As filed with the Securities and Exchange Commission on October 3, 1997
Registration Statement No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FRED'S, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE
(State or other jurisdiction
of incorporation or organization)
62-0634010
(IRS Employer
Identification No.)
4300 New Getwell Road
Memphis, Tennessee 38118
(901) 365-8880
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
Michael J. Hayes
President and Chief Executive Officer
Fred's, Inc.
4300 New Getwell Road
Memphis, Tennessee 38118
(901) 365-8880
(Name, address, including zip code, and
telephone number, including area
code, of agent for service of
process)
Copies to:
Samuel D. Chafetz, Esq.
WARING COX
50 North Front Street
Suite 1300
Memphis, Tennessee 38103
(901) 543-8000
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
maximum
aggregate Proposed
offering maximum
Amount price aggregate Amount of
Title of shares to be per offering registration
to be registered registered share(1) price(1) fee
<S> <C> <C> <C> <C>
Class A
Common Stock,
no par value 300,000 $21.00 $6,300,000 $1,909.09
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c), the proposed maximum offering price per share
is the average of the bid and asked price as quoted on the NASDAQ
National Market System on October 1, 1997.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 3, 1997
PROSPECTUS
Fred's, Inc.
Class A Common Stock
(no par value)
300,000 Shares
The 300,000 shares (the "Shares") of no par value common stock (the
"Common Stock") of Fred's, Inc., a Tennessee corporation (the "Company"),
described in this Prospectus are held by the Selling Stockholders (as defined
herein) who may from time to time offer for sale such shares of Common Stock
(the "Offering"). See "Selling Stockholders." The Company will not receive any
proceeds from the sale of Common Stock by the Selling Stockholders. The Common
Stock offered hereby may be sold from time to time directly by the Selling
Stockholders. Alternatively, the Common Stock may be offered to or through
broker-dealers or underwriters who may act solely as agents, or who may acquire
Common Stock as principals. The distribution of the Common Stock being offered
by the Selling Stockholders may be effected in one or more transactions that may
take place through the NASDAQ National Market System ("NASDAQ"), including block
trades or ordinary broker's transactions, through privately negotiated
transactions, through an underwritten public offering or through a combination
of any such methods of sale, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Selling Stockholders may pay usual and customary or specifically negotiated
brokerage fees or commissions in connection with such sales. See "Plan of
Distribution." The Company has agreed to pay all expenses (other than
commissions or discounts of underwriters, broker-dealers or agents, broker fees,
state and local transfer taxes and fees and expenses of counsel or other
advisers to the Selling Stockholders) in connection with the registration of the
Common Stock being offered by the Selling Stockholders.
The Company's Common Stock is traded on the NASDAQ National Market
System ("NASDAQ") under the symbol "FRED". On October 1, 1997 the closing
price for the Common Stock as quoted on NASDAQ was $21.00.
To the extent required, the identity of, and certain other information
relating to the Selling Stockholders, the terms of each sale of Common Stock
offered hereby, including the initial public offering price, the names of any
underwriters, broker-dealers or agents, the compensation, if any, of such
underwriters, broker- dealers or agents and the other terms in connection with
the sale of the Common Stock in respect of which this prospectus is delivered
will be set forth in an accompanying Prospectus Supplement (the "Prospectus
Supplement"). The aggregate proceeds to the Selling Stockholders from the sale
of the Common Stock so offered will be the purchase price of the Common Stock
sold less the aggregate agents' commissions and underwriters' discounts, if any,
and other expenses of issuance and distribution not borne by the Company.
The Selling Stockholders and such broker-dealers, underwriters or
agents that participate with the Selling Stockholders in the distribution of the
Common Stock may be deemed to be underwriters under the Securities Act of 1933,
as amended (the "Securities Act"), and any commissions received by them and any
profit on the resale of the Common Stock purchased by them might be deemed to be
underwriting discounts and commissions under the Securities Act.
See "Risk Factors" for a discussion of certain factors that should be considered
in connection with an investment in the Common Stock offered hereby.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES ANDEXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THEACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS ACRIMINAL OFFENSE.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offering to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in an State in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such State.
