<PAGE> 1
As electronically filed with the Securities and Exchange Commission on January
31, 1994
Registration No . 33-________
________________________________________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
INGLES MARKETS, INCORPORATED
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-0846267
(State or other jurisdiction of (I.R.S. Employer
Identification Number) incorporation or organization)
P. O. BOX 6676
ASHEVILLE, NORTH CAROLINA 28816
(Address of Principal Executive Offices) (Zip Code)
INGLES MARKETS, INCORPORATED INVESTMENT/PROFIT SHARING PLAN
(Full title of the plan)
JACK R. FERGUSON
INGLES MARKETS, INCORPORATED
P. O. BOX 6676
ASHEVILLE, NORTH CAROLINA 28816
(Name and Address of agent for service)
(704) 669-2941
(Telephone number, including area code, of agent for service)
Copy to:
RICHARD W. PROBERT
ALTMAN, KRITZER & LEVICK, P.C.
6400 POWERS FERRY ROAD, SUITE 224
ATLANTA, GEORGIA 30339
(404) 955-3555
_______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
TITLE OF MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Class A Common
Stock, $.05 par
value per
share ..... 2,252,700 (2) $11.5625 $26,046,843.75 $8,981.66
</TABLE>
(1) Estimated (based on the average of the high and low reported prices on
January 24, 1994) solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933.
(2) Consists of 2,252,700 shares of Class A Common Stock reserved for
issuance upon conversion of the 2,252,700 shares of Class B Common Stock, $.05
par value per share, held pursuant to the Ingles Markets, Incorporated
Investment/Profit Sharing Plan. This registration statement also relates to
such indeterminate number of additional shares of Class A Common Stock as may
be issuable as a result of stock splits, stock dividends or additional similar
transactions.
<PAGE> 2
EXPLANATORY NOTE
The section 10(a) prospectus being delivered by Ingles Markets, Incorporated
(the "COMPANY") to participants in the Ingles Markets, Incorporated
Investment/Profit Sharing Plan (the "PLAN") as required by Rule 428 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), has been prepared in
accordance with the requirements of Form S-8 and relates to shares of the
Company's Class A Common Stock, par value $.05 per share (the "CLASS A COMMON
STOCK"), reserved for issuance upon the conversion of 2,252,700 shares of Class
B Common Stock, $.05 par value per share (the "CLASS B COMMON STOCK") held
pursuant to the Plan. The Plan information required in the section 10(a)
prospectus is included in documents being maintained and delivered by the
Company as required by Rule 428 under the Securities Act. The Company shall
provide to participants in the Plan a written statement advising them of the
availability without charge, upon written or oral request, of documents
incorporated by reference herein, as is required by Item 2 of Part I of Form
S-8.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (File No. 0-14706) pursuant to the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), are incorporated herein by reference.
1. The Company's Annual Report on Form 10-K for the fiscal year
ended September 25, 1993; and
2. The Company's Registration Statement on Form 8-A effective
September 22, 1987, filed pursuant to section 12(b) of the
Exchange Act, which contains a description of the Class A
Common Stock, including any amendment or report filed for the
purpose of updating such description.
All other documents filed by the Company pursuant to sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this registration
statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby 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 part hereof from the date of
filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters in connection with the offering of the Class A
Common Stock pursuant to this registration statement will be passed upon for
the Company by Altman, Kritzer & Levick, P.C., Atlanta, Georgia. Legal matters
with respect to North Carolina law will be passed upon by Petree Stockton,
L.L.P., Winston-Salem, North Carolina.
The financial statements incorporated in this registration statement
by reference to the Company's Annual Report on Form 10-K for the fiscal year
ended September 25, 1993 have been so incorporated in reliance on the report of
Ernst & Young, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
Item 6. Indemnification of Directors and Officers
The Company's By-laws provide, subject to the requirements set forth
therein, that with respect to any person who was 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 right of the Company), the Company shall indemnify such person by
reason of the fact that he is or was a director or an officer, and may
indemnify such person by reason of the fact that he is or was an employee or
agent of the Company or is or was serving at its request as a director,
officer, employee or agent in another corporation, partnership, joint venture,
trust or other enterprise or as a trustee or administrator under an employee
benefit plan, in either case against any liability or litigation expenses
(including reasonable attorney's fees) incurred by such person in connection
with such action, suit or proceeding to the extent and upon the terms and
conditions provided by law (excluding any such expenses that any such person
may incur that were at the time taken known or
<PAGE> 4
believed by them to be clearly in conflict with the best interests of the
Company or, with respect to any criminal action or proceeding, unlawful). In
addition, the Company's Articles of Incorporation provide, subject to the
requirements set forth therein, that no director shall have personal liability
arising out of an action, whether by or in right of the Company or otherwise,
for monetary damages for breach of his duties as a director; provided, however,
that such limitation on liability shall not affect a director's liability for
(i) acts or omissions not made in good faith that were at the time taken known
or believed by him to be in conflict with the best interests of the Company,
(ii) unlawful distributions or (iii) transactions from which he derived an
improper personal benefit.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
<TABLE>
<S> <C>
4.1 - Form of Articles of Incorporation of the Company.(1)
4.2 - Form of By-laws of the Company.(2)
5.1 - Opinion of Petree Stockton, L.L.P. as to the legality of shares of Class A Common Stock being registered.
