<PAGE> 1
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
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. 1987 SPECIAL STOCK OPTION PLAN
(Full Title of Plan)
MATTHEW V. HOLLIFIELD
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
(704)437-9744
----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================
Title of Proposed Maximum Proposed Amount of
Securities to Amount to Offering Price Maximum Aggregate Registration
be Registered be Registered Per Share(1) Offering Price(1) Fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 612,500 $12.50 7,656,250 $2,393.00
============================================================================================
</TABLE>
(l) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee based upon the mean of the closing bid and asked
quotations for the Common Stock on June 7, 1997, as reported by NASDAQ.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The 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 CERTAIN 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therein is modified, superseded or replaced by information contained in any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 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports
referred to in (1), 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 the filing
of a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters 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. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
2
<PAGE> 3
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
believed 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 party 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
3
<PAGE> 4
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
5 Opinion and Consent of Simpson Aycock, P. A.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Simpson Aycock, P.A., is included with their
opinion filed as Exhibit 5.
24 Power of attorney of certain officers and directors of
the Registrant.
99 WSMP, Inc. 1987 Special Stock Option Plan (restated
as of May 15, 1997).
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:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act of 1993;
(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;
(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
4
<PAGE> 5
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 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 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.
(c) 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.
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
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 11th day
of June, 1997.
WSMP, INC.
By: /s/ David R. Clark*
-----------------------------
David R. Clark
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 June 11, 1997.
Signature Capacity
--------- --------
/s/ Richard F. Howard* Chairman of the Board of
- -------------------------------- Directors, Secretary of the
Richard F. Howard Corporation
/s/ James C. Richardson, Jr.* Vice Chairman of the Board
- -------------------------------- of Directors
James C. Richardson, Jr. (Principal Executive Officer)
/s/ David R. Clark* President and Director
- -------------------------------- (Principal Operating Officer)
David R. Clark
/s/ Matthew V. Hollifield* Vice-President of Finance
- -------------------------------- (Principal Financial and
Matthew V. Hollifield Accounting Officer)
/s/ James M. Templeton* Director
- --------------------------------
James M. Templeton
/s/Bobby G. Holman* Director
- --------------------------------
Bobby G. Holman
6
<PAGE> 7
/s/ William R. McDonald* Director
- --------------------------------
William R. McDonald
/s/ Lewis C. Lanier* Director
- --------------------------------
Lewis C. Lanier
/s/ Richard F. Hendrickson* Director
- --------------------------------
Richard F. Hendrickson
/s/ E. Edwin Bradford* Director
- --------------------------------
E. Edwin Bradford
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 11th day of June, 1997.
WSMP, INC. 1987 SPECIAL STOCK OPTION PLAN
By: /s/ Richard F. Howard*
---------------------------------
Richard F. Howard
*
by: /s/ J. R. Simpson II
----------------------------
J. R. Simpson II
Attorney in Fact
7
<PAGE> 8
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
5 Opinion and Consent of Simpson
Aycock, P.A.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Simpson Aycock, P. A., is
included with their opinion filed as
Exhibit 5.
24 Power of Attorney of certain
officers and directors of the
Registrant.
99 WSMP, Inc. 1987 Special Stock Option
Plan (Restated as of May 15, 1997).
8
<PAGE> 1
EXHIBIT 5
[Simpson Aycock, P.A. letterhead]
June 12, 1997
WSMP, Inc.
P. O. Box 399
Claremont, North Carolina 28610
Re: Registration Statement on Form S-8
WSMP, Inc. 1987 Special Stock Option Plan
Gentlemen:
We have represented WSMP, Inc. (the "Company") in connection with the
Company's offering of participation in its WSMP, Inc. 1987 Special Stock Option
Plan (the "Plan") and the offer for sale thereunder of 612,500 shares of its
Common Stock (such shares hereinafter being referred to collectively as the
"Shares"). We have assisted the Company in the preparation of a registration
statement on Form S-8 under the Securities Act of 1933, as amended (the "Act"),
filed with the Securities and Exchange Commission on June 12, 1997, (the
"Registration Statement"). This option is being rendered pursuant to the
requirements of Item 8 of Form S-8 and Rule 601(a) and Rule 601(b)(5) of
Regulation S-K under the Act.