The date of this Prospectus is October 3, 1997.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IN
CONNECTION WITH AN OFFER MADE BY THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY OTHER
PERSON,
UNDERWRITER, DEALER OR AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS
OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES
CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE
COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
CONTAINED
HEREIN IS CURRENT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF. THIS
PROSPECTUS
OR ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR
SOLICITATION BY
ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO
DO SO OR
TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports and other information
concerning the Company may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street N.W., Washington, D.C. 20549, and at the regional offices of the
Commission: New York Office, 7 World Trade Center, New York, New York 10048 and
Chicago Office, Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, upon payment of the charges prescribed therefor by the
Commission. The Commission also maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants,
including the Company, that file electronically with the Commission at
http://www.sec.gov.
The Company's Common Stock is listed on the NASDAQ National Market
System. Reports, proxy and information statements, and other information
concerning the Registrant can be inspected at the offices of the NASDAQ Stock
Market, Inc., at 1735 K Street NW, Washington, D.C. 20006-1500.
The Company has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement. Copies of the Registration Statement are
available from the Commission as set forth above.
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
Company's (i) Annual Report on Form 10-K for the fiscal year ended February 1,
1997, (ii) Quarterly Report on Form 10-Q for the quarterly period ended May 2,
1997, (iii) Quarterly Report on Form 10-Q for the quarterly period ended August
2, 1997, and (iv) a description of the Company's Common Stock contained in the
Registration Statement on Form 10 filed with the Securities and Exchange
Commission on May 15, 1991. All documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, prior to the termination of this offering, shall be deemed to be
incorporated by reference into this Prospectus. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of any such person, a copy
of any and all of the information that has been incorporated by reference in
this Prospectus (excluding exhibits to the information that is incorporated by
reference unless such exhibits are themselves specifically incorporated by
reference). Please direct such requests to Charles S. Vail, Secretary, Fred's,
Inc., 4300 New Getwell Road, Memphis, Tennessee, 38118, telephone number (901)
365-8880.
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<PAGE>
THE COMPANY
Fred's, Inc. ("Fred's" or the "Company"), founded in 1947, operates 224
discount general merchandise stores in ten states in the southeastern United
States. Fred's stores generally serve low, middle, and fixed income families
located in small to medium sized towns (approximately 65% of Fred's stores are
in markets with populations of 15,000 or fewer people). One hundred and ten of
the Company's stores have full service pharmacies. The Company also markets
goods and services to 32 franchised "Fred's" stores.
Fred's stores stock over 12,000 frequently purchased items which
address the everyday needs of its customers, including nationally recognized
brand name products, proprietary "Fred's" label products and lower priced
off-brand products. Fred's management believes its customers shop Fred's stores
as a result of the stores' convenient location and size, low opening price
points in key product categories, everyday low prices on certain health and
beauty aids and paper and cleaning supplies and regularly advertised
departmental promotions and seasonal specials. Fred's stores have average
selling space of 13,277 square feet and had average sales of $2,051,000 in
fiscal 1996.
The Company's principal executive office is located at 4300 New Getwell
Road, Memphis, Tennessee, 38118, telephone (901) 365-8880. The "Company" or
"Fred's" is also used to refer to all of the wholly owned subsidiaries of
Fred's, Inc.
RISK FACTORS
Prior to making an investment decision, prospective purchasers should
consider carefully all of the information set forth in this Prospectus and, in
particular, should evaluate the following investment considerations.
Competition
The Company competes with general and specialty retailers, including
discount chains, other low-priced retailers, drugstores and supermarkets, some
of whom are larger and have greater financial resources than the Company. In
particular, virtually all of the Company's stores compete directly with Wal-Mart
Stores, Inc. ("Wal-Mart") or are within a Wal-Mart customer drawing area, and
also compete with at least one other dollar/variety store. The Company has faced
a comparable level of competition for at least five years. There can be no
assurance that competitive pressures will not materially and adversely affect
the business, financial condition and results of operations of the Company.
Sales to Third Party Payors
A growing percentage of the Company's prescription drug volume has been
accounted for by sales to customers who are covered by third-party payment
programs. Third-party prescription sales accounted for approximately 57% of the
Company's prescription sales in the fiscal 1996. Prescription sales to
third-party payors, in terms of both dollar volume and as a percentage of total
prescription sales, continued to increase in fiscal 1997, and the Company
expects this trend to continue. Although contracts with third-party payors may
increase the volume of prescription sales and gross profits, third-party payors
typically negotiate lower prescription prices than those on non third-party
prescriptions. Accordingly, there has been downward pressure on gross profit
margins on sales of prescription drugs which is expected to continue in future
periods.
