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As filed with the Securities and Exchange Commission on December 8, 2000
Registration No. 33-_____
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)
-------------------------------
NON-PLAN STOCK OPTION
(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
(952) 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>
====================================================================================================================
<S> <C> <C> <C> <C>
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED (1) REGISTERED (2) OFFERING PRICE PER UNIT AGGREGATE OFFERING PRICE REGISTRATION FEE
(3)
--------------------------------------------------------------------------------------------------------------------
Common Stock, par value 200,000 $16.84 $3,368,000 $889.15
$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) Pursuant to Rule 457(h) under the Securities Act, this amount is calculated
solely for the purpose of calculating the amount of the registration fee,
based on the exercise price of the options granted under the Plan.
<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 1, 2000;
(2) The Company's Quarterly Reports on Form 10-Q for the interim
periods ended March 25, 2000, June 17, 2000 and October 7, 2000;
(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 1, 2000;
(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 consolidated financial statements of the Company appearing in the
Company's Annual Report (Form 10-K) for the fiscal year ended January 1, 2000,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
financial statements are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange Commission)
given on the authority of such firm as experts in accounting and auditing.
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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 November 15, 2000, Mr. Soland
was the beneficial owner of 13,402 shares of Common Stock and options to
purchase 40,024 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 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
2
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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 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.
The shares to be reoffered or resold pursuant to this Registration
Statement were offered without registration under the Securities Act in reliance
on Section 4(2) of the Securities Act, which provides an exemption for
transactions not involving a public offering. In determining that such exemption
was available, the Company relied on the fact that, as an offering only to an
employee, the shares were being offered through direct communication only to a
limited number of investors having both knowledge of and access to most relevant
information regarding the Company.
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)).
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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 6 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;
(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
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.
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(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.
5
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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 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 November 28,
2000.
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 November 28, 2000 by the following
persons in the capacities indicated.
SIGNATURE TITLE
/s/ Ron Marshall President and Chief Executive Officer (Principal
-------------------- Executive Officer) and Director
Ron Marshall
/s/ Robert B. Dimond Senior Vice President and Chief Financial Officer
-------------------- (Principal Financial Officer)
Robert B. Dimond
/s/ Leanne M. Stewart Vice President, Treasurer and Corporate Controller
---------------------- (Principal Accounting Officer)
LeAnne M. Stewart
/s/ Carole F. Bitter Director
--------------------
Carole F. Bitter
/s/ James L. Donald Director
--------------------
James L. Donald
/s/ Richard A. Fisher Director
---------------------
Richard A. Fisher
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/s/ Jerry L. Ford Director
------------------
Jerry L. Ford
/s/ Allister P. Graham Director
-----------------------
Allister P. Graham
/s/ John H. Grunewald Director
----------------------
John H. Grunewald
/s/ Richard G. Lareau Director
---------------------
Richard G. Lareau
/s/ Robert F. Nash Director
------------------
Robert F. Nash
/s/ Jerome O. Rodysill Director
----------------------
Jerome O. Rodysill
/s/ John E. Stokely Director
---------------------
John E. Stokely
/s/ William R. Voss Director
---------------------
William R. Voss
7
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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, Incorporated by reference to Exhibit 4 to the
National Association 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 6 of this Registration Statement.
</TABLE>
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