<PAGE> 1
As Filed With the Securities and Exchange Commission
on September 25, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
MARSH SUPERMARKETS, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-0918179
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9800 CROSSPOINT BOULEVARD
INDIANAPOLIS, INDIANA 46256-3350
(Address of Principal Executive Offices) (Zip Code)
OUTSIDE DIRECTORS' STOCK PLAN
MARSH SUPERMARKETS, INC. 1998 STOCK INCENTIVE PLAN
EXECUTIVE STOCK PURCHASE PLAN OF MARSH SUPERMARKETS, INC.
(Full title of the plans)
P. LAWRENCE BUTT
SENIOR VICE PRESIDENT, COUNSEL AND SECRETARY
MARSH SUPERMARKETS, INC.
9800 CROSSPOINT BOULEVARD
INDIANAPOLIS, INDIANA 46256-3350
(317) 594-2100
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Agent for Service)
WITH COPIES TO:
J. PAGE DAVIDSON
BASS, BERRY & SIMS PLC
2700 FIRST AMERICAN CENTER
NASHVILLE, TN 37238
(615) 742-6200
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share(1) price registration fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A & B 1,150,000 $15.25 $17,537,500 $5,174
Common Stock,
no par value per
share, and
associated rights
===================================================================================================================
</TABLE>
(1)The offering price is estimated solely for the purpose of determining the
amount of the registration fee in accordance with Rule 457(c) under the
Securities Act of 1933 and is based on the average of the high and low price per
share of the Registrant's Class A Common Stock as reported on NASDAQ on
September 22, 1998.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Marsh Supermarkets, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") pursuant
to the Securities Exchange Act of 1934 (the "Exchange Act") are hereby
incorporated by reference as of their respective dates:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 28, 1998;
(2) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 20, 1998;
(3) The description of the Registrant's Class A Common Stock, no par
value per share (the "Class A Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A/A filed with the SEC on May 3, 1991,
including all amendments and reports filed for the purpose of updating such
description prior to the termination of the offering of the Class A Common Stock
offered hereby;
(4) the description of the Registrant's Class B Common Stock, no par
value per share (the "Class B Common Stock", and together with the Class A
Common Stock, the "Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A filed with the SEC on May 3, 1991, including all
amendments and reports filed for the purpose of updating such description prior
to the termination of the offering of the Class B Common Stock offered hereby;
and
(5) The description of the Registrant's Right to Purchase Common Stock
contained in the Registrant's Registration Statement on Form 8-A filed with the
SEC on May 3, 1991, including all amendments and reports filed for the purpose
of updating such description prior to the termination of the offering of the
Right to Purchase Common Stock offered hereby.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14, or 15(d) of the Exchange Act after the date hereof and prior to the filing
of a post-effective amendment to this Registration Statement 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 herein and to be a part hereof from the date of filing of such
documents. Any statements contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or replaced for
purposes hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein) modifies or replaces such statement. Any
statement so modified or replaced shall not be deemed, except as so modified or
replaced, to constitute a part hereof.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
P. Lawrence Butt, Senior Vice President, Counsel and Secretary of the
Company, who has passed upon the legality of the Common Stock offered hereby, is
eligible to participate in the Marsh Supermarkets, Inc. 1998 Stock Incentive
Plan and the Executive Stock Purchase Plan of Marsh Supermarkets, Inc.
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<PAGE> 3
Item 6. Indemnification of Directors and Officers.
Chapter 37 of the Indiana Business Corporation Law (the "IBCL")
provides that a corporation may indemnify any of its directors and officers
against liability incurred in connection with a proceeding if (i) such person
acted in good faith; (ii) in the case of conduct in such person's official
capacity with the corporation, he reasonably believed such conduct was in the
corporation's best interests; (iii) in all other cases, he reasonably believed
that his conduct was at least not opposed to the best interests of the
corporation; and (iv) in connection with any criminal proceeding, such person
either had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful.
The IBCL also requires a corporation to indemnify a director or an
officer who is solely successful on the merits or otherwise in the defense of
any proceeding to which the director or officer was a party because the director
or officer is or was a director or officer of the corporation against reasonable
expenses incurred by the director or officer in connection with the proceeding.