Prescription Drug Sales and Future Regulation
The Company relies on prescription drug sales for a significant portion
of its revenues and profits, and prescription drug sales represent a growing
segment of the Company's business. Prescription drug sales accounted for
approximately 18% of the Company's total sales for fiscal 1996. These revenues
are affected by changes within the health care industry, including changes in
programs providing for reimbursement of the cost of prescription drugs by
third-party payors, such as government and private sources, and regulatory
changes relating to the approval process for prescription drugs. The Company
cannot predict whether any federal health care reform legislation will be passed
in the future, and if so, the impact thereof on the Company's financial position
or results of operations. Health care reform, if implemented, could adversely
affect the pricing of prescription drugs or the amount of reimbursement from
governmental agencies and third-party payors, and consequently could be adverse
to the Company. However, to the extent health care reform expands the number of
persons receiving health care benefits covering the purchase of prescription
drugs, it would also result in increased purchases
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<PAGE>
of such drugs and could thereby have a favorable impact on both the Company and
the retail drug industry in general. Nevertheless, there can be no assurance
that any such future legislation or any similar legislation adopted by any
states in which the Company operates will not adversely affect the Company or
the retail drug store industry generally.
Expansion Strategy
Although the Company has plans to increase the size and number of its
stores within the market areas which it currently serves and believes there are
adequate sites available in its target markets, the rate of new store openings
is necessarily subject to various contingencies, some of which are beyond the
Company's control. These contingencies include the Company's ability to hire and
train competent store management and personnel, the availability of adequate
capital resources, the Company's ability to secure suitable store sites on a
timely basis and on satisfactory terms, the acceptance of the Fred's concept in
particular markets and the impact of general and local economic conditions.
Operating Results and Working Capital Requirements
The Company's sales and demands upon its financial resources increase
in preparation for the annual Christmas selling season. To the extent that such
needs continue or increase in the future (especially in light of the Company's
store growth plans), and especially if interest rates increase from their
present level, the Company's results would be affected by the increased interest
burden. The Company's future performance will be subject to a number of factors
beyond its control, including local economic conditions and increased
competition. There can be no assurance that the positive financial operating
results experienced by the Company in recent periods will continue.
Dependence on Senior Management
The success of the Company is largely dependent on the skills,
experience and efforts of its senior management. The loss of the services of its
senior management or certain other employees could have an adverse effect on the
Company's business and prospects.
Key Vendors
The Company's business is dependent upon its ability to purchase brand
name merchandise at competitive prices. A loss of one or more key vendors in
certain product categories could have a material adverse effect on the Company's
business. Although the Company's relations with its key vendors are currently
satisfactory and the Company has adequate sources of brand name merchandise at
competitive prices, there can be no assurance that the Company will be able to
acquire such merchandise at comparable prices or on comparable terms in the
future. The Company's single largest vendor, a distributor selected by the
Company in the last fiscal year, accounted for approximately 17.6% of the
Company's total purchases for fiscal year 1996; and for the first six months of
the fiscal year 1997, such vendor accounted for approximately 19% of the
Company's total purchases.
Shares Eligible for Future Sale
Sales of a substantial number of shares of Common Stock in the public
market could adversely affect the market price of the Common Stock and could
impair the Company's ability to raise capital in the future through an offering
of its equity securities. Upon completion of the Offering, 9,741,250 shares of
Common Stock will be outstanding and 935,000 shares of Common Stock will be
reserved for issuance upon exercise of any options to be granted under the
Incentive Stock Option Plan. The 300,000 shares of Common Stock to be sold in
the Offering will be immediately eligible for sale in the public market without
restriction after completion of the Offering, except shares purchased by an
"affiliate" of the Company as that term is defined under the rules and
regulations of the Securities Act of 1933, as amended (the "Securities Act").
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock
by the Selling Stockholders. In connection with the Company's acquisition of
pharmacies, inventories and/or stores, the Company issued the Common Stock to
the Selling Stockholders.
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<PAGE>
SELLING STOCKHOLDERS
The aggregate number of Shares, 300,000, represents the maximum number
of shares that the Selling Stockholders may distribute in the Offering; however,
there are currently no agreements, arrangements or understandings with respect
to the sale of any of the Shares and the table below assumes the sale of all
Shares held by the Selling Stockholders. The Shares are being registered to
permit public secondary trading of the Shares, and the Selling Stockholders may
offer the Shares for resale from time to time. See Plan of Distribution.
