As filed with the Securities and Exchange Commission on September 25, 1997
Registration No. 333-35199
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Post-Effective Amendment No. 1 to
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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FRED MEYER, INC.
(Exact name of registrant as specified in its charter)
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Delaware 91-1826443
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
3800 SE 22nd Avenue
Portland, Oregon 97202
(Address of Principal (Zip Code)
Executive Offices)
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FM Stores, Inc. Amended 1990 Stock Incentive Plan
FM Stores, Inc. 1983 Stock Option Plan
Smith's Food & Drug Centers, Inc. Amended and Restated 1989 Stock Option Plan
(Full title of plans)
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Roger A. Cooke
Senior Vice President
General Counsel and Secretary
Fred Meyer, Inc.
3800 SE 22nd Avenue
Portland, Oregon 97202
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (503) 232-8844
<PAGE>
Copy to:
Margaret Hill Noto
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Amount
Amount Offering Aggregate of Regis-
Title of Securities to Be Price Per Offering tration
to Be Registered Registered(1) Share(1) Price(1) Fee
- ------------------- ------------- --------- --------- ---------
<S> <C> <C> <C> <C>
Common Stock 3,377,922 Shares $23.73912182 $80,188,901.88 $24,299.67
- -------------------------------------------------------------------------------------------
(1) This Registration Statement registers the following shares:
Name of Plan Number of Shares
------------ ----------------
FM Stores, Inc. Amended 1990 Stock
Incentive Plan 2,411,739
FM Stores, Inc. 1983 Stock Option Plan 169,427
Smith's Food & Drug Centers, Inc. Amended
and Restated 1989 Stock Option Plan 796,756
TOTAL 3,377,922
</TABLE>
The proposed maximum offering price per share and the proposed maximum
aggregate offering price were estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(h) under the
Securities Act of 1933. The estimated offering prices for the shares to be
issued under the FM Stores, Inc. and Smith's Food & Drug Centers, Inc.
plans were calculated based on the exercise prices of outstanding options
granted under such plans.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
---------------------------------------
The following documents filed by Fred Meyer, Inc. (the "Registrant")
with the Securities and Exchange Commission are incorporated herein by
reference:
(a) The Registrant's and its predecessors' latest annual reports
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 or the latest prospectus filed pursuant to rule 424(b) under
the Securities Act of 1933 that contain audited financial statements
for the Registrant's or its predecessors' latest fiscal year for which
such statements have been filed.
(b) All other reports of the Registrant and its predecessors filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 since the end of the fiscal year covered by the annual reports or
prospectus referred to in (a) above.
(c) The description of the Common Stock contained in a registration
statement filed under Section 12 of the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of
updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
-------------------------
The information contained under the caption "Description of Holdings
Capital Stock" in the Registrant's Joint Proxy Statement/Prospectus dated August
6, 1997, which is part of the Registration Statement on Form S-4 (File No.
333-32927) and was filed by the Registrant with the Securities and Exchange
Commission, attached as Exhibit 99 to the Registration Statement (the "Joint
Proxy Statement/Prospectus Excerpt") is incorporated herein by reference.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware GCL") grants each corporation the power to indemnify officers and
directors under certain circumstances. Article VII.A of the Registrant's
Certificate of Incorporation (the "Certificate") and Article V of the
Registrant's Bylaws (the "Bylaws") provide for indemnification to the fullest
extent permitted by Section 145.
As authorized by Section 102 of the Delaware GCL, the Registrant has
included in the Certificate a provision eliminating the liability of a director
to the Registrant or its stockholders for monetary damages for breaches of a
director's fiduciary duty to the Registrant. Liability may not be and has not
been limited for breaches of the duty of loyalty, intentional misconduct,
distributions made in contravention of Section 174 of the Delaware GCL or for
any transaction in which a director derives an improper personal benefit.
The Registrant has a directors and officers liability insurance policy
that, under certain circumstances, insures its directors and officers against
the costs of defense, settlement or payment of a judgment.
The rights of indemnification described above are not exclusive of any
other rights of indemnification to which the persons indemnified may be entitled
under any agreement, vote of stockholders or directors or otherwise.
The Agreement and Plan of Reorganization and Merger (the "Merger
Agreement") dated May 11, 1997 between Smith's Food & Drug Centers, Inc., a
Delaware corporation ("Smith's"), and Fred Meyer, Inc., a Delaware corporation
which has subsequently been renamed Fred Meyer Stores, Inc. ("Fred Meyer"),
provides that, from and after the time at which the merger (the "Merger")
becomes effective (the "Effective Time"), the Registrant will indemnify, defend
and hold harmless the current and former directors, officers and employees of
Smith's, Fred Meyer and their respective subsidiaries (each, an "Indemnified
Party") against all costs or expenses (including reasonable attorneys' fees),
judgments, fines, losses, claims, damages or liabilities incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of actions or omissions
occurring at or prior to the Effective Time (including, without limitation, the
transactions contemplated by the Merger Agreement and the Voting Agreements) to
the fullest extent that such persons are indemnified under the laws of the State
of Delaware and the certificates of incorporation and bylaws, as in effect on
the date thereof, of Smith's, Fred Meyer and their respective subsidiaries or
any existing indemnification agreement with either Fred Meyer or Smith's, and
during such period, the Registrant shall advance expenses (including expenses
related to enforcing the indemnity under the Merger Agreement) as incurred to
the fullest extent permitted under applicable law, provided that the person to
whom expenses are advanced provides an undertaking to repay such advances if it
is ultimately determined that such person is not entitled to indemnification
with no bond or security to be required. Any determination required to be made
with respect to whether an officer's or director's conduct
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<PAGE>
complies with the standards set forth under Delaware law and any such
certificate of incorporation or bylaws shall be made by independent counsel
(which shall not be counsel that provides material services to the Registrant or
its subsidiaries) selected by the Registrant and reasonably acceptable to such
officer or director; provided, that in the absence of applicable Delaware
judicial precedent to the contrary, such counsel, in making such determination,
shall presume such officer's or director's conduct complied with such standard
and the Registrant shall have the burden to demonstrate that such officer's or
director's conduct failed to comply with such standard.
