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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 2, 2000
REGISTRATION NO. 333-91123
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO FORM S-4 REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933*
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DELHAIZE AMERICA, INC.
(Exact Name of Registrant as specified in its charter)
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NORTH CAROLINA 56-0660192
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
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P.O. BOX 1330
2110 EXECUTIVE DRIVE
SALISBURY, NORTH CAROLINA 28145
(704) 633-8250
(Address, including zip code, of principal executive offices)
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HANNAFORD BROS. CO. 1998 STOCK OPTION PLAN
HANNAFORD BROS. CO. 1988 STOCK PLAN
HANNAFORD BROS. CO. STOCK OWNERSHIP PLAN FOR OUTSIDE DIRECTORS
(Full title of the plans)
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R. WILLIAM MCCANLESS
DELHAIZE AMERICA, INC.
P.O. BOX 1330
2110 EXECUTIVE DRIVE
SALISBURY, NORTH CAROLINA 28145
(704) 633-8250
(Name, address and telephone number, including area code, of agent for service)
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COPY TO:
STEPHEN E. OLDER
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
590 MADISON AVENUE
NEW YORK, NEW YORK 10022
(212) 872-1000
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE(1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE(2)
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Class A common stock, par 4,188,000 $16.00 $67,008,000 $16,170.95
value $0.50 per share
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act of 1933, using the
average of the high and low sale prices of a share of Delhaize America
Class A common stock on the New York Stock Exchange on July 25, 2000, as
reported in published financial sources.
(2) The filing fee with respect to 359,649 of the 4,188,000 shares of the
Registrant's Class A common stock to be registered hereunder has been
previously paid in connection with the filing of the Registrant's
Registration Statement on Form S-4 (File No. 333-91123) with the Securities
and Exchange Commission. Accordingly, the registration fee has been
calculated based on the additional 3,828,351 shares of the Registrant's
Class A common stock being registered.
* Filed as a post-effective amendment on Form S-8 to such Form S-4
Registration Statement (No. 333-91123) pursuant to the procedure described
herein. See "Explanatory Note".
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EXPLANATORY NOTE
Delhaize America, Inc., a North Carolina corporation ("Delhaize
America" or the "Registrant"), hereby amends its Registration Statement on Form
S-4 (No. 333-91123), declared effective on January 4, 2000 (the "Form S-4"), by
filing this Post-Effective Amendment No. 1 on Form S-8, relating to 4,188,000
shares of Class A common stock, $.50 par value per share, of Delhaize America,
issuable upon the exercise of options to purchase shares of Delhaize America
Class A common stock pursuant to the provisions of (i) the Hannaford Bros. Co.
1998 Stock Option Plan (the "1998 Stock Option Plan"), (ii) the Hannaford Bros.
Co. 1988 Stock Plan (the "1988 Stock Plan"), and (iii) the Hannaford Bros. Co.
Stock Ownership Plan for Outside Directors (the "Stock Ownership Plan for
Outside Directors," and together with the 1998 Stock Option Plan and the 1988
Stock Plan, the "Stock Option Plans"), which were assumed by Delhaize America
(along with all outstanding stock options granted thereunder) upon the
effectiveness of the merger (the "Merger") of FL Acquisition Sub, Inc., a Maine
corporation wholly owned by Delhaize America ("Merger Subsidiary"), with and
into Hannaford Bros. Co., a Maine corporation ("Hannaford"), with Hannaford
surviving as a wholly owned subsidiary of Delhaize America, pursuant to the
provisions of the Agreement and Plan of Merger, dated as of August 17, 1999, as
amended, among Delhaize America, Hannaford and Merger Subsidiary.
Prior to the effective time of the Merger:
- stock options granted under the 1998 Stock Option Plan related to
shares of Hannaford common stock, which shares had been registered
by Hannaford under a Registration Statement on Form S-8 (No.
33-53109);
- stock options granted under the 1988 Stock Plan related to shares
of Hannaford common stock, which shares had been registered by
Hannaford under a Registration Statement on Form S-8 (No. 33-60655);
and
- stock options granted under the Stock Ownership Plan for Outside
Directors related to shares of Hannaford common stock, which
shares had been registered by Hannaford under a Registration
Statement on Form S-8 (No. 33-60691).
The designation of this Post-Effective Amendment No. 1 as Registration
No. 333-91123 denotes that this Post-Effective Amendment relates only to the
shares of Delhaize America Class A common stock issuable upon exercise of
options under the Stock Option Plans and that this is the first Post-Effective
Amendment to the Form S-4 filed with respect to such shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by Delhaize America with the Securities
and Exchange Commission (the "Commission") are incorporated herein by reference:
(1) Delhaize America's Annual Report on Form 10-K for the year ended
January 1, 2000;
(2) Delhaize America's Quarterly Report on Form 10-Q for the quarter
ended March 25, 2000;
(3) Delhaize America's Quarterly Report on Form 10-Q for the quarter
ended June 17, 2000; and
(4) The description of Delhaize America's Class A common stock
included under the heading "Description of Common Stock" on
pages 1-3 of Delhaize America's Registration Statement on Form
8-A filed with the Commission on March 1, 1984, as amended by
Delhaize America's Registration Statement on Form 8-A/A filed
with the Commission on December 18, 1987, as amended by Delhaize
America's Registration Statement on Form 8-A filed with the
Commission on September 2, 1999, as amended by Delhaize America's
Registration Statement on Form 8-A/A filed with the Commission on
September 3, 1999.
