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As Filed With the Securities and Exchange Commission on August 8, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
1999 OUTSIDE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(1) share(2) price registration fee
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A & B 150,000 $15.125 $2,268,750 $600
Common Stock,
no par value per
share, and
associated rights
=======================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, the amount to
be registered includes an indeterminate number of additional shares which may be
offered and issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) The offering price is estimated solely for the purpose of determining
the amount of the registration fee in accordance with Rule 457(h)(i) 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
August 3, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Marsh Supermarkets, Inc. with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 are hereby incorporated by reference as of their respective dates:
(1) Marsh's Annual Report on Form 10-K for the fiscal year ended April
1, 2000;
(2) Marsh's Quarterly Report on Form 10-Q for the quarter ended June
24, 2000;
(3) The description of Marsh's Class A Common Stock, no par value per
share, contained in Marsh's Registration Statement on Form 8-A/A filed with the
SEC on August 8, 2000, including all amendments and reports filed for the
purpose of updating that description before the offering of the Class A Common
Stock offered under this registration statement is terminated;
(4) The description of Marsh's Class B Common Stock, no par value per
share, contained in Marsh's Registration Statement on Form 8-A/A filed with the
SEC on August 8, 2000, including all amendments and reports filed for the
purpose of updating that description before the offering of the Class B Common
Stock offered under this registration statement is terminated; and
(5) The description of Marsh's Right to Purchase Preferred Stock
contained in its Registration Statement on Form 8-A/A filed with the SEC on
August 8, 2000, including all amendments and reports filed for the purpose of
updating that description before the offering of the Right to Purchase Common
Stock offered hereby under this registration statement is terminated.
All documents filed by Marsh under Section 13(a), 13(c), 14, or 15(d)
of the Exchange Act after the date of this registration statement and before the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered under this registration statement 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 of this registration statement from the date of filing of those
documents. Any statements contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or replaced for purposes of this registration statement to the extent
that a statement contained in this registration statement (or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference in this registration statement) modifies or replaces
that statement. Any statement so modified or replaced shall not be deemed,
except as so modified or replaced, to constitute a part of this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Chapter 37 of the Indiana Business Corporation Law provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if: (1) that person acted in good
faith; (2) in the case of conduct in that person's official capacity with the
corporation, he reasonably believed his conduct was in the corporation's best
interests; (3) in all other cases, he reasonably believed that his conduct was
at least not
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opposed to the best interests of the corporation; and (4) in connection with any
criminal proceeding, that 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 in the defense of any proceeding where he or she is wholly successful on
the merits or otherwise, and was made a party to the action or proceeding
because of his or her position as a director or officer. Under these
circumstances, a corporation must indemnify the director or officer against
reasonable expenses incurred by the director or officer in connection with the
proceeding.
In addition, the IBCL provides that a corporation may pay for or
reimburse the reasonable expenses incurred by a director or officer before a
proceeding is finally resolved 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.
Marsh is required by its Restated Articles of Incorporation to
indemnify persons who are made a party to any suit, action, or proceeding
because his or her testator or intestate is or was an officer, director or
employee of Marsh. Marsh must also indemnify persons who are made a party to any
suit, action, or proceeding because his or her testator serves or served as an
officer, director, or employee of a corporation other than Marsh at the request
of Marsh. Under these circumstances, Marsh must indemnify the party against the
reasonable expenses, including attorneys' fees, incurred by him or her in
connection with the defense of that action, suit, or proceeding, or in
connection with any appeal. However, Marsh is not required to indemnify a person
described above where the officer, director, or employee is judged by a court of
competent jurisdiction to be liable for negligence or misconduct in the
performance of his or her duties. According to Marsh's Restated Articles of
Incorporation, it may reimburse any director, officer, or employee for the
reasonable costs of settlement of any such action, suit or proceeding described
above, if a majority of a committee of the board of directors not involved in
the matter in controversy (whether or not a quorum) determines: (1) that
agreeing to a settlement serves the best interests of Marsh; and (2) that the
director, officer, or employee was not guilty of negligence or misconduct.
Marsh's Articles of Incorporation provide a nonexclusive list of a director's,
officer's or employee's rights of indemnification and reimbursement.