In addition, a corporation may pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to a proceeding in
advance of the final disposition of the proceeding if: (1) the director or
officer furnishes the corporation a written affirmation of his or her good-faith
belief that he or she has met the standard of conduct required for permissive
indemnification; (2) the director or officer furnishes the corporation a written
undertaking executed personally or on the director or officer's behalf to repay
the advance if it is ultimately determined that the director or officer did not
meet the required standard of conduct; and (3) a determination is made that the
facts then known to those making the determination would not preclude
indemnification under the IBCL.
Article XII of the Company's Restated Articles of Incorporation
provides that the Company must indemnify any person made a party to any action,
suit or proceeding by reason of the fact that such person, such person's
testator or intestate, is or was a Director, Officer or employee of the Company,
or of any corporation which such person served as such at the request of the
Company against the reasonable expenses, including attorneys' fees actually and
necessarily incurred by such person in connection with the defense of such
action, suit or proceedings, or in connection with any appeal therein except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Officer, Director or employee is liable for negligence or
misconduct in the performance of his or her duties. The Company may also
reimburse to any such Director, Officer or employee the reasonable costs of
settlement of any such action, suit or proceeding, if it shall be found by a
majority of a committee composed of the Directors not involved in the matter in
controversy (whether or not a quorum) that it was to the interests of the
Corporation that such settlement be made and that such Director, Officer or
employee was not guilty of negligence or misconduct. Such rights of
indemnification and reimbursement shall not be deemed exclusive of any other
rights to which such Director, Officer or employee may be entitled apart from
the provisions of this Article.
The Company has entered into Indemnification Agreements with its
directors and officers which may provide for indemnification against other
liabilities, including liabilities under the Act, other than as provided by the
IBCL and the Restated Articles of Incorporation. In addition, the Company
maintains directors' and officers' liability insurance which may cover
liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
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<S> <C>
Exhibit 4.1 Outside Directors' Stock Plan (incorporated herein by reference to Exhibit A to Registrant's Proxy
Statement for the Annual Meeting of Shareholders held August 4, 1998)
Exhibit 4.2 Marsh Supermarkets, Inc. 1998 Stock Incentive Plan (incorporated herein by reference to
Exhibit B to Registrant's Proxy Statement for the Annual Meeting of Shareholders held
August 4, 1998)
Exhibit 4.3 Executive Stock Purchase Plan of Marsh Supermarkets, Inc. (incorporated by reference to Exhibit C to
Registrant's Proxy Statement for the Annual Meeting of Shareholders held August 4, 1998)
</TABLE>
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<TABLE>
<S> <C>
Exhibit 4.4 Articles V, VI and VII of the Company's Restated Articles of Incorporation, as amended
as of May 15, 1991 (incorporated herein by reference to Form 10-K for the year ended
March 30, 1991)
Exhibit 4.5 Articles I and IV of the Company's By-Laws, as amended as of August 7, 1990
(incorporated herein by reference to Form 10-Q for the quarter ended January 5, 1991)
Exhibit 4.6 Agreement of the Company to furnish a copy of any agreement relating to certain long-term
debt and leases to the Securities and Exchange Commission upon its request (incorporated
herein by reference to Form 10-K for the year ended March 27, 1987)
Exhibit 4.7 Note Agreement, dated as of May 1, 1988, for $25,000,000 9.48% Senior Notes due June 30, 2003
(incorporated herein by reference to Form 10-Q for the quarter ended June 25, 1988)
Exhibit 4.8 Rights Agreement, dated as of August 1, 1989 between Marsh Supermarkets, Inc. and the National
Bank and Trust Company of Indianapolis (incorporated herein by reference to Form 10-Q for the
quarter ended October 14, 1989)
Exhibit 4.9 Amendment No. 1, dated as of May 1, 1991, to Rights Agreement, dated as of August 1,
1989 (incorporated herein by reference to Form 10-K for the year ended March 30, 1991)
Exhibit 4.10 Note Agreement, dated as of October 15, 1992, for $35,000,000 8.54% Senior Notes, Series A,
due December 31, 2007 and $15,000,000 8.13% Senior Notes, Series B, due December 31, 2004
(incorporated herein by reference to Registration Statement on Form S-2 (File No. 33-56738))