5.2 - Internal Revenue Service determination letter dated June 16, 1993 as to the qualification of the Plan under Section
401 of the Internal Revenue Code.
23.1 - Consent of Ernst & Young dated January 31, 1994.
23.2 - Consent of Petree Stockton, L.L.P. (included in their opinion filed as Exhibit 5.1).
24 - Power of Attorney.(3)
</TABLE>
___________________
(1) Incorporated by reference to Exhibit No. 3.1 to the registrant's
Registration Statement on Form S-1 (File No. 33-23919), previously
filed with the Securities and Exchange Commission.
(2) Incorporated by reference to Exhibit No. 3.2 to the registrant's
Annual Report on Form 10-K for the fiscal year ended September 24,
1988 (File No. 0-14706), previously filed with the Securities and
Exchange Commission.
(3) Included on signature page of this registration statement.
Item 9. Undertakings
The undersigned registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement to include any material information with respect to
the plan of distribution not previously disclosed in this registration
statement or any material change to such information 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
<PAGE> 5
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned 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 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.
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 registrant's articles of
incorporation or by-laws, by contract, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that, with respect to any
amendment to the Plan effected after the date the Plan was filed with the
Internal Revenue Service ("IRS") for purposes of securing the determination
letter filed as Exhibit 5.2 to this registration statement, the registrant will
submit or has submitted any such amendment to 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.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all 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 Asheville, State of North Carolina on
January 31, 1994.
Ingles Markets, Incorporated
By: /s/ ROBERT P. INGLE
--------------------------
Robert P. Ingle
Chairman of the Board and
Chief Executive Officer
We, the undersigned officers and directors of Ingles Markets,
Incorporated, hereby severally constitute Robert P. Ingle and Jack R. Ferguson
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the capacities
indicated below, any and all amendments, including post-effective amendments,
to this registration statement, and generally do all such things in our name
and behalf in such capacities to enable Ingles Markets, Incorporated to comply
with the applicable provisions of the Securities Act of 1933, as amended, and
all requirements of the Securities and Exchange Commission, and we hereby
ratify and confirm our signatures as they may be signed by our said attorneys,
or either of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT P. INGLE Chairman of the Board, January 31, 1994
- ----------------------- Chief Executive
Robert P. Ingle Officer and Director
/s/ LANDY B. LANEY President, Chief January 31, 1994
- ----------------------- Operating Officer and
Landy B. Laney Director
/s/ JACK R. FERGUSON Vice President-Finance, January 31, 1994
- ----------------------- Chief Financial Officer
Jack R. Ferguson and Director
/s/ VAUGHN C. FISHER Vice President-Sales January 31, 1994
- ------------------------ Manager and Director
Vaughn C. Fisher
/s/ ANTHONY S. FEDERICO Vice President-Non- January 31, 1994
- ------------------------ Foods and Director
Anthony S. Federico
/s/ BRENDA S. CRANFORD Secretary and Controller January 31, 1994
- ------------------------
Brenda S. Cranford
</TABLE>
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION> SEQUENTIAL
----------
EXHIBITS PAGE NUMBER
- -------- -----------
<S> <C> <C>
4.1 - Form of Articles of Incorporation of
the Company.(1)
4.2 - Form of By-laws of the Company.(2)
5.1 - Opinion of Petree Stockton, L.L.P. as to 8
the legality of shares of Class A Common Stock
being registered.
5.2 - Internal Revenue Service determination letter 10
dated June 16, 1993 as to the qualification
of the Plan under Section 401 of the Internal
Revenue Code.
23.1 - Consent of Ernst & Young dated January 31, 1994 13
23.2 - Consent of Petree Stockton, L.L.P. (included
in their opinion filed as Exhibit 5.1).
24 - Power of Attorney.(3)
</TABLE>
___________________
(1) Incorporated by reference to Exhibit No. 3.1 to the registrant's
Registration Statement on Form S-1 (File No. 33-23919), previously
filed with the Securities and Exchange Commission.
(2) Incorporated by reference to Exhibit No. 3.2 to the registrant's
Annual Report on Form 10-K for the fiscal year ended September 24,
1988 (File No. 0-14706), previously filed with the Securities and
Exchange Commission.
(3) Included on signature page of this registration statement.
<PAGE> 1
Exhibit 5.1
OPINION OF PETREE STOCKTON, L.L.P.
