As filed with the Securities and Exchange Commission on October 27, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
ROSE'S HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 56-2043000
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
218 South Garnett Street
Henderson, North Carolina 27536
(919) 430-2600
(Address of principal executive offices) (Zip code)
ROSE'S HOLDINGS, INC. LONG TERM
STOCK INCENTIVE PLAN
(Full title of the plan)
G. Templeton Blackburn, II Copies to:
Rose's Holdings, Inc. Henry O. Smith, III
218 South Garnett Street Proskauer Rose LLP
Henderson, North Carolina 27536 1585 Broadway
(919) 430-2600 New York, New York 10036
(Name, address, including zip code, (212) 969-3000
and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price aggregate offering registration
per share price fee
<S> <C> <C> <C> <C>
Common Stock, no
par value 500,000 shares $1.5625 (1) $781,250.00 (1) $236.75
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee pur-
suant to Rule 457(h). The maximum offering price per share is based upon
the average of the high and low sale prices of the Common Stock of the
Registrant as reported on the NASDAQ Stock Market on October 27, 1997.
PAGE
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the
"Commission") by Rose's Holdings, Inc., a Delaware corporation (the "Company" or
the "Registrant"), are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
January 25, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the Quarterly
Period ended April 26, 1997;
(3) The Company's Current Report on Form 8-K, dated July 15, 1997;
(4) The Company's Quarterly Report on Form 10-Q for the Quarterly
Period ended July 26, 1997;
(5) The Company's Current Report on Form 8-K, dated August 7, 1997;
(6) All other reports filed with the Commission pursuant to Section
13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"); and
(7) The description of the Company's Common Stock contained under the
caption "Description of Registrant's Securities to be Registered" in the
Company's Registration Statement filed on Form 8-A pursuant to Section 12(g)
of the Exchange Act.
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 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 part
hereof from the date of filing such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
<PAGE>
Item 4. Description of Securities.
The class of securities to be offered hereby is registered under Section
12(g) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware permits the Company and
its stockholders to limit directors' exposure to liability for certain breaches
of the directors' fiduciary duty, either in a suit on behalf of the Company or
in an action by stockholders of the Company.
Article TWELFTH of the Company's Certificate of Incorporation (the "Charter")
eliminates the personal liability of directors to stockholders or the Company
for monetary damages arising out of the directors' breach of their fiduciary
duties as directors of the Company. Article TENTH of the Charter authorizes the
Company to indemnify its directors, officers, employees, and agents with respect
to certain expenses (including attorney's fees), judgments, fines, and amounts
paid in settlement, actually and reasonably incurred in connection with an
action, suit, or proceeding by reason of the fact that such person was serving
as a director, officer, employee, or agent of the Company if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company. In addition, the Charter permits the Company to
provide additional indemnification rights to its officers and directors and to
indemnify them to the greatest extent possible under the Delaware General
Corporation Law.
The Company maintains a standard form of officers' and directors' liability
insurance policy which provides coverage to the officers and directors of the
Company for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 Opinion of Proskauer Rose LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
<PAGE>
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, 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;
(2) That, for the purpose of determining any liability under the Securi-
ties Act of 1933, 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 termina-
tion of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determin-
ing any liability under the Securities Act of 1933, each filing of the Regis-
trant's annual report pursuant to Section 13(a) or Section 15(d) of the Securi-
ties Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 direc-
tor, 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 Act and will be governed by the final adjudication of
such issue.
PAGE
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 author-
ized, in the City of Henderson, State of North Carolina on October 27, 1997.
ROSE'S HOLDINGS, INC.
