<PAGE>
As filed with the Securities and Exchange Commission on November 15, 1995
Registration No. 33-________
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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NASH-FINCH COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 41-0431960
(State of incorporation) (I.R.S. Employer
Identification No.)
--------------------
7600 FRANCE AVENUE SOUTH
P.O. BOX 355
MINNEAPOLIS, MINNESOTA 55440-0355
(612) 832-0534
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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1995 DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
--------------------
NORMAN R. SOLAND
7600 FRANCE AVENUE SOUTH
P.O. BOX 355
MINNEAPOLIS, MINNESOTA 55440-0355
(612) 832-0534
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to the public:
Immediately upon the filing of this Registration Statement
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $1.66 2/3
par value. . . . . 40,000 shares $17.92 $716,800 $145
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement includes an
indeterminate number of additional shares as may be issuable as a result
of anti-dilution provisions described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee and calculated as follows: (i) with respect to options to
purchase shares previously granted under the plan, on the basis of the
weighted average exercise price of such option grants and (ii) with respect
to options to be granted under the plan, on the basis of the average between
the high and low reported sales prices of the Registrant's Common Stock on
November 9, 1995 on the national over-the-counter market, as reported by
the NASDAQ National Market System.
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<PAGE>
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference in this Registration
Statement: (1) the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (File No. 0-785); (2) all other reports filed by the
Company pursuant to Sections 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since December 31, 1994; (3) the
description of the Company's Common Stock contained in its Registration
Statement on Form 10 (File No. 0-785); and (4) the description of the common
stock purchase rights contained in the Company's Registration Statement on
Form 8-A (File No. 0-785), including any amendments or supplements.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all shares of Common Stock offered pursuant to this
Registration Statement have been sold or that deregisters all shares of
Common Stock then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
The financial statements of the Company incorporated by reference in this
Registration Statement have been audited by KPMG Peat Marwick LLP,
independent certified public accountants, for the periods indicated in their
reports thereon which reports are incorporated by reference in the Annual
Report on Form 10-K for the year ended December 31, 1994. The financial
statements audited by KPMG Peat Marwick LLP have been incorporated herein by
reference in reliance on their reports given on their authority as experts in
accounting and auditing. To the extent that Ernst & Young LLP, independent
certified public accountants, audit and report on the financial statements of
the Company issued at future dates, and consent to the use of their reports
thereon, such financial statements will also be incorporated by reference in
the Registration Statement in reliance upon their reports and said authority.
Item 4. DESCRIPTION OF SECURITIES.
The description of the Company's Common Stock to be offered pursuant to
this Registration Statement has been incorporated by reference into this
Registration Statement as described in Item 3
of this Part II.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law provides generally that a
person sued as a director, officer, employee or agent of a corporation may be
indemnified by the corporation in
2
<PAGE>
nonderivative suits for expenses (including attorney's fees), judgments,
fines and amounts paid in settlement if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful.
Indemnification of expenses (including attorney's fees) is authorized in
stockholder derivative suits where such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the corporation and so long as he had not been found liable to the
corporation. Even in this latter instance, the court may determine that in
view of all the circumstances such person is entitled to indemnification for
such expenses as the court deemed proper. Section 145 contains detailed terms
regarding such right of indemnification and reference is made thereto for a
complete statement of such indemnification rights.
Article XV of the Company's Restated Certificate of Incorporation, as
amended, provides that no director of the Company shall be personally liable
to the Company or its stockholders for monetary damages for breach of
fiduciary duty by such director as a director; provided, however, that
personal liability shall not be eliminated or limited to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of Delaware, dealing with
the unlawful payment of dividends or unlawful stock purchases or redemptions,
or (iv) for any transaction in which the director received an improper
personal benefit. In addition, the personal liability of directors is further
limited to the fullest extent permitted by the General Corporation Law of
Delaware, as amended from time to time.
Article V of the Company's Restated Bylaws, as amended (the "Bylaws"),
provides that directors, officers and employees, past or present, of the
Company, and persons serving as such of another corporation or entity at the
request of the Company, shall be indemnified by the Company against
reasonable expenses incurred in connection with or resulting from any claim,
action, suit or proceeding, civil or criminal, in which such person may be
involved by reason of any action taken or not taken in such person's capacity
as a director, officer or employee of the Company, provided that such person
acted in good faith in what was reasonably believed to be in the best
interests of the Company, and, with respect to criminal proceedings,
reasonably believed that such conduct was lawful. Article V of the Bylaws
further provides that directors, officers and employees will be indemnified
to the fullest extent permitted by Delaware law.
The Company maintains directors' and officers' liability insurance,
including a reimbursement policy in favor of the Company. The Company has
also entered into indemnification agreements with each of its directors
providing such directors with indemnification to the fullest extent permitted
by the General Corporation Law of Delaware.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
No securities are to be reoffered or resold pursuant to this Registration
Statement.
Item 8. EXHIBITS.
4.1 Restated Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 28, 1985 (File No. 0-785)).
3
<PAGE>
4.2 Amendment to Restated Certificate of Incorporation, effective May 29,
1986 (incorporated by reference to Exhibit 19.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended October 4, 1986
(File No. 0-785)).
4.3 Amendment to Restated Certificate of Incorporation, effective May 15,
1987 (incorporated by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-3 (File No. 33-14871)).
4.4 Amended Bylaws of the Company (incorporated by reference to Exhibit
3(ii).1 to the Company's Quarterly Report on Form 10-Q for the period
ended June 17, 1995 (File No. 0-785)).
4.5 Specimen Form of the Company's Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 30, 1989 File No. 0-785)).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly (filed herewith).
