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Registration No. 33-15017
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
POST-EFFECTIVE AMENDMENT NO. 10
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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 INCENTIVE 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
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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therein is modified, superseded or replaced by information contained in any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.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of the Company and its
subsidiaries as of February 28, 1997, and February 23, 1996, and for each of the
three years in the period ended February 28, 1997, and the related supplemental
schedules, incorporated herein by reference, have been audited by Deloitte &
Touche, LLP, 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
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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.
(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 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 by registration by means of a post-effective amendment
any of the
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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 14(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.
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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, in the City of Claremont, State of North Carolina, on this 1st day
of July, 1997.
WSMP, INC.
By:/s/David R. Clark*
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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 July 1, 1997.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------- --------
<S> <C>
/s/Richard F. Howard* Chairman of the Board of Directors,
- ----------------------- Secretary of the Corporation
Richard F. Howard
/s/James C. Richardson, Jr.* Vice Chairman of the Board of
- ----------------------- Directors (Principal Executive
James C. Richardson, Jr. 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 Accounting
Matthew V. Hollifield Officer)
Director
- -----------------------
James M. Templeton
Director
- -----------------------
Bobby G. Holman
</TABLE>
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/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 1st day of July, 1997.
WSMP, INC. 1987 INCENTIVE STOCK OPTION PLAN
By: /s/Richard F. Howard*
---------------------------
Richard F. Howard
*By: /s/ James R. Simpson II
-----------------------
James R. Simpson II
Attorney-in-Fact
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
<S> <C> <C>
(4)(a) WSMP, Inc. 1987 Incentive Stock Option Plan, which is *
incorporated by reference from the Registrant's original
Registration Statement, Exhibit 4 thereto.
(4)(b) First Amendment to WSMP, Inc. 1987 Incentive Stock
Option Plan
(5) Opinion and Consent of Simpson Aycock, P.A., incorporated *
by reference from the Registrant's original Registration
Statement, Exhibit 5 thereto.
(23) (a) Consent of Deloitte & Touche, incorporated by *
reference from the Registrant's Annual Report on Form 10-K
for the year ended February 28, 1997, Exhibit 23 thereto.
(b) Consent of Simpson Aycock, P.A., is included with their *
opinion filed as Exhibit (5).
(24) Third Amended Power of Attorney dated July 1, 1997.
</TABLE>
- -------------------
*Incorporated by reference.
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FIRST AMENDMENT
TO
WSMP, INC. 1987 INCENTIVE
STOCK OPTION PLAN
THIS AMENDMENT, dated February 12, 1997 to the WSMP, Inc. 1987
Incentive Stock Option Plan (the "Plan"):
Pursuant to a resolution of its Board of Directors duly adopted on
February 12, 1997, WSMP, Inc. hereby amends the Plan as follows:
1. Section 7(c) is hereby amended by modifying the first two
sentences thereof, which presently read as follows:
Each option granted under this Plan shall become exercisable
only throughout a five (5) year period of continued employment of the
optionee with the Company or a subsidiary corporation of the Company
immediately following the date the option is granted except as provided
in Section 7(h). Any option designated as an ISO and any option not
designated as an ISO that the optionee chooses to exercise in any
manner other than that permitted in Section 7(h), shall be exercisable
only to the extent of one-fifth of the total number of optioned shares
after the expiration of one (1) year following the date the option is
granted, only to the extent of two-fifths of the total number of
optioned shares after the expiration of two (2) years following the
date the option is granted, only to the extent of three-fifths of the
total number of optioned shares after the expiration of three (3) years
following the date the option is granted, only to the extent of
four-fifths of the total number of optioned shares after the expiration
of four (4) years following the date the option is granted, and in full
only after the expiration of five (5) years following the date the
option is granted, such limitations being calculated, in the case of
any
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resulting fraction, to the nearest lower whole number of shares.
so that after amendment, they shall read as follows:
Each option granted under this Plan shall become exercisable
only throughout a five (5) year period of continued employment of the
optionee with the Company or a subsidiary corporation of the Company
immediately following the date the option is granted except as provided
in Sections 7(h) and 7(j). Any option designated as an ISO and any
option not designated as an ISO that the optionee chooses to exercise
in any manner other than that permitted in Sections 7(h) and 7(j),
shall be exercisable only to the extent of one-fifth of the total
number of optioned shares after the expiration of one (1) year
following the date the option is granted, only to the extent of
two-fifths of the total number of optioned shares after the expiration
of two (2) years following the date the option is granted, only to the
extent of three-fifths of the total number of optioned shares after the
expiration of three (3) years following the date the option is granted,
only to the extent of four-fifths of the total number of optioned
shares after the expiration of four (4) years following the date the
option is granted, and in full only after the expiration of five (5)
years following the date the option is granted, such limitations being
calculated, in the case of any resulting fraction, to the nearest lower
whole number of shares.
