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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 25, 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. 2 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)
NORTH CAROLINA 56-0660192
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
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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 SAVINGS AND INVESTMENT PLAN
(Full title of the plan)
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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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<CAPTION>
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Class A common stock, par 402,098 (1) (2) (2) (2)
value $0.50 per share
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</TABLE>
(1) This Registration Statement covers, in addition to the number of
shares of Delhaize America Class A common stock stated above, and
pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
an indeterminate number of participation interests to be offered or
sold pursuant to the Hannaford Savings and Investment Plan, and an
indeterminate number of additional shares of Class A common stock as
may be issuable as a result of splits, stock dividends,
recapitalizations, mergers, reorganizations, combinations or exchanges
of shares or other similar events.
(2) The proposed maximum offering price was calculated and the
registration fee was previously paid, with respect to the 402,098
shares of the Registrant's Class A common stock to be registered
hereunder, in connection with the filing of the Registrant's
Registration Statement on Form S-4 (No. 333-91123), declared effective
on January 4, 2000, as amended by Post-Effective Amendment No. 1 on
Form S-8 to such Form S-4 Registration Statement, effective on
August 2, 2000.
* 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, as amended by Post
Effective Amendment No. 1 on Form S-8 to such Form S-4 Registration Statement,
effective on August 2, 2000 (as amended, the "S-4"), by filing this
Post-Effective Amendment No. 2 on Form S-8 relating to 402,098 shares of Class A
common stock, par value $0.50 per share ("Class A Common Stock"), of Delhaize
America, to be offered or sold pursuant to the provisions of the Hannaford
Savings and Investment Plan (the "Plan").
On July 31, 2000 (the "Effective Time"), Delhaize America, and
Hannaford Bros. Co., a Maine corporation ("Hannaford"), consummated a merger
(the "Merger") whereby FL Acquisition Sub, Inc., a Maine corporation and a
wholly owned subsidiary of Delhaize America ("Merger Subsidiary"), was merged
with and into Hannaford pursuant to an Agreement and Plan of Merger, dated
August 17, 1999, as amended (the "Merger Agreement"), among Delhaize America,
Hannaford and Merger Subsidiary. Prior to the Effective Time of the Merger, the
Plan held shares of Hannaford common stock, par value $0.75 per share
("Hannaford Common Stock"). Pursuant to the Merger Agreement, at the Effective
Time of the Merger, shares of Hannaford Common Stock outstanding and not owned
by Delhaize America immediately prior to the Effective Time were exchanged for
cash and shares of Delhaize America Class A Common Stock.
Delhaize America registered 14,075,604 shares of Delhaize America
Class A Common Stock on the S-4, which included the 402,098 shares of Delhaize
America Class A Common Stock to be offered or sold under the Plan after the
effective time of the Merger.
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 this
Post-Effective Amendment No. 2 on 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;
(4) Delhaize America's Current Report on Form 8-K dated July 31,
2000; and
(5) 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, the Annual Report on Form 11-K for the fiscal year
ended December 31, 1999, as filed by the Plan with the Commission, is
incorporated by reference in this Registration Statement and made a part hereof.
All documents subsequently filed by Delhaize America or the Plan
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.
Delhaize America hereby undertakes that it will submit or has
submitted the Plan and any amendments thereto to the Internal Revenue Service
(the "IRS") in a timely manner and has made or will make all changes required by
the IRS in order to qualify the Plan under Section 401 of the Internal Revenue
Code of 1986, as amended.
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
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(and, where applicable, each filing of an employee benefit plan's Annual Report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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
September 25, 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 Michael R. Waller, 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 September 25, 2000.
SIGNATURE TITLE
/s/ R. William McCanless President and Chief Executive Officer,
------------------------ Director
R. William McCanless (Principal Executive Officer)
/s/ Pierre-Olivier Beckers Chairman of the Board, Director
--------------------------
Pierre-Olivier Beckers
/s/ Dr. Jacqueline K. Collamore Director
-------------------------------
Dr. Jacqueline K. Collamore
/s/ Jean-Claude Coppieters t' Wallant Director
-------------------------------------
Jean-Claude Coppieters t' Wallant
/s/ Pierre Dumont Director
-----------------
Pierre Dumont
/s/ Hugh G. Farrington Vice Chairman, Director
----------------------
Hugh G. Farrington
/s/ William G. Ferguson Director
-----------------------
William G. Ferguson
/s/ Dr. Bernard W. Franklin Director
---------------------------
Dr. Bernard W. Franklin
/s/ Margaret H. Kluttz Director
----------------------
Margaret H. Kluttz
/s/ Dominique Raquez Director
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Dominique Raquez
/s/ Laura Kendall Vice President of Finance,
----------------- Chief Financial Officer
Laura Kendall (Principal Accounting Officer)
II-5
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Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee authorized by the Board of Directors of Hannaford Bros.
Co. has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Scarborough, State of
Maine, on September 25, 2000.
HANNAFORD SAVINGS AND INVESTMENT PLAN
By: /s/ Paul A. Fritzson
--------------------------------------
Paul A. Fritzson
Member of the Administrative Committee
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INDEX TO EXHIBITS
The following is a complete list of exhibits filed as part of this
registration statement:
<TABLE>
<CAPTION>
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
23 Consent of Independent Accountants, PricewaterhouseCoopers
LLP
24 Power of Attorney (included in the signature page of this
Registration Statement)
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