We have examined and are familiar with the records relating to the
organization of the Company, including its certificate of incorporation, bylaws
and all amendments thereto, and the records of all proceedings taken by the
Board of Directors and shareholders of the Company pertinent to the rendering of
this opinion.
Based on the foregoing, and having regard for such legal considerations
as we deem relevant it is our opinion that, when sold pursuant to the provisions
of the Plan, the Shares will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Yours very truly,
SIMPSON AYCOCK, P.A.
James R. Simpson II
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
WSMP, Inc. on Form S-8 of our report dated May 19, 1997, appearing in and
incorporated by reference in the Annual Report on Form 10-K of WSMP, Inc. for
the year ended February 28, 1997.
DELOITTE & TOUCHE LLP
Hickory, North Carolina
June 11, 1997
<PAGE> 1
EXHIBIT 24
NORTH CAROLINA
CATAWBA COUNTY POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned corporation, being
WSMP, Inc., a North Carolina corporation, hereinafter referred to as the
"Company", the WSMP, Inc. 1987 Special Stock Option Plan, hereinafter referred
to as the "Plan", and the undersigned individuals, do hereby in the capacity
shown below, individually appoint David R. Clark, Matthew V. Hollifield, and
James R. Simpson II, and each of them, the agent and attorney-in-fact for each
of the undersigned, to execute and deliver, for and on behalf of the
undersigned, a Registration Statement to be filed by the Company in 1997 on Form
S-8, with the Securities and Exchange Commission pursuant to the provisions of
the Securities Act of 1933, as amended, and covering the Company's registration
of the Plan and 625,000 shares of its common stock, and any and all amendments
and post-effective amendments to such Registration Statement.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original, but which taken together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned corporation has caused this Power
of Attorney to be signed in its corporate name by its President and attested by
its Secretary and its corporate seal to be hereunto affixed, the Plan has caused
this Power of Attorney to be signed by a member of its administering Committee
hereunto duly authorized, and the undersigned individuals have set their hands
and seals to the foregoing Power of Attorney, this 15th day of May, 1997.
<PAGE> 2
WSMP, INC.
By: /s/ David R. Clark
------------------------------
President
-------
ATTEST:
/s/Richard F. Howard
- ----------------------------
Secretary
(corporate seal)
WSMP, INC.
1987 SPECIAL STOCK OPTION PLAN
By: /s/ Richard F. Howard
-----------------------------------
Chairman of the Board of Directors
/s/ Richard F. Howard /s/ James C. Richardson, Jr.
- ----------------------------------- ------------------------------------
Richard F. Howard, Chairman James C. Richardson, Jr., Vice
of the Board of Directors, Chairman of the Board of Directors
Secretary of the Company (Principal Executive Officer)
/s/ Matthew V. Hollifield /s/ David R. Clark
- ----------------------------------- ------------------------------------
Matthew V. Hollifield, Vice David R. Clark, President and
President of Finance Director
(Principal Accounting Officer, (Principal Operating Officer)
Principal Financial Officer)
/s/ James M. Templeton /s/ Lewis C. Lanier
- ----------------------------------- ------------------------------------
James M. Templeton, Director Lewis C. Lanier, Director
/s/ Richard F. Hendrickson /s/ William R. McDonald
- ----------------------------------- ------------------------------------
Richard F. Hendrickson, William R. McDonald, Director
Director
/s/ E. Edwin Bradford /s/ Bobby G. Holman
- ----------------------------------- ------------------------------------
E. Edwin Bradford, Director Bobby G. Holman, Director
<PAGE> 1
EXHIBIT 99
WSMP, INC.
