<PAGE>
As filed with the Securities and Exchange Commission on June 23, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
NASH-FINCH COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 41-0431960
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7600 FRANCE AVENUE SOUTH
P.O. BOX 355 55440-0355
MINNEAPOLIS, MINNESOTA
(Address of Principal Executive Offices) (Zip Code)
----------------------
NASH-FINCH COMPANY 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
----------------------
NORMAN R. SOLAND
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
NASH-FINCH COMPANY
7600 FRANCE AVENUE SOUTH
P.O. BOX 355
MINNEAPOLIS, MN 55440-0355
(612) 844-1153
(Name, address and telephone number,
including area code, of agent for service)
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED (1) REGISTERED (2) PRICE PER UNIT (3) AGGREGATE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value 200,000 $9.84 $1,968,000 $547.10
$1.66-2/3 per share
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also includes common stock purchase rights,
which are attached to all shares of Common Stock issued, pursuant to the
terms of the Registrant's Stockholder Rights Agreement dated February 13,
1996.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended , this Registration Statement includes an indeterminate number of
additional shares as may be issuable as a result of anti-dilution
provisions described in the above-referenced employee benefit plan.
(3) Estimated pursuant to Rule 457(c) under the Securities Act solely for the
purpose of calculating the amount of the registration fee, based on the
average between the high and low sales prices of the Registrant's Common
Stock on June 22, 1999 on the Nasdaq National Market.
<PAGE>
PART I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
have been or will be sent or given to participants as specified by Rule
428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Nash-Finch Company (the "Registrant" or
the "Company") (File No. 0-785) 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 fiscal year ended
January 2, 1999;
(2) The Company's Quarterly Report on Form 10-Q for the twelve week period
ended March 27, 1999;
(3) All other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since January
2, 1999;
(4) The description of the Company's Common Stock contained in its
Registration Statement on Form 10, including any amendments or reports filed for
the purpose of updating such description; and
(5) The description of the common stock purchase rights contained in the
Company's Registration Statement on Form 8-A, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 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 securities 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 Ernst & Young LLP, independent
auditors, for the periods indicated in their report thereon which is
incorporated by reference in the Annual Report on Form 10-K for the fiscal year
ended January 2, 1999. The financial statements audited by Ernst & Young LLP
have been incorporated herein by reference in reliance on their report given on
their authority as experts in accounting and auditing. To the extent that Ernst
& Young LLP audits and reports on the financial
2
<PAGE>
statements of the Company issued at future dates, and consents to the use of
their reports thereon, such financial statements also will be incorporated by
reference in the Registration Statement in reliance upon their reports and
said authority.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Norman R. Soland, the Company's Senior Vice President,
Secretary and General Counsel. As of May 31, 1999, Mr. Soland was the beneficial
owner of 13,175 shares of Common Stock and options to purchase 18,024 shares of
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of Delaware
("DGCL") empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that, despite the adjudication of liability,
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 145 further provides that, to the extent a director or officer of
a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the scope of indemnification extends to directors, officers,
employees or agents of a constituent corporation absorbed in a consolidation or
merger and persons serving in that capacity at the request of the constituent
corporation for another. Section 145 also empowers the corporation to purchase
and maintain insurance on behalf of a director or officer of the corporation
against any liability asserted against or incurred by such person in any such
capacity or arising out of
3
<PAGE>
such person's status as such, whether or not the corporation would have the
power to indemnify such person against such liabilities under Section 145,
including liabilities under the Securities Act.
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 directory; 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
transactions in which the director received an improper personal benefit. In
addition, the personal liability of directors is further limited to the fullest
extent permitted to 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 and executive
officers providing such directors and officers with indemnification to the
fullest extent permitted by the General Corporation Law of Delaware.
The foregoing represents a summary of the general effect of the DGCL, the
Company's By-Laws and Restated Certificate of Incorporation, the Company's
directors and officers liability insurance coverage and the indemnification
agreements for purposes of general description only.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable. No securities are to be re-offered or resold pursuant to
this Registration Statement.
ITEM 8. EXHIBITS.
EXHIBIT NO.
- -----------
4.1 Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1
to the Company's Annual Report on Form 10-K for the year ended December 30,
1989 (File No. 0-785)),
4.2 Stockholder Rights Agreement, dated February 13, 1996, between the Company
and Norwest Bank Minnesota, National Association (incorporated by reference
to Exhibit 4 to the Company's Current Report on Form 8-K dated February 13,
1996 (File No. 0-785)).
4
<PAGE>
5.1 Opinion of Norman R. Soland (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Norman R. Soland (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 7 of this Registration Statement).
The Registrant hereby undertakes that it will submit or have submitted in a
timely manner the Plan and any amendment thereto to the Internal Revenue Service
for purposes of obtaining a determination letter that the Plan is qualified
under Section 401 of the Internal Revenue Code of 1986, as amended, and has made
or will make all changes required by the Internal Revenue Service in order to
qualify the Plan.
