SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________
KASH N' KARRY FOOD STORES, INC.
(exact name of issuer as specified in its charter)
Delaware 95-4161591
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6422 Harney Road
Tampa, Florida 33610
(Address of Principal Executive Offices and Zip Code)
KASH N' KARRY FOOD STORES, INC.
1995 KEY EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
ROBERT S. BOLT, ESQ.
Barnett, Bolt, Kirkwood & Long, P.A.
601 Bayshore Boulevard
Suite 700
Tampa, Florida 33606
(813) 253-2020
(Name, address and telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per price* fee
share*
================================================================
Common Stock 355,419
(par value shares $ 22.50 $7,996,927.50 $ 2,757.56
$0.01)
*Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(c) under the Securities Act of
1933 based upon the average of the high and low prices reported
on the composite transactions reporting system of the Nasdaq
National Market on March 11, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by References
The following documents filed or to be filed with the
Securities and Exchange Commission are incorporated by reference
in this Registration Statement:
(a) the latest annual report of Kash n' Karry
Food Stores, Inc. (the "Company") filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the "1934 Act") which contains, either
directly or indirectly by incorporation by reference,
certified financial statements for the Company's latest
fiscal year for which such statements have been filed;
(b) all other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the annual report referred to in
paragraph (a) above; and
(c) the description of the Company's Common Stock
contained in the Company's Registration Statement on
Form 8-A, filed under the 1934 Act, including any
amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of 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 such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("DGCL")
permits a Delaware corporation to indemnify any person who is or
was a director, officer, employee and agent of the corporation,
or who is or was serving at the request of the corporation as a
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director, officer, employee or agent of another corporation or
enterprise, against actual and reasonable expenses (including
attorneys' fees) incurred by such person in connection with any
action, suit or proceeding if (i) he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and (ii) in the case of a criminal
proceeding, he had no reasonable cause to believe his conduct was
unlawful. Except as ordered by a court, no indemnification shall
be made in connection with any proceeding brought by or in the
right of the Company where the person involved is adjudged to be
liable to the Company.
Article XV of the Bylaws of the Company provides for
indemnification of the officers and directors of the Company to
the full extent permitted by law, as now in effect or later
amended.
The Company has entered into indemnity agreements with each
of its directors and executive officers. The indemnity
agreements generally indemnify such persons against liabilities
arising out of their service in their capacities as directors,
officers, employees or agents of the Company. The Company may
from time to time enter into indemnity agreements with additional
individuals who become officers and/or directors of the Company.
Section 145 of the DGCL further authorizes a corporation to
purchase and maintain insurance on behalf of any person who 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 any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would otherwise
have the power to indemnify him under Section 145. The Company
maintains policies insuring the Company's directors and executive
officers against certain liabilities for actions taken in such
capacities, including liabilities under the Securities Act.
Article Seventh of the Company's Restated Certificate of
Incorporation limits under certain circumstances the liability of
the Company's directors for a breach of their fiduciary duty as
directors. These provisions do not eliminate the liability of a
director (i) for a breach of the director's duty of loyalty to
the Company or its shareholders, (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 DGCL
(relating to the declaration of dividends and purchase or
redemption of shares in violation of the DGCL), or (iv) for any
transaction from which the director derived an improper personal
benefit.
-3-<PAGE>
At present, there is no pending litigation or proceeding
involving a director or officer of the Company as to which
indemnification is being sought nor is the Company aware of any
threatened litigation that may result in claims for
indemnification by any officer, director or employee of the
Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
3(i)(a) Restated Certificate of Incorporation filed with
the Delaware Secretary of State on December 29,
1994 (previously filed as Exhibit 3(i) to the
Company's Quarterly Report on Form 10-Q for the
period ended January 29, 1995, which exhibit is
hereby incorporated by reference).
3(i)(b) Certificate of Designations of Series A Junior
Participating Preferred Stock filed with the
Secretary of State of the State of Delaware on
April 26, 1995 (previously filed as Exhibit
3(i)(b) to the Company's Registration Statement on
Form S-1, Registration No. 33-58999, which exhibit
is hereby incorporated by reference).
3(ii)(a) Bylaws adopted October 12, 1988 (previously filed
as Exhibit 3(ii)(a) to the Company's Quarterly
Report on Form 10-Q for the period ended January
29, 1995, which exhibit is hereby incorporated by
reference).
3(ii)(b) First Amendment to Bylaws adopted July 30, 1991
(previously filed as Exhibit 3(ii)(b) to the
Company's Quarterly Report on Form 10-Q for the
period ended January 29, 1995, which exhibit is
hereby incorporated by reference).