Exhibit 4.11 Indenture dated as of February 15, 1993, between Marsh Supermarkets, Inc. and Society
National Bank, as Trustee, including form of Indenture (incorporated herein by reference
to Registration Statement on Form S-2 (File No. 33-56738))
Exhibit 4.12 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for $35,000,000
8.54% Senior Notes, Series A, due December 31, 2007, and $15,000,000 8.13% Senior Notes, Series B,
due December 31, 2004 (incorporated herein by reference to Form 10-K for the year ended March 29, 1997)
Exhibit 4.13 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for $25,000,000
9.48% Senior Notes, due June 30, 2002 (incorporated herein by reference to Form 10-K for the year
ended March 29, 1997)
Exhibit 4.14 Indenture, dated August 5, 1997, between Marsh Supermarkets, Inc. and certain of its
subsidiaries and State Street Bank and Trust Company, as trustee, for $150,000,000 8 7/8%
Senior Subordinated Notes, due 2007 (incorporated herein by reference to Registration
Statement on Form S-4 (File No. 333-34855))
Exhibit 4.15 First Supplemental Indenture between Marsh Supermarkets, Inc. and certain of its
subsidiaries and State Street Bank and Trust Company, as trustee, dated December 31, 1997
(incorporated herein by reference to Form 10-K for the year ended March 29, 1997)
Exhibit 5.1 Opinion of P. Lawrence Butt
</TABLE>
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<TABLE>
<S> <C>
Exhibit 23.1 Consent of P. Lawrence Butt (included in Exhibit 5.1)
Exhibit 23.2 Consent of Ernst & Young LLP
Exhibit 24.1 Power of Attorney (included on signature page to this Registration Statement)
</TABLE>
Item 9. Undertakings.
A. The 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;
(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;
(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 required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 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.
(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 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 15(d) of the Exchange Act that is
incorporated by reference in this 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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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, on the 25th day of September, 1998.
MARSH SUPERMARKETS, INC.
By: /s/ Don E. Marsh
-------------------------------------------------
Don E. Marsh
Chairman of the Board of Directors, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints P. Lawrence Butt and Douglas W. Dougherty,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place, and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
capacities and on the 25th day of September, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Don E. Marsh Chairman of the Board of
- ----------------------------- Directors, President and Chief
Don E. Marsh Executive Officer
/s/ Douglas W. Dougherty Senior Vice President, Chief
- ----------------------------- Financial Officer and Treasurer
Douglas W. Dougherty
/s/ Mark A. Varner Corporate Controller
- -----------------------------
Mark A. Varner
/s/ C. Alan Marsh Vice Chairman of the Board of
- ----------------------------- Directors, Senior Vice
C. Alan Marsh President-Corporate
Development
Director
- -----------------------------
Garnet R. Marsh
</TABLE>
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<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ William L. Marsh Senior Vice President -
- ----------------------------- Property Management and
William L. Marsh Director
/s/ Catherine A. Langham Director
- -----------------------------
Catherine A. Langham
/s/ Charles R. Clark Director
- -----------------------------
Charles R. Clark
Director
- -----------------------------
Stephen M. Huse
Director
- -----------------------------
James K. Risk III
/s/ K. Clay Smith Director
- -----------------------------
K. Clay Smith
Director
- -----------------------------
J. Michael Blakley
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
<TABLE>
<S> <C>
Exhibit 4.1 Outside Directors Stock Plan (incorporated herein by reference to Exhibit A to Registrant's Proxy Statement for
the Annual Meeting of Shareholders held August 4, 1998)
Exhibit 4.2 Marsh Supermarkets, Inc. 1998 Stock Incentive Plan (incorporated herein by reference to Exhibit B
to Registrant's Proxy Statement for the Annual Meeting of Shareholders held August 4, 1998)
Exhibit 4.3 Executive Stock Purchase Plan of Marsh Supermarkets, Inc. (incorporated herein by reference to Exhibit to
Registrant's Proxy Statement for the Annual Meeting of Stockholders held August 4, 1998)
Exhibit 4.4 Articles V, VI and VII of the Company's Restated Articles of Incorporation, as amended as of