The following table sets forth the name of the Selling Stockholders,
the number of shares of Common Stock owned beneficially by the Selling
Stockholders as of October 1, 1997 and the number of shares which may be
offered pursuant to this Prospectus.
The Company has filed with the Commission a Registration Statement on
Form S-3, of which this Prospectus forms a part, with respect to, among other
things, the resale of the Shares from time to time at prevailing prices in the
over-the-counter market or on NASDAQ or in privately negotiated transactions and
has agreed to prepare and file such amendments and supplements to the
Registration Statement as may be necessary to keep the Registration Statement
effective until all Shares offered hereby have been sold pursuant thereto, or
until the sale of such shares may be made under Rule 144.
<TABLE>
<CAPTION>
Number of Shares Beneficially Owned
Selling Stockholder Prior to Offering(1) Offered After Offering Percent(2)
- ------------------- --------------------- ------- -------------- ----------
<S> <C> <C> <C> <C>
Alton T. Hunter 18,046 18,046 0 *
Total 18,046 18,046 0
- -----------------
</TABLE>
(1) The persons named in the table have sole voting power and sole investment
power with respect to all shares beneficially owned. (2) Applicable percentage
of ownership is calculated pursuant to Rule 13(d), 3(d)(1) and is based on
9,441,250 shares outstanding on October 1, 1997.
* Less than 1%.
PLAN OF DISTRIBUTION
The Shares offered hereunder may be sold from time to time by the
Selling Stockholders, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on NASDAQ, in the over-the-counter market, or
otherwise, at prices and on terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. The Shares may be sold
to or through one or more broker-dealers, acting as agent or principal, block
trades, agency placements, exchange distributions, brokerage transactions or
otherwise, or in any combination of transactions.
At the time a particular offer of Shares is made, to the extent
required, a supplement to this Prospectus will be distributed which will
identify and set forth the aggregate number of Shares being offered and the
terms of the offering, including the name or names of any underwriters, dealers
or agents, the purchase price paid by any underwriter for the Shares purchased
from the Selling Stockholders, any discounts, commissions and other items
constituting compensation from the Selling Stockholders and/or the Company and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers, including the proposed selling price to the public. Such supplement to
this Prospectus and, if necessary, a post-effective amendment to the
Registration Statement of which this Prospectus is a part, will be filed with
the Securities and Exchange Commission to reflect the disclosure of additional
information with respect to the distribution of the Shares.
Any or all of the sales or other transactions involving the Shares
described above, whether effected by the Selling Stockholders any broker-dealer
or others, may be made pursuant to this prospectus. In addition, any Shares that
qualify for sale pursuant to Rule 144 under the Act may be sold under Rule 144
rather than pursuant to this prospectus.
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In order to comply with the securities laws of certain states, the
Shares may be sold in such jurisdictions only through registered or licensed
brokers or dealers. In addition, in certain states the Shares may not be sold
unless registered or qualified for sale or an exemption from registration or
qualification requirements is available and is complied with.
The Company has advised the Selling Stockholders that Regulation M
under the Exchange Act may apply to sales of shares and to the activities of the
Selling Stockholders or broker-dealers in connection therewith.
The Company will pay the registration and professional fees, and
printing costs associated with this registration statement. Any broker-dealer
commissions, discounts or concessions will be paid by the Selling Stockholders.
The Selling Stockholders (and not the Company) may agree to indemnify
certain persons, including broker-dealers or others, against certain liabilities
in connection with any offering of the Shares, including liabilities under the
Securities Act.
LEGAL MATTERS
The legality of the Common Stock offered hereby will be passed upon for
the Company by Waring Cox, PLC, Memphis, Tennessee.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K for the year ended February 1, 1997, have been
so incorporated in reliance on the report of Price Waterhouse, LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
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<PAGE>
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Fee $2,080
Accountants' Fees 7,500
Legal Fees and Expenses 7,500
Miscellaneous 1,000
TOTAL $18,080
Item 15. Indemnification of Directors and Officers.
The Tennessee Business Corporation Act permits a corporation to
indemnify a director or officer of the corporation (and certain other persons
serving at the request of the corporation in related capacities) if such person
shall have acted in good faith and in a manner he reasonably believed to be in
the best interests of the corporation, and in any criminal proceeding, if such
person had no reasonable cause to believe his conduct was unlawful; provided
that, in the case of actions brought by or in the right of the corporation, no
indemnification may be made with respect to any matters as to which such
director or officer shall have been adjudged to have breached his duty to the
Corporation.