By: /s/ R. Edward Anderson
R. Edward Anderson
President, Chairman of the Board
and Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Ms. Jeanette R. Peters and Mr. G. Templeton
Blackburn, II, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, to act, without the other, for him
and in his name, place, and stead, in any and all capacities, to sign a Regis-
tration Statement on Form S-8 of Rose's Holdings, Inc. (the "Company") and any
or all amendments (including post-effective amendments) thereto, relating to
the registration, under the Securities Act of 1933, as amended, of shares of
Common Stock of the Company to be issued pursuant to Rose's Holdings, Inc. Long
Term Stock Incentive Plan and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as full to all intents and purposes as
they might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ R. Edward Anderson President, Chairman of the Board, October 27, 1997
R. Edward Anderson and Chief Executive Officer
(principal executive officer)
/s/ Jeanette R. Peters Senior Vice President and Chief October 27, 1997
Jeanette R. Peters Financial Officer (principal financial
officer and principal accounting officer)
<PAGE>
Director
Jack Howard
/s/ Warren Lichtenstein Director October 27, 1997
Warren Lichtenstein
Director
Earle C. May
/s/ Joseph L. Mullen Director October 27, 1997
Joseph L. Mullen
Director
J. David Rosenberg
/s/ Harold Smith Director October 27, 1997
Harold Smith
/s/ N. Hunter Wyche Director October 27, 1997
N. Hunter Wyche
</TABLE>
PAGE
<PAGE>
EXHIBIT INDEX
Exhibit Description of Exhibit Page No.
5.1 Opinion of Proskauer Rose LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Proskauer Rose LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (included in
page II-6 hereof)
PAGE
<PAGE>
EXHIBIT 5.1
October 27, 1997
Rose's Holdings, Inc.
218 South Garnett Street
Henderson, North Carolina 27536
Dear Sirs:
We are acting as counsel to Rose's Holdings, Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8 with
exhibits thereto (the "Registration Statement") filed by the Company under the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
relating to the registration of 500,000 shares (the "Shares") of Common Stock,
no par value, of the Company. The Shares are to be issued by the Company upon
exercise of certain stock options ("Options") granted, or to be granted, to
employees, consultants, and non-employee directors of the Company pursuant to
the Rose's Holdings, Inc. Long Term Incentive Plan (the "Plan").
As such counsel, we have participated in the preparation of the Registration
Statement and have reviewed the corporate proceedings in connection with the
adoption of the Plan. We have also examined and relied upon originals or copies,
certified or otherwise authenticated to our satisfaction, of all such public
officials and of representatives of the Company, and have made such investiga-
tions of law, and have discussed with representatives of the Company and such
other persons such questions of fact, as we have deemed proper and necessary
as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized and, upon exercise of Options in accordance with the
terms of the Plan and the related Option agreements against payment of the exer-
cise price therefor (as applicable), and upon compliance with applicable securi-
ties laws, will be, assuming no change in the applicable law or pertinent facts,
validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Regis-
tration Statement. In giving the foregoing consent, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the Securi-
ties and Exchange Commission promulgated thereunder.
Very truly yours,
/s/Proskauer Rose LLP
Proskauer Rose LLP
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
EXHIBIT 23.1
The Board of Directors
Rose's Holdings, Inc.
We consent to incorporation by reference in this Registration Statement on Form
S-8 of Rose's Holdings, Inc. of our report dated March 19, 1997 relating to the
balance sheets of Rose's Stores, Inc. (the "Successor") as of January 25, 1997
and January 27, 1996, and the related statements of operations, stockholders'
equity and cash flows for the year ended January 25, 1997 and the thirty-nine
weeks ended January 27, 1996, and the related statements of operations, stock-
holders' equity and cash flows for the thirteen weeks ended April 29, 1995 and
the year ended January 28, 1995 of Rose's Stores, Inc. (the "Predecessor"),
which report appears in the January 25, 1997 annual report on Form 10-K of
Rose's Stores, Inc.
Our report dated March 19, 1997, contains an explanatory paragraph that states
that effective April 29, 1995, the Company was required to adopt "Fresh-Start"
reporting principles in accordance with the American Institute of Certified
Public Accountant's Statement of Position 90-7, "Financial Reporting by Entities
in Reorganization under the Bankruptcy Code." As a result, the financial infor-
mation for the period subsequent to the adoption of Fresh-Start reporting are
presented on a different cost basis than for prior periods and therefore, are
not comparable.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Raleigh, North Carolina
October 27, 1997