January 31, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Ingles Markets, Incorporated
Ladies and Gentlemen:
We have acted as special North Carolina counsel to Ingles Markets, Incorporated
("INGLES"), a North Carolina corporation in connection with the filing by
Ingles of a Form S-8 Registration Statement (the "REGISTRATION STATEMENT") with
respect to the registration of Two Million Two Hundred Fifty-Two Thousand Seven
Hundred (2,252,700) shares of Ingles's Class A Common Stock, par value $.05 per
share (the "CLASS A COMMON STOCK").
In the capacity described above, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of records and documents
of Ingles, certificates or statements, or both, of officers and other
representatives of Ingles, and certificates or statements, or both, of public
officials, and have considered such other matters of law and fact as we have
deemed appropriate as a basis for the opinions hereinafter set forth,
including, without limitation, certified copies of the Articles of
Incorporation (the "ARTICLES") of Ingles and all amendments thereto provided to
us by the Secretary of State of the State of North Carolina.
The opinions set forth in the opinion letter are limited to laws of the State
of North Carolina. On the basis of the foregoing, we are of the opinion that:
1. Ingles is a corporation duly organized, validly existing and in good
standing under the laws of the State of North Carolina.
2. Pursuant to the Articles, one share of Class B Common
Stock, par value $.05 per share (the "CLASS B COMMON STOCK") will
convert, at the option of the holder thereof, into one share of Class
A Common Stock. Further, pursuant to the Articles, Ingles has agreed
to reserve duly authorized shares of Class A Common Stock for issuance
upon the conversion of shares of Class B Common Stock. We are
informed that the 2,252,700 shares (the "CLASS B SHARES") of Class B
Common Stock held by the Ingles Markets Incorporated Investment/Profit
Sharing Plan (the "PLAN") will be converted upon the Plan's exercise
of its option to convert the Class B Shares in connection with its
adoption of a 401(k) feature which is to be effective February 2,
1994. Each of the 2,252,700 shares of Class A Common Stock, when
issued upon the conversion of the Class B Shares, will be validly
issued, fully paid and nonassessable.
This opinion letter speaks as of the date of its delivery, and we have no
obligation to advise you or anyone else of any matter of fact or law thereafter
occurring, whether or not brought to our attention, even though that matter
affects any analysis or conclusion in the opinion letter.
The opinions set forth in this opinion letter are provided to the addressee
hereof for its exclusive use in connection with the filing of the Registration
Statement and may be relied upon only by the addressee hereof in connection
<PAGE> 2
therewith, may not be relied upon by such addressee for any other purpose or by
third parties for any purpose whatsoever and may not be quoted, published or
otherwise disseminated without our prior written consent. However, we consent
to the incorporation by reference of this opinion letter in the Registration
Statement on Form S-8 and related Prospectus pertaining to the Plan and to the
reference to this firm under the heading "Interests of Named Experts and
Counsel" in such Registration Statement.
Very truly yours,
PETREE STOCKTON, L.L.P.
<PAGE> 1
Exhibit 5.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P.O. Box 941
ATLANTA, GEORGIA 30370
Employer Identification Number:
Date: JUNE 16, 1993 56-0846267
File Folder Number:
560001364
INGLES MARKETS, INCORPORATED Person to Contact:
C\O ANNE W. TROTTER TERRY BATES
6400 POWERS FERRY ROAD NW SUITE 224 Contact Telephone Number:
ATLANTA, GA 30339 (404) 331-0576
Plan Name:
INGLES MARKETS, INCORPORATED
PROFIT SHARING PLAN
Plan Number: 001
- --
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401- 1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination letter is applicable for the amendment(s) adopted
on 09/28/90 & 12/09/91.
This determination letter is also applicable for the amendment(s)
adopted on March 22, 1993.
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the certification
and demonstrations are considered an integral part of this letter.
Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD OR
YOU WILL NOT BE ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE
91-66.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
<PAGE> 2
-2-
INGLES MARKETS, INCORPORATED
If you have any questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ PAUL WILLIAMS
------------------
Paul Williams
District Director
Enclosures:
Publication 794
PWBA 515
Addendum
<PAGE> 3
-3-
INGLES MARKETS, INCORPORATED
The scope of this determination letter does not extend to the plan's
compliance with section 401(a)(31)
<PAGE> 1
Exhibit 23.1 - Consent Of Ernst & Young, Independent Auditors
We consent to the reference to our firm under the caption "Interests of
Named Experts and Counsel" in the registration statement expected to be filed
on or about January 31, 1994 pertaining to the Ingles Markets, Incorporated
Investment/Profit Sharing Plan and to the incorporation by reference therein of
our report dated November 12, 1993, with respect to the consolidated financial
statements and schedules of Ingles Markets, Incorporated included in its Annual
Report (Form 10-K) for the year ended September 25, 1993, filed with the
Securities and Exchange Commission.
ERNST & YOUNG
Greenville, South Carolina
January 31, 1994