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act")
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement
5
<PAGE>
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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this 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 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
Commission such indemnification is against public policy as expressed
in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
6
<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 of 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 June 22, 1999.
NASH FINCH COMPANY
By: /s/ Ron Marshall
-------------------------
Ron Marshall
President and Chief Executive Officer
(principal executive officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Ron
Marshall and Norman R. Soland, and each of them, his or her true and lawful
attorney-in-fact and agent with full powers of substitution and resubstitution,
for and in his or her 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 attorney-in-fact and agent 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 or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
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 on June 22, 1999 by the following persons
in the capacities indicated.
SIGNATURE TITLE
- --------- -----
/s/ Ron Marshall President and Chief Executive Officer
- -------------------------- (Principal Executive Officer) and
Ron Marshall Director
/s/ John A. Haedicke Chief Financial and Administrative
- -------------------------- Officer (Principal Financial Officer)
John A. Haedicke
/s/ Lawrence A. Wojtasiak
- --------------------------
Lawrence A. Wojtasiak Controller (Principal Accounting Officer)
- --------------------------
Carole F. Bitter Director
/s/ Richard A. Fisher
- --------------------------
Richard A. Fisher Director
7
<PAGE>
/s/ Jerry L. Ford
- --------------------------
Jerry L. Ford Director
/s/ Allister P. Graham
- --------------------------
Allister P. Graham Director
/s/ John H. Grunewald
- --------------------------
John H. Grunewald Director
/s/ Richard G. Lareau
- --------------------------
Richard G. Lareau Director
/s/ Donald R. Miller
- --------------------------
Donald R. Miller Director
/s/ Robert F. Nash
- --------------------------
Robert F. Nash Director
/s/ Jerome O. Rodysill
- --------------------------
Jerome O. Rodysill Director
/s/ William R. Voss Director
- --------------------------
William R. Voss
8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NO. ITEM METHOD OF FILING
--- ---- ----------------
<S> <C> <C>
4.1 Form of Common Stock
Certificate . . . . . . . . . . Incorporated by reference to Exhibit
4.1 to the Company's Annual Report on
Form 10-K for the year ended December
30, 1989 (File No. 0-785).
4.2 Stockholder Rights Agreement,
dated February 13, 1996,
between the Company and
Norwest Bank Minnesota,
National Association . . . . . Incorporated by reference to Exhibit 4
to the Company's Current Report on
Form 8-K for the year ended February
13, 1996 (File No. 0-785).
5.1 Opinion of Norman R. Soland . . Filed herewith.
23.1 Consent of Ernst & Young LLP. . Filed herewith.
23.2 Consent of Norman R. Soland . . Included in Exhibit 5.1.
24.1 Power of Attorney . . . . . . . Included on page 7 of this
Registration Statement.
</TABLE>
<PAGE>
EXHIBIT 5.1
June 22, 1998
Securities and Exchange Commission
Attention: Division of Corporation Finance
450 Fifth Street, N.W.
Washington, DC 20549
Subject: 1999 Employee Stock Purchase Plan
Ladies and Gentlemen:
I am the Senior Vice President, Secretary and General Counsel of Nash Finch
Company, a Delaware corporation (the "Company"). In that capacity, I represent
the Company in connection with the preparation and filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8. The
Registration Statement relates to the registration of 200,000 shares of the
Company's common stock and common stock purchase rights attached thereto (the
"Shares") to be issued under the 1999 Employee Stock Purchase Plan (the "Plan").
In acting as counsel for the Company and arriving at the opinions expressed
below, I 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 I have
deemed necessary or appropriate as a basis for the opinions expressed herein. In
connection with our examination, I have assumed the genuiness of all signatures,
the authenticity of all documents tendered to us as originals, the legal
capacity of all natural persons and the conformity to original documents of all
documents submitted to us as certified or photostatic copies.
Based on the foregoing, it is my opinion that:
1. The Company has the authority to issue the Shares in the manner and
under the terms set forth in the Registration Statement.
2. The Shares have been duly authorized and, when issued, delivered and
paid for in accordance with the Plan as set forth in the Registration
Statement, will be validly issued, fully paid and non-assessable.
I express no opinion with respect to laws other than those of the State of
Minnesota, the Delaware General Corporation Law and the federal laws of the
United States of America, and assume no responsibility as to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction.
<PAGE>
I 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.
Very truly yours,
/s/ Norman R. Soland
Norman R. Soland
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the reference to our firm in the Registration Statement (Form S-8)
pertaining to the Nash-Finch-Company 1999 Employee Stock Purchase Plan and to
the incorporation by reference therein of our reports dated February 24, 1999,
with respect to the consolidated financial statements and schedule of Nash-Finch
included or incorporate by reference in its Annual Report (Form 10-K) for the
year ended January 2, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
June 18, 1999
