As filed with the Securities and Exchange Commission on May 8, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Homeland Holding Corporation
(Exact name of Registrant as specified in its charter)
Delaware 73-1311075
(State or (I.R.S. Employer
jurisdiction of Identification
incorporation or No.)
organization)
2601 Northwest Expressway, Suite 1100E
Oklahoma City, Oklahoma 73112
(Address of Principal Executive Offices) (Zip Code)
HOMELAND STORES, INC. EMPLOYEE STOCK BONUS PLAN
(Full title of the plan)
Terry M. Marczewski
2601 Northwest Expressway, Suite 1100E
Oklahoma City, Oklahoma 73112
(Name and address of agent for service)
(405) 879-6600
(Telephone number, including area code, of agent for service)
Copy to:
J. Bradford Hammond
Crowe & Dunlevy, A Professional Corporation
321 South Boston, 5th Floor
Tulsa, Oklahoma 74103
(918) 592-9800
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Amount to Offering Price
be Registered Per Share
Common Stock, par value $.01 per share 522,222 $ 7.60
Proposed Maximum Calculation of
Aggregate Registration
Offering Price (2) Fee
Common Stock, par value $.01 per share $3,968,887 $ 1,170.82
(1)In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described herein.
(2)Estimated in accordance with Rule 457(h) solely for purposes of calculating
the registration fee. A total of 522,222 shares have been reserved for
issuance pursuant to the Homeland Stores, Inc. Employee Stock Bonus Plan (the
"Plan") and are being registered hereby. The maximum aggregate offering price
of 124,877 of such shares has been calculated based on the weighted average
allocated purchase price of shares allocated to participant accounts under the
Plan of $7.47 per share. The proposed maximum aggregate offering price of the
remaining 397,345 shares has been calculated based on the average of the high
and low sales prices of the Common Stock as reported on the NASDAQ
National Market System on May 7, 1998, which average price
was $7.6425 per share.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 (the "Securities Act")
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Registrant or the Homeland Stores,
Inc. Employee Stock Bonus Plan (the "Plan") with the Securities and Exchange
Commission are incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 3, 1998.
(2) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 28, 1998.
(3) The Annual Report on Form 11-K of the Plan for the Plan fiscal
year ended July 31, 1997.
(4) The description of the Registrant's Common Stock contained in
Amendment No. 1 to the Registrant's Registration Statement on Form
10 declared effective by the Securities and Exchange Commission on
December 6, 1996.
In addition, all documents subsequently filed by the Registrant and the
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all securities offered have been
sold or which deregisters all securities 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.
Item 4. Description of Securities
This Registration Statement covers Common Stock, par value $.01 per
share, of the Registrant, which is registered under Section 12(g) of the
Exchange Act. The description of the Common Stock contained in a registration
statement under the Exchange Act is incorporated herein by reference as
described above. Plan interests also being registered need not be described
pursuant to this Item 4.
Item 5. Interests of Named Experts and Counsel
There are no interests of any expert or counsel required to be
disclosed pursuant to Item 5.
Item 6. Indemnification of Officers and Directors
The Registrant's Amended and Restated Certificate of Incorporation
provides that, pursuant to Delaware law, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty to the Registrant
and its stockholders. The provision in the Amended and Restated Certificate
of Incorporation does not eliminate the directors' fiduciary duty and, in
appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Registrant, as well as for acts or
omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does
not affect a director's responsibilities under any other law, such as the
state or federal securities laws.
Under Delaware law, the Registrant has broad powers to indemnify
its directors and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act. The Registrant's
Bylaws provide that the Registrant shall indemnify its directors and officers
against expenses, judgments, fines, settlements and other amounts incurred in
connection with any proceeding whether actual or threatened to which any such
person may be made a party by reason of the fact that 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 Registrant, and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. However, in the case of a derivative action, an officer or director
will not be entitled to indemnification in respect of any claim, issue or
matter as to which such person is adjudged to be liable to the Registrant,
unless and only to the extent that the court in which the action was brought
determines that such person is fairly and reasonably entitled to indemnity
for expenses.
Section 14.7 of the Plan provides that the Registrant shall
indemnify each member of the Committee administering the Plan, the Board of
Directors of the Registrant and any employee of the Registrant to whom a
fiduciary responsibility with respect to the Plan is allocated or delegated
from and against all liabilities, costs and expenses (including reasonable
attorney's fees) incurred by such person as a result of an act, omission or
conduct in connection with the performance of his fiduciary duties,
responsibilities and obligations under the Plan and under ERISA, except with
respect to liabilities and claims arising from such person's own willful
misconduct or gross negligence.
Item 7. Exemption from Registration Claimed
There are no restricted securities being offered or resold pursuant
to this Registration Statement.
Item 8. Exhibits
Number Description
5.1 Opinion of Crowe & Dunlevy, A Professional
Corporation, concerning legality of
securities to be issued.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Crowe & Dunlevy (contained in
Exhibit 5.1).