In addition to the foregoing, all documents subsequently filed by
Delhaize America pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment indicating that all of the securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference in
this Registration Statement shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein or in any subsequently filed document that is also 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 Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-50 through 55-8-58 of the revised North Carolina Business
Corporation Act contain specific provisions relating to indemnification of
directors and officers of North Carolina corporations. In general, the statutes
provide that (i) a corporation must indemnify a director or officer who is
wholly successful in his defense of a proceeding to which he is a party because
of his status as such, unless limited by the articles of incorporation, and (ii)
a corporation may indemnify a director or officer if he is not wholly successful
in such defense, if it is determined as provided by statute that the director or
officer meets a certain standard of conduct, provided when a director or officer
is liable to the corporation or is adjudged liable on the basis that personal
benefit was improperly received by him, the corporation may not indemnify him. A
director or officer of a corporation who is a party to a proceeding also may
apply to the courts for indemnification, unless the articles of incorporation
provide otherwise, and the court may order indemnification under certain
circumstances set forth in the statute. A corporation may, in its articles of
incorporation or bylaws or by contract or resolution, provide indemnification in
addition to that provided by statute, subject to certain conditions.
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Delhaize America's bylaws provide for the indemnification of any
director or officer of the company against liabilities and litigation expenses
arising out of his status as such, excluding (i) any liabilities or litigation
expenses relating to activities which were at the time taken known or believed
by such person to be clearly in conflict with the best interests of the company
and (ii) that portion of any liabilities or litigation expenses with respect to
which such person is entitled to receive payment under any insurance policy
other than a directors' and officers' insurance policy maintained by the
company.
Delhaize America's articles of incorporation provide for the
elimination of the personal liability of each director of the company to the
fullest extent permitted by law.
Delhaize America maintains directors' and officers' liability
insurance, under which any controlling persons, director or officer of the
company is insured or indemnified against certain liabilities which he may incur
in his capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of exhibits included as part of this registration statement is
set forth in the Exhibit Index which immediately precedes the exhibits and is
incorporated by reference here.
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; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information 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 Exchange Act that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; 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
purposes of determining any liability under the Securities Act, each filing of
the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
Annual Report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salisbury, State of North Carolina, on July 31, 2000.
DELHAIZE AMERICA, INC.
By: /s/ R. William McCanless
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R. William McCanless
President and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and
officers of Delhaize America, Inc. hereby constitutes and appoints R. William
McCanless and Joseph C. Hall, and each of them, his true and lawful
attorney-in-fact and agent, with full power to act without the other and with
full power of substitution and resubstitution, for him and on his behalf 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
under the Securities Act, including any and all amendments (including
post-effective amendments and amendments thereto) to this registration statement
and any registration statement for the same offering that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act, 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 any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ R. William McCanless President and Chief Executive Officer, Director July 31, 2000
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R. William McCanless (Principal Executive Officer)
/s/ Pierre-Olivier Beckers Chairman of the Board, Director July 31, 2000
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Pierre-Olivier Beckers
/s/ Dr. Jacqueline K. Collamore Director July 31, 2000
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Dr. Jacqueline K. Collamore
/s/ Jean-Claude Coppieters t' Wallant Director July 31, 2000
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Jean-Claude Coppieters t' Wallant
/s/ William G. Ferguson Director July 31, 2000
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William G. Ferguson
/s/ Dr. Bernard W. Franklin Director July 31, 2000
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Dr. Bernard W. Franklin
/s/ Joseph C. Hall Director, Senior Vice President of Operations July 31, 2000
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Joseph C. Hall
/s/ Margaret H. Kluttz Director July 31, 2000
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Margaret H. Kluttz
/s/ Dominique Raquez Director July 31, 2000
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Dominique Raquez
/s/ Pierre Dumont Director July 31, 2000
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Pierre Dumont
/s/ Laura Kendall Vice President of Finance, Chief Financial July 31, 2000
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Laura Kendall Officer (Principal Accounting Officer)
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Hugh G. Farrington Vice Chairman of the Board, Director
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INDEX TO EXHIBITS
The following is a complete list of exhibits filed as part of this
registration statement:
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EXHIBIT
NUMBER EXHIBIT
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4.1 Articles of Incorporation, together with all amendments thereto (through May 5, 1988), which are
incorporated by reference to Exhibit 3(a) to Delhaize America's Annual Report on Form 10-K dated
March 24, 1992
4.2 Articles of Amendment to Articles of Incorporation, which are incorporated by reference to
Exhibit 3.1 to the Company's Current Report on Form 8-K dated September 7, 1999
4.3 Bylaws of the Company effective September 7, 1999, which are incorporated by reference to Exhibit
3.2 of the Company's Current Report on Form 8-K dated September 7, 1999
4.4 Hannaford Bros. Co. 1998 Stock Option Plan, which is incorporated herein by reference to Exhibit
4.4 to Hannaford's Registration Statement on Form S-8 filed with the SEC on May 20, 1998
4.5 Hannaford Bros. Co. 1988 Stock Plan, which is incorporated herein by reference to Exhibit 4.5 to
Hannaford's Registration Statement on Form S-8 filed with the SEC on June 28, 1995
4.6 Hannaford Bros. Co. Stock Ownership Plan for Outside Directors, which is incorporated herein by
reference to Exhibit 4.5 to Hannaford's Registration Statement on Form S-8 filed with the SEC on
June 29, 1995
5 Opinion of Robinson, Bradshaw & Hinson, P.A. regarding validity of the securities to be
registered
23.1 Consent of Robinson, Bradshaw & Hinson, P.A. (included in the opinion filed as Exhibit 5 to this
Registration Statement)
23.2 Consent of Independent Accountants, PricewaterhouseCoopers LLP
24 Power of Attorney (included in the signature page of this Registration Statement)
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