Registration No. 33-79014
============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------
WSMP, INC.
(exact name of Registrant as specified in its charter)
POST OFFICE BOX 399
CLAREMONT, NORTH CAROLINA 28610
(704) 459-7626
(address and telephone number of
Registrant's principal executive offices)
NORTH CAROLINA 56-0945643
(State of Incorporation) (I.R.S. Employer
Identification No.)
WSMP, INC. 1994 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
------------------------------
BOB G. HOLMAN
WSMP, Inc.
P.O. Box 399
Claremont, North Carolina 28610
(704) 459-7626
(Name, address, and telephone number of agent for service of process.)
Copy to:
J. R. SIMPSON II
Simpson Aycock, P.A.
204 East McDowell Street
Morganton, North Carolina 28655
============================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information required by Part I of Form S-8 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, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
----------------------------------------
The following documents filed by WSMP, Inc. ("WSMP") with the Securities and
Exchange Commission are incorporated in this Registration Statement by
reference, except to the extent that any statement or information therein is
modified, superseded or replaced by information contained in any other
subsequently filed document incorporated by reference.
1.The Registrant's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
2.All other reports filed pursuant to Section 13(a) or l5(d) of the Exchange
Act since the end of the fiscal year covered by the annual reports referred to
in (l), above.
3.The description of the common stock of the Registrant (the "Common Stock")
contained in a Registration Statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant or the Plan pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to filing of a
post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisteres all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
--------------------------
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
The consolidated financial statements of the Company and its subsidiaries as
of February 23, 1996, and February 24, 1995, and for each of the three years in
the period ended February 23, 1996, and the related supplemental schedules,
incorporated herein by reference, have been audited by Deloitte & Touche,
independent auditors, as stated in their reports which are incorporated herein
by reference, and have been so incorporated in reliance upon such reports given
upon the authority of that firm as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
------------------------------------------
There are no provisions in the Registrant's Restated Articles of
Incorporation, and no contracts between the Registrant and its directors and
officers nor resolutions adopted by the Registrant, relating to indemnification.
However, in accordance with the provisions of the North Carolina Business
Corporation Act (the "Act"), the Registrant has by resolution of its Board of
Directors provided that, in addition to the indemnification of directors and
officers otherwise provided by the Act, the Registrant shall to the fullest
extent allowed by law, indemnify its directors, executive officers and certain
other designated officers against any and all liability and litigation expenses,
including reasonable attorney's fees, arising out of their status or activities
as directors or officers, except for liability or litigation expense incurred
on account of activities that were at the time known or reasonably should have
been known by such director or officer to be clearly in conflict with the best
interests of the Registrant. As authorized by statute, the Registrant also
maintains insurance on behalf of its directors and officers against liability
asserted against such persons in such capacity whether or not such directors or
officers have the right to indemnification pursuant to statute, resolution or
otherwise.
In addition to the above-described provisions, Section 55-8-50 through 55-8-58
of the Act contain provisions prescribing the extent to which directors and
officers shall or may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a present or former director
against liability if (i) he conducted himself in good faith, (ii) he reasonably
believes that his conduct in his official capacity with the corporation was in
its best interests and in all other cases his conduct was at least not opposed
to the corporation's best interest, and (iii) in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful. A
corporation may not indemnify a current or former director in connection with a
proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with a proceeding charging
improper personal benefit to him. The above standard of conduct is determined
by the Board of Directors, or a committee thereof or special legal counsel or
the shareholders as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the Act require a corporation to indemnify a
director or officer in the defense of any proceeding to which he was a part
because of his capacity as a director or officer against reasonable expenses
when he is wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court may order
indemnification of the director or officer if he is adjudged fairly and
reasonably so entitled under Section 55-8-54. Section 55-8-56 allows a
corporation to indemnify and advance expenses to an officer employee or agent
who is not a director to the same extent as a director or as otherwise set forth
in the corporation's articles of incorporation or bylaws or by resolution of the
Board of Directors.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf
of these individuals.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
ITEM 8. EXHIBITS.
---------
The exhibits filed herewith are set forth on the Exhibit Index filed as part
of this Registration Statement.
ITEM 9. UNDERTAKINGS.
-------------
(1) The undersigned Registrant hereby undertakes (a) 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; (b)
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 (c) 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.
(2) 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 l934 (and, where applicable, each filing of the
Plan's annual report pursuant to Section 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.
(3) 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 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.
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 Claremont, State of North Carolina, on this 10th day
of July, 1996.
WSMP, INC.
By: /s/ JAMES C. RICHARDSON, JR.*
-------------------------------
President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
on July 10, 1996.
SIGNATURE CAPACITY
- --------- --------
/s/ JAMES C. RICHARDSON, JR.* President and Director
- ------------------------------
James C. Richardson, Jr. (Principal Executive Officer)
/s/ BOBBY G. HOLMAN* Treasurer and Director
- ------------------------------
Bobby G. Holman (Principal Financial Officer)
/s/ MATTHEW V. HOLLIFIELD Vice President of Accounting
- ------------------------------
Matthew V. Hollifield (Principal Accounting Officer)
/s/ RICHARD F. HOWARD* Secretary and Director
- ------------------------------
Richard F. Howard
/s/ JAMES M. TEMPLETON* Director
- ------------------------------
James M. Templeton
/s/ WILLIAM R. MCDONALD* Director
- ------------------------------
William R. McDonald III
/s/ LEWIS C. LANIER* Director
- ------------------------------
Lewis C. Lanier
/s/ RICHARD F. HENDRICKSON* Director
- ------------------------------
Richard F. Hendrickson
/s/ E. EDWIN BRADFORD* Director
- ------------------------------
E. Edwin Bradford
/s/ MILES M. ALDRIDGE* Director
- ------------------------------
Miles M. Aldridge
Pursuant to the requirements of the Securities Act of 1933, the Plan has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Claremont, State of North
Carolina, on the 10th day of July, 1996.
WSMP, INC. 1994 EMPLOYEE STOCK PURCHASE PLAN
By: /s/ JAMES C. RICHARDSON, JR.*
-------------------------------
James C. Richardson, Jr.
*By: /s/ JAMES R. SIMPSON II
-------------------------
James R. Simpson II
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
------- ------- -------------
4(a) WSMP, Inc. 1994 Employee Stock Purchase Plan, which *
is incorporated by reference from the Registrant's
original Registration Statement, Exhibit 4(c) thereto.
4(b) Amendment to WSMP, Inc. Employee Stock Purchase *
Plan, dated as of May 10, 1995.
4(c) Second Amendment to WSMP, Inc. Employee Stock *
Purchase Plan, dated as of August 30, 1995.
4(d) Declaration of Trust for the WSMP, Inc. 1994 Employee *
Stock Purchase Plan, which is incorporated by reference
from the Registrant's original Registration Statement,
Exhibit 4(d) thereto.
5 Opinion and Consent of Simpson Aycock, P.A., which is *
incorporated by reference from the Registrant's original
Registration Statement, Exhibit 5 thereto.
23(a) Consent of Deloitte & Touche, which is incorporated by *
reference from the Registrant's Annual Report on Form
10-K for the year ended February 23, 1996, Exhibit 23
thereto.
23(b) Consent of Simpson, Aycock, P.A., is included with *
their opinion filed as Exhibit (5).
24(a) Power of Attorney of certain officers and directors of *
the Registrant, dated April 11, 1994, which is
incorporated by reference from the Registrant's original
Registration Statement, Exhibit 25 thereto; and Amendment
to Power of Attorney dated July 15, 1994, which is
incorporated by reference from Post-Effective Amendment
No. 1 to the Registrant's Registration Statement,
Exhibit 25(b) thereto.
---------------------------
*Incorporated by reference.
