc. 1997 Stock Option Plan, filed as Exhibit
10.47 to the Company's Form 10-K for its fiscal year ended
December 31, 1996 and incorporated by reference herein.
4.6 - Peerless Group, Inc. Employee Stock Purchase Plan, filed as
Exhibit 10.40 to the 1996 Form SB-2 and incorporated by
reference herein.
*4.7 - Non-Qualified Option Agreement dated January 27, 1995, between
TPG Holdings, Inc. (a predecessor to the Company) and Allen D.
Fleener.
*4.8 - Peerless Group, Inc. Non-Qualified Option Agreement dated
October 3, 1996, between the Company and Allen D. Fleener. (The
Company has entered into substantially identical Non-Qualified
Option Agreements with John C. Andrews, David O'Connor and Jane
C. Walsh. These Option Agreements have been omitted, because
they only differ from Mr. Fleener's Option Agreement by the name
of the optionee.)
*5.1 - Opinion of Haynes and Boone, LLP with respect to validity of
issuance of securities.
*23.1 - Consent of Independent Auditors.
*23.2 - Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
*24.1 - Power of Attorney (appears on the signature pages hereto).
- -----------------------
* Filed herewith.
II-8
<PAGE>
EXHIBIT 4.7
Allen D. Fleener
---------------------
(Name of Associate)
TPG HOLDINGS, INC.
STOCK OPTION AGREEMENT
TPG Holdings, Inc.
1212 East Arapaho Road
Richardson, Texas 75081
Gentlemen:
The undersigned ("Associate") hereby applies for an option (the
"Option") to purchase shares (the "Shares") of the no par value Common Stock of
TPG Holdings, Inc. (the "Corporation") as shown below, at a purchase price equal
to Six and 25/100ths Dollars ($6.25) per Share. The Option shall become
effective on the date it is granted by the Corporation. The Option shall be
vested as to twenty percent (20%) of the Shares on the date it is effective and
shall become vested as to an additional twenty percent (20%) on the first,
second, third and fourth anniversaries of the date it is effective. The Option
will expire if it is not exercised within five (5) years after it is effective.
The Option shall be exercisable from time to time to the extent it is effective
and vested by the payment of the purchase price for the Shares to the
Corporation. Associate hereby acknowledges:
(i) that an investment in the Corporation is not liquid, not easily
transferrable or disposed of, and that Associate has no need for liquidity
of this investment; and
(ii) that the undersigned will have no preemptive right to acquire
stock of the Corporation and that the Shares will be subject to dilution as
additional stock of the Corporation is issued.
Associate hereby represents and warrants as follows:
1. The Shares subject to the Option will be acquired solely for
Associate's account for investment and are not being purchased for subdivision
or fractionalization thereof; and Associate has no contract, undertaking,
agreement or arrangement with any person to sell, transfer or pledge to such
person, or to anyone else, the Shares or any part thereof (other than as
security for a purchase money loan from a state or national bank), and Associate
will not enter into any such contract, undertaking, agreement or arrangement.
-1-
<PAGE>
2. The Corporation has made all documents pertaining to the Option
available to Associate.
3. Associate had the opportunity to ask questions of, and receive answers
from, representatives of the Corporation to obtain such information, to the
extent such persons possess the same or could acquire it without unreasonable
effort or expense, as Associate deemed necessary.
4. Associate will be investing in his or her own name or in the capacity
indicated on the last page hereof; and Associate was not solicited by any form
of general solicitation or general advertising, including, but not limited to
the following:
(a) Any advertisement, article, notice or other communication published
in any newspaper, magazine, or similar media or broadcast over television
or radio; or
(b) Any seminar or meeting whose attendees had been invited by any
general solicitation or general advertising.
5. Associate is at least twenty-one (21) years of age and a bona fide
resident of the United States and the state indicated on the last page hereof
and has no present intention of becoming a resident of any other state or
jurisdiction.
6. Associate is a person who has such knowledge and experience in
financial and business matters that Associate is capable of evaluating the
merits and risks of an investment in the Corporation and of making an informed
decision.
Associate recognizes that the grant of the Option will be based upon the
representations and warranties contained in Paragraphs 1 through 6 above and
hereby agrees to indemnify the Corporation and its directors, officers, agents
and employees and to hold each of such entities and persons harmless against all
liabilities, costs or expenses (including reasonable attorneys' fees) arising by
reason of or in connection with any misrepresentation or any breach of such
warranties, or arising as a result of the sale or distribution of the Shares in
violation of the Securities Exchange Act of 1934, as amended, the Securities Act
of 1933, as amended, or any other applicable federal or state statute.
Associate hereby indemnifies the Corporation and its directors, officers,
agents and employees, and holds each of such persons and entities harmless from
and against any and all loss, damages, liability or expense, including costs and
reasonable attorneys' fees to which they may be put or which they may incur by
reason of or in connection with any misrepresentation made by the undersigned,
any breach of any of Associate's warranties, or Associate's failure to fulfill
any of the covenants or agreements set forth herein. This application and the
representations and
-2-
<PAGE>
warranties contained herein shall be binding on the heirs, legal
representatives, successors and assigns of the Associate.