3(ii)(c) Second Amendment to Bylaws adopted December 29,
1994 (previously filed as Exhibit 3(ii)(c) to the
Company's Quarterly Report on Form 10-Q for the
period ended January 29, 1995, which exhibit is
hereby incorporated by reference).
3(ii)(d) Third Amendment to Bylaws adopted April 13, 1995
(previously filed as Exhibit 3(ii)(d) to the
Company's Quarterly Report on Form 10-Q for the
period ended April 30, 1995, which exhibit is
hereby incorporated by reference).
-4-<PAGE>
4 Kash n' Karry Food Stores, Inc. 1995 Key Employee
Stock Option Plan (previously filed as Exhibit
10.16(a) to the Company's Registration Statement
on Form S-1, Registration No. 33-58999, which
exhibit is hereby incorporated by reference).
5 Opinion of Barnett, Bolt, Kirkwood & Long (filed
herewith).
23 (a) Consent of Coopers & Lybrand, LLP. (filed
herewith).
23 (b) Consent of KPMG Peat Marwick, L.L.P. (filed
herewith).
23 (c) Consent of Barnett, Bolt, Kirkwood & Long
(included in Exhibit 5).
24 Powers of Attorney (included on signature page).
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 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 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) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(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;
-5-<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form S-8
or Form F-3, and 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 SEC by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the 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.
(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 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.
(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 SEC 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
The Registrant. 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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Tampa and the State of
Florida, on the 13th day of March, 1996.
KASH N' KARRY FOOD STORES, INC.
By: /s/ Ronald E. Johnson
--------------------------------
Ronald E. Johnson
Chairman of the Board,
President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes
Ronald E. Johnson, Richard D. Coleman, or the agent for service
named in this Registration Statement to file one or more
amendments (including post-effective amendments) to this
Registration Statement, which amendments may make such changes in
this Registration Statement as Ronald E. Johnson, Richard D.
Coleman or such agent for service deems appropriate, and each
such person hereby appoints Ronald E. Johnson, Richard D. Coleman
or such agent for service as attorney-in-fact to execute in the
name and on behalf of each such person, individually and in each
capacity stated below, any such amendments to this Registration
Statement.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below on March 13,
1996, by the following persons in the capacities indicated.
Signature Title
================================================================
/s/ Ronald E. Johnson
- ----------------------------- Director, Chairman of the
RONALD E. JOHNSON Board, President and Chief
Executive Officer
(Principal Executive Officer)
<PAGE>
/s/ Richard D. Coleman
- ----------------------------- Senior Vice President,
RICHARD D. COLEMAN Administration, Chief
Financial Officer
(Principal Financial Officer)
/s/ Marvin H. Snow, Jr.
- ----------------------------- Vice President, Controller
MARVIN H. SNOW, JR. (Principal Accounting Officer)
/s/ Everett L. Buckardt
- ----------------------------- Director
EVERETT L. BUCKARDT
/s/ John G. Danhakl
- ----------------------------- Director
JOHN G. DANHAKL
- ----------------------------- Director
JOHN J. DELUCCA
- ----------------------------- Director
JENNIFER HOLDEN DUNBAR
/s/ Ben Evans
- ----------------------------- Director
BEN EVANS
/s/ Thomas W. Harberts
- ----------------------------- Director
THOMAS W. HARBERTS
/s/ Robert Spiegel
- ----------------------------- Director
ROBERT SPIEGEL
/s/ Peter Zurkow
- ----------------------------- Director
PETER ZURKOW
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Document Page
- ----------- -------- ----
3(i)(a) Restated Certificate of Incorporation
filed with the Delaware Secretary of
State on December 29, 1994 (previously
filed as Exhibit 3(i) to the Company's
Quarterly Report on Form 10-Q for the
period ended January 29, 1995, which
exhibit is hereby incorporated by
reference).
3(i)(b) Certificate of Designations of Series A
Junior Participating Preferred Stock
filed with the Secretary of State of the
State of Delaware on April 26, 1995
(previously filed as Exhibit 3(i)(b) to
the Company's Registration Statement on
Form S-1, Registration No. 33-58999,
which exhibit is hereby incorporated by
reference).
3(ii)(a) Bylaws adopted October 12, 1988
(previously filed as Exhibit 3(ii)(a) to
the Company's Quarterly Report on Form
10-Q for the period ended January 29,
1995, which exhibit is hereby
incorporated by reference).
3(ii)(b) First Amendment to Bylaws adopted July
30, 1991 (previously filed as Exhibit
3(ii)(b) to the Company's Quarterly
Report on Form 10-Q for the period ended
January 29, 1995, which exhibit is
hereby incorporated by reference).
3(ii)(c) Second Amendment to Bylaws adopted
December 29, 1994 (previously filed as
Exhibit 3(ii)(c) to the Company's
Quarterly Report on Form 10-Q for the
period ended January 29, 1995, which
exhibit is hereby incorporated by
reference).
3(ii)(d) Third Amendment to Bylaws adopted April
13, 1995 (previously filed as Exhibit
3(ii)(d) to the Company's Quarterly
Report on Form 10-Q for the period ended
<PAGE>
April 30, 1995, which exhibit is hereby
incorporated by reference).
4 Kash n' Karry Food Stores, Inc. 1995 Key
Employee Stock Option Plan (previously
filed as Exhibit 10.16(a) to the
Company's Registration Statement on Form
S-1, Registration No. 33-58999, which
exhibit is hereby incorporated by
reference).
5 Opinion of Barnett, Bolt, Kirkwood &
Long (filed herewith).
23 (a) Consent of Coopers & Lybrand, LLP.
(filed herewith).
23 (b) Consent of KPMG Peat Marwick, L.L.P.
(filed herewith).
23 (c) Consent of Barnett, Bolt, Kirkwood &
Long (included in Exhibit 5).
24 Powers of Attorney (included on
signature page).
EXHIBIT 5
=========
March 13, 1996
Kash n' Karry Food Stores, Inc.
6422 Harney Road
Tampa, Florida 33610
Re: Registration Statement on Form S-8 of Kash n' Karry
Food Stores, Inc. (1995 Key Employee Stock Option Plan)
Ladies and Gentlemen:
We have acted as special counsel to Kash n' Karry Food
Stores, Inc., a Delaware corporation (the "Company"), in
connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement") providing for the registration on
behalf of the Company of 355,419 shares of common stock of the
Company, par value $.01 per share (the "Common Stock"), that may
be issued pursuant to an exercise of options granted under the
Company's 1995 Key Employee Stock Option Plan.
In rendering the opinion expressed below, we have examined
(i) the Restated Certificate of Incorporation and ByLaws of the
Company as currently in effect; (ii) the Registration Statement;
(iii) certain resolutions adopted by the Board of Directors of
the Company; and (iv) such other documents, records and papers as
we have deemed necessary as a basis for the opinions expressed
below. We are familiar with the corporate proceedings heretofore
taken by the Company in connection with the authorization of the
Common Stock.
As to various questions of fact material to such opinion we
have, when relevant facts were not independently established,
relied upon certifications by officers of the Company and other
appropriate persons and statements contained in the Registration
Statement.
Based on the foregoing, and having regard to legal
considerations we deem relevant, we are of the opinion that the
<PAGE>
Kash n' Karry Food Stores, Inc.
March 13, 1996
Page 2
Common Stock will, when sold, be legally issued, fully paid and
nonassessable.
The foregoing opinion is limited to matters involving the
General Corporation Law of the State of Delaware, and we do not
express any opinion as to the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement, without admitting that we
are experts, within the meaning of the Act or the rules and
regulations of the Commission issued thereunder, with respect to
any part of the Registration Statement, including this exhibit.
Very truly yours,
BARNETT, BOLT, KIRKWOOD &
LONG, P.A.
/s/ Barnett, Bolt, Kirkwood & Long
RSB/LWH
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Kash n' Karry Food Stores, Inc. on Form S-8 related
to the 1995 Key Employee Stock Option Plan, of our report dated
September 15, 1995, on our audit of the financial statements of
Kash n' Karry Food Stores, Inc. as of July 30, 1995 and for the
thirty weeks ended July 30, 1995 and the twenty-two weeks ended
January 1, 1995, which report is included in the annual report on
Form 10-K.
/s/ Coopers & Lybrand L.L.P.
- ---------------------------
Tampa, Florida
March 12, 1996
EXHIBIT 23(b)
The Board of Directors
Kash n' Karry Food Stores, Inc.:
We consent to the use of our report incorporated by reference
herein.
Our report dated September 16, 1994, except with respect to Note
1, which is as of November 9, 1994, contains an explanatory
paragraph that states that "the Company has suffered recurring
losses from operations and has a net capital deficiency. As
discussed in Note 1 to the financial statements, Kash n' Karry
Food Stores, Inc. filed a pre-packaged petition under Chapter 11
of the United States Bankruptcy Code on November 9, 1994 and
these matters raise substantial doubt about its ability to
continue as a going concern. The financial statements do not
include any adjustments that might result from the outcome of
this uncertainty."
/s/ KPMG Peat Marwick LLP
- --------------------------
Tampa, Florida
March 12, 1996