1987 SPECIAL STOCK OPTION PLAN
(RESTATED AS OF MAY 15, 1997)
A. PURPOSE AND SCOPE
The purposes of this Plan are to provide a vehicle for the granting of
nonstatutory stock options to members of management of WSMP, Inc. (herein called
the "Company") under circumstances where participation under the Company's Stock
Option Plan is restricted or not allowed, to provide an incentive for such
persons to expand and improve the profits and prosperity of the Company through
the grant of Options to purchase shares of the Company's common stock.
B. DEFINITIONS
Unless otherwise required by the context:
1. "Board" shall mean the Board of Directors of the Company.
2. "Committee" shall mean the Executive Compensation Committee, which
is appointed by the Board, and which shall be composed of three members of the
Board.
3. "Company" shall mean WSMP, Inc., a North Carolina corporation.
4. "Code" shall mean the Internal Revenue Code of 1954, as amended.
5. "Option" shall mean a right to purchase Stock, granted pursuant to
the Plan.
6. "Option Price" shall mean the purchase price for Stock under an
Option, as determined in Section F below.
7. "Participant" shall mean an employee of the Company, or of any
Subsidiary of the Company, to whom an Option is granted under the Plan.
8. "Plan" shall mean this WSMP, Inc. 1987 Special Stock Option Plan.
9. "Stock" shall mean the common stock of the Company.
<PAGE> 2
C. STOCK TO BE OPTIONED
Subject to the provisions of Section K of the Plan, the maximum number
of shares of Stock that may be optioned or sold under the Plan is 500,000
shares. Such shares may be treasury, or authorized, but unissued, shares of
Stock of the Company.
D. ADMINISTRATION
The Plan shall be administered by the Committee. Two members of the
Committee shall constitute a quorum for the transaction of business. The
Committee shall be responsible to the Board for the operation of the Plan, and
shall make recommendations to the Board with respect to the granting of options
to management and others in special situations. The interpretation and
construction of any provision of the Plan by the Committee shall be final,
unless otherwise determined by the Board. No member of the Board or the
Committee shall be liable for any action or determination made by him in good
faith.
E. ELIGIBILITY
The Board, upon recommendation of the Committee, may grant Options to
any key management employee (including an employee who is a director or an
officer) of the Company or any other person who may not be an employee but may
be substantially involved in the operation and anticipated successes of the
Company. Options may be awarded by the Board at any time and from time to time
as the Board, upon recommendation by the Committee, shall determine. Options
granted at different times need not contain similar provisions.
F. OPTION PRICE
The purchase price for Stock under each Option shall be one hundred
percent (100%) of the fair market value of the Stock at the time the Option is
granted, but in no event less than the par value of the Stock.
Page 2
<PAGE> 3
G. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Plan shall be authorized by the Board
and shall be evidenced by agreement in such form as the Board, upon
recommendation of the Committee, shall from time to time approve. Such
agreements shall comply with and be subject to the following terms and
conditions.
1. Time and Method of Payment. The Option Price shall be paid
in full in cash at the time an Option is exercised under the Plan.
Otherwise, an exercise of any Option granted under the Plan shall be
invalid and of no effect. Promptly after the exercise of an Option and
the payment of the full Option Price, the Participant shall be entitled
to the issuance of a stock certificate evidencing his ownership of such
of Stock. A Participant shall have none of the rights of a shareholder
until shares are issued to him, and no adjustment will be made for
dividends or other rights for which the record date is prior to the
date such stock certificate is issued.
2. Number of Shares. Each Option shall state the total number
of shares of Stock to which it pertains.
3. Stock Period and Limitations on Exercise of Options. The
Board may, in its discretion, provide that an Option may not be
exercised in whole or in part for any period or periods of time
specified in the Option Agreement. Except as provided in the Option
Agreement, an Option may be exercised in whole or in part at any time
during its term. No Option may be exercised after the expiration of ten
years from date it is granted. No option may be exercised for a
fractional shares of Stock.
4. Continued Employment or Dealing. No such agreement shall
impose upon the Company any obligation to employ a Participant for any
period of time or continue such participant's substantial involvement
with the Company for any period of time.