In addition, the Merger Agreement provides that for a period of five
years after the Effective Time, the Registrant will maintain officers' and
directors' liability insurance covering the Indemnified Parties who are covered,
in their capacities as current or former officers and directors, by Smith's or
Fred Meyer's existing officers' and directors' liability insurance policies on
terms substantially no less advantageous to such Indemnified Parties than such
existing insurance. Additionally, the Registrant is required to keep in effect
provisions in its certificate of incorporation and bylaws providing for
exculpation of director and officer liability and its indemnification of the
indemnified parties to the fullest extent permitted under the Delaware GCL,
which provisions will not be amended except as required by applicable law or
except to make changes permitted by law that would enlarge the Indemnified
Parties' right of indemnification.
Pursuant to the Fred Meyer certificate of incorporation ("Fred Meyer
Certificate") and bylaws ("Fred Meyer Bylaws") in effect prior to the Effective
Time, Fred Meyer was obligated to indemnify its then current and former
directors and officers (the "Fred Meyer Indemnified Parties") to the fullest
extent permitted under applicable law. Fred Meyer also maintained directors' and
officers' liability insurance covering the Fred Meyer Indemnified Parties in
their capacities as directors and officers of Fred Meyer. The Registrant is
obligated to indemnify the Fred Meyer Indemnified Parties to the fullest extent
that the Fred Meyer Indemnified Parties were indemnified by Fred Meyer pursuant
to the provisions of the Fred Meyer Certificate and the Fred Meyer Bylaws. In
addition, for a period of five years after the Effective Time, the Registrant
will maintain officers' and directors' liability insurance covering the Fred
Meyer Indemnified Parties on terms substantially no less advantageous to the
Fred Meyer Indemnified Parties than such existing insurance.
Prior to the Effective Time, Smith's entered into Indemnification
Agreements (the "Smith's Indemnification Agreements") with its then current and
former directors and officers (the "Smith's Indemnified Parties") which provide
that Smith's shall indemnify the Smith's Indemnified Parties, to the fullest
extent permitted under applicable law and Smith's certificate of incorporation
and bylaws, against all liabilities incurred by reason of such person's status
as a director or officer of Smith's. In addition, Smith's maintained directors'
and officers' liability insurance covering the Smith's Indemnified Parties in
their capacities as directors and officers of Smith's. The Registrant is
obligated to indemnify the Smith's Indemnified Parties to the fullest extent
that the Smith's Indemnified Parties are indemnified by Smith's pursuant to the
provisions of the Smith's Indemnification Agreements. In addition, for a period
of five years
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<PAGE>
after the Effective Time, the Registrant will maintain officers' and directors'
liability insurance covering the Smith's Indemnified Parties on terms
substantially no less advantageous to the Smith's Indemnified Parties than such
existing insurance.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
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5 Opinion of Stoel Rives LLP.*
23.1 Consent of Deloitte & Touche LLP.*
23.2 Consent of Ernst & Young LLP.*
23.3 Consent of Stoel Rives LLP (included in Exhibit 5).*
24 Powers of Attorney.*
99 Joint Proxy Statement/Prospectus Excerpt.*
- --------------
* Previously filed.
Item 9. Undertakings.
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(a) The Registrant will:
(1) File, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of the securities offered would not
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
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<PAGE>
(iii) Include any additional or changed material information on
the plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Portland, State of Oregon on September 25, 1997.
FRED MEYER, INC.
By: ROGER A. COOKE
-------------------------------------
Roger A. Cooke
Senior Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities indicated on September 25, 1997.
Signature Title
- --------- -----
Principal Executive Officer:
* ROBERT G. MILLER Chief Executive Officer and
- ---------------------------------- President, and Director
Robert G. Miller
Principal Financial and
Accounting Officer:
* DAVID R. JESSICK Senior Vice President
- ---------------------------------- and Chief Financial Officer
David Jessick
* VIVIAN A. BULL Director
- ----------------------------------
Vivian A. Bull
* RONALD W. BURKLE Director
- ----------------------------------
Ronald W. Burkle
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<PAGE>
* JAMES J. CURRAN Director
- ----------------------------------
James J. Curran
* A. M. GLEASON Director
- ----------------------------------
A. M. Gleason
* BRUCE KARATZ Director
- ----------------------------------
Bruce Karatz
* JOHN G. KING Director
- ----------------------------------
John G. King
* ROGER S. MEIER Director
- ----------------------------------
Roger S. Meier
* STEVEN R. ROGEL Director
- ----------------------------------
Steven R. Rogel
* FRED L. SMITH Director
- ----------------------------------
Fred L. Smith
* JEFFREY P. SMITH Director
- ----------------------------------
Jeffrey P. Smith
*By: ROGER A. COOKE
----------------------------------
Roger A. Cooke
Attorney-in-Fact
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