<PAGE> 1
As electronically filed with the Securities and Exchange Commission on
September 24, 1997.
Registration No. 333-_____
- --------------------------------------------------------------------------------
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 1997 NONQUALIFIED STOCK OPTION 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
(770) 955-3555
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES TO AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common
Stock, $.05 par
value per share 5,000,000 (2) $13.000 $65,000,000 $19,696.97
====================================================================================================================
</TABLE>
(1) Estimated (based on the average of the high and low reported prices on
September 22, 1997) solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933.
(2) Consists of 5,000,000 shares of Class A Common Stock reserved for issuance
upon the exercise of options held pursuant to the Ingles Markets, Incorporated
1997 Nonqualified Stock Option 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 1997
Nonqualified Stock Option 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 exercise of options held pursuant to
the Plan. The 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.
2
<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 28, 1996; and
2. The Company's Form 10-Q for the quarter ended December 28, 1996;
and
3. The Company's Form 10-Q for the quarter ended March 29, 1997; and
4. The Company's Form 10-Q for the quarter ended June 28, 1997; and
5. The Company's Proxy Statement dated January 22, 1997, with
respect to the Annual Meeting of Stockholders held February 18,
1997; and
6. 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
and 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 Kilpatrick Stockton
LLP, Winston-Salem, North Carolina.
The consolidated financial statements of Ingles Markets, Incorporated
appearing in Ingles Markets, Incorporated's Annual Report (Form 10-K) for the
fiscal year ended September 28, 1996 have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
3
<PAGE> 4
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 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
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 Kilpatrick Stockton LLP as to the legality of
shares of Class A Common Stock being registered.
23.1 - Consent of Ernst & Young LLP, dated September 24, 1997.
23.2 - Consent of Kilpatrick Stockton LLP (included in their opinion
filed as Exhibit 5.1).
24 - Power of Attorney.(3)
- ----------
(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.
4
<PAGE> 5
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
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.
[Signatures begin on next page]
5
<PAGE> 6
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 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 September
24, 1997.
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, Chief September 24, 1997
- ------------------------------ Executive Officer and Director
Robert P. Ingle
/s/ Vaughn C. Fisher President, Chief Operating Officer September 24, 1997
- ------------------------------ and Director
Vaughn C. Fisher
/s/ Jack R. Ferguson Vice President-Finance, Chief Financial September 24, 1997
- ------------------------------ Officer and Director
Jack R. Ferguson
/s/ Anthony S. Federico Vice President-Non-Foods and Director September 24, 1997
- ------------------------------
Anthony S. Federico
/s/ Robert P. Ingle, II Vice President - Operations September 24, 1997
- ------------------------------ and Director
Robert P. Ingle, II
/s/ Brenda S. Tudor Secretary and Controller September 24, 1997
- ------------------------------
Brenda S. Tudor
</TABLE>
6
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBITS PAGE NUMBER
- -------- -----------
<S> <C> <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 Kilpatrick Stockton LLP as to the legality of shares of 8
Class A Common Stock being registered.
23.1 - Consent of Ernst & Young LLP, dated September 24, 1997. 10
23.2 - Consent of Kilpatrick Stockton LLP (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.
7
<PAGE> 1
EXHIBIT 5.1
OPINION OF KILPATRICK STOCKTON LLP
September 24, 1997
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
(the "Company"), a North Carolina corporation, in connection with the filing by
the Company of a Form S-8 Registration Statement (the "Registration Statement")
with respect to the registration of Five Million (5,000,000) shares of the
Company's Class A Common Stock, par value $.05 per share (the "Class A Common
Stock") reserved for issuance upon the exercise of options held pursuant to the
Ingles Markets, Incorporated 1997 Nonqualified Stock Option Plan (the "Plan").
In the capacity described above, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of records and documents
of the Company, certificates or statements, or both, of officers and other
representatives of the Company, 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 the Company 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. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of North Carolina.
2. All of the 5,000,000 shares of Class A Common Stock, when issued
pursuant to the Plan, 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
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.
<PAGE> 2
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,
/s/ Kilpatrick Stockton LLP
2
<PAGE> 1
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Interests
of Named Experts and Counsel" in the Registration Statement on Form S-8
expected to be filed on or about September 24, 1997 pertaining to the Ingles
Markets, Incorporated 1997 Nonqualified Stock Option Plan and to the
incorporation by reference therein of our report dated November 8, 1996 (except
for Note 17, as to which the date is December 6, 1996) 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 28,
1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
----------------------
ERNST & YOUNG LLP
Greenville, South Carolina
September 24, 1997