May 15, 1991 (incorporated herein by reference to Form 10-K for the year ended March 30, 1991)
Exhibit 4.5 Articles I and IV of the Company's By-Laws, as amended as of August 7, 1990 (incorporated herein
by reference to Form 10-Q for the quarter ended January 5, 1991)
Exhibit 4.6 Agreement of the Company to furnish a copy of any agreement relating to certain long-term debt and
leases to the Securities and Exchange Commission upon its request (incorporated herein by reference
to Form 10-K for the year ended March 27, 1987)
Exhibit 4.7 Note Agreement, dated as of May 1, 1988, for $25,000,000 9.48% Senior Notes due June 30, 2003
(incorporated herein by reference to Form 10-Q for the quarter ended June 25, 1988)
Exhibit 4.8 Rights Agreement, dated as of August 1, 1989, between Marsh Supermarkets, Inc. and the National Bank
and Trust Company of Indianapolis (incorporated herein by reference to Form 10-Q for the quarter ended
October 14, 1989)
Exhibit 4.9 Amendment No. 1, dated as of May 1, 1991, to Rights Agreement, dated as of August 1, 1989
(incorporated herein by reference to Form 10-K for the year ended March 30, 1991)
Exhibit 4.10 Note Agreement, dated as of October 15, 1992, for $35,000,000 8.54% Senior Notes, Series A, due
December 31, 2007 and $15,000,000 8.13% Senior Notes, Series B, due December 31, 2004 (incorporated
herein by reference to Registration Statement on Form S-2 (File No. 33-56738))
Exhibit 4.11 Indenture dated as of February 15, 1993, between Marsh Supermarkets, Inc. and Society National
Bank, as Trustee, including form of Indenture (incorporated herein by reference to Registration
Statement on Form S-2 (File No. 53-56738))
Exhibit 4.12 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for $35,000,000 8.54%
Senior Notes, Series A, due December 31, 2007, and $15,000,000 8.13% Senior Notes, Series B, due
December 31, 2004 (incorporated herein by reference to Form 10-K for the year ended March 29, 1997)
Exhibit 4.13 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for $25,000,000 9.48%
Senior Notes, due June 30, 2002 (incorporated herein by reference to Form 10-K for the year ended
March 29, 1997)
Exhibit 4.14 Indenture, dated August 5, 1997, between Marsh Supermarkets, Inc. and certain of its subsidiaries and
State Street Bank and Trust Company as trustee, for $150,000,000 8.7/8% Senior Subordinated Notes,
due 2007 (incorporated herein by reference to Registration Statement on Form S-4 (File No. 333-
34855))
Exhibit 4.15 First Supplemental Indenture between Marsh Supermarkets, Inc. and certain of its subsidiaries and
State Street Bank and Trust Company, as trustee, dated December 31, 1997 (incorporated herein by
reference to Form 10-K for the year ended March 29, 1997)
Exhibit 5.1 Opinion of P. Lawrence Butt
</TABLE>
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<TABLE>
<S> <C>
Exhibit 23.1 Consent of P. Lawrence Butt (included in Exhibit 5.1)
Exhibit 23.2 Consent of Ernst & Young LLP
Exhibit 24.1 Power of Attorney (included on signature page to this Registration Statement)
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
[MARSH LETTERHEAD]
September 25, 1998
Marsh Supermarkets, Inc.
9800 Crosspoint Boulevard
Indianapolis, IN 46256-3350
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I have acted as counsel in the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") relating to the Outside Directors'
Stock Plan (the "Directors' Plan") and the Marsh Supermarkets, Inc. 1998 Stock
Incentive Plan (the "1998 Plan") filed with the Securities and Exchange
Commission covering 850,000 shares (the "Shares") of the Company's Class A and
Class B common stock, no par value, issuable pursuant to the Directors' Plan and
1998 Plan.
In so acting, I have examined and relied upon such records, documents,
and other instruments as in my judgment are necessary or appropriate in order to
express the opinions hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals
and the conformity to original documents of all documents submitted to me as
certified or photostatic copies.
Based on the foregoing, I am of the opinion that the Shares, when
issued pursuant to and in accordance with the Directors' Plan and the 1998 Plan,
will be validly issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ P. Lawrence Butt
--------------------------------------
P. Lawrence Butt
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Outside Directors' Stock Plan, Marsh Supermarkets,
Inc. 1998 Stock Incentive Plan, and Executive Stock Purchase Plan of Marsh
Supermarkets, Inc. of Marsh Supermarkets, Inc. of our report dated May 15, 1998,
with respect to the consolidated financial statements of Marsh Supermarkets,
Inc. incorporated by reference in its Annual Report (Form 10-K) for the year
ended March 28, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
September 25, 1998
Indianapolis, Indiana