The Option is governed by and subject to the provisions of the Stock
Option Plan of the Corporation, a copy of which has been provided or made
available to Associate. The Board of Directors of the Corporation shall alone
have the authority to interpret and construct the Stock Option Plan, and all
such interpretations and constructions shall be conclusive and binding on all
parties hereto and their heirs, personal representatives, successors and
assigns. The Option is intended to meet the requirements of Section 422 of the
Internal Revenue Code.
WHEREFORE, in consideration of the foregoing covenants and representations,
Associate hereby applies for an option to purchase the below-referenced number
of Shares of the no par value Common Stock of TPG Holdings, Inc.:
Number of Shares: Five Thousand (5,000)
Dated: January 27, 1995
/s/ ALLEN D. FLEENER
--------------------------
ALLEN D. FLEENER
(Please Type or Print the Following)
Mailing Address:
------------------------------------------
------------------------------------------
------------------------------------------
State of Principal Residence:
--------------------
Social Security Number:
-------------------------
GRANT OF OPTION
---------------
TPG Holdings, Inc. hereby grants the foregoing option for five thousand
(5,000) Shares of the no par value Common Stock of TPG Holdings, Inc. at an
option price of $6.25 per Share.
Dated: January 27, 1995
TPG HOLDINGS, INC.
By:/s/ANN L. PUDDISTER
---------------------------------
Title: Secretary
------------------------------
-3-
<PAGE>
EXHIBIT 4.8
PEERLESS GROUP, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-qualified Stock Option Agreement (the "Agreement") is made
and entered into this 3rd day of October, 1996, by and between PEERLESS GROUP,
INC., a Delaware corporation (the "Corporation") and ALLEN D. FLEENER
("Optionee"). For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. The Corporation hereby grants to Optionee an
option (the "Option") to purchase two thousand five hundred (2,500) shares (the
"Shares") of the One-hundredth of One Dollar ($.01) par value Common Stock of
the Corporation at a purchase price equal to Eight Dollars ($8.00) per Share
(the "Exercise Price"). The granting of this Option is not intended to qualify
as an incentive stock option under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
2. Vesting. The Option is fully vested as to twenty percent (20%) of the
Shares on the date hereof, and shall become vested as to an additional twenty
percent (20%) of the Shares as of each October 3, until October 3, 2000, at
which time the Option shall be fully vested as to all of the Shares. The Option
will expire with respect to all of the Shares if it is not exercised as to those
Shares before October 3, 2001.
3. Adjustment. In the event of any change in the outstanding Shares
through merger, consolidation, reorganization, recapitalization, stock dividend,
stock split, split-up, split-off, spin-off, combination or exchange of shares,
or other like change in capital structure of the Corporation, an adjustment
shall be made to the Option such that the Option shall thereafter be exercisable
for such securities, cash and/or other property as would have been received in
respect of the Shares subject to the Option had the Option been exercised in
full immediately prior to such change, and such an adjustment shall be made
successively each time any such change shall occur. The term "Shares" after any
such change shall refer to the securities, cash and/or property then receivable
upon exercise of the Option.
4. Exercise of Option. The Option shall be exercisable from time to time
to the extent it is effective and vested by the payment of the Exercise Price
for the Shares to the Corporation by cashier's or certified check. Payment for
such Shares may be made in whole or in part by delivery of Shares owned by
Optionee, with such Shares being valued at their Fair Market Value on the date
of exercise. For purposes of this Agreement, "Fair Market Value" of the Shares
shall be the mean average of the closing bid and asked
-1-
<PAGE>
prices (regular way) on the largest principal national securities exchange on
which common stock of the Corporation is then listed or admitted to trading, or
if not then listed or admitted to trading on any principal national securities
exchange, the last reported sale price for such shares in the over-the-counter
market, as reported on the National Association of Securities Dealers Automated
Quotation System, or, if such sale price shall not be reported thereon, the mean
of the closing bid and asked prices as reported thereon, or if such price shall
not be reported thereon, as the same shall be reported by the National Quotation
Bureau Incorporated.
5. Acknowledgment. Optionee hereby acknowledges:
(a) that an investment in the Corporation is not liquid, not easily
transferrable or disposed of, and that Optionee has no need for liquidity of
this investment; and
(b) that Optionee will have no preemptive right to acquire stock of
the Corporation and that the Shares will be subject to dilution as additional
stock of the Corporation is issued.
6. Representations and Warranties. Optionee hereby represents and
warrants as follows:
(a) The Shares subject to the Option will be acquired solely for
Optionee's account for investment and are not being purchased for subdivision
or fractionalization thereof; and Optionee has no contract, undertaking,
agreement or arrangement with any person to sell, transfer or pledge to such
person, or to anyone else, the Shares or any part thereof (other than as
security for a purchase money loan from a state or national bank), and
Optionee will not enter into any such contract, undertaking, agreement or
arrangement.
(b) The Corporation has made all documents pertaining to the Option
available to Optionee.