23.1 Consent of Oppenheimer Wolff & Donnelly (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP (filed herewith).
24.1 Power of Attorney (included on page 6 of this Registration Statement).
99.1 1995 Director Stock Option Plan (incorporated by reference to Exhibit
10.2 to the Company's Quarterly Report on Form 10-Q for the period ended
June 17, 1995 (File No. 0-785)).
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 1933;
(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, represents 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.
4
<PAGE>
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 by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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
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 an
employee benefit 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, except
as to certain insurance policies, 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>
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 Minneapolis, State of Minnesota, on
November 7, 1995.
NASH FINCH COMPANY
By /s/ Norman R. Soland
_____________________________________
Norman R. Soland
Vice President, Secretary
and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Alfred N. Flaten and Norman R. Soland
and each or any one of them, his true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each
and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do
or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on November 7,
1995 in the capacities indicated.
SIGNATURE TITLE
--------- -----
/s/ Alfred N. Flaten President and Chief Executive Officer
_____________________________________ (Principal Executive Officer)
Alfred N. Flaten and Director
/s/ Robert F. Nash Vice President and Treasurer
_____________________________________ (Principal Financial Officer)
Robert F. Nash and Director
/s/ Lawrence A. Wojtasiak Controller (Principal
_____________________________________ Accounting Officer)
Lawrence A. Wojtasiak
6
<PAGE>
/s/ Allister P. Graham
_____________________________________ Director
Allister P. Graham
/s/ Richard G. Lareau
_____________________________________ Director
Richard G. Lareau
/s/ Jerome O. Rodysill
_____________________________________ Director
Jerome O. Rodysill
/s/ Russell N. Mammel
_____________________________________ Director
Russell N. Mammel
/s/ Donald R. Miller
_____________________________________ Director
Donald R. Miller
/s/ Carole F. Bitter
_____________________________________ Director
Carole F. Bitter
/s/ Richard A. Fisher
_____________________________________ Director
Richard A. Fisher
_____________________________________ Director
John H. Grunewald
/s/ Don E. Marsh
_____________________________________ Director
Don E. Marsh
7
<PAGE>
INDEX TO EXHIBITS
EXHIBIT PAGE
- ------- ----
4.1 Restated Articles of Incorporation of
the Company (incorporated by reference
to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the fiscal year
ended December 28, 1985 (File No. 0-785)).
4.2 Amendment to Restated Certificate of
Incorporation, effective May 29, 1986
(incorporated by reference to Exhibit 19.1
to the Company's Quarterly Report on
Form 10-Q for the quarter ended October 4,
1986 (File No. 0-785)).
4.3 Amendment to Restated Certificate of
Incorporation, effective May 15, 1987
(incorporated by reference to Exhibit 4.5
to the Company's Registration Statement
on Form S-3 (File No. 33-14871)).
4.4 Amended Bylaws of the Company (incorporated by
reference to Exhibit 3(ii).1 to the Company's
Quarterly Report on Form 10-Q for the period
ended June 17, 1995 (File No. 0-785)).
4.5 Specimen Form of the Company's Common Stock
Certificate (incorporated by reference to
Exhibit 4.1 to the Company's Annual Report
on Form 10-K for the fiscal year ended
December 30, 1989 (File No. 0-785)).
5.1 Opinion and Consent of Oppenheimer
Wolff & Donnelly ............................... Filed herewith.
23.1 Consent of Oppenheimer Wolff & Donnelly
(included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP................ Filed herewith.
24.1 Power of Attorney (included on page 6
of this Registration Statement).
99.1 1995 Director Stock Option Plan (incorporated by
reference to Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the period
ended June 17, 1995 (File No. 0-785)).
E-1
<PAGE>
EXHIBIT 5.1
November 15, 1995
Nash-Finch Company
7600 France Avenue South
P.O. Box 355
Minneapolis, Minnesota 55440-0355
RE: REGISTRATION STATEMENT ON FORM S-8
1995 DIRECTOR STOCK OPTION PLAN
Ladies and Gentlemen:
We have acted as counsel to Nash-Finch Company, a Delaware corporation (the
"Company"), in connection with the registration by the Company of 40,000 shares
of its Common Stock, $1.66 2/3 par value (the "Shares"), pursuant to the
Company's Registration Statement on Form S-8 for the Company's 1995 Director
Stock Option Plan (the "1995 Director Plan"), to be filed with the Securities
and Exchange Commission on November 15, 1995 (the "Registration Statement").
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of natural persons and the conformity to original documents of
all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations set
forth herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in the
manner and under the terms set forth in the Registration Statement.
<PAGE>
2. The Shares have been duly authorized and, when issued, delivered and
paid for in accordance with the 1995 Director Plan referred to in the
Registration Statement, will be validly issued, fully paid and
nonassessable.
We express no opinion with respect to laws other than the General Corporate Laws
of the State of Delaware and the federal laws of the United States of America,
and we assume no responsibility as to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY
<PAGE>
[PEAT MARWICK LLP LETTERHEAD]
The Board of Directors
Nash Finch Company:
We consent to incorporation by reference in the registration statement on Form
S-8 of Nash Finch Company of our reports dated March 3, 1995, relating to the
consolidated balance sheets of Nash Finch Company and subsidiaries as of
December 31, 1994 and January 1, 1994, and the related consolidated statements
of earnings, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1994, and the related consolidated
financial statement schedule, which reports are included or incorporated by
reference in the December 31, 1994, annual report on Form 10-K of Nash Finch
Company.
KPMG Peat Marwick LLP
Minneapolis, Minnesota
November 15, 1995