Marsh has entered into indemnification agreements with its directors
and officers which may provide for indemnification against other liabilities,
including liabilities under the Securities Act of 1933, other than as provided
by the IBCL and the Restated Articles of Incorporation. In addition, Marsh
maintains directors' and officers' liability insurance which may cover
liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
Exhibit 4.1 1999 Outside Directors' Stock Option Plan (incorporated
herein by reference to Exhibit A to Registrant's Proxy
Statement for the Annual Meeting of Shareholders held
August 3, 1999)
Exhibit 4.2 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)
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Exhibit 4.3 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 4.4 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 4.5 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 4.6 Amended and Restated Rights Agreement, dated as of
December 24, 1998 between Marsh Supermarkets, Inc. and
National City Bank, as rights agent (incorporated herein
by reference to Form 8-K dated December 24, 1998)
Exhibit 4.7 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 4.8 Indenture dated as of February 15, 1993, between Marsh
Supermarkets, Inc. and Society National Bank, as
Trustee, including form of Indenture for $17,500,000 7%
Convertible Subordinated Debentures, due 2003
(incorporated herein by reference to Registration
Statement on Form S-2 (File No. 33-56738))
Exhibit 4.9 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 4.10 Amendment to Note Agreements and Assumption Agreement,
dated March 29, 1997, for $25,000,000 9.48% Senior
Notes, due June 30, 2003 (incorporated herein by
reference to Form 10-K for the year ended March 29,
1997)
Exhibit 4.11 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 4.12 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 4.13 Second Supplemental Indenture between Marsh
Supermarkets, Inc. and certain of its subsidiaries and
State Street Bank and Trust Company, as trustee, dated
January 28, 2000 (incorporated herein by reference to
Form 10-K for the year ended April 1, 2000)
Exhibit 4.14 Third Supplemental Indenture between Marsh Supermarkets,
Inc. and certain of its subsidiaries and State Street
Bank and Trust Company, as trustee, dated June 22, 2000
(incorporated herein by reference to Form 10-K for the
year ended April 1, 2000)
Exhibit 4.15 Credit Agreement between Marsh Supermarkets, Inc. and
certain of its subsidiaries and The
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Provident Bank, as Agent and Arranger, dated June 23,
2000 (incorporated herein by reference to Form 10-K for
the year ended April 1, 2000)
Exhibit 23 Consent of Ernst & Young LLP
Exhibit 24 Power of Attorney (included on signature page to this
Registration Statement)
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 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.
(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.
(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 of 1933, each filing of
Marsh's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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 of 1933 may be permitted to directors, officers and controlling
persons of Marsh pursuant to the foregoing provisions, or otherwise, Marsh 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 Marsh of expenses incurred or paid
by a director, officer, or controlling person of Marsh 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, Marsh
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, Marsh
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 this 8th day of August, 2000.
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 or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
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 or her
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 the
capacities indicated and on this 8th day of August, 2000.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Don E. Marsh
--------------------------------------
Don E. Marsh Chairman of the Board of
Directors, President and Chief
Executive Officer
/s/ Douglas W. Dougherty
--------------------------------------
Douglas W. Dougherty Senior Vice President, Chief
Financial Officer and Treasurer
/s/ Mark A. Varner
--------------------------------------
Mark A. Varner Vice President - Corporate
Controller
/s/ P. Lawrence Butt
--------------------------------------
P. Lawrence Butt Senior Vice President,
Counsel, Secretary and
/s/ Garnet R. Marsh
--------------------------------------
Garnet R. Marsh Director
</TABLE>
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<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ William L. Marsh
--------------------------------------
William L. Marsh Senior Vice President -
Property Management and
Director
/s/ Catherine A. Langham
--------------------------------------
Catherine A. Langham Director
/s/ Charles R. Clark
--------------------------------------
Charles R. Clark Director
/s/ Stephen M. Huse
--------------------------------------
Stephen M. Huse Director
/s/ James K. Risk III
--------------------------------------
James K. Risk III Director
/s/ K. Clay Smith
--------------------------------------
K. Clay Smith Director
/S/ J. Michael Blakley
--------------------------------------
J. Michael Blakley Director
</TABLE>
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EXHIBIT INDEX
Exhibit 4.1 1999 Outside Directors' Stock Option Plan (incorporated
herein by reference to Exhibit A to Registrant's Proxy
Statement for the Annual Meeting of Shareholders held August
3, 1999)
Exhibit 4.2 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 4.3 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 4.4 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 4.5 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 4.6 Amended and Restated Rights Agreement, dated as of
December 24, 1998, between Marsh Supermarkets, Inc. and
National City Bank, as rights agent (incorporated herein by
reference to Form 8-K, dated December 24, 1998)
Exhibit 4.7 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 4.8 Indenture dated as of February 15, 1993, between Marsh
Supermarkets, Inc. and Society National Bank, as Trustee,
including form of Indenture for $17,500,000 7% Convertible
Subordinated Debentures, due 2003 (incorporated herein by
reference to Registration Statement on Form S-2 (File No.
53-56738))
Exhibit 4.9 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 4.10 Amendment to Note Agreements and Assumption Agreement,
dated March 29, 1997, for $25,000,000 9.48% Senior Notes, due
June 30, 2003 (incorporated herein by reference to Form 10-K
for the year ended March 29, 1997)
Exhibit 4.11 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 4.12 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 4.13 Second Supplemental Indenture between Marsh Supermarkets,
Inc. and certain of its subsidiaries and State Street Bank and
Trust Company, as trustee, dated January 28, 2000
(incorporated herein by reference to Form 10-K for the year
ended April 1, 2000)
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Exhibit 4.14 Third Supplemental Indenture between Marsh Supermarkets,
Inc. and certain of its subsidiaries and State Street Bank and
Trust Company, as trustee, dated June 22, 2000 (incorporated
herein by reference to Form 10-K for the year ended April 1,
2000)
Exhibit 4.15 Credit Agreement between Marsh Supermarkets, Inc. and
certain of its subsidiaries and The Provident Bank, as Agent
and Arranger, dated June 23, 2000 (incorporated herein by
reference to Form 10-K for the year ended April 1, 2000)
Exhibit 23 Consent of Ernst & Young LLP
Exhibit 24 Power of Attorney (included on signature page to this
Registration Statement)
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