In lieu of the opinion of counsel or determination letter
contemplated by Item 601(b)(5)(ii) of Regulation S-K, the Registrant hereby
confirms that it has submitted the Plan and undertakes that it will submit all
amendments to the Plan to the Internal Revenue Service ("IRS") in a timely
manner, and that it has made or will make all changes required by the IRS in
order to qualify the Plan under Section 401 of the Internal Revenue Code.
Item 9. Undertakings
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 the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that the undertakings set forth in paragraphs (1)
(i) and (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
Securities and Exchange 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.
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 each filing of the 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.
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 in Item 6
above, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Oklahoma City, State of Oklahoma, on May 8, 1998.
HOMELAND HOLDING CORPORATION
By: /s/ Larry W. Kordisch
Larry W. Kordisch, Chief Financial
Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated:
Name Position Date
/s/ David B. Clark President and Chief Executive May 8, 1998
David B. Clark Officer and Director
(Principal Executive Officer)
/s/ Larry W. Kordisch Chief Financial Officer May 8, 1998
Larry W. Kordisch (Principal Financial Officer)
/s/ Terry M. Marczewski Vice President and Controller May 8, 1998
Terry M. Marczewski (Principal Accounting Officer)
/s/ Robert E. (Gene) Burris Director May 8, 1998
Robert E. (Gene) Burris
/s/ Edward B. Krekeler, Jr. Director May 8, 1998
Edward B. Krekeler, Jr.
/s/ Laurie M. Shahon Director May 8, 1998
Laurie M. Shahon
/s/ John A. Shields Director May 8, 1998
John A. Shields
/s/ William B. Snow Director May 8, 1998
William B. Snow
/s/ David N. Weinstein Director May 8, 1998
David N. Weinstein
Pursuant to the requirements of the Securities Act, the Homeland
Stores, Inc. Employee Stock Bonus Plan Committee has duly caused this
Registration Statement to be signed on its behalf by the undersigned
thereunto duly authorized, in the City of Oklahoma City, State of Oklahoma,
on May 8, 1998.
HOMELAND STORES, INC. EMPLOYEE
STOCK BONUS PLAN COMMITTEE
(Administrators of the Plan)
By: /s/ Larry W. Kordisch
Larry W. Kordisch, Member of the
Committee
EXHIBIT INDEX
Number Description
5.1 Opinion of Crowe & Dunlevy, A Professional
Corporation, concerning legality of securities to
be issued.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Crowe & Dunlevy (contained in Exhibit 5.1).
EXHIBIT 5.1
[Letterhead of Crowe & Dunlevy] Exhibit 5.1
May 8, 1998
Homeland Holding Corporation
2601 Northwest Expressway, Suite 1100
Oklahoma City, OK 73112
Re: Registration Statement on Form S-8 Relating to Homeland Stores, Inc.
Employee Stock Bonus Plan
Ladies and Gentlemen:
Homeland Holding Corporation (the "Company") has requested our advice
with respect to certain matters in connection with the Homeland Stores, Inc.
Employee Stock Bonus Plan (as amended and restated effective as of August 2,
1996) (the "Plan"). We understand that a Registration Statement on Form S-8
relating to the Plan (the "Registration Statement") will be filed with the
Securities and Exchange Commission.
We have examined, and are familiar with, the originals or copies, the
authenticity of which have been established to our satisfaction, of all
documents and other instruments we have deemed necessary to express the
opinions hereinafter set forth. We have assumed the accuracy and completeness
of such documents and instruments and of the information contained therein.
Based on the foregoing, and upon consideration of applicable law, it is
our opinion that:
1. The Plan has been duly authorized, adopted and executed and interests
in the Plan, when acquired by employees under the Plan, will be legally issued
and enforceable interests in the Plan.
2. The shares of common stock, par value $0.01 per share ("Common
Stock"), of the Company that are covered by the Registration Statement and
that may be contributed by the Company to the Trust (as defined in the Plan)
have been duly authorized and, when contributed to the Trust in accordance
with the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the rules and regulations
thereunder.
Respectfully submitted,
CROWE & DUNLEVY,
A PROFESSIONAL CORPORATION
By /s/ J. Bradford Hammond
J. Bradford Hammond
EXHIBIT 23.1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 (File No. ______) and the related prospectus of our
report dated March 28, 1998, on our audits of the consolidated financial
statements of Homeland Holding Corporation as of January 3, 1998, and
December 28, 1996, and for the 53 weeks ended January 3, 1998, the 20 weeks
ended December 28, 1996, the 32 weeks ended August 10, 1996, and the 52 weeks
ended December 30, 1995, which report is included in the Annual Report on
Form 10-K of Homeland Holding Corporation for the year ended January 3,
1998. We also consent to the incorporation by reference in this Registration
Statement on Form S-8 (File No. _____) and the related prospectus of our
report dated May 5, 1998 on our audit of the financial statements of the
Homeland Stores, Inc. Employee Stock Bonus Plan, which report is included in
the Annual Report on Form 11-K of the Homeland Stores, Inc. Employee Stock
Bonus Plan for the plan year ended July 31, 1997. We also consent to the
reference to our firm under the caption "Experts" in the prospectus relating
to the Registration Statement.
COOPERS & LYBRAND, L.L.P.
Oklahoma City, Oklahoma
May 8, 1998