Page 3
<PAGE> 4
H. RIGHTS IN EVENT OF DEATH.
If a Participant dies without having fully exercised his Options, the
executors or administrators, or legatees or heirs, of his estate shall have the
right to exercise such Options to the extent that such deceased Participant was
entitled to exercise the Options on the date of his death; provided, however,
that in no event shall the Options be exercisable more than ten years from the
date they were granted.
I. NO OBLIGATIONS TO EXERCISE OPTION.
The granting of an Option shall impose no obligation upon the
Participant to exercise such Option.
J. ASSIGNABILITY
Options may be transferred by a Participant during that Participant's
lifetime, with the prior written consent of the Board. Options may be
transferable by will or by the laws of descent and distribution as set out
elsewhere herein.
K. EFFECTS OF CHANGE IN STOCK SUBJECT TO THE PLAN
The aggregate number of shares of Stock available for Options
under the Plan, the shares subject to any Option, and the price per share shall
all be proportionately adjusted for any increase or decrease in the number of
issued shares of Stock subsequent to the effective date of the Plan resulting
from (1) a subdivision or consolidation of shares or any other capital
adjustment, (2) the payment of a stock dividend, or (3) other increase or
decrease in such shares effected without receipt of consideration by the
Company. If the Company shall be the surviving corporation in any merger or
consolidation, any option shall pertain, apply, and relate to the securities to
which a holder of the number of shares of Stock subject to the Option would have
been entitled after the merger or consolidation. Upon dissolution or liquidation
of the Company, or upon a merger or consolidation in which the Company is not
the surviving corporation, all Options outstanding under the
Page 4
<PAGE> 5
Plan shall terminate; provided, however, that each Participant (and each other
person entitled under Section H to exercise an Option) shall have the right,
immediately prior to such dissolution or liquidation, or such merger or
consolidation, to exercise such Participant's Options in whole or in part, but
only to the extent that such Options are otherwise exercisable under the terms
of the Plan.
L. AMENDMENT AND TERMINATION
The Board, by resolution, may terminate, amend, or revise the Plan with
respect to any shares as to which Options have not been granted. Neither the
Board nor the Committee may, without the consent of the holder of an Option,
alter or impair any Option previously granted under the Plan, except as
authorized herein. Unless sooner terminated, the Plan shall remain in effect for
a period of ten years from the date of the Plan's adoption by the Board.
Termination of the Plan shall not affect any Option previously granted.
M. AGREEMENT AND REPRESENTATION OF PARTICIPANTS
As a condition to the exercise of any portion of an Option,
the Company may require the person exercising such Option to represent and
warrant at the time of such exercise that any shares of Stock acquired at
exercise are being acquired only for investment and without any present
intention to sell or distribute such shares, if, in the opinion of counsel for
the Company, such a representation is required under the Securities Act of 1933
or any other applicable law, regulation, or rule of any governmental agency.
N. RESERVATION OF SHARES OF STOCK
The Company, during the term of this Plan, will at all times reserve
and keep available, and will seek or obtain from any regulatory body having
jurisdiction any requisite authority necessary to issue and to sell, the number
of shares of Stock that
Page 5
<PAGE> 6
shall be sufficient to satisfy the requirements of this Plan. The inability of
the Company to obtain from any regulatory body having jurisdiction the authority
deemed necessary by counsel for the Company for the lawful issuance and sale of
its Stock hereunder shall relieve the Company of any liability in respect of the
failure to issue or sell Stock as to which the requisite authority has not been
obtained.
O. EFFECTIVE DATE OF PLAN
The Plan shall be effective from the date that the Plan is approved by
the Board.
WSMP, INC.
By: /s/ David R. Clark
--------------------------------
President
ATTEST:
/s/ Richard F. Howard
- ------------------------------
Secretary
(corporate seal)
As amended by First Amendment dated March 9, 1989.
As amended by Second Amendment dated May 15, 1997.
Page 6