2. Section 7 is hereby amended by the addition of a new
subsection (j), which shall read as follows:
(j) The committee may, in the Committee's sole discretion,
accelerate the vesting schedule for
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outstanding options, or designate outstanding options to be immediately
exercisable in full,
3. This amendment shall be effective as of the 12th day of
February, 1997, nunc pro tunc.
4. As herein modified, the Plan shall remain in full force and
effect.
This the 12th day of February, 1997.
WSMP, INC.
BY: /s/ David R. Clark
-------------------------
--------- President
ATTEST:
/s/ Richard F. Howard
- -----------------------
- -------- Secretary
(corporate seal)
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NORTH CAROLINA
THIRD AMENDED
CATAWBA COUNTY POWER OF ATTORNEY
WHEREAS, WSMP, Inc., a North Carolina corporation, hereinafter referred
to as the "Company", the WSMP, Inc. 1987 Incentive Stock Option Plan,
hereinafter referred to as the "Plan", and certain of the Company's Officers and
Directors, did on May 22, 1987, execute a Power of Attorney to individually
appoint Marshall E. Digh, Charles F. Connor, Jr., and Dan R. Simpson, and each
of them, the agent and attorney-in-fact for each of them, to execute and
deliver, for and on behalf of each of them, a Registration Statement 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; and
WHEREAS, the Registration Statement was duly filed on June 12, 1987,
as Registration No. 33-15017; and
WHEREAS, that since the execution of said Power of Attorney, an
Amendment to Power of Attorney dated August 29, 1988, has been executed and
filed in Post-Effective Amendment to the Registration Statement; and
WHEREAS, since the execution of said Amendment, a Second Amended Power
of Attorney dated June 23, 1994 has been executed and filed in a Post-Effective
Amendment to the Registration Statement; and
WHEREAS, that since the execution of said Second Amended Power of
Attorney, the Officers and Directors of WSMP, Inc. have changed which therefore
necessitates the execution of this Third Amended Power of Attorney;
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NOW, THEREFORE
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 Incentive 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, any and all amendments and post-effective amendments to the
Registration Statement on Form S-8 for Registration No. 33-15017.
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 26th day of June, 1997.
WSMP, INC.
By: David R. Clark
-----------------------
------ President
ATTEST:
/s/ Richard F. Howard
- -----------------------
- --------- Secretary
(corporate seal)
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WSMP, INC.
1987 INCENTIVE STOCK OPTION PLAN
By: /s/ Richard F. Howard
----------------------------------
Chairman of the Board of Directors
/s/ Richard F. Howard /s/ James C. Richardson
- ---------------------------- ----------------------------------
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)
Lewis C. Lanier
- --------------------------- ----------------------------------
James M. Templeton, Director Lewis C. Lanier, Director
Richard F. Hendrickson William R. McDonald
- --------------------------- ----------------------------------
Richard F. Hendrickson, William R. McDonald, Director
Director
E. Edwin Bradford
- --------------------------- ----------------------------------
E. Edwin Bradford, Director Bobby G. Holman, Director
STATE OF NORTH CAROLINA
COUNTY OF CATAWBA
I, Martha J. Stewart, Notary Public for said County and State,
certify that Richard F. Howard personally appeared before me this day and
acknowledged that he is _______ Secretary of WSMP, Inc., a North Carolina
corporation, and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by David R. Clark,
its ______President, sealed with its corporate seal and attested by him as its
Secretary.
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Witness my hand and seal, this the 1st day of July, 1997.
Martha J. Stewart
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NOTARY PUBLIC
My Commission Expires: 6-1-2001
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STATE OF NORTH CAROLINA
COUNTY OF CATAWBA
I, Martha J. Stewart, a Notary Public, do hereby certify that the
aforesaid individuals personally appeared before me this day and acknowledged
the due execution of the foregoing instrument for the purposes therein
contained.
Witness my hand and seal, this 1st day of July, 1997.
Martha J. Stewart
-----------------------------
Notary Public
My commission expires: 6-1-2001
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