As filed with the Securities and Exchange Commission on May 18, 1999
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
(State or 73-1311075
jurisdiction of (I.R.S. Employer
incorporation or Identification No.)
organization)
2601 Northwest Expressway, Suite 1100E
Oklahoma City, Oklahoma 73112
(Address of Principal Executive Offices) (Zip Code)
HOMELAND HOLDING CORPORATION
STOCK OPTIONS GRANTED TO CERTAIN OFFICERS
(Full title of the plan)
Deborah A. Brown
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 Proposed Calculation
Amount to Maximum Maximum of
Title of Securities to be Offering Aggregate Registration
be Registered Registered Price Offering Fee
Per Share Price(1)
(1)
Common Stock, par value 75,000 $3.92 $294,000 $81.73
$.01 per share
(1) Determined in accordance with Rule 457(h) solely for purposes of
calculating the registration fee based on the weighted average
exercise price of the options covering the shares being registered
hereby.
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 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 2, 1999.
(2) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 27, 1999.
(3) 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
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 the registration
statement under the Exchange Act is incorporated herein by reference as
described above.
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.
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 PricewaterhouseCoopers LLP
23.2 Consent of Crowe & Dunlevy (contained in Exhibit
5.1).
24.1 Powers of Attorney (included in signature page
hereto).
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 18,
1999.
HOMELAND HOLDING CORPORATION
By: /s/ Deborah A. Brown
Deborah A. Brown
Vice President and Controller
KNOW ALL BY THESE PRESENTS, that the persons whose signatures appear below
hereby constitute and appoint Wayne S. Peterson and Deborah A. Brown, and either
of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to execute any and all
amendments to this Registration Statement (including post-effective amendments)
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, 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 any of them, or their
or his or her substitute or substitutes, may lawfully do or cause to be done
by virtue thereof.
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 4, 1999
David B. Clark Officer (Principal Executive
Officer)
/s/ Wayne S. Peterson Senior Vice President and Chief May 4, 1999
Wayne S. Peterson Financial Officer (Principal
Financial Officer)
/s/ Deborah A. Brown Vice President and Controller May 4, 1999
Deborah A. Brown (Principal Accounting Officer)
/s/ Robert E.(Gene) Burris Director May 4, 1999
Robert E. (Gene) Burris
/s/ Edward B. Krekeler, Jr. Director May 4, 1999
Edward B. Krekeler, Jr.
/s/ Laurie M. Shahon Director May 4, 1999
Laurie M. Shahon
/s/ John A. Shields Director May 4, 1999
John A. Shields
/s/ William B. Snow Director May 4, 1999
William B. Snow
/s/ David N. Weinstein Director May 4, 1999
David N. Weinstein
EXHIBIT INDEX
Number Description
5.1 Opinion of Crowe & Dunlevy, A Professional Corporation,
concerning legality of securities to be issued.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Crowe & Dunlevy (included in Exhibit 5.1).
24.1 Powers of Attorney (included in signature page hereto).
EXHIBIT 5.1
[Letterhead of Crowe & Dunlevy] Exhibit 5.1
May 18, 1999
Homeland Holding Corporation
2601 Northwest Expressway, Suite 1100
Oklahoma City, OK 73112
Re: Registration Statement on Form S-8 Relating to Stock Options Granted
to Certain Officers of Homeland Holding Corporation
Ladies and Gentlemen:
You have requested our advice with respect to the legality of the common
stock, $0.01 par value per share ("Common Stock"), of Homeland Holding
Corporation (the "Company") issuable upon exercise of options granted to John
C. Rocker pursuant to a Stock Option Agreement dated September 14, 1998 for the
purchase of 25,000 shares of Common Stock and to Wayne S. Peterson pursuant to
a Stock Option Agreement dated October 21, 1998 for the purchase of 50,000
shares of Common Stock (the "Stock Option Agreements").
We have examined and are familiar with the originals or copies, the
authenticity of which has been established to our satisfaction, of all
documents or 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 the 75,000 authorized but unissued shares of Common Stock or
treasury stock of the Company which may be issued pursuant to the Stock Option
Agreements will, upon payment therefor and delivery thereof in accordance with
the Stock Option Agreements, be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the above-
captioned 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 hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 and the related prospectus of our report dated March 3,
1999, relating to the financial statements, which appears in Homeland Holding
Corporation's Annual Report on Form 10-K for the year ended January 2, 1999.
We also consent to the reference to us under the heading "Experts" in the
prospectus relating to the Registration Statement.
PRICEWATERHOUSECOOPERS LLP
Oklahoma City, Oklahoma
May 14, 1999