(c) Optionee had the opportunity to ask questions of, and receive
answers from, representatives of the Corporation to obtain such information,
to the extent such persons possess the same or could acquire it without
unreasonable effort or expense, as Optionee deemed necessary.
(d) Optionee will be investing in his own name; and Optionee was not
solicited by any form of general solicitation or general advertising,
including, but not limited to the following:
(i) Any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio; or
-2-
<PAGE>
(ii) Any seminar or meeting whose attendees had been invited by
any general solicitation or general advertising.
(e) Optionee is at least twenty-one (21) years of age and a bona fide
resident of the United States and the State of Texas and has no present
intention of becoming a resident of any other state or jurisdiction.
(f) Optionee is a person who has such knowledge and experience in
financial and business matters that Optionee is capable of evaluating the
merits and risks of an investment in the Corporation and of making an informed
decision.
7. Indemnification. Optionee recognizes that the grant of the Option will
be based upon the representations and warranties contained in paragraph 6 above
and hereby agrees to indemnify the Corporation and its directors, officers,
agents and employees and to hold each of such entities and persons harmless
against all liabilities, costs or expenses (including reasonable attorneys'
fees) arising by reason of or in connection with any misrepresentation or any
breach of such warranties, or arising as a result of the sale or distribution of
the Shares in violation of the Securities Exchange Act of 1934, as amended, the
Securities Act of 1933, as amended, or any other applicable federal or state
statute.
8. Binding Effect. This Agreement and the representations and warranties
contained herein shall be binding upon the heirs, legal representatives,
successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
PEERLESS GROUP, INC.
By:/s/ Rodney L. Armstrong, Jr.
---------------------------------
Rodney L. Armstrong, Jr.,
Chairman of the Board
/s/ Allen D. Fleener
------------------------------------
ALLEN D. FLEENER
-3-
<PAGE>
EXHIBIT 5.1
April 9, 1997
Peerless Group, Inc.
1212 East Arapaho Road
Richardson, Texas 75081
Gentlemen:
We have acted as special counsel to Peerless Group, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to the registration of 1,500,000 shares of Common Stock, par value $0.01 per
share (the "Common Stock"), of the Company that may be issued pursuant to the
Peerless Systems, Inc. Amended and Restated Stock Option Plan, the Peerless
Group, Inc. 1997 Stock Option Plan, the Peerless Group, Inc. Employee Stock
Purchase Plan and Option Agreements between the Company and each of John C.
Andrews, Allen D. Fleener, David O'Connor and Jane C. Walsh (collectively, the
"Plans"). The law covered by the opinions expressed herein is limited to the
Federal law of the United States and the General Corporation Law of the State of
Delaware.
In connection therewith, we have examined (i) the Certificate of Incorporation
and the Bylaws of the Company; (ii) minutes and records of the corporate
proceedings of the Company with respect to the adoption of the Plans and the
granting of awards thereunder; (iii) the Plan of Merger dated as of June 17,
1996 by and between the Company and TPG Holdings, Inc.; (iv) the Plans and the
forms of award agreements pertaining thereto; and (v) such other documents as we
have deemed necessary for the expression of the opinions contained herein.
In making the foregoing examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
<PAGE>
Peerless Group, Inc.
April 9, 1997
Page 2
Furthermore, we have assumed that the exercise prices of all stock options that
may be granted under the Plans will equal or exceed the par value per share of
the Common Stock and that the Peerless Group, Inc. 1997 Stock Option Plan will
be approved by the stockholders of the Company at the Company's 1997 Annual
Meeting of Stockholders. As to questions of fact material to this opinion,
where such facts have not been independently established, and as to the content
and form of the Certificate of Incorporation, Bylaws, minutes, records,
resolutions and other documents or writings of the Company, we have relied, to
the extent we deem reasonably appropriate, upon representations or certificates
of officers or directors of the Company and upon documents, records and
instruments furnished to us by the Company, without independent check or
verification of their accuracy.
Based upon the foregoing, and having due regard for such legal considerations as
we deem relevant, we are of the opinion that the 1,500,000 shares of Common
Stock covered by the Registration Statement which may be issued from time to
time in accordance with the terms of the Plans have been duly authorized for
issuance by the Company, and, when so issued in accordance with the terms and
conditions of the Plans and any related option or other applicable agreements,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement and to the reference to
our firm under the caption, "Item 5. Interests of Named Experts and Counsel" in
the Registration Statement.
Very truly yours,
/s/ Haynes and Boone, LLP
Haynes and Boone, LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in the
Registration Statement on Form S-8 pertaining to the Peerless Group, Inc. 1997
Stock Option Plan, the Peerless Group, Inc. Amended and Restated Stock Option
Plan, the Peerless Group, Inc. Employee Stock Purchase Plan and certain Stock
Option Agreements with certain directors and advisors and to the incorporation
by reference therein of our report dated January 17, 1997, with respect to the
consolidated financial statements of Peerless Group, Inc. included in its Annual
Report on Form 10-K for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Dallas, Texas
April 3, 1997