Article Seven of the Company's Charter provides that the Company shall
indemnify its directors to the full extent authorized or permitted by the
Tennessee Business Corporation Act. Paragraphs 53 through 57 of the Company's
By-laws extend such indemnification to directors and to officers of the Company,
explicates certain mechanics of determinations to be made in connection with any
requests for indemnification, provides for advances of expenses, certain notices
to shareholders, and the non-exclusivity of those provisions.
The Company and its directors entered into an agreement in 1989 in
connection with the settlements of a legal proceeding, which contains
indemnification provisions similar to those contained in the Company's Charter
and By-laws, but which sets forth with greater particularity the matter in which
separate counsel for an indemnified party must be selected, the conditions under
which expenses may be paid in advance, and limitations on settlement of actions
subject to indemnification.
Item 16. Exhibits.
5.1 -- Opinion of Waring Cox, PLC
23.1 -- Consent of Waring Cox, PLC (included in Exhibit 5.1)
23.2 -- Consent of Price Waterhouse LLP
24.1 -- Powers of Attorney (included in Part II)
Item 17. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) 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 (the "Securities Act");
(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. 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
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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 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 the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(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 15(d) of the Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the registration statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrants' annual report pursuant to Section 13(a) or 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 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.
3. 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 provisions described under Item 15 above, 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.
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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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis, State of Tennessee on October 2, 1997.
FRED'S, INC.
By: /s/ Michael J. Hayes
Michael J. Hayes,
Chief Executive Officer
and President
By: /s/ Richard B. Witaszak
Richard B. Witaszak,
Executive Vice President and
Chief Financial Officer
(Principal Accounting and
Financial Office)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and officers of Fred's, Inc., a Tennessee corporation, hereby
constitutes and appoints Michael J. Hayes and Charles S. Vail, and each of them,
his true and lawful attorney-in-fact, for him and in his name, place and stead
in any and all capacities to sign each Amendment to this Registration Statement,
and to file this Registration Statement and each Amendment so signed with all
exhibits thereto and any and all documents in connection therewith with the
Securities and Exchange Commission, hereby granting unto said attorneys-in-fact
full power and authority to do and perform any and all acts and things requisite
and necessary to be done in and about the premises, as fully to all intents and
purposes as he might do in person, hereby ratifying and confirming all that said
attorneys-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on October 2,
1997.
Signature Title
/s/ Michael J. Hayes Director, Managing Director,
Michael J. Hayes Chief Executive Officer and
President
/s/ David A. Gardner Director and Managing Director
David A. Gardner
/s/ John R. Eisenman Director
John R. Eisenman
/s/ Roger T. Knox Director
Roger T. Knox
11
<PAGE>
Exhibit 5.1
[Letterhead of Waring Cox, PLC]
October 2, 1997
Fred's, Inc.
4300 New Getwell Road
Memphis, TN 38118
Re: Registration Statement on Form S-3,
300,000 shares of Class A Common Stock
Gentlemen:
In connection with the registration of 300,000 shares of Class A Common
Stock, no par value per share ("Common Stock") of Fred's, Inc., a Tennessee
corporation (the "Company"), under the Securities Act of 1933, as amended (the
"Act"), on Form S-3 to be filed with the Securities and Exchange Commission on
the date hereof (the "Registration Statement"), and the offering of such Common
Stock as described in the Registration Statement, you have requested our opinion
with respect to the matters set forth below.
In connection with this opinion, we have relied, among other things,
upon our examination of the records of the Company and certificates of officers
of the Company and of public officials as we have deemed appropriate.
Subject to the following and the other matters set forth herein, it is
our opinion that as of the date hereof:
1. Company is duly organized and validly existing under the laws of the
state of Tennessee; and
2. The shares of Common Stock registered pursuant to the Registration
Statement have been duly authorized and are validly issued, fully paid and
nonassessable.
We do not purport to cover herein the application of the securities
laws of various states to sale of the Common Stock.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to reference to us under the heading related to
"Legal Matters" in the Registration Statement.
Very truly yours,
WARING COX, PLC
<PAGE>
Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
March 7, 1997, which appears on page 24 of the Annual Report to Shareholders of
Fred's, Inc. (the "Company") which is incorporated by reference in the Company's
Annual Report on Form 10-K for the year ended February 1, 1997. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Memphis, Tennessee
September 29, 1997
<PAGE